On July 1, 1996, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The appellant (carrier) appeals the hearing officer’s decision that the respondent (claimant) is entitled to supplemental income benefits for the first compensable quarter. The claimant requests affirmance.
DECISION
Affirmed.
The claimant testified that he sustained a closed head injury in 1976 which slowed down his ability to process information, and that as a result of that injury, he has a learning disability. The parties stipulated that the claimant sustained a compensable injury to his left shoulder and neck on ___________, while working for (employer). The claimant said he slipped and fell off a bulldozer on that day. The claimant said that since leaving the military service in 1975, he has been a heavy equipment operator. A doctor returned the claimant to light-duty work and then to regular-duty work in December 1992. The claimant worked as a heavy equipment operator for (E Company) from February to April 1993. He said he had a lot of shoulder, neck, and back pain when working at E Company and that he left that job to have left shoulder surgery in April 1993. The surgery consisted of an arthroscopic decompression and a resection of the distal clavicle. (Dr. M), who performed the surgery, wrote on September 13, 1993, that the claimant still had shoulder pain and that the claimant was released to return to full work duties “as tolerated.” Dr. M also wrote that he thought the claimant “is an excellent candidate for retraining to a sedentary occupation if this is an option.” (Dr. E), the claimant’s treating doctor, recommended in December 1993 that the claimant have neck surgery, but the second and third opinion doctors did not concur in that recommendation and the Medical Review Division of the Texas Workers’ Compensation Commission (Commission) denied the surgery recommendation. The two nonconcurring doctors noted that a discogram showed evidence of an annular tear at the C6-7 level, but opined that the claimant’s major symptors were related to his left shoulder.
During October and November 1994 the claimant worked as an equipment operator for (M Company). He said he was going to physical therapy during that time period and that he had suffered a lot of pain. He said he left M Company due to a reduction in force. In January 1995 the claimant worked as an equipment operator for (MC Company). He said he was laid off from that job. The claimant said he also worked at (R Company) for a few weeks, but didn’t specify when that was. (Dr. H), the designated doctor chosen by the Commission, reported in January 1995 that the claimant has a 21% impairment rating (IR). The parties stipulated that the claimant reached maximum medical improvement (MMI) on January 11, 1995, with a 21% IR. In March 1995 Dr. E wrote that, in his opinion, “it would be medically inadvisable” for the claimant to return to work as a crane operator or as a heavy equipment operator. Dr. E further stated that the claimant is a very good candidate for retraining. The claimant said that he obtained his jobs through his union and that he ceased being an active member of the union in July 1995 when, he said, he received a medical retirement from the union. He said he receives $1,127.00 per month in medical retirement and that he received his first check in January 1996.
According to a letter from the Texas Rehabilitation Commission (TRC) to the Commission dated March 11, 1996, the claimant is a client of the TRC, and the claimant has been attending ________________ College under TRC sponsorship since August 1995. The claimant said that (PR) is a program that helps people who have had head injuries. In an undated letter to the TRC, the assistant director of PR, (RS), thanked the TRC for referring the claimant to PR for cognitive retraining and stated that he met with the claimant on October 27, 1995, regarding his academic schedule. RS noted that the claimant was frustrated because he could not keep up with his classwork and he recommended that the claimant take only nine course hours the next semester so that he could devote more time to his harder subjects. RS also stated that PR would work with the claimant on cognitive compensatory techniques to help him perform better in college and that PR would work with the claimant on his neurocognitive deficit areas. PR’s letterhead indicates that it is a brain injury rehabilitation program.
The parties stipulated that the filing period for the first compensable quarter was from December 28, 1995, through March 27, 1996 (hereafter the “filing period”), that the first quarter was from March 28, 1996, through June 26, 1996, that the claimant had not elected to commute impairment income benefits (IIBS), and that the claimant’s preinjury average weekly wage (AWW) was $705.21. The claimant testified that he continues to see Dr. E, that he cannot lift heavy objects, that he has shoulder and neck pain, and that he can no longer perform a heavy equipment operator job. Dr. E wrote on January 8, 1996, that the claimant told him that his neck was doing better, but that any time he tried to do any lifting he would have quite a bit of pain, that the claimant did not have any arm pain that day, and that he told the claimant he should try to increase his exercising activities.
