AFFIRM; Opinion issued November 7, 2012




                                               In The
                                  QIuitrt nf pi.nat
                         .FiftI! Dhtrirt uf ixai at t1a11a
                                       No. 05-1 1-00968-CV


       INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, Appellant

                                                 V.

                                  MARILYN GREEN, Appellee


                        On Appeal from the 95th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-10-07570-D


                              MEMORANDUM OPINION
                           Before Justices Morris, Francis, and Murphy
                                   Opinion By Justice Francis

       In this workers’ compensation case, we must decide whether the trial court erred by

concluding Marilyn Green was entitled to sixth quarter supplemental income benefits (SIBs). In four

issues, Indemnity Insurance Company ofNorth America contends the trial court erred because Green

did not comply with the terms of her vocation rehabilitation program or seek employment ever

week of her qualifying period, Green’s failure to qualify in the sixth quarter resulted in a permanent

loss of entitlement, and Green was not entitled to attorney’s fees because she was not the prevailing

party. Because we conclude Green did comply with the terms of her program, the trial court did not

err. We affirm the trial court’s summary judgment in favor of Green and overrule Indemnity

Insurance Company of North America’s four issues.
       The Facts of this case are not disputed. Green sustained a compensable injury on rvlav 30.

2005. After she was assigned a 1 5% impairment rating ibr her injury. Green applied for S113s.

Under the law in effect at the time. Green was entitled to receive SIRs if. among other things not

relevant to this appeal, she made a good faith effort to obtain employment during each qualifying

period. The Division of Workers’ Compensation found Green was not entitled to SIBs for the third,

fourth. or fifth quarters but was entitled to second quarter benefits. When Green qualified for sixth

and seventh quarter benefits. lIC contested her entitlement to those quarters on the grounds Green

did not seek employment every week of the qualifying periods and did not maintain a full time

academic schedule in the summer along with maintaining a 2.0 GPA. The DWC found Green was

entitled to both the sixth and seventh quarter SIBs, and TIC appealed.

       After the appeals panel affirmed the DWC’s decision, TIC filed its original petition in district

court challenging Green’s entitlement to the sixth and seventh quarter SIBs. The parties filed a

stipulation of facts. TIC moved for summar judgment on the ground Green was not entitled as a

matter of law to SIBs during the sixth quarter and, as a result, lost permanent entitlement to SIBs.

Green, in turn, filed a motion for partial summary judgment, asserting IIC failed to show as a matter

of law she was not entitled to sixth quarter SIBs. The trial court granted Green’s motion for partial

summary judgment. ordered she was entitled to sixth quarter SIBs, and denied TIC’s motion. IIC

then nonsuited its complaint regarding the seventh quarter SIBs. This appeal followed.

       In its first issue. IIC contends the trial court erred in granting summary judgment in favor of

Green because the evidence showed as a matter of law Green did not make a good faith effort to

obtain employment during the sixth quarter qualifying period. Specifically, IIC claims Green did

not comply with the terms of her vocational rehabilitation program because she did not maintain a

full time academic schedule and a 2.0 GPA in the summer.
            We review the trial courts decision to grant summary judgment de novo. ix. Mon. Power

1genLy v. Pith. Ut/I. Connn’n of Tex,, 253 S.W3d 184. 192 (Tex. 2007). When, as here, both parties

move for summary judgment on the same issue and the trial court grants one motion and denies the

other, we consider the summary judgment evidence presented by both sides and determine all

questions presented. Valence Operating Co. v. Dorset!. 164 S.W.3d 656. 661 (Tex. 2005). If we

determine the trial court erred. we must render the judgment the trial court should have rendered.

Id.

