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 May 31, 2000. The hearing officer determined that the appellant (claimant) failed to satisfy her burden of proof to demonstrate a total inability to engage in any type of employment during the filing periods relevant to the 1st through 18th supplemental income benefits (SIBs) quarters; that the claimant’s failure to seek any type of employment during those time frames is not “excused”; and that the claimant is not entitled to SIBs for the 1st through 18th quarters.
The claimant appealed, arguing that she refrained from working on her doctor’s advice and had no ability to work. The respondent (carrier) responded that the decision is supported by the evidence which it recites in its response.
DECISION
Affirmed.
This case involved a surprising issue of an entire 18 quarters worth of entitlement to SIBs. There is no explanation on the record as to why belated application for those quarters was made, although the time frames involved ran from March 26, 1994, through December 7, 1998, when the parties agreed that the 401 weeks after the accrual of income benefits would end all entitlement.
The claimant was employed by (employer), and was injured on _________, while lifting a patient. She said her problems involved her right arm running up to her neck.
The claimant’s treating doctor was Dr. S. The claimant said that she wore a “shooter’s brace” for around six months, which went around her body and held her arm out to relax the nerves. The claimant said that she did not search for employment in March, April and May of 1994 because her doctor told her not to work. She was then globally asked if she could have done any work from that time up through January 1999, when she was hired by a school district as a part-time bus monitor, and she said no, answering with reference to her ability to do nurse’s aide work. She denied that she could have done bookwork or take phone messages because this was not work for which she was qualified. The claimant contended she could not just sit at a desk and do paperwork because she would not understand it. She agreed that she was able to read. She said that her left arm had bothered her since sometime in 1992.
The claimant answered yes to a question as to whether stress affected her “one way or the other.” She said that she had a carpal tunnel syndrome (CTS) release surgery and Dr. S wanted to perform another, but it was refused by the carrier. She said that Dr. S did not want to her to work because of the possibility of reinjury. She agreed that she had received restrictions from Dr. S in December 1996 stating that she could not lift over 10 pounds, or pull or push.
The claimant said that she had been receiving Social Security disability benefits and was terminated in December 1998 from these benefits for reasons that she was unable to recall at the CCH. She applied for the school district job in October 1998. She said that she would have been unable to do this earlier due to medication and to her “apparatus.”
From the medical records, Dr. S is of the opinion that the claimant’s malady was reflex sympathetic dystrophy (RSD) through September 1999. On October 11, 1999, he diagnosed only bilateral ulnar neuropathy.
Most of Dr. S’s reports do not comment on the ability to work. Dr. S noted on March 13, 1995, that the claimant had been doing rather well the last few months with only intermittent exacerbation. He said that she had experienced increasing pain beginning four weeks earlier. On December 10, 1996, Dr. S recommended evaluation for retraining and stated that the claimant could not pull and push and stated both that she could not lift with the upper right extremity and also was limited to no more than 10 pounds lifting. Dr. S wrote in December 1998 that the claimant was not apt to find “meaningful work” and should be considered for Social Security disability. Dr. S had recommended light clerical-level work in June 1999. A prescription slip written on by Dr. S noted that the claimant had been disabled from what appears to be November 1994 through January 1999, although the first date is not entirely legible.
There are four eligibility criteria that must be met initially to qualify for SIBs, set out in Section 408.142(a): that the employee “(1) has an impairment rating of fifteen percent or mor…..; (2) has not returned to work or has returned to work earning less than eighty 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 benefi….. and (4) has attempted in good faith to obtain employment commensurate with the employee’s ability to work.” The hearing officer found that the claimant’s unemployment was the direct result of her impairment and this was not appealed for any of the quarters in issue. After the first quarter to qualify for SIBs, as set out in Section 408.143(a), only the job search and direct result criteria are examined. In Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994, the Appeals Panel stated that if an employee established that he or she has no ability to work at all, then seeking employment in good faith commensurate with this inability to work “would be not to seek work at all.” Under these circumstances, a good faith job search is “equivalent to no job search at all.” Texas Workers’ Compensation Commission Appeal No. 950581, decided May 30, 1995. We have held that the burden of establishing no ability to work at all is “firmly on the claimant,” Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994, and that a finding of no ability to work must be based on medical evidence. Texas Workers’ Compensation Commission Appeal No. 950173, decided March 17, 1995. See also Texas Workers’ Compensation Commission Appeal No. 941332, decided November 17, 1994. A claimed inability to work is to be “judged against employment generally, not just the previous job where injury occurred.” Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994. Whether a claimant has no ability to work at all is essentially a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 941154, decided October 10, 1994.
We will reverse the hearing officer’s decision only if it is against the great weight and preponderance of the evidence so as to be manifestly unfair or unjust, which is not the case given the record here. We note that the failure to qualify for SIBs for 12 consecutive months causes a permanent loss of entitlement to SIBs, Section 408.146(c); therefore, an affirmance of the hearing officer’s determinations on the first four quarters would essentially preclude subsequent entitlement, even were we to agree that for some of those quarters the hearing officer’s decision was not supported. Finding sufficient support, however, for her determinations, we affirm the decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Thomas A. Knapp – Appeals Judge