
NO. 07-02-0311-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 27, 2004

______________________________


LINDA S. TEAGUE, APPELLANT

V.

INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, APPELLEE


_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 88,722-E; HONORABLE ABE LOPEZ, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.
OPINION
	Appellant Linda Teague appeals a summary judgment denying her workers'
compensation supplemental income benefits for one quarter of the year 2000.  We affirm
the trial court's judgment.

	Teague sustained an injury, compensable under the Texas Workers' Compensation
Act, (1) in June of 1994. She reached maximum medical improvement as of May 1, 1996, and
was assigned an impairment rating of eighteen percent. This entitled her to supplemental
income benefits, (2) if she qualified by meeting criteria established by the Act and regulations
of the Texas Workers' Compensation Commission (TWCC or Commission). Appellee
Insurance Company of the State of Pennsylvania is the workers' compensation insurance
carrier for Teague's employer.  
	Supplemental income benefits under the Act are calculated quarterly. (3) An injured
worker's eligibility for supplemental income benefits during a quarter is determined in part
by events during a preceding 13-week "qualifying period." (4) 
	Following a contested case hearing, the TWCC benefit hearing officer concluded
that Teague was not entitled to supplemental income benefits for the quarter in question
because she did not comply with Section 130.102(e) (5) of the TWCC regulations by looking
for employment every week of the qualifying period.  A TWCC appeals panel affirmed the
decision.  Teague then sought judicial review by the district court of the appeals panel's
determination. Appellee filed a motion for summary judgment, which the trial court granted. 
This appeal followed.
	The facts are not in dispute. The parties agree Teague did not look for work during
two weeks of the qualifying period because she was in Idaho attending her daughter during
illness. The parties disagree only on the issue of whether that failure to seek employment
for two weeks during the qualifying period disqualified her for benefits for the subsequent
quarter.  As movant for summary judgment, appellee has the burden of showing that it is
entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., 690
S.W.2d 546, 548 (Tex. 1985).	
	As applicable to Teague, among other conditions, the Act requires a claimant for
supplemental income benefits to attempt in good faith to obtain employment commensurate
with the claimant's ability.  Tex. Lab. Code Ann. § 408.142(a)(4).  Section 130.102 of the
Commission's regulations implements that requirement. (6)  Sections 130.102(d) and (e) deal
directly with what is there referred to as the "good faith effort" to obtain employment. (7) 

	The gist of Teague's argument is that Section 130.102, properly read, does not
disqualify her for supplemental income benefits merely because of her failure to seek
employment every week of the qualifying period.  She argues Section 130.102 anticipates
that circumstances may well prevent an injured employee from seeking work every week,
pointing to Section 130.102(e)(11), by which the reviewing authority is to consider "any
other relevant factor" when making the determination whether the claimant has made the
requisite good faith effort.  Teague argues the requirement that a claimant look for
employment every week of the qualifying period should not be read as absolute but should
be read in the context of the entirety of Section 130.102(e).  Teague emphasizes that her
effort to seek work during the qualifying period otherwise would be considered adequate
to maintain her qualification for supplemental income benefits, (8) and contends her reason
for not seeking work during the two weeks she was out of state helping her ill child should
be considered as a relevant factor in determining whether she put forth a good faith effort
to find employment during the qualifying period.
	Teague quotes a dissenting TWCC appeals panel opinion which argues that the
provision was not intended to disqualify a worker who makes a good faith search but
misses a week or two. Appeals Panel No. 000914, 2000 TX Wrk. Comp. LEXIS 2207. 
Teague provides no other authority for an exception to the "every week" requirement in
Section 130.102(e).
	Appellee contends the clear mandate of Section 130.102(e) that a claimant seek
employment every week of the qualifying period is separate and distinct from the provisions
implementing the good faith effort requirement.  Appellee reads the eleven factors listed
in the latter part of 130.102(e) as dealing with the quality of a claimant's effort, and not as
modifying the requirement that the effort take place every week.  Appellee thus argues the
TWCC hearing officer and appeals panel were correct in finding that Section 103.102 does
not permit an exception to the requirement that the claimant seek work each week.
	We construe the TWCC's administrative rules in the same manner as statutes,
having as our primary objective to give effect to the intent of the TWCC. See Rodriguez v.
Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999); see Lewis v. Jacksonville Bldg.
& Loan Ass'n, 540 S.W.2d 307, 310 (Tex. 1976).  Unless the rule is ambiguous, we follow
the rule's clear language. Rodriquez, 997 S.W.2d at 254; see Republicbank Dallas, N.A.
v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985).
	We do not find support for Teague's contention in the language of the rule. Section
130.102(e) plainly states the requirement that a claimant's good faith effort must involve
a search for employment every week of the qualifying period, and nothing in the wording
of 130.102(e) or elsewhere in Section 130.102 suggests that requirement may be excused
or overridden by other factors.  Teague's reading of Section 130.102(e) would effectively
reduce the "every week" requirement merely to one of the factors to be considered in the
determination whether the claimant has engaged in a good faith effort to seek employment. 
The language of the rule does not permit such a reading.  
	Further, the Commission's explanation of Section 130.102, given when the rule was
published in the Texas Register, and the Commission's responses to public comment it
received about the rule, speak directly to the Commission's intent concerning the "every
week" requirement. Tex. Gov't Code Ann. §§ 2001.023-.030 (Vernon 2000); see Rodriguez,
 997 S.W.2d at 254 (referring to the information published in the Texas Register as the
"best source" concerning the agency's rulemaking intent). The Commission provided this
explanation of Section 130.102(e) when it was adopted:  
	"New § 130.102(e) provides guidance to reviewing authorities by listing facts
which shall be considered when presented in reviewing job search efforts.
Further, this subsection places an affirmative responsibility on the injured
employee to look for work every week of a qualifying period during which the
employee is able to perform any type of work." 

