This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held in _____, Texas, on December 12, 1995, with ___________ presiding as hearing officer. The two issues were whether the respondent (claimant) is entitled to supplemental income benefits (SIBS) for the seventh compensable quarter and what are the claimant’s weekly earnings during the qualifying period to be used to determine the claimant’s SIBS for the seventh quarter. The hearing officer determined that the claimant is entitled to SIBS for the seventh compensable quarter, that the claimant earned $2,627.14 during the qualifying period for the seventh quarter of SIBS, and that that appellant (carrier) is entitled to reduce the claimant’s SIBS for the seventh quarter based on the earnings of the claimant during the qualifying period. The carrier appealed urging that the determination that the claimant is entitled to SIBS for the seven the compensable quarter is not supported by sufficient evidence and requesting that the Appeals Panel reverse the decision of the hearing officer and render a decision that the claimant is not entitled to SIBS for the seventh quarter. A response from the claimant has not been received.
DECISION
We affirm.
The claimant and the carrier stipulated that the filing period for the seventh compensable quarter is June 5, 1995, through September 13, 1995, and that the seventh compensable quarter is from September 4, 1995, through December 3, 1995. The claimant worked for Capital Wire and Cable Division (Employer 1) when he was injured. A translator was used. The claimant testified that he has no education in English, that he went through sixth grade in Spanish, and that he cannot read English. He stated that he injured his low back on _______; that he had surgery on his low back; that he has back pain and problems with his nerves; that his back will not allow him to do the things he could do before the injury; and that he can stoop and bend very slowly. The claimant said that he worked for Telecom of Texas, Inc. (Employer 2) for around three months or a little bit longer; that he drove a dump truck for Employer 2; that his back bothered him but that he continued to work because he needed to work; that he was laid off at the end of July or the first of August 1995; that he thinks he was laid off because he was not agile enough, he drove the truck too slow because of the bumps, his work was too slow, and he could not do everything all of other workers did; and that he was told that they would call him if he was needed. He testified that after he was laid off he registered with the Texas Employment Commission (TEC); that he applied for jobs with Albertsons, Clayton Homes, General Cable Company, Target, and some other places that he does not remember; that he applied for any job that was available; that he was not hired; and that he does not know why he was not hired only that he was told that he would be called and that he was not called.
The claimant introduced a Statement of Employment Status (TWCC-52) dated September 7, 1995, in which the claimant reported that during the filing period he worked for Employer 2 earning $2,059.19 and that he applied for employment with Clayton Homes, General Cable Company, and the TEC. The claimant attached to the TWCC-52 current earnings reports from Employer 2 indicating his weekly wages from May 4, 1995, through August 3, 1995, and documents to show that he had applied for work with Albertsons, Clayton Homes, General Cable Company, and Target and that he had registered with the TEC. The claimant also introduced a letter from Dr. C (Dr. C) stating that the claimant had back surgery three to four years ago and that the claimant “should avoid heavy to very heavy lifting, frequent stooping, twisting, and prolonged walking and sitting.”
To be entitled to SIBS for the seventh compensable quarter the claimant must prove by a preponderance of the evidence that during the filing period for that quarter he earned less than 80% of his preinjury average weekly wage as a direct result of his impairment and that he in good faith sought employment commensurate with his ability to work. The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The hearing officer may believe all, part, or none of any witness’s testimony because the finder of fact determines the credibility of each and every witness, the weight to assign to each witness’s testimony, and resolves conflicts and inconsistencies in the testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). The hearing officer made determinations that the claimant met the two requirements for SIBS set forth above for the seventh quarter. Only were we to conclude, which we do not in this case, that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust, would there be a sound basis to disturb those determinations. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Since we find the evidence sufficient to support the determinations of the hearing officer, we will not substitute our judgment for his. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
We affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Judy L. Stephens – Appeals Judge