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 November 30, 1998. She (hearing officer) determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBS) for the 12th and 13th quarters. The claimant appeals these determinations, contending that they are against the great weight and preponderance of the evidence. The respondent (carrier) replies that the decision is correct, supported by sufficient evidence, and should be affirmed.
DECISION
Affirmed.
The claimant worked as a customer service representative for a bank when she injured her low back on ______, in a lifting incident. She underwent surgery in July 1993 and August 1994, and continues to complain of constant low back pain that radiates into the hips and legs. She was assigned an impairment rating of 15% or greater.
Sections 408.142 and 408.143 provide that an employee continues to be entitled to SIBS after the first compensable quarter if the employee: (1) has not returned to work or has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment and (2) has in good faith sought employment commensurate with his or her ability to work. Pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b)), the quarterly entitlement to SIBS is determined prospectively and depends on whether the employee meets the criteria during the prior quarter or “filing period.” Under Rule 130.101, “filing period” is defined as “[a] period of at least 90 days during which the employee’s actual and offered wages, if any, are reviewed to determine entitlement to, and amount of, [SIBS].” The 12th SIBS quarter was from August 8 to November 6, 1998, and the 13th quarter was from November 7, 1998, to February 5, 1999. The filing periods for these quarters were the preceding 90 days. The claimant has the burden of proving entitlement to SIBS for any quarter claimed.
During each filing period, the claimant worked approximately 20 hours per week, sometimes more and sometimes less, as a babysitter for a relative’s two children, ages three and five. She also, at the same time, cared for her own 16-month-old child. The claimant described her physical restrictions, imposed by Dr. H, her treating doctor, as limited to lifting no more than 40 pounds, and no bending or lifting. These restrictions were apparently first issued by Dr. H in 1995 and also included a four to six- hour daily limit on standing/walking and a zero to two-hour limit on sitting. On November 9, 1998, Dr. H wrote in anticipation of the CCH, that the claimant “is able to work approximately 20 hrs. a week.”
The claimant testified that her babysitting work fit Dr. H’s restrictions and that she believed she qualified for SIBS automatically by virtue of this employment. She, nonetheless, undertook additional job search activities in each quarter in issue. The only job search activity described by the claimant consisted of reviewing the Sunday newspaper job ads and telefaxing a resume to employers for job openings she believed fit her restrictions, such as clerical, data entry, and office work. Attached to each resume she sent was a cover letter and a copy of Dr. H’s restrictions. She did not follow up with these employers and conceded that attaching the job restrictions to her resume may well have undermined the job search effort. She said she did this to be honest with the employers, even though she agreed she thought she could perform the advertised job. She also said she believed she could perform her preinjury job with reduced hours, but her prior employer was taken over by another bank and she never applied with the new establishment. Approximately 21 job contacts by resume were made in the 12th quarter filing period and 26 in the 13th quarter filing period.
The hearing officer considered the evidence and concluded that the claimant failed to establish a good faith job search effort commensurate with her ability to work and that her underemployment was a direct result of her impairment in both filing periods. In the discussion of the evidence, the hearing officer commented that the claimant appears to have established a self-imposed limitation of working no more than four hours per day even though the “credible medical evidence establishes that she can work more hours per day than she did.” Thus, the hearing officer concluded that the claimant’s babysitting did not in itself establish the required good faith job search. Secondly, the hearing officer concluded that by sending her restrictions to potential employers, the claimant “undermined her success, even in her own opinion” and instead pursued “a path that she does not believe would lead to her obtaining employment.” The hearing officer also found that the claimant failed to meet the direct result element of SIBS entitlement because “the credible evidence tends to show that she could have returned to her preinjury occupation during the filing periods.”
