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 July 14, 2000 in (city 1). The hearing officer resolved the disputed issue by deciding that the respondent (claimant) was entitled to supplemental income benefits (SIBs) for the sixth quarter. The appellant (carrier) appealed Findings of Fact Nos. 4, 5, 6, and 7 on the grounds of sufficiency of the evidence and requested that the Appeals Panel reverse the decision and order and render a decision that the claimant is not entitled to SIBs for the sixth quarter. The carrier did not appeal Findings of Fact Nos. 2 and 3 and they have become final by operation of law. Section 410.169. The appeals file did not contain a response from the claimant.
DECISION
Affirmed.
The claimant testified that he worked for the employer as a foreman operating heavy machinery to install underground telephone cable lines. The claimant testified that he sustained an injury to his lower back when he fell into an eight-foot hole. He had a spinal stimulator implanted, but has never had surgery and none was pending as of the date of the CCH. The claimant testified that his treating doctor, Dr. B, was located in (city 2), and he went in for a checkup every two months to have his spinal stimulator checked.
The claimant testified that during the qualifying period he was having problems walking; that it was hard to get out of bed; and that he had pain in his back which would take awhile to work out before he could get around. The claimant stated that he looked for employment each week at more than the 60 different businesses documented on his Application for Supplemental Income Benefits (TWCC-52) by looking in newspapers in (city 3), (city 4), (city 5), (city 6) and all the surrounding-area newspapers trying to pick out something that he could physically do. He stated that he could not ever go back to his preinjury employment because he could not run heavy equipment and was restricted to light duty. The claimant testified that some of the jobs were cable locator positions for the utility companies where he could walk around, locate and mark the utility lines; that he was interviewed for one of these jobs and he could do the work, but was not hired because of his injury. The claimant stated that he could drive short distances but after about 100 miles his back would hurt and he would have to get out and walk around.
The claimant testified that he applied for telephone supervisory positions and restaurant work but no one would hire him. He did not apply at any self-service gas stations or convenience stores because he did not think he was qualified to operate the cash registers. He testified that had anyone offered him one of the jobs listed on his TWCC-52 he would have taken it because he felt he could do at least 30 to 40 of the jobs that were listed on his TWCC-52 as they were within his restrictions. The claimant testified that he wanted to go back to a job where he was making the type of money that he made prior to his injury and did not want a job where he was making $4.50 to $5.00 an hour “because that degrades myself,” but that he “would take it if that’s what it comes down to, because I know the insurance company will pay the difference.” He stated that he really preferred to get an education. The claimant denied that he would not apply for a position if it did not pay a certain wage and could not explain the statement in the vocational specialist’s report reflecting that the claimant had told him that he would not apply for a job unless it paid $9.00 to $10.00 per hour.
The claimant testified that he contacted the Texas Rehabilitation Commission (TRC) and was now enrolled in classes to become a realtor. He admitted that he did not contact the Texas Employment Commission during the qualifying period. The carrier contended on appeal that the claimant did not cooperate with the TRC, but a letter from the TRC reflects that a counselor met with the claimant on January 5 and February 9, 2000, for the initial interview and vocational evaluation.
Section 408.143 provides that an employee continues to be entitled to SIBs after the first compensable quarter if the employee: (1) has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment and (2) has made a good faith effort to obtain employment commensurate with his or her ability to work. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(5) (Rule 130.102(d)(5)) provides that an injured worker has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee has provided sufficient documentation to show that he has made a good faith effort to obtain employment. Rule 130.102(e) provides that an injured worker who is able to return to work in any capacity shall look for employment commensurate with his or her ability to work every week of the qualifying period and document his search efforts. The employee has the burden of proving entitlement to SIBs for any quarter claimed. Texas Workers’ Compensation Commission Appeal No. 941490, decided December 19, 1994.
The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The trier of fact may believe all, part, or none of any witness’s testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993.
In a case such as the one before us where both parties presented evidence on the disputed issue, the hearing officer must look at all of the relevant evidence to make factual determinations and the Appeals Panel must consider all of the relevant evidence to determine whether the factual determinations of the hearing officer are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Texas Workers’ Compensation Commission Appeal No. 941291, decided November 8, 1994. The hearing officer apparently found the testimony of the claimant credible and believed that he was attempting in good faith to find employment rather than just documenting a job search in order to obtain SIBs. An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its own judgement for that of the trier of fact even if the evidence could support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied).
Since we find the evidence sufficient to support the determinations of the hearing officer, we will not substitute our judgement for his. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
We affirm the hearing officer’s decision and order.
Kathleen C. Decker – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Tommy W. Lueders – Appeals Judge