This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On April 16 and 19, 1996, a contested case hearing was held. The issue involved the eligibility of appellant, for the third and fourth compensable quarters of supplemental income benefits (SIBS). Other issues were whether claimant had posttraumatic stress syndrome as a result of his compensable injury, and whether the carrier waived the right to dispute the compensability of that syndrome by failing to contest compensability within 60 days of receiving written notice of injury.
The hearing officer determined that claimant was not eligible for SIBS for the quarters in issue, because he failed to make a good faith search for employment commensurate with his ability to work, and because his unemployment was not the direct result of his impairment. The hearing officer further found that the first written notice of the posttraumatic stress syndrome was received by the carrier on August 5, 1995, and timely disputed in 60 days by the carrier, on September 28, 1995. The hearing officer found that claimant’s injury did not extend to posttraumatic stress syndrome.
The claimant has appealed all aspects of the decision against him. With regard to the waiver issue, the claimant indicates that the carrier was not truthful about the date it received the report giving written notice of the posttraumatic stress syndrome, as shown by the fact that claimant’s copy did not have the date stamp indicated on the carrier’s copy. He argues that he sustained posttraumatic stress disorder as a result of his injury. Claimant argues that he made a good faith search for employment commensurate with his ability to work during the periods of time relevant to the third and fourth quarters, even though his doctor said he could not work due to severe pain. Claimant argues in his appeal that the stress syndrome was connected to his injury because it resulted from fighting with the carrier over his claim. The carrier responds by reciting facts that it believes support the decision and highlighting arguments as to the lack of credibility of some evidence presented by the claimant.
DECISION
We affirm.
Noting that the hearing decision fairly summarizes the relevant testimony, we will briefly describe evidence pertinent to this appeal. The filing periods for evaluating the eligibility criteria for SIBS ran from August 3 through November 2, 1995, for the third quarter, and November 3, 1995, through February 2, 1996. Claimant worked for (employer) at the time he was injured on _____. Although the extent of his injuries leading to impairment could have been more completely described, it appears that claimant sustained a back and neck injury, carpal and tarsal tunnel syndrome, and an ankle injury. It was determined in an earlier hearing that he had a 35% impairment rating (IR) as assessed by a designated doctor, that rating was not made part of an appeal. As the existence of posttraumatic stress was in issue in this CCH for the first time, it appears it could not have been included in the 35% IR. Claimant’s treating doctor was Dr. W and he participated in a pain management program through Dr. B.
On July 24, 1995, Dr. W wrote a report in which he released claimant to light, sedentary work. He also observed in the report that claimant had posttraumatic stress disorder. However, the report does not recite facts as to how such condition related to claimant’s _____, injury. Claimant testified that Dr. W told him it related to the stress of disputing his claim with the carrier. The adjuster for the carrier testified that a copy of Dr. W’s report was in the carrier’s file and was date stamped August 4, 1995 (not August 5, 1995, as found by the hearing officer in an apparent typographical error). Claimant stated that the copy he had received and entered into evidence had no date stamp, although there was no testimony from the claimant during the hearing concerning where he obtained his copy.
The carrier filed a Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) disputing compensability of posttraumatic stress syndrome with the Texas Workers’ Compensation Commission (Commission) on September 28, 1995. The carrier also requested claimant to be examined by Dr. J for an evaluation of this condition; Dr. J’s strongly worded report indicated that claimant was malingering, had not gone through an injury of the nature that would typically cause such syndrome, and, although exhibiting paranoia, did not have many of the symptoms of a posttraumatic stress disorder. He did not find claimant to be credible as to claims of chronic pain, nor did he find evidence of depression.
On September 1, 1995, Dr. W wrote a report indicating that he was taking claimant off work due to his posttraumatic stress syndrome, and referring him to Dr. B for pain management. Claimant agreed that from October 6, 1995, through March 1996, he had no medical treatment for his condition from either Dr. W or Dr. B and was not on pain medication. On April 6, 1996, Dr. B wrote that the claimant had failed to bring his pain management program to “appropriate closure” and that his participation was limited at best.
