Following a contested case hearing held on August 16, 2000, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, resolved the disputed issues by finding that the appellant (claimant) did not make a good faith effort to seek employment during the qualifying periods for the eighth and ninth quarters and that her unemployment during those periods was not a direct result of her impairment from the compensable injury, and by concluding that she is not entitled to supplemental income benefits (SIBs) for those quarters. The claimant has appealed, asserting that the evidence established that she had no ability to work during the qualifying periods and that the respondent (carrier) should not be allowed to dispute her entitlement pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.108(a) (Rule 130.108(a)) because there has been no change in the factual situation since the seventh quarter. The carrier’s response urges the sufficiency of the evidence to support the challenged determinations.
DECISION
Affirmed.
The parties stipulated that the qualifying period for the eighth quarter began December 2, 1999, and ended March 2, 2000; that the qualifying period for the ninth quarter began March 3 and ended June 3, 2000; and that the carrier paid SIBs for the seventh quarter.
The claimant testified that she was employed as a nurse’s aide at a hospital when she sustained a compensable low back injury; that she had a lumbar spine fusion operation in _________ and a second operation in August 1997 to insert cages; that she had three spinal injections from a pain management specialist which have not helped; that the pain and swelling in her low back is worse; that she takes a variety of prescription medications daily for pain and to help her sleep; and that these medications cause her to feel drowsy and sometimes dizzy. She conceded that one of the medications is taken for trigeminal neuralgia which is unrelated to her compensable injury. The claimant further stated that she lives with her sister who does most of the household chores; that she does some microwave cooking, reads, talks on the telephone, drives occasionally when she can borrow a car, attends church occasionally, walks to the store which is about four long blocks from her house, and takes daily walks. The claimant conceded that she has ceased doing the home exercises directed by her treating doctor, Dr. E. She said that although she had looked for jobs in earlier qualifying periods, she did not look for any jobs during the qualifying periods at issue nor did she follow up on job leads provided to her, and later to her lawyer, by the carrier’s vocational rehabilitation personnel. The claimant further stated that she does not think she could do any sedentary work and that Dr. E told her she is a “lumbar cripple” and does not think she will be able to work again.
Dr. E wrote on July 29, 1999, and February 15, 2000, that the claimant is a “lumbar cripple” in almost constant pain; that she is treated with Motrin, diazepam, and hydrocodone; that she should not drive or “attempt to do any sort of work when taking hydrocodone or diazepam” since these medications can cause sedation with weakness and vertigo; and that if she has a problem with the side effects, she might further injure herself or injure innocent people. Dr. E wrote on October 4, 1999; November 18, 1999; February 11, 2000; and April 29, 2000, that the claimant will continue to be as physically active as possible with home physiotherapy modalities but that she is not a candidate for “gainful employment” and that it is doubtful she ever will be. The claimant attached a copy of Dr. E’s February 15, 2000, report, identical to his July 29, 1999, report, to her applications for SIBs.
The October 26, 1999, report of Dr. M, who performed an independent medical evaluation of the claimant for the carrier, states the following: “While I continue to believe that there are significant factors other than physical injury responsible for the patient’s complaints, I am unable to state with asurety that the patient is capable fo [sic] returning to any type of work given her physical presentation at this time.”
The February 8, 1999, report of Dr. D, who performed a required medical evaluation of the claimant at the request of the Texas Workers’ Compensation Commission, stated that four of five Waddell’s nonorganic physical signs were positive with superficial nonanatomic tenderness and other indications and he included the diagnosis of symptom magnification with her lumbar spine condition. Dr. D further noted that a February 2, 1999, functional capacity evaluation (FCE) was essentially unchanged from an August 13, 1998, FCE; that the claimant tolerated 15 minutes of sitting and 10 minutes of static standing; that she was unable to lift any object from the floor to her waist; that she was able to lift seven pounds from her waist to her shoulder; and that she showed limited trunk range of motion as well as tolerance to stooping, kneeling, squatting, crouching, or twisting. Dr. D concluded that he did not feel that the claimant would be able to return to her occupation as a nurse’s aide but that she did have the capacity for sedentary work so long as it was flexible with regard to her sitting and standing, changing positions, and stretching. Dr. D further stated that he did not regard the claimant as totally disabled since she does have the ability to perform some type of gainful employment, and that the last two FCEs showed her functioning at a similar sedentary level with limited lifting capacities.
The carrier introduced the Appeals Panel decision in Texas Workers’ Compensation Commission Appeal No. 000085, decided February 28, 2000. In that decision, the Appeals Panel affirmed a hearing officer’s decision that the claimant, the same claimant as in this case, was entitled to SIBs for the fourth quarter under the “old” SIBs rules and reversed and rendered a new decision that the claimant was not entitled to SIBs for the fifth and sixth quarters under the “new” SIBs rules. Reports of Dr. E and Dr. D and the FCEs were discussed in that decision. According to that decision, the claimant looked for jobs during the filing and qualifying periods and actually obtained a job and did some work as an airport pager until quitting that job, and decided after July 12, 1999, not to make any further efforts to obtain employment. The carrier also introduced correspondence dated January 11 and February 1, 2000, to the claimant’s former attorney forwarding job leads for the claimant.
Sections 408.142(a) and 408.143 provide that an employee is entitled to SIBs when the impairment income benefits (IIBs) period expires if the employee has: (1) an impairment rating of at least 15%; (2) not returned to work or has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment; (3) not elected to commute a portion of the IIBs; and (4) made a good faith effort to obtain employment commensurate with his or her ability to work.
The claimant had the burden to prove by a preponderance of the evidence that she is entitled to SIBs for the quarters at issue. She contends that the hearing officer erred in finding that during the qualifying periods for the eighth and ninth quarters the claimant did not make a good faith effort to seek employment and that her unemployment was not a direct result of the impairment from the compensable injury. She relies on the reports of Dr. E and the report of Dr. M.
Rule 130.102(d)(4) provides in pertinent part that “[a]n injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee: . . . (4) has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to work [.]” The hearing officer found that although the treating doctor’s medical records state that the claimant is unable to work, another medical record shows that the claimant could work in a sedentary capacity during the qualifying periods at issue.
The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). As an appellate reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Kenneth A. Huchton – Appeals Judge
Gary L. Kilgore – Appeals Judge