The claimant said that he has participated with the TRC in that he is attending college under TRC sponsorship. He said that he is trying to obtain an associate’s degree in electronics, that the courses he took during the filing period were developmental courses to prepare him to take a test to attend college-level courses (he said he has a general equivalency diploma), that he started college taking 12 course hours but was reduced to nine hours because of his learning disability, and that during the filing period he attended school four days a week and had computer labs. The claimant said that he obtained straight As, but, because of his learning disability, he studied more than eight hours a day. The claimant also testified that during the filing period he worked 10 hours per week at a pizza store owned by his wife. He said that, other than working at his wife’s pizza store 10 hours a week, he has nothing to do with that business. He said he wipes tables, hoses windows, drags out the trash, sweeps, and vacuums at the pizza store. According to the Statement of Employment Status (TWCC-52) and copies of checks in evidence, the claimant was paid $50.00 per week to work at the pizza store. The claimant also said that during the filing period he talked to the manager of a grocery store about a job, but found out the store was not hiring. He said he also talked to the _______________ Administration about a job, but it appears that that had to do with getting a job after he gets a degree in electronics.
(CC), a private investigator hired by the carrier, testified that she called the claimant’s union in February 1996 and was told that the claimant was an active member of the union. She was not asked whether she asked the union about the claimant’s medical retirement. CC videotaped the claimant at the pizza store on February 10, 1996, and the videotape shows the claimant and an unidentified gentleman putting up lighting fixtures outside the store. In the videotape, the claimant uses both arms while working and turns and bends his neck. He also lifts a toolbox with his left arm, closes and opens doors with his left arm, and raises both arms above his head.
Section 408.142 provides that an employee is entitled to SIBS if, on the expiration of the IIBS period, the employee has an IR of 15% or more, has not returned to work or has returned to work earning less than 80% of the employee’s average weekly wage as a direct result of the employee’s impairment, has not elected to commute a portion of the IIBS, and has attempted in good faith to obtain employment commensurate with the employee’s ability to work. Pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b)), entitlement to SIBS is determined prospectively for each potentially compensable quarter based on criteria met by the claimant during the prior filing period. The claimant has the burden to prove his or her entitlement to SIBS. Texas Workers’ Compensation Commission Appeal No. 941490, decided December 19, 1994. It is undisputed that the claimant has a 21% IR and that he did not commute his IIBS.
The hearing officer found that the claimant was “not unable to work” during the filing period and that he was required to make a good faith effort to seek employment commensurate with his ability to work. The carrier has not challenged the hearing officer’s findings of fact that the claimant was in college through a retraining program sponsored by the TRC during the filing period, that during the filing period the claimant sought and found work, that the claimant worked 10 hours a week at his wife’s pizza store during the filing period, and that the claimant earned less than 80% of his preinjury AWW as a direct result of the claimant’s impairment from his compensable injury. However, the carrier does challenge the hearing officer’s conclusions of law that the claimant had returned to work earning less than 80% of his preinjury AWW during the filing period as a direct result of the claimant’s impairment and that the claimant did in good faith seek and obtain employment commensurate with his ability to work during the filing period.
The carrier asserts that there is no evidence that the claimant “has an inability to work as a direct result of his impairment.” We have held that the direct result criteria for SIBS does not require a claimant to prove that his impairment is the sole cause of unemployment or underemployment. Texas Workers’ Compensation Commission Appeal No. 952082, decided January 10, 1996. The 21% IR and need for shoulder surgery is some indication that the claimant sustained a serious injury and he testified that he can no longer perform the type of work he was doing when injured. In addition, after surgery, Dr. M wrote that the claimant is an excellent candidate for retraining to a sedentary occupation and Dr. E noted that it was medically inadvisable for the claimant to return to heavy equipment operator work and that he would be a good candidate for retraining. It is undisputed that the claimant is in a retraining program through the TRC and that during the filing period he made $50.00 a week as compared to his preinjury AWW of $705.21.
