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 April 23, 1996. The issues at the CCH were entitlement to supplemental income benefits (SIBS) for the second and third compensable quarters. The hearing officer determined that the respondent (claimant) is not entitled to SIBS for the second compensable quarter. He apparently determined that the claimant was entitled to SIBS for only that part of the third quarter (December 13, 1995 to March 12) beginning on January 26, 1996, the date the claimant’s application was sent to the carrier. The appellant (carrier) appeals the hearing officer’s determination that the claimant’s underemployment during the two filing periods was a direct result of his impairment from his compensable injury. Carrier also appeals a portion of a finding that the claimant made a “good faith attempt to obtain employment commensurate with his ability to work during the first nine weeks of the filing period for the third compensable quarter . . . ” and urges error in the conclusion that the claimant is entitled to SIBS for the third quarter. The carrier also cites confusion in the language of the decision and order and a finding by the hearing officer. The claimant’s response, in essence, appears to urge that the decision be affirmed.
DECISION
Reversed and a new decision rendered.
No appeal having been filed regarding the decision that the claimant is not entitled to SIBS for the second quarter, we will address only the third quarter (December 13, 1995 to March 12, 1996) and that part of the decision and order that holds the carrier liable for SIBS from January 26, 1996, to the end of the quarter.
The claimant sustained a back injury (apparently herniated nucleus pulposus at L4/5 and L5-S1) on _____, and has undergone conservative treatment without surgical intervention. He was certified to having reached maximum medical improvement (MMI) on March 29, 1994, and was assessed a 21% whole body impairment rating (IR). It was stipulated that his average weekly wage (AWW) at the time of his injury was $636.52. The issue on appeal concerns his entitlement to the third compensable quarter of SIBS which quarter began on December 13, 1995. The claimant testified that he returned to work for the employer sometime after his injury in a lighter-duty position. According to a statement from his doctor, it appears he was restricted to a 40-pound lifting limit. Although there is no evidence in the record as to his wage when he returned to the employer, he asserts in his appeal that it was at a lesser hourly rate. In any event, he worked for about a year when in July or August 1994, he quit. The claimant stated at least part of the reason that he left the employer was because of what he called harassment. However, he also testified that he told the employer he was going back to school. (He agreed that that is what the employer always thought.) There was also a note offer in evidence by the carrier indicating that the reason given when the claimant quit was to go back to school. At that time, the claimant enrolled as a full-time student for the Fall 1994 term at a university and obtained a part-time job with an insurance agency.
According to the claimant, he earned $10.00 an hour with the agency and worked various hours, basically as he was needed. He has not looked for any other employment. He continued his business management studies full time except for taking one course in the Summer of 1995. The claimant indicated that the amount of time he worked was dictated by his schedule and the amount of work needed to be done and that there was “generally more work than my hours will allow.” He stated he expects to get his bachelor’s degree in May of 1997.
There was conflicting evidence concerning when the claimant received the application for SIBS and when he filed for the third quarter of SIBS. The hearing officer found that SIBS for the third quarter began to accrue on January 26, 1996, and this aspect of his findings is not appealed. This is the date the carrier received the application.
The carrier argued at the hearing and again on appeal, that the evidence does not establish that the claimant’s underemployment was a direct result of his impairment; rather, that it was because of his personal decision to become a full-time student. The hearing officer rejected this argument, citing several cases, and indicating that the claimant was going to college solely due to being impaired and would not be at college or doing the part-time work, if he had not been impaired from his injury. We do not find evidence to support this statement. To the contrary, the evidence clearly indicates that the claimant was employed by the employer for a year in a lighter-duty position when he voluntarily quit. Although he apparently felt he was subject to some harassment, and even though it may have formed a part of his reason for leaving, this would not alter the fact that he left that work for personal rather than impairment reasons. The claimant testified, and the other evidence was in accord, that he left to go to school full time after having worked a full year for the employer. Whether the salary level played any part was not developed in the evidence.
The facts of this case are distinguishable from prior cases where we have held that going to school, either full or part time, in cooperation and under the auspices of the Texas Rehabilitation Commission (TRC), does not preclude a finding of direct result and also does not automatically rule out a required good faith job search. Texas Workers’ Compensation Commission Appeal No. 93936, decided November 29, 1993; Texas Workers’ Compensation Commission Appeal No. 931019, decided December 17, 1993. As we indicated, Tex. W.C Comm’n, 28 TEX. ADMIN. CODE § 130.103 (Rule 130.103) provides for referrals to the TRC and cautions that injured employee must cooperate with TRC or risk loss of benefits. The circumstances of this case are entirely different from those situations where there is a referral and cooperation with TRC to get an employee back into the work force. Here the claimant elected to leave a lighter-duty position with the employer after a year to go to college full time to earn a degree and work part time around his schedule. While this is certainly laudable and to be encouraged from a personal improvement standpoint, it does not meet the stringent requirement for qualifying for SIBS and returning to the work force. SIBS is not intended to be a degree program. The evidence here compellingly shows that the underemployment was due to the claimant’s voluntary student status and not a direct result of the impairment. See generally, Texas Workers’ Compensation Commission Appeal No. 960852, decided June 7, 1996. The facts in this case are unlike those in cases where a claimant, in attempting to get back into the work force, seeks and obtains assistance from the TRC, as provided in the Rules, and where retraining is deemed necessary or appropriate under the particular circumstances. Appeal No. 931019, supra; Texas Workers’ Compensation Commission Appeal No. 931063, decided January 4, 1994, returned on remand Texas Workers’ Compensation Commission Appeal No. 94119, decided March 14, 1994; Texas Workers’ Compensation Commission Appeal No. 950298, decided April 10, 1995.
Although our reversal is based upon our determining that the great weight and preponderance of the evidence establishes that the claimant’s underemployment was due to his voluntary student status rather than a result of the impairment, the hearing officer’s Finding of Fact No. 15 would appear to disqualify the claimant for third quarter SIBS. In that finding, the hearing officer indicates that the claimant did not attempt in good faith to obtain employment commensurate with ability for five weeks of the filing or qualifying period, but that he did during nine weeks. Aside from the error as to the length of a “quarter” or “filing” period, SIBS are awarded for a full quarter, not fractions of quarters, and the requirements span the whole period, not just a portion of the period (unlike the provision that benefits only accrue from the time the application is filed). Texas Workers’ Compensation Commission Appeal No. 960964, decided June 26, 1996. And, even though a claimant may be in school under the auspices of the TRC, this does not automatically remove the good faith job search requirements. See Texas Workers’ Compensation Commission Appeal No. 93531, decided August 10, 1993; Texas Workers’ Compensation Commission Appeal No. 93936, decided November 29, 1993. The finding of the hearing officer in Finding of Fact No. 15 negates a determination that a good faith effort was made during the filing period for the third quarter which would rule out third quarter benefits.
For the reasons set out above, we reverse the decision that the carrier is liable for any portion of the third quarter of SIBS and render a new decision that the carrier is not liable for third quarter SIBS.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Susan M. Kelley – Appeals Judge