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 September 8, 2000. The hearing officer determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBs) for the 9th quarter. The claimant appealed the adverse good faith and direct result determinations on sufficiency grounds. The respondent (carrier) replied that the Appeals Panel should affirm the hearing officer’s decision and order.
DECISION
Affirmed.
The claimant contends the hearing officer erred in determining that she did not meet her burden of proof regarding the good faith SIBs criterion. At the CCH the parties stipulated that the claimant sustained a compensable injury on ________. The claimant testified that she injured her neck, right shoulder, wrist, hand and thumb, knees, hip, back and “everything” in an automobile accident while working as a truck driver in furtherance of the employer’s affairs. The claimant explained that as a result of her injury she had carpal tunnel surgery and right shoulder surgery in October 1996. The claimant asserted that she was released to return to work with restrictions as to repetitive motion and limited lifting and that she began looking for work in January 1997. The record indicates that the claimant worked at various temporary secretarial and clerical jobs in 1998 and 1999.
On October 27, 1998, Dr. D, at the request of the Texas Workers’ Compensation Commission, examined the claimant and determined that her physical examination was rather unremarkable, showing only signs of mechanical cervical and lumbar pain symptoms. He could not detect any signs of residual right shoulder impingement syndrome or carpal tunnel syndrome which he believed to have resolved after surgery. He also could not detect any significant signs of lumbar nerve root irritation. Dr. D wrote that the claimant demonstrated no sign of any overt discomfort with various manual maneuvers to stress the cervical and lumbar spines. He opined that the claimant could handle medium work activities with a restriction as to lifting while extending her arms more than 17 inches; in other words, while lifting she should keep her arms close to her body when doing so. By letter dated December 14, 1998, Dr. D opined that the claimant could not tolerate all the duties of a line haul driver.
The claimant testified that during the qualifying period for the 9th quarter of SIBs, from February 3, 2000, through May 4, 2000, she was employed by (temporary service agency) where she received a temporary full-time assignment as an administrative assistant from sometime in February through April 27, 2000, and a receptionist for one day prior to the end of the qualifying period. The claimant asserted that she also looked for permanent work every week of the qualifying period and documented the search on her Application for Supplemental Income Benefits (TWCC-52). The claimant related that she had received computer training from the Texas Rehabilitation Commission in 1997 or 1998 and successfully completed the training.
When questioned, the claimant denied that she had refused job offers of permanent full-time employment during the qualifying period for the 9th quarter, but admitted that she did turn down a data entry position which she believed did not meet her restrictions and a position operating a multi-phone system which she did not include on her TWCC-52. She also admitted that she did not want to work in (City 2) because it was too far and making telephone calls to find work would entail incurring long distance charges. The claimant contended that she could not return to her preinjury job of truck driving because the doctor had recommended that she not do so as it might injure her further.
The claimant testified that she received SIBs from the carrier for the first seven quarters of SIBs and admitted that she also applied for and received unemployment benefits from the Texas Workforce Commission (TWC). The claimant testified that she did not receive the unemployment benefits during the 9th quarter qualifying period because her eligibility had been exhausted. The hearing officer found that the claimant was not truthful on her filings with the TWC because she represented to the TWC that she was not receiving workers’ compensation benefits.
According to the TWCC-52, the claimant documented 20 job contacts for administrative assistant work beginning April 28, 2000, and ending May 11, 2000. Employment records confirm that the claimant did not work between February 3, 2000, and February 21, 2000, the first 18 days of the qualifying period. The claimant worked full-time from February 22, 2000, through April 22, 2000, on a temporary assignment. She thereafter worked for one day sometime between May 1, 2000, and May 7, 2000. The parties stipulated that the claimant earned $4,344.25 during the qualifying period and that the claimant’s average weekly wage was $694.00.
The carrier offered a copy of a letter dated April 13, 2000, from a company offering the claimant an administrative position with a pay rate of $15.00 per hour. The letter reflects that the claimant declined the offer based on her anticipation of an offer from another company. Another letter dated July 11, 2000, reflects that the claimant was offered a full-time job as a data entry operator on May 1, 2000, which she declined on the grounds that she had just had surgery for carpal tunnel syndrome.
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 standard of what constitutes a good faith effort to obtain employment in SIBs cases was specifically defined and addressed after January 31, 1999, in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d) (Rule 130.102(d)). Rule 130.102(d) provides in pertinent parts that an injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee has:
(1)returned to work in a position which is relatively equal to the injured employee’s ability to work; [or]
* * * *
(5)provided sufficient documentation as described in subsection (e) to show that he or she has made a good faith effort to obtain employment.
Rule 130.102(e) provides that an injured employee who has not returned to work and 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 or her job search efforts. Under the provisions of Rule 130.102(d) there are five methods of satisfying the good faith requirement, two of which have been addressed in the present case. A claimant does not have to satisfy both; one is sufficient. If a claimant has returned to work in a position which is “relatively equal” to the injured employee’s ability to work, she does not have to demonstrate that she looked for work every week of the qualifying period. Texas Workers’ Compensation Commission Appeal No. 000321, decided March 29, 2000. Whether good faith exists is a fact question for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994. Accordingly, whether the new work position is “relatively equal” is also a question of fact for the hearing officer.
It is evident that the hearing officer did not find the claimant’s explanation of her working situation and job search to be credible. However, in determining whether a good faith effort was made pursuant to the provisions of Rule 130.102(d)(1) or (5), the hearing officer failed to make findings in this regard and did not explain how she reached the determination that the claimant did not make a good faith effort to obtain employment commensurate with her ability to work. The hearing officer addressed Rule 130.102(e) which refers only to Rule 130.102(d)(5), and a good faith job search, but she did not address whether the claimant had returned to work in a position which was relatively equal to her ability to work.
In reviewing the claimant’s assertion that she met her burden of proof regarding the direct result criterion, we note that direct result is also a fact issue for the hearing officer. 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). The hearing officer could find from the evidence that the claimant’s underemployment was completely a result of factors other than her impairment. The hearing officer’s determination regarding direct result is not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 224 S.W.2d 660 (1951); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986).
Generally we would remand the case to the hearing officer to address the good faith criterion consistent with the provisions of Rule 130.102(d), specifically, whether the claimant had returned to work at a position relatively equal to her ability to work. However, a remand for clarification in this case would serve no useful purpose in light of our affirmance of the direct result criterion, because the claimant would still not be entitled to SIBs for the 9th quarter as the hearing officer determined that she failed to meet her burden of proof in this regard.
We affirm the hearing officer’s decision and order that the claimant is not entitled to SIBs for the 9th quarter from May 19, 2000, to August 17, 2000.
Kathleen C. Decker – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert W. Potts – Appeals Judge