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 February 1, 1999. The issues at the CCH involved whether the respondent, who is the claimant, was entitled to supplemental income benefits (SIBS) for his seventh and eighth compensable quarters.
The hearing officer held that the claimant had the inability to work due to surgical recovery for the filing period for the seventh quarter, and therefore no job search made during this filing period constituted compliance with the “good faith” search for employment. She held that he had an ability to work, however, for the eighth quarter, and because he had not made a search for employment, he did not make a good faith search commensurate with his ability to work. She held that his unemployment for both quarters was the direct result of his impairment. The hearing officer ordered payment of SIBS for the seventh quarter, but not for the eighth quarter.
The appellant (carrier) has appealed. The carrier argues that the direct result holding for both quarters was error. The carrier also argued that the finding that claimant had an inability to work during the filing period for the seventh quarter was against the great weight and preponderance of the evidence. There is no response from the claimant.
DECISION
Affirmed.
The filing period for the seventh quarter ran from May 4 through August 2, 1998, and for the eighth quarter, from August 3 through November 1, 1998. The hearing officer has done a comprehensive job of summarizing the facts in her decision, which we incorporate by reference. Succinctly, claimant, who had a spinal injury, had back surgery on November 15, 1997, and was in a body cast until May 1998, at which time he undertook therapy. The claimant could do some limited driving in the cast, but essentially little else.
Although the claimant felt that he was not in good muscle tone thereafter, in part due to denial of some recommended physical therapy, a functional capacity examination performed on November 16, 1998, recommended that the claimant could work at the medium-duty level. The claimant said that he agreed with this assessment, and said it represented his improvement due to exercises and therapy he had received which ended in October 1998. The claimant had hip replacement surgery in July 1998, and indicated that although he would have eventually needed this procedure without a back injury, an altered gait accelerated his need for it. However, he said, the recovery from the hip surgery was a matter of days and was not really an influence in an inability to work. The claimant’s treating doctor, Dr. F, wrote in October 1998 that a six-month recovery period from surgery such as claimant had in mid-November 1997, was to be expected, and that inactivity would lead to muscular deconditioning that would take therapy to restore. However, earlier on May 20, 1998, Dr. F wrote that claimant’s back was improving but his hip caused an inability to walk. Claimant sought no work during either filing period.
There are two eligibility criteria that must be met to continue after the first quarter to qualify for SIBS, set out in Section 408.143(a). The injured employee must prove that he or she has earned less than 80% of the employee’s average weekly wage as a direct result of the employee’s impairment and in good faith sought employment commensurate with the employee’s ability to work. In Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994, the Appeals Panel stated that if an employee established that he or she has no ability to work at all, then seeking employment in good faith commensurate with this inability to work Awould be not to seek work at all. Under these circumstances, a good faith job search is Aequivalent to no job search at all. Texas Workers’ Compensation Commission Appeal No. 950581, decided May 30, 1995. We have held that the burden of establishing no ability to work at all is Afirmly on the claimant, Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994, and that a finding of no ability to work must be based on medical evidence. Texas Workers’ Compensation Commission Appeal No. 950173, decided March 17, 1995. See also Texas Workers’ Compensation Commission Appeal No. 941332, decided November 17, 1994. A claimed inability to work is to be Ajudged against employment generally, not just the previous job where injury occurred.” Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994. Whether a claimant has no ability to work at all is essentially a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 941154, decided October 10, 1994. The hearing officer in finding that during the filing period for the seventh quarter that the claimant had the inability to work is supported by sufficient evidence. It is worth repeating that the impairment does not have to be the sole cause of unemployment or underemployment and evidence establishing that a claimant has had a serious injury, with lasting effects, can be enough to support a finding on “direct result.” Texas Workers’ Compensation Commission Appeal No. 93559, decided August 20, 1993; Texas Workers’ Compensation Commission Appeal No. 960905, decided June 25, 1996. The hearing officer’s finding on “direct result” for both quarters is supported by the evidence.
Likewise, we find support in the record for the hearing officer’s determination that claimant was eligible for the seventh, if not the eighth, quarter of SIBS. It is the fact finder’s responsibility to resolve conflicting evidence, and the Appeals Panel will not substitute its own judgment or re-weigh the facts. Accordingly, we affirm the hearing officer’s decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
Judy L. Stephens – Appeals Judge