Pursuant to the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act), a contested case hearing was held in (city) Texas, on May 10, 1993, (hearing officer) presiding as hearing officer. He determined that the respondent had received a bona fide offer of employment which she was capable of performing and that her temporary income benefits (TIBS) rate was $68.00 per week, the minimum provided by the 1989 Act. Appellant (carrier) appeals urging that the hearing officer erred in concluding that the claimant is entitled to TIBS from January 21, 1993, through March 31, 1993, and in holding that TIBS should be paid at the rate of $68.00 per week.
DECISION
Finding the evidence sufficient to support the findings of the hearing officer and his conclusions of law to be correct, we affirm.
The fact that the claimant sustained a compensable back injury on (date of injury), after working three or four days for the employer was not in dispute. The only issues at the contested case hearing were: (1) whether or not the employer made a bona fide offer of employment to claimant; and, (2) the claimant’s correct TIBS rate. The claimant was hired to work 10 to 15 hours per week at the minimum rate of $4.25 per hour. Subsequent to her injury, her doctor released her to light duty effective January 21, 1993. The limitations, which included not working more than two hours a day, were met and an offer of employment was made and the claimant actually performed the light duty for a couple of days before she determined that she was in pain and could not do the duty which consisted of sitting at a table and folding napkins and putting salt and pepper in packets. She subsequently had some surgery for an unrelated condition and was again released to duty. Another doctor took her off duty completely on March 31, 1993, and she apparently has not been back to work since. During a period following January 30, 1993, the carrier reduced the weekly TIBS payments to reflect the amount the claimant would have continued to earn if she had performed the duty offered under the bona fide offer.
Evidence lacking in clarity and somewhat contradictory and confusing was presented by the claimant concerning her actual earnings for the year immediately preceding her injury. It appeared, according to the claimant’s testimony, that she had worked for three different employers for different periods and at different times. The hearing officer, as the arbiter of contradictory and conflicting evidence (Garza v. Commercial Insurance Co. of Newark, N. J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ); Texas Workers’ Compensation Appeal No. 92234, decided August 13, 1992)) and the sole judge of the relevance and materiality of the evidence and the weight and credibility to be given the evidence (Article 8308-6.34(e)), found as fact that the “claimant’s actual earnings for the year immediately preceding her injury were not less that claimant will receive in temporary income benefits. . . .” (See Article 8308-4.23(d)). We cannot say that his finding of fact on this matter was so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
In its request for review, the carrier argues that since the light duty offer was for the same wage rate and the restriction of two hours per day enabled the claimant to work about the same total hours as was contemplated at the time of hiring (an employer’s witness indicated that once trained and if the claimant was an effective employee they would attempt to increase the number of hours), that the claimant suffered no disability “because she was able to keep and retain employment at her pre-injury wages.” We note that this was not the position advanced by the carrier at the contested case hearing and that there was no indication of a disability issue at the hearing. The only issues were bona fide offer of employment and the TIBS rate. There is no basis for the Appeals Panel to address a new issue for the first time on appeal. Texas Workers’ Compensation Commission Appeal No. 91100, decided January 22, 1992; Texas Workers’ Compensation Commission Appeal No. 91057, decided December 2, 1992.
Article 8308-4.23 as implemented by Tex. W. C. Comm’n 28 TEX. ADMIN. CODE § 129.2 (Rule 129.2) provides for the calculation of TIBS for employees who earn less that $8.50 per hour. We have addressed the method for calculating TIBS for employee’s earning less that $8.50 per hour in Texas Workers’ Compensation Commission Appeal No. 91014, decided September 20, 1991. Since, in this case, none of the earnings calculations would exceed the minimum weekly benefit ($68.00 at the time of the injury) provided for under Article 8308-4.12, the provisions of Rule 129.2(a)(6) direct that the minimum weekly benefit, which is the higher number under the circumstances in this case, “is the weekly temporary income benefit for the injured employee.” This is the amount the hearing officer determined to be the claimant’s temporary benefit rate and he ordered TIBS for such period of time that claimant has disability and has not reached maximum medical improvement.
Finding no error and sufficient evidence to support the hearing officer’s determinations, the decision is affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Susan M. Kelley – Appeals Judge