This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On September 21, 2000, a contested case hearing was held. The hearing officer resolved the disputed issue by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the fourth quarter. The appellant (carrier) appealed. The claimant responded.
DECISION
The hearing officer’s decision is affirmed.
The claimant sustained a compensable back injury on _________, while working as a meat cutter in the employer’s grocery store. At the time of his injury, the claimant also worked as a part-time pastor. The parties stipulated that the claimant has a 15% impairment rating (IR); that he did not commute impairment income benefits (IIBs); that the fourth quarter was from April 29, 2000, to July 28, 2000; that the qualifying period was from January 15, 2000, to April 14, 2000; and that the claimant’s preinjury average weekly wage (AWW) was $697.37.
In November 1998, Dr. T, the designated doctor, reported that the claimant has a 15% IR and that the claimant has herniated lumbar discs with L5-S1 sensory deficit on the left.
The claimant testified that in September 1998 he began working as a full-time pastor. He said that during the qualifying period he worked as a full-time pastor making $200.00 a week working 50 to 60 hours a week. The claimant’s Application for SIBs (TWCC-52) for the fourth quarter documents that he worked throughout the qualifying period.
A January 1999 letter from the Texas Rehabilitation Commission stated that the claimant had successfully completed the program of services and had obtained employment within his abilities. A July 1999 letter from Dr. P, the claimant’s initial treating doctor, stated that it is impossible for the claimant to return to his work as a meat cutter given the nature of his injuries and his impairment. Dr. G, the claimant’s second treating doctor, referred the claimant to Dr. S, who recommended that the claimant not return to his job as a meat cutter and that claimant should not perform any activity that would require manual lifting or twisting, bending, or stooping. A functional capacity evaluation report of August 1999 stated that the claimant should not return to his job as a meat cutter due to loss of motion and pain and that the claimant should have a job that is less physically demanding on his back. That report also stated that the claimant’s safe physical demand classification was a light classification.
Eligibility criteria for SIBs entitlement are set forth in Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102). Rule 130.102(b) provides that an injured employee who has an IR of 15% or greater, and who has not commuted any IIBs, is eligible for SIBs if, during the qualifying period, the employee: (1) has earned less than 80% of the employee’s AWW as a direct result of the impairment from the compensable injury; and (2) has made a good faith effort to obtain employment commensurate with the employee’s ability to work. Rule 130.102(d)(1) through (5) sets out what constitutes a good faith effort to obtain employment commensurate with the employee’s ability to work and Rule 130.102(d)(1) provides 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 returned to work in a position which is relatively equal to the injured employee’s ability to work. Rule 130.102(c) provides that an injured employee has earned less than 80% of the employee’s AWW as a direct result of the impairment from the compensable injury if the impairment from the compensable injury is a cause of the reduced earnings.
In the Statement of the Evidence portion of his decision, the hearing officer stated that the claimant has a limited ability to work due to his impairment from his compensable injury and that the full-time job the claimant held during the qualifying period was equal to his ability to work. The hearing officer found that the claimant attempted in good faith to obtain employment commensurate with his ability to work and that the claimant was underemployed as a direct result of his impairment. The hearing officer concluded that the claimant is entitled to SIBs for the fourth quarter. The carrier’s arguments against entitlement to SIBs were previously considered and rejected in the two prior Appeals Panel decisions that affirmed the claimant’s entitlement to SIBs for the second and third quarters. See Texas Workers’ Compensation Commission Appeal No. 000365, decided March 31, 2000, and Texas Workers’ Compensation Commission Appeal No. 001170, decided July 6, 2000. The carrier’s assertion that the claimant did not provide any documentation from the church where he is pastor is contrary to the evidence because the church provided a letter documenting the claimant’s wages during the qualifying period. The hearing officer’s decision is supported by sufficient evidence and it is not 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).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Kenneth A. Huchton – Appeals Judge
Thomas A. Knapp – Appeals Judge