The carrier contends that there is no evidence, or insufficient evidence, that the claimant “made a good faith effort to obtain employment commensurate with his physical abilities.” It is undisputed that during the filing period the claimant was in college under the sponsorship of the TRC in order to be retrained and that he also worked 10 hours a week. Although it appears that during the filing period the claimant took only nine course hours instead of 12, he testified about having to go to labs in addition to classes and about having to study more than eight hours a day because he has trouble learning. He also sought work at a grocery store. In Texas Workers’ Compensation Commission Appeal No. 931019, decided December 17, 1993, we stated that:
In sum, because an injured employee is in a study program with TRC does not automatically remove him from the statutory requirements of making a good faith effort to obtain employment commensurate with his ability to work. Section 408.142(a). It may well be an appropriate factor to be considered along with other factors in determining his good faith efforts and eligibility for SIBS. We in no way state a requirement that an injured employee who is cooperating with TRC to assist him in alleviating or overcoming the effects of an on-the-job injury is required, nonetheless, to seek out full or any particular level of employment to be entitled to SIBS. Rather, all the factors affecting the qualifications for SIBS must be considered under the particular circumstances of the case.
We have held that whether the claimant made a good faith effort to obtain employment commensurate with his ability to work and whether his unemployment or underemployment is a direct result of his impairment are fact questions for the hearing officer to determine from the evidence. Texas Workers’ Compensation Commission Appeal No. 941154, decided October 10, 1994. The hearing officer is the judge of the weight and credibility of the evidence. Section 410.165(a). The hearing officer resolves conflicts in the evidence and may believe all, part, or none of the testimony of any witness. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. When reviewing a hearing officer’s decision to determine the factual sufficiency of the evidence, we should set aside the decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appeal No. 950084, supra. We conclude that sufficient evidence supports the hearing officer’s conclusions on good faith and direct result and that those conclusions are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
The carrier contends that there is no evidence or insufficient evidence to support the hearing officer’s finding that the claimant’s union “has determined that the claimant for union purposes is medically retired.” The hearing officer was free to believe the claimant’s testimony on this point despite CC’s testimony that she was told by the union that the claimant was an active member. There may have been some mix up with the union’s paperwork on the claimant’s status. Sufficient evidence supports the hearing officer’s finding.
The carrier contends that there is no evidence or insufficient evidence to support the hearing officer’s findings that the claimant has a “mental disability” from a closed head injury in 1976 which affects his learning and that, because of the mental disability, the claimant spent extra hours studying for his college courses during the filing period. The carrier asserts that there is no evidence that the claimant has a “learning disability.” We cannot agree that there is no evidence or insufficient evidence to support the hearing officer’s findings under the particular facts of this case considering the claimant’s testimony and considering that the TRC apparently recognized that the claimant had some cognitive deficit because it referred the claimant to PR, a brain injury rehabilitation program, for cognitive retraining, and RS wrote that PR would work with the claimant on his neurocognitive deficit areas. Thus, the carrier’s challenge to these findings is not a ground for reversal, especially since these findings are merely ancillary to the findings on good faith and direct result. We do not take the hearing officer’s use of the word “disability” in the context of his finding regarding the claimant’s ability to learn, to equate to disability as defined in the 1989 Act.
Prior to the CCH a hearing officer other than the hearing officer who presided at the CCH denied the carrier’s request to the Commission to issue a subpoena to the Internal Revenue Service (IRS) to obtain a copy of the claimant’s 1995 tax return and to issue a subpoena to the claimant’s college to determine whether the claimant has been enrolled in school. At the CCH, the carrier reurged its request for the Commission to subpoena the IRS records from 1995 and the hearing officer denied that request. The carrier stated that it wanted the IRS records to see what the claimant earned in 1995. On appeal, the carrier contends that the hearing officer erred in denying its request for subpoenas, but in relation to the school subpoena, states that those records may reflect a reduction in course hours for a reason other than a learning disability and may reflect the amount of time the claimant spent in labs studying. Rule 142.12(b)(2) provides that the Commission may issue a subpoena at the request of a party if the hearing officer determines that the party has good cause. We find no reversible error in the initial hearing officer’s denial of the requested subpoenas to the IRS and college and no reversible error in the denial of the IRS subpoena by the hearing officer who presided at the CCH. With respect to the request for a subpoena of IRS records for 1995, only three days of the filing period were in 1995 and thus IRS records for the entire year of 1995 would probably not be materially relevant to the issue at the CCH. In addition, the claimant testified without contradiction that his tax return for 1995 was not available because he had filed for an extension. With regard to the college records, the reason the carrier gave for wanting a subpoena in its written request controls, and not the reasons set forth in the carrier’s appeal. The carrier stated in its written request that it wanted to determine if the claimant had been enrolled in college. Since it is undisputed on appeal that the claimant was enrolled in college during the filing period, the carrier has not shown reversible error in the denial of its request. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Judy L. Stephens – Appeals Judge