24 Tex. Reg. 399 (1999).  In its summary of public comments received on the proposed
rules, the Commission referred to a comment suggesting Section 130.102(e) could lead to
unnecessarily harsh results. The comment gave as an example an injured employee who
did not look for work because of the death of a family member. It was suggested the rule
be revised to prorate the benefits based on the number of weeks in the qualifying period
the claimant sought employment.  The Commission disagreed, stating the statute did not
provide for prorated benefits, and further stating that "an injured employee is either entitled
or not entitled to benefits for the particular quarter, based on whether or not the injured
employee met the entitlement criteria during the qualifying period." 24 Tex. Reg. 399.
	The requirement that a claimant for supplemental income benefits seek employment
every week of the qualifying period is one of those criteria.  Teague, in order to satisfy the
good faith effort criterion necessary to maintain her qualification for supplemental income
benefits, was obligated to search every week for work commensurate with her ability to
work. That she did not do so disqualified her as a matter of law for such benefits for the
affected quarter. Tex. Lab. Code Ann. § 130.102(e).
	Teague's sole issue is overruled. The judgment of the trial court is affirmed.

							James T. Campbell
						 		Justice		

1. Tex. Lab. Code Ann. §§ 401.001-.024 (Vernon 1996 & Supp. 2004).
2. Tex. Lab. Code Ann. §§ 408.141-.151 (Vernon 1996 & Supp. 2004) and TWCC
regulations found at 28 Tex. Admin. Code §§ 130.100-.110, govern awards of supplemental
income benefits. Section 130.102 of the TWCC regulations is entitled Eligibility for
Supplemental Income Benefits; Amount. 28 Tex. Admin. Code § 130.102 (2003).
3. Tex. Lab. Code Ann. § 408.144; 28 Tex. Admin. Code §§ 130.103-.104.
4. 28 Tex. Admin. Code § 130.101(4) (defining "qualifying period").
5. 28 Tex. Admin. Code § 130.102(e).
6. The Legislature has directed the TWCC to adopt rules as necessary for the
implementation and enforcement of the Workers' Compensation Act.  Tex. Lab. Code Ann.
§ 402.061 (Vernon 1996).
7. (d) Good Faith Effort. An injured employee has made a good faith effort to obtain
employment commensurate with the employee's ability to work if the employee: 
 
		(1) has returned to work in a position which is relatively equal
to the injured employee's ability to work;
 
 (2) has been enrolled in, and satisfactorily participated in, a full
time vocational rehabilitation program sponsored by the Texas
Rehabilitation Commission during the qualifying period;

		(3) has during the qualifying period been enrolled in, and
satisfactorily participated in, a full time vocational rehabilitation
program provided by a private provider that is included in the
Registry of Private Providers of Vocational Rehabilitation
Services;

		(4) has been unable to perform any type of work in any
capacity, has provided a narrative report from a doctor which
specifically explains how the injury causes a total inability to
work, and no other records show that the injured employee is
able to return to work; or

		(5) 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.

	(e) Job Search Efforts and Evaluation of Good Faith Effort. Except as provided in
subsection (d)(1), (2), (3), and (4) of this section, an injured employee who has not returned
to work and is able to return to work in any capacity shall look for employment
commensurate with his or her ability to work every week of the qualifying period and
document his or her job search efforts. In determining whether or not the injured employee
has made a good faith effort to obtain employment under subsection (d)(5) of this section
[Section 130.102] the reviewing authority shall consider the information from the injured
employee, which may include, but is not limited to information regarding:

		(1) number of jobs applied for throughout the qualifying period;
		(2) type of jobs sought by the injured employee;
		(3) applications or resumes which document the job search
efforts;
		(4) cooperation with the Texas Rehabilitation Commission;
		(5) cooperation with a vocational rehabilitation program
provided by a private provider that is included with the Registry
of Private Providers of Vocational Rehabilitation Services;
		(6) education and work experience of the injured employee;
		(7) amount of time spent in attempting to find employment;
		(8) any job search plan by the injured employee;
		(9) potential barriers to successful employment searches;


		(10) registration with the Texas Workforce Commission; or
		(11) any other relevant factor.

28 Tex. Admin. Code § 130.102(d),(e).
8. Teague notes, for instance, the finding by the TWCC hearing officer that she
documented 53 "job contacts"during the qualifying period, and completed an employment
application or left a resume at each contact.  

