This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On January 30, 1995, a contested case hearing was held. With respect to the issues before her, the hearing officer determined that appellant (claimant) sustained a compensable left inguinal hernia injury on or about_____, and that he had disability as a result of the compensable injury from July 28, 1994, through September 1, 1994. Claimant’s appeal challenges the hearing officer’s disability determination, arguing that his disability should have continued until November 1, 1994, the date he was released to full duty following his August 22, 1994, hernia surgery. Respondent (carrier) urges affirmance in its response on the basis of the sufficiency of the evidence in support of the hearing officer’s decision and order. Carrier did not appeal the determination that claimant sustained a compensable left hernia injury and, as such, that decision has become final under Section 410.169 and will not be further discussed in this decision.
DECISION
We reverse the hearing officer’s determination that claimant had disability from July 28 to September 1, 1994, and render a new decision that claimant had disability as a result of his compensable injury from July 28 to November 1, 1994.
Claimant testified that in July 1994, he was employed by employer, installing brick angle. He testified that on a Friday (the exact date he could not recall) he and another employee, JM were standing on a scaffold holding a piece of brick angle that was 20 feet long and weighed 100 pounds over their heads, attempting to place it on bolts on the side of the building. Claimant testified that JM dropped his end of the angle from overhead to waist level, causing claimant to drop his end as well. Claimant stated that he unsuccessfully tried to catch it. Thereafter, claimant felt a sharp pain in his groin and down his left leg. Claimant said he thought it was a pulled muscle, which was a frequent occurrence for an ironworker; thus, he did not tell anyone about being hurt because he thought it would get better.
Claimant stated that he last worked for employer on July 15, 1994, and that he left, because he was having difficulty getting to work because of transportation problems. On or about July 28, 1994, claimant said that he was driving to start a job with a company where he had previously worked, and as he pushed in on the clutch, his pain intensified. He testified that he contacted the president of that company and said he would not be able to start the job. Thereafter, claimant called his father who told him that his symptoms sounded like a hernia and advised him to follow-up with the employer. Claimant thereafter contacted the Texas Workers’ Compensation Commission (Commission) and employer’s president, Mr. D, to report his injury.
Claimant testified that he asked Mr. D to approve medical treatment and Mr. D responded that it was the carrier’s decision whether it would authorize treatment. In addition, claimant stated that a nurse in the doctor’s office where he was seeking treatment attempted to obtain authorization from Mr. D for treatment and she was also told it was carrier’s decision. At that point, the nurse apparently contacted carrier and it denied treatment. Thereafter, claimant went to a hospital in (city 1) for free medical treatment. On August 22, 1994, claimant underwent surgery to repair his hernia. On September 1, 1994, the staples were removed from claimant’s incision and he was advised to avoid heavy lifting and strenuous activity for, variously, two weeks and six weeks. In addition, claimant submitted a physician’s statement, which claimant stated he obtained for the benefit review conference (BRC), which was date stamped as having been received by the Commission on December 5, 1994, (the date of the BRC) which provides:
[Claimant] developed an inguinal hernia secondary to straining (with lifting heavy objects) which caused his abdominal wall to become weak & the hernia develop. He received surgical repair on 8/22/94 and has been able to return to work this past month.
Similarly, a report dated October 29, 1994, states that claimant cannot work from August 1, 1994, through November 1, 1994. On direct examination, claimant testified that he had not worked from the last day of his work for employer on or about July 15, 1994, until he was released to full duty on November 1, 1994. However, on cross-examination, claimant stated in response to the question of whether he worked in the claimed disability period, that he could not recall.
Mr. D, employer’s president, also testified at the hearing. He stated that he recalled claimant calling in to report an injury approximately two weeks after he left his employment with employer. He also stated that he received a call from a nurse in a doctor’s office seeking authorization for claimant’s medical treatment. He testified that he told her who employer’s workers’ compensation insurance carrier was and advised that the carrier would have to authorize treatment.
