By Stuart D. Colburn, Shareholder, Downs Stanford
On November 15, 2010, the Appeals Panel issued Appeals Panel Decision No. 101430 [2010 TX Wrk. Comp. LEXIS 113] that addresses some of the specifics with regard to the validity of a Claimant’s job search. This decision appears to loosen up the rules and requirements for a Claimant in the context of job search requirements.
In this particular case, the Claimant claimed that he made active work search efforts every week of the qualifying period in dispute. It was undisputed that the Claimant documented the minimum of three work searches during each week of the qualifying period for a total of 41 work searches for the qualifying period in dispute. He stated that his work search efforts included cold calls, word of mouth, in person business to business and newspaper searches. He did not work with DARS during the qualifying period nor did he register with the Texas Workforce Commission. Of the 41 work searches he documented, only two of them were supported by job applications. The Hearing Officer determined that Claimant did not demonstrate an active effort to obtain employment each week during the entire qualifying period by performing more active work search efforts documented by job applications.
The Appeals Panel reversed and rendered a decision that the Claimant was entitled to SIBs for the quarter in dispute. The Panel noted that although Rule 130.102(d)(1)(D) requires that the injured employee for each week during the entire qualifying period perform active work search efforts documented by job applications, the preamble to Rule 130.102(d)(1)(D) clarifies that work search efforts encompasses both job applications and work search contacts as described by TWC rules. In this particular case, the DWC-52 for the 4th quarter of SIBs along with the Claimant’s testimony reflected that the Claimant met the work search efforts requirement by making job applications and work search contacts per each week during the entire qualifying period in dispute. As a result, they reversed and rendered a decision that he qualified for SIBs.
From a practical perspective, the Appeals Panel has made it easier for a Claimant to show that he or she is entitled to SIBs. The Appeals Panel is also taking into account the preamble to rules as opposed to the clear wording of the rules by addressing this issue. Based upon this decision, a Claimant is not required to have job applications to show that he was making active work search efforts anymore. He simply has to list job contacts that may or may not include actual applications.