Whether the claimant made the required good faith job search and whether her underemployment was a direct result of her impairment were both questions of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 950307, decided April 12, 1995; Texas Workers’ Compensation Commission Appeal No. 94533, decided June 14, 1994. The Appeals Panel has generally defined good faith as a subjective notion characterized by honesty of purpose and being faithful to one’s obligations. Texas Workers’ Compensation Commission Appeal No. 93181, decided April 19, 1993. We have also noted that part-time employment during a filing period that meets a claimant’s physical restrictions can constitute prima facie evidence of a good faith job search. Texas Workers’ Compensation Commission Appeal No. 971349, decided August 25, 1997. The critical question in such cases was whether the part-time employment was actually commensurate with the ability to work. The mere fact of some part-time employment does not in all cases compel a finding of a good faith job search. See Texas Workers’ Compensation Commission Appeal No. 981429, decided July 29, 1998, a babysitting case. In the case we now consider, the hearing officer found that the claimant could work up to 36 hours per week and that she arbitrarily limited herself to 20 hours per week. On appeal, the claimant argues that there was “simply nothing” in the record that indicates that the claimant had the ability, during the filing periods in question to work 36 hours a week and points to Dr. H’s November 9, 1998, letter restricting the claimant to 20 hours per week. As the claimant admitted, Dr. H provided this letter for use in the CCH. The hearing officer clearly gave it little credibility. The other medical evidence of restrictions was from 1995 except for another letter of November 6, 1998, from Dr. H, which contained restrictions of sitting/standing/walking of four to six hours per day, no lifting over 40 pounds, and no bending, stooping, squatting, kneeling, reaching, twisting, rotating or crawling. Despite these restrictions, the claimant said she was able to babysit a five-year-old and a three-year-old for 20 hours a week and her own 16-month-old. From this, the hearing officer could conclude that the claimant was regularly demonstrating in her babysitting job more physical activity or effort than described by Dr. H. What was critical was the determination of the hearing officer that the claimant could work substantially more than the 20 hours a week she was working, not the precise number of hours more per week.
The claimant also argues on appeal that she sent copies of her restrictions along with her resume in the interest of being “upfront” with potential employers and that she should not be penalized for this. As noted above, the concern of the hearing officer was that the claimant already decided she could do the work applied for, so it made little sense to the hearing officer, in terms of a good faith job search effort, to include specific job restrictions going back to 1995, at least with no follow-up with potential employers or attempts to verify that the employers even received the resume. We have noted that a hearing officer may consider the manner in which a job search is undertaken “with respect to timing, forethought and diligence.” Texas Workers’ Compensation Commission Appeal No. 960268, decided March 27, 1996. There was no evidence in this case of the claimant’s use of any other method to obtain a job, even though she had utilized the newspaper search method unsuccessfully over numerous quarters, or that she sought any kind of help in determining how to improve her job search efforts. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we decline to substitute our opinion of the credibility of the claimant in asserting a good faith job search for that of the hearing officer.
The claimant also appeals the hearing officer’s direct result finding, arguing that her assertion that she could not return to her old job because of her injury compelled a finding in her favor. Our review of the record discloses that the claimant testified that she could perform her old job, but not full time. She also said she did not contact the employer where she was injured because that employer was bought out, but she also said she did not contact the new owner. The claimant relies on our decision in Texas Workers’ Compensation Commission Appeal No. 961291, decided August 15, 1996, for the proposition that a serious injury with lasting effects and an inability to perform the type of work at the time of the injury are facts to be considered in determining direct result. See also Texas Workers’ Compensation Commission Appeal No. 960028, decided February 15, 1996, for the proposition that such evidence may be sufficient to affirm a finding of direct result. It is clear from the decision and order that the hearing officer considered the nature of the claimant’s injury and whether she could perform her preinjury job. This complied with the mandate of Appeal No. 961291, supra. While such evidence as presented by the claimant may have been sufficient to affirm a finding of direct result, our decision in Appeal No. 960028, supra, and numerous similar cases, does not compel a reversal of a finding of no direct result.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Elaine M. Chaney – Appeals Judge