This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On December 13, 1995, a contested case hearing (CCH) was held in __________, Texas, with ________ presiding as hearing officer. The issue involved the eligibility of the respondent, _____________, for the sixth compensable quarter of supplemental income benefits (SIBS). The sixth quarter ran from October 2, 1995, through December 21, 1995, and the filing period was the preceding calendar quarter.
The hearing officer determined that the claimant was eligible for SIBS and that she made a good faith search for employment. The hearing officer further determined that her unemployment was a direct result of her impairment.
The carrier has appealed, arguing that claimant is capable of doing a range of activities and is not making a good faith search for employment she could do. The carrier points out evidence it feels is against the finding of good faith. The carrier also argues that since claimant can do a great range of jobs, her unemployment is not a direct result of her impairment. It argues that placing three applications during a 90-day period should not, as a matter of law, be considered a good faith search. No response was filed.
DECISION
Affirmed.
The claimant had been employed for nearly eighteen years in assembly line work at the time of her injury, the date of which was ________. Claimant had surgery on her right shoulder and hand; her injury was carpal tunnel syndrome (CTS). At the time of this CCH, claimant indicated that further surgery on both extremities was pending, contingent on clearing up of congestion in her lungs. Claimant, who was 48 years old at the time of the CCH, is a high school graduate with a few years of college credit. Claimant testified that reentering the job market, given her past experience as an assembly line worker, and her inability to do that job, was in effect “starting from Square One.”
Claimant had received a 24% impairment rating (IR). Her physician, Dr. C (Dr. C), stated that she could not perform repetitive work. As of February 1, 1995, however, Dr. C stated that claimant could probably do sedentary activities such as reception, with a restriction of no lifting in excess of five pounds. He stated that she could lift a pen but could not use it effectively. This was consistent with claimant’s testimony that she could not write legibly and relied on other relatives to fill out necessary applications for her.
Concerning her search for employment for the filing period, claimant referred back to an earlier application she placed with the Texas Employment Commission (TEC) in March, before the filing period. She stated that she looked for jobs on the TEC computer on a weekly basis, but her testimony indicated that some of this was done through her sister, who was also looking for employment and had to search the computer. The purported search yielded no reception or light filing jobs that claimant thought she was capable of doing. However, claimant also asserted several times in her testimony her belief that TEC was “searching” for a job for her. Claimant also contended that she applied at Olsten Temporary Services (temporary agency), at a time earlier than the filing period, and that she had verbally renewed this application on a monthly basis by calling to ask if there were jobs available which would not involve typing or repetitive work. She stated she was told that there were few such jobs available but that her application was on file. She sharply disputed, therefore, an affidavit produced by the carrier from the temporary agency stating that they could not find that claimant had ever placed an application. The day after the CCH, the hearing officer received and put into the record a facsimile transmission from the temporary agency that claimant’s application had been misfiled and was located, but that its clientele did not offer the types of jobs she could do. The application indicated a preference for reception work and sets out restrictions of no repetitive work and no lifting over six pounds.
Claimant also testified that she filed three applications with Methodist Hospital but that jobs within her restrictions were not available. Two applications are in the record, dated in March and September 1995. She stated that she frequently telephoned other hospital job lines, but did not fill out applications because there was nothing within her restrictions being offered. Claimant further stated that she called frequently in response to want ads in the newspaper, but asserted that most of the clerical jobs offered turned out to be ones that required typing and knowledge of “Windows” which she did not have. Claimant said that she did not have an automobile and was dependent upon rides from others or the city bus line. She stated that when she did complete applications, she would indicate that the reason for leaving her last job was a work-related injury. During the hearing, claimant gave narrative testimony concerning her subjective desire to get back into employment, pointing out that she had continuously worked for nearly 18 years, and voicing frustration about few jobs being available within her present ability to work.
Claimant was examined by a doctor for the carrier in an independent medical examination (IME). The examination by Dr. B (Dr. B) took place on June 12, 1995, shortly before the filing period. Dr. B stated that claimant’s efforts to undergo range of motion and strength testing were submaximal. He found no right-sided atrophy, which he stated was inconsistent with claimant’s contention that she did not use her right hand at all. He opined that she could do light-duty, non-repetitive activities, although he felt the failure of her treatment to date was primarily for psychological reasons.
The hearing officer is the sole judge of the relevance, the materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ).
This is a case where a different finder of fact could have evaluated the evidence and arrived at a different conclusion. We do not agree that placing applications is the only basis upon which a finder of fact may base a conclusion that a good faith “search” has been made, or that any specific number of applications should, as a matter of law, control a finding on this issue. However, it appears that claimant’s primary efforts, for the sixth quarter, well after the end of the impairment period, remained informal, and it further appeared that she was under an impression, refuted even by her own testimony, that TEC was independently searching for a job for her. Because this was not a case where no effort was being made, and the hearing officer could credit claimant’s testimony on her subjective desire to work again, along with her efforts, as constituting “good faith,” there is sufficient evidence to support the decision for the sixth quarter. As each quarter of SIBS is judged on its own facts, and an informal job search of this nature is harder to justify, the more remote the date of final payment of impairment income benefits (IIBS), a finder of fact in any controversy over future quarters might well expect to see claimant make regular, more formal, and verifiable attempts to search for a job within her restrictions. Concerning the carrier’s argument on the “direct result” provision, we note that we have before rejected the somewhat circular argument that any ability to work precludes any unemployment from being a direct result of impairment. Texas Workers’ Compensation Commission Appeal No. 94533, decided June 14, 1994.
Given all the evidence, we do not agree that the hearing officer’s decision was so against the great weight and preponderance of the evidence as to be manifestly unfair or unjust. We affirm the decision and order of the hearing officer.
Susan M. Kelley – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Philip F. O’Neill – Appeals Judge