The carrier hired an employment consultant who, in later August 1995, contacted claimant about six job openings he found that met claimant’s physical restrictions and educational level. At the CCH, claimant testified as to various reasons why he did not contact five of the six prospective employers, including his desire not to do the type of work available, the distance of some of the employers from his home, and his lack of experience in the particular field. He stated that he followed up with the drug store but that the employment consultant had provided him with the wrong application. The testimony was not clear as to whether the claimant made a request for the correct application, but clear that he did not subsequently place an application, as opposed to making an inquiry, with this drug store. Claimant presented a few signed (but not notarized) statements purporting to represent contacts he had made with prospective employers. Claimant’s testimony concerning his job searches with other prospective employers was general and not very specific. A certain portion of evidence was devoted to a controversy over claimant’s ability to perform a job that claimant apparently held for three hours on July 19, 1995, at a local builder. Throughout his testimony, claimant made clear that he doubted that he would be able to do much of anything because of his severe pain, and his inability to drive long distances. He said that he did not agree with Dr. W’s assessment as to his ability to lift up to 25 lbs., and said that he had pain carrying even a gallon of milk from his car to his house. Claimant felt his maximum lifting ability would be five lbs. Claimant said he was going to school to learn computer skills.
Subsection (c) states that the Commission shall notify the carrier whenever it receives notice from a source other than the carrier of an injury which may cause eight or more days of disability, a death, or an occupational disease. A “written notice of injury” according to Rule 124.1 is not every writing, but it is the one that is received the earliest that starts the 60-day time period. The Appeals Panel has held that notices which claim injury to additional parts of the body not previously claimed will start a new 60-day time period for contesting compensability for those particular parts of the body. Texas Workers’ Compensation Commission Appeal No. 93491, decided August 2, 1993.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE 124.1 (Rule 124.1) defines written notice of injury:
(a)Written notice of injury . . . consists of the insurance carrier’s earliest receipt of:
(1)the employer’s first report of injury;
(2)the notification provided by the commission under subsection (c) of this section; or
(3)any other written document, regardless of source, which fairly informs the insurance carrier of the name of the injured employee, the identity of the employer, the approximate date of the injury, and facts showing compensability.
While there is a considerable question as to whether the July 24, 1995, report of Dr. W constitutes written notice of injury under Rule 124.1(a)(3), this was not appealed by the carrier. We do not agree that the hearing officer erred. As the sole judge of weight and credibility of the evidence, he was presented with the conflict and argument of the claimant that the date-stamped copy of Dr. W’s report did not accurately reflect the carrier’s receipt of that report. He determined that it did, and that carrier disputed compensability. This is sufficiently supported by the record.
As to whether claimant proved a posttraumatic stress disorder as part of his injury, the evidence was also in conflict, and the hearing officer’s decision is sufficiently supported. We further note that stress related to disputes throughout the claims process does not per se make such stress part of the compensable injury. See Texas Workers’ Compensation Commission Appeal No. 950330, decided April 17, 1995. The definition of “injury” includes those diseases or infections “naturally resulting” from the initial injury. Section 401.011(26), and a mere diagnosis of posttraumatic stress occurring years after the original injury does not provide the needed causal connection.
There are four eligibility criteria that must be met to qualify for SIBS, set out in Section 408.142(a): that the employee “(1) has an [IR] of 15 percent or more . . . ;(2) has not returned to work or has returned to work earning less than 80 percent of the employee’s average weekly wage as a direct result of the employee’s impairment; (3) has not elected to commute a portion of the impairment income benefit . . . ; and (4) has attempted in good faith to obtain employment commensurate with the employee’s ability to work.”
In this case, we cannot agree that the record does not sufficiently support the hearing officer’s decision. To the extent that claimant’s work ability was limited by posttraumatic stress syndrome, his unemployment would not be the “direct result” of his impairment because this condition was not part of claimant’s 35% IR. See Texas Workers’ Compensation Commission Appeal No. 960623, decided May 10, 1996. Because claimant’s other injuries left him with some ability to work, albeit restricted, some job search was required and the hearing officer could then evaluate whether the efforts testified to by the claimant were consistent with a true desire to re-enter employment, or with the desire only to qualify for SIBS. The hearing officer could consider, in his evaluation of “good faith”, the skepticism that claimant expressed throughout the CCH of his ability to do any work, the somewhat indefinite testimony about where, and when, and what positions he sought, and his rejection of suggestions made by the employment consultant, as well as the medical opinions in the record.
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).
We affirm the decision and order of the hearing officer.
Susan M. Kelley – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Thomas A. Knapp – Appeals Judge