This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on December 6, 1995, in ______, Texas, with ________ presiding as hearing officer. The issues at the CCH were: 1. whether the appellant’s (claimant herein) right arm and hand condition resulted from the compensable injury of _________; 2. whether the respondent (carrier herein) waived its right to contest the compensability of the claimant’s right arm and hand condition; and 3. whether the claimant is entitled to receive supplement income benefits (SIBS) for the third compensable quarter. The hearing officer found that the claimant’s compensable injury did include his right arm and hand, that the carrier failed to timely dispute the injury to claimant’s right arm and hand and that the claimant was not entitled to SIBS because he failed to make a good faith job search during the qualifying period. The claimant filed a request for review disputing the hearing officer’s finding that he was not entitled to SIBS. The claimant also disputes the hearing officer’s finding that he lived within 75 miles of the Texas Workers’ Compensation Commission’s (Commission) ______ field office at the time of his injury. The carrier in its response to the claimant’s request for review contended that the hearing officer erred in finding that the claimant’s injury included his right hand and arm and that the carrier did not timely dispute this. The carrier also argues that the hearing officer’s decision regarding SIBS should be affirmed.
DECISION
Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.
First, we must determine the issues that are before us on appeal. The carrier in its response to the claimant’s request for review contends the hearing officer erred in her determination of the issues of extent of injury and whether the carrier timely disputed that the claimant’s injury included his right arm and hand. We have held that a response may act as an appeal only if it is filed within the time allowed for filing a request for review. Texas Workers’ Compensation Commission Appeal No. 92193, decided July 2, 1992.
Records of the Commission show that the decision of the hearing officer was received by the carrier on December 19, 1995. The carrier sent its response to the Commission by facsimile transmission on January 10, 1995. Thus, since the carrier did not send its response to the Commission within 15 days of receiving the decision of the hearing officer, the carrier’s response is untimely to be an appeal. See Section 410.202(a); Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(c) (Rule 143.3(c)). Thus we will not consider or address the issues of extent of injury and timely dispute of injury the carrier attempts to raise in its response. The hearing officer’s determination of these issues has become final under Section 410.169. We can and will consider the carrier’s response to the degree it responds to the issues appealed by the claimant’s request for review.
The claimant appears to raise two issues regarding the hearing officer’s decision. First, he disputes her finding of fact that he lived with 75 miles of the Commission’s ______ field office at the time of his injury, stating that he did live in _______ and has now moved to ______. There is no stipulation concerning venue in the record. There is in fact no discussion of venue whatsoever in the record. There is also no testimony concerning the location of the accident, although the Benefit Review Conference (BRC) Report does indicate the employer has a _______ address, which may give some indication that the accident may have taken place in ______. However, the claimant does state as follows in regard to the hearing officer’s conclusion of law that venue is proper in the ______ field office, “I agree–I live in _______.”
Texas Workers’ Compensation Commission Appeal No. 93900, decided November 18, 1993, contains the following discussion regarding venue:
Venue in Texas is prescribed by statute. See 72 TEX. JUR. 3d, Venue § 4. The power to change venue is statutory. See [72] TEX. JUR. 3d Venue § 120. Generally, venue may be changed when the parties consent. See [72] TEX. JUR. 3d, Venue § 122. A right to venue may be waived. See [72] TEX. JUR. 3d, Venue § 114. Failure to comply with venue requirements was said to constitute reversible error. See [72] TEX. JUR. 3d, Venue § 178.
Section 410.005(a) provides, “Unless the Commission determines good cause exists for the selection of a different location, a benefit review conference or a contested case hearing may not be conducted at a site more than 75 miles for the claimant’s residence at the time of the injury.”
In Appeal No. 93900 we reversed the decision and order of the hearing officer to develop the evidence concerning venue and to make findings regarding good cause. Appeal No. 93900 differs from the present case in a couple of respects. For one thing, in Appeal No. 93900, prior to the original CCH at which the claimant did not appear, he wrote a letter to the Commission objecting to venue. Secondly, in that case it was clear the claimant was challenging the decision of the hearing officer based upon improper venue. In the present case the claimant points to the fact that the hearing officer’s finding of fact that he lived within 75 miles of the _________ field office at the time of his injury is incorrect. He then goes on to state that he does not disagree with her finding as a matter of law that venue is proper in _________ because he now lives in _________. We construe the claimant’s latter statement, under the particular facts of this case, as waiving any objection to venue.
We are troubled by the hearing officer’s failure to seek a stipulation concerning venue. To avoid any confusion on the subject this should be done at every hearing. It is particularly crucial that it be done in a case, as the present one, where the claimant has moved since being injured and may live closer to a different Commission field office than the one closest to his residence at the time of injury. Nor is it advisable for the hearing officer to make findings of fact that are not supported by any evidence in the record. We appreciate the time constraints under which the hearing officers work. However, we might point out that, had the claimant filed an appeal merely based upon the sufficiency of the evidence alone, as is the case in many appeals we review, we would not be able to find sufficient evidence to support the hearing officer’s finding of fact or the legal conclusion which is based on it. Here, while we cannot find evidence to support the hearing officer’s factual finding regarding venue, we are not required to reverse due to improper venue based upon the claimant’s agreement to her legal conclusion that venue is proper in _________.
The second issue the claimant raises in his appeal concerns his eligibility for SIBS for the third compensable quarter. The claimant testified that he was injured on _________, when he fell off a ladder. The claimant testified that he did not look for work during the qualifying period for the third compensable quarter because he was unable to work at all. Claimant testified that his treating doctor advised him not to return to work until he underwent surgery. The claimant testified surgery had been delayed by the controversy over the claimant’s extent of injury previously discussed supra. The carrier pointed to medical evidence from its medical examination order (MEO) doctor stating that the claimant was able to return to work on a limited basis. The hearing officer noted that it was undisputed that the claimant met all the requirements for eligibility to SIBS for the third compensable quarter other than making a good faith effort job search during the qualifying period.[1] The hearing officer limited her inquiry regarding SIBS eligibility to this issue and found that the claimant had not made a good faith to search for a job commensurate with his ability.
We have held that the question of whether a claimant made a good faith job search is one of fact. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994; Texas Workers’ Compensation Commission Appeal No. 94533, decided June 14, 1994. We have also said that if a claimant is unable to work no job search at all can be a good faith job search. Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994. Whether or not a claimant is unable to work at all is a question of fact. Texas Workers’ Compensation Commission Appeal No. 950023, decided February 16, 1995; Texas Workers’ Compensation Commission Appeal No. 941275, decided November 3, 1994.
Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals level body is not a fact finder, and 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). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). This is so even though, were we fact finders, we might have drawn other inferences and reached other conclusions. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.).
In this case the decision of the hearing officer that the claimant had some ability to work during the qualifying period is supported by the evidence from the carrier’s MEO doctor. We cannot say that the hearing officer erred as matter of law in finding that the claimant failed to make a good faith job search.
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Elaine M. Chaney – Appeals Judge
- See Section 408.142(a) which outlines the requirements for SIBS eligibility. ↑