           The sixth quarter qualifying period began April 13, 2009 and ended July 12, 2009. Under

the law in effect at that time. Green was eligible to receive SIBs if she inade a good faith effort to

obtain employment commensurate with [her] ability to work.”                                                 28 TEX. ADMIN. CODE                      §
130.102(b)(2).t Under this section, an employee has made a good faith effort if she “has been

enrolled in, and satisfactorily participated in, a full time vocational rehabilitation program sponsored

by the Texas Rehabilitation Commission during the qualifying period,” or “has provided sufficient

documentation as described in subsection (e) of this section to show that he or she has made a good

faith effort to obtain employment.” Id.                      § 130.102(d)(2). (5). Subsection (e) requires an injured
employee who has not returned to work and is able to return to work in any capacity [to] look for

employment commensurate with his or her ability to work every week of the qualifying period and

document his orherjob search efforts.” Id.                         § 130.102(e). The stipulation of facts states Green did
not document a job search contact during three weeks of the sixth quarter qualifying period.

However, under the law applicable at the time, Green could qualify as making a good faith effort if




      )Eligibilit Ibr Supplemental Income Rene1its Amounts). amended hi 34 fex Reg. 2138 elYectiveiulv 1.2009) (current version at 28 TEX,
Ao\Il\. CODE   § 130 102) All citations are to the previous version because it applies to the question of(ireens eligibility tbr the sixth quarter See
28 Ttx. AD\tl\. CODE 130.101 (qualiftdng period that begins prior to July 1 2009 remains subject to rules in elYeet on date qualifying period
begins. qualifying period that begins on or after July 1 2009 is subject to the amended version).
the record shows she was enrolled in. and satisfactorily       participated   in, a full time vocational

rehabilitation program sponsored by the i’exas Rehabilitation Commission during this time.

        The summary judgment record shows the Department of Assistive and Rehabilitative

Services and Green developed and entered into a vocational rehabilitation program referred to as an

independent plan for employment (IPE) dated May 4, 2009, three weeks into the sixth quarter.

Under the terms of the WE. Green would receive counseling and guidance from the Division of

Rehabilitation Services as well as assistance with tuition, books, and supplies. In exchange. she

would be “required to maintain a full time schedule in Fall/Spring and maintain a 2.0 GPA.” The

IPE makes no mention of summer courses or schedules. The record also contains the decision and

order from the Texas Department of Insurance Division of Workers Compensation. The decision

and order notes Green’s DARS counselor, Richard Jenke, submitted a letter stating Green was

“actively participating” in the vocational rehabilitation program from December 23, 2008 through

the date of the letter, September 1, 2009. The decision and order also states Green testified DARS

was satisfied with her progress and nothing in the DARS record shows otherwise. Although IIC

argues the IPE required Green to maintain at least a 2.0 GPA and 12 credit hours each semester and

she failed to do so during the summer of 2009, IIC ignores the plain language of the 1PE which states

Green was “required to maintain a full time schedule in Fall/Spring and maintain a 2.0 GPA.”

(Emphasis added.) We conclude the evidence established as a matter of law Green was not required

to attend classes during the summer and was actively’ and satisfactorily participating in the IPE.

Therefore, the trial court did not err in concluding Green was entitled to SIBs during the sixth quarter

qualifying period. We overrule 1IC’s first issue. In light of our conclusion with respect to TIC’s first

issue, we   need not address I1C’s second. third, or fourth issues. TEX. R. App. P.47.1.
      We alirm the trial court’s judgment.




                                             MOLLY F’
                                             JUSTICE

I 10968F.P05
                               (ftutrt uf ;i.ira{i
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                                      JUDGMENT
INDEMNITY INSURANCE COMPANY                       Appeal from the 95th Judicial District Court
OF NORTH AMERICA, Appellant                       of Dallas County. Texas. (Tr.Ct.No. DC-b
                                                  07570-D).
No. 05-1 1-00968-CV          V.                   Opinion delivered by Justice Francis.
                                                  Justices Morris and Murphy participating.
MARILYN GREEN. Appellee

       In accordance with this Courts opinion of this date. we AFFIRM the trial court’s
judgment. We ORDER that appellee Marilyn Green recover her costs of this appeal from
appellant Indemnity Insurance Company of North America.


Judgment entered November 7, 2012.

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                                                  IOLLY FRANCIS
                                                  JUSTICE