The only issue on appeal is whether claimant’s disability period included the period of September 1 to November 1, 1994. In the discussion section of her decision and order, the hearing officer explained that determination as follows:
Claimant’s acute symptoms from July 28, 1994, to date of surgery on August 22, 1994, together with a recuperation period support the position that Claimant was unable to obtain and retain employment as a result of the compensable injury from July 28, 1994, to September 1, 1994 at which time Claimant was advised to avoid heavy lifting, but was not advised that he could not work at all. Claimant’s inability to state with certainty under oath that he did not work at all during this claimed period of disability of July 14th to November 1st, together with inconsistent release dates in the medical support the conclusion that Claimant did not have disability at all times sought, but rather only had disability form July 28, 1994, to September 1, 1994. (Emphasis added.)
Disability is defined in the 1989 Act as “the inability because of a compensable injury to obtain or retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). It is well settled that claimant had the burden of proving that he had disability for the period of September 1 to November 1, 1994, in this case. Texas Workers’ Compensation Commission Appeal No. 941566, decided January 4, 1995. As we have previously noted “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. 92432, decided October 5, 1992. See also Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991 (“Where the medical release is conditional and not a return to full duty status because of the compensable injury, disability, by definition, has not ended unless the employee is able to obtain and retain employment at wages equivalent to his preinjury wage.”). In addition, we have stated that “an employee under a conditional work release does not have the burden of proving inability to work.” Appeal No. 941566, supra (quoting Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993). Finally, we have noted that where claimant is released to return to work light duty, there is no requirement that the claimant look for work. Texas Workers’ Compensation Commission Appeal No. 941092, decided September 28, 1994; Appeal No. 91045, supra. That is, “an employee under a conditional medical release [does] not have to show that work was not available.” Texas Workers’ Compensation Commission Appeal No. 941261, decided November 2, 1994.
In this instance, we believe that the emphasized language quoted from the hearing officer’s decision together with her examination of the claimant which focused on his efforts, if any, to find light duty work after September 1, 1994, indicates that she erroneously interpreted the statute by finding that a disability determination was inconsistent with the light duty release claimant received on September 1, 1994, when he was advised to do no heavy lifting. Specifically, the hearing officer emphasized that claimant “was not advised that he could not work at all.” However, as noted above, contrary to the hearing officer’s statement we have consistently stated that a light duty release is not only not inconsistent with a finding of disability but rather is evidence that the effects of the injury remain and that disability continues. This case is similar to Texas Workers’ Compensation Commission Appeal No. 94820, decided August 9, 1994. In that case, the hearing officer determined that the failure of the claimant to seek employment following a release to light duty was controlling on the question of whether disability continued. We noted that the decision in that instance was based on an erroneous interpretation of the statute. We also found that the overwhelming weight of the evidence therein indicated that claimant’s disability continued through the date of the hearing. Accordingly, in Appeal No. 94820, we reversed the hearing officer’s decision and rendered a new decision that claimant’s disability continued through the date of the hearing. Our review in this case likewise convinces us that the hearing officer erroneously interpreted the statute in determining that a light duty release was inconsistent with a finding of disability. That determination is contrary to our decisions, which have consistently indicated that “an employee under a condition medical release does not have to show that work is not available and that under these circumstances, disability has not ended unless the claimant in fact is able to obtain and retain employment.” Appeal No. 94820, supra. There is no evidence in the record that claimant returned to work at his preinjury wage at any time between September 1 and November 1, 1994. We cannot agree with the hearing officer’s statement that the claimant’s answer on cross-examination that he could not recall if he had worked in the claimed disability period precludes a finding of disability, particularly in light of the fact that he testified on direct examination that he had not.
Finding error as a matter of law in the hearing officer’s decision and order, we reverse the part of the decision and order which determined that disability ended on September 1, 1994, and render a decision that claimant had disability in this case from July 28 to November 1, 1994. Benefits are to be paid in accordance with this opinion.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Joe Sebesta – Appeals Judge