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 12, 1995, in ______, Texas, with ________ presiding as hearing officer. He determined that the appellant (claimant) sustained disability from July 24, 1995, to August 16, 1995, as a result of a _________, injury on the job. He also determined that the employer did not tender a bona fide offer of light-duty employment. The claimant’s appeal centers around the finding of fact that his disability only extended to August 17, 1995, and urges that he still has disability (we only consider the matter of disability up to the date of the hearing). The respondent (carrier) urges that the evidence supports the determinations of the hearing officer and asks that the decision be affirmed.
DECISION
Reversed and a new decision rendered.
The claimant, a painter, testified that on ______________, as he was using a different type of paint, he experienced swelling of his eyes and face and he had trouble breathing. He was hospitalized for several days and was treated by Dr. M (Dr. M), who, in a note dated August 8, 1995, stated:
[Claimant] was seen in my office for post hospital check on August 1. He was released for light duty at that time. Light duty being defined as no physical exerting labor. He may require air conditioned environment as well.
The claimant was referred to a pulmonary specialist, Dr. P (Dr. P), who, in a letter dated August 17, 1995, and a note dated “12/12/95,” indicates that the claimant may work light duty such as desk work, paper work, and answering phones but that he may not be around any paint fumes or do manual labor until further notice.
Although the employer made an offer of light duty in mid-August, it was established that the work site was in the process of being closed down within a couple of weeks. In any event, the hearing officer did not find that a bona fide offer of employment had been tendered to the claimant. Claimant testified that there was some indication, or that he understood, that the employer might be starting up another operation in the near future, that he, the claimant, thought he was still an employee, and that he wanted to work if they had a light-duty position. Claimant also testified that he sought two different light-duty positions with other employers but that one had no positions available and the other indicated he was too inexperienced.
The claimant looked for work in the vicinity where he lives, and in response to a question as to whether he was willing to relocate to get work, he responded that “I got a home in [home town], I own a house.” In evidence was a letter dated August 23, 1995, to the claimant at his home address from a claims representative who indicated that she had been trying to contact the claimant about his injury claim and dates of disability and asked to be provided with a phone number. No other evidence appears on this particular matter.
The key finding that causes our reversal and rendition of a new decision is Finding of Fact No. 6 which states:
Claimant’s inability to obtain and retain employment on and after August 17, 1995, is due to his failure to provide a telephone number at which he could be reached and his desire to reside indefinitely in a location with limited employment opportunities and is not because of the ____________, injury.
Not only does our review of the record lead us to conclude that this determination is so against the great weight and preponderance of the evidence as to be clearly wrong and injust, we find an incorrect standard has been applied to assess whether the claimant had disability after August 17, 1995. It is uncontroverted that the claimant remained on a limited-duty status up to the date of the hearing. And, we reject the carrier’s argument at the hearing that the claimant “is under the obligation to make a good faith effort to find employment during the period of time that he’s claiming he’s disabled.” While a “good faith” job search is a requirement for supplemental income benefits (SIBS) as provided in Section 408.142(a)(4) and as stated in Texas Workers’ Compensation Commission Appeal No. 951992, decided January 9, 1996, there is a different standard for establishing disability. Texas Workers’ Compensation Commission Appeal No. 951278, decided September 13, 1995. We have held that when a conditional medical release is in effect, the claimant has no affirmative duty to search for employment. Texas Workers’ Compensation Commission Appeal No. 941092, decided September 28, 1994; Texas Workers’ Compensation Commission Appeal No. 941261, decided November 2, 1994. A restricted release to work, as opposed to an unrestricted release, is evidence that the effects of the injury remain and disability continues. Texas Workers’ Compensation Commission Appeal No. 950246, decided March 31, 1995. See also Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991. And, an employee under a conditional release does not have the burden of proving an inability to work. Appeal No. 950246, supra. There was no dispute on whether the claimant sustained a compensable injury, and the uncontroverted evidence established that the claimant remained under a limited, restricted return to work. He further provided evidence that he was willing to go work in a light-duty capacity for the employer and that he did seek two other employment positions within those limits during the time frame in issue. Not appealed is the fact that the employer did not tender a bona fide offer of employment.
We do not find any authority, and further do not believe it appropriate, to impose a standard that one must have a telephone and provide the number to a claims representative (if that is the case) or risk having an adverse disability determination any more that we agree with the idea that an injured worker must be willing to relocate from where he and his family have or own their home (and the location where the injury occurred) or face an adverse finding of disability. This is apparently the situation in this case given Finding of Fact No. 6. Not only do we believe the finding is not supported by the evidence, we hold that it imposes a standard not required under the law and one that is not appropriate.
The decision and order of the hearing officer are reversed and a new decision and order are rendered on the disability issue that the claimant sustained disability from ________, to the date of the contested case hearing, December 12, 1995, and that the carrier is liable for medical and income benefits in accordance with this decision.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
Judy L. Stephens – Appeals Judge