This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On January 29, 1999, a contested case hearing (CCH) was. The issue concerned whether the appellant, who is the claimant, had disability from her compensable injury (and, if so, for what period) and whether the respondent (carrier) was entitled to reduce income benefits to recoup the previous overpayment of temporary income benefits (TIBS).
The issues in large part were generated because the claimant, during a time when she was receiving TIBS, was also working as a registered nurse for another employer, and had not reported this fact or those wages to the carrier. The hearing officer held that the claimant had disability due to her compensable repetitive trauma injury from the period of March 17 through June 3, 1997, but not thereafter. He further found that the carrier could reduce the claimant’s income benefits to recoup a previous overpayment of TIBS. Concerning a post-surgical period for which the claimant sought to be adjudged as having disability, the hearing officer found that the claimant failed to produce “medical records” that would establish that she had the inability to obtain or retain employment after the period of surgery.
The claimant appeals. She argues that she has had to “unjustly defend” herself against allegations made by the carrier, and against the necessity of surgical intervention and subsequent rehabilitation. The claimant argues that the carrier failed to present evidence in support of its positions. The claimant argues that she offered to settle the overpayment issue. The claimant argues that she was entitled to TIBS during the period in question when she was also working, because she could not return to, and had not been released to return to, her previous occupation as a nurse practitioner. The claimant argues that the investigation of the fraud investigator who testified was not complete because she did not speak to any of the doctors involved nor did she attempt to ascertain what the claimant’s work duties were. The claimant argues that the hearing officer should have admitted her attorney’s computations of what amounts were actually overpaid. The claimant argues that she was not deceptive because queries about whether a person has “returned to work” can have two different meanings. She argues that she was not informed that she had to report wages or the fact that she was working. The carrier responds by reciting facts it believes support the decision. The carrier argues that the hearing officer was not bound to accept the claimant’s testimony on disability as credible. The carrier points out at the CCH that the claimant did not consider she was “back at work” if she had not returned to her original job. The carrier argues that the province of the finder of fact should not be second-guessed by the Appeals Panel. It argues that recoupment of the entire amount of TIBS paid after June 4, 1997, is appropriate where there was no statutory entitlement to TIBS because the hearing officer has found no disability.
DECISION
Affirmed.
The hearing officer has accurately summarized the facts brought out in the testimony, and we incorporate that summary by reference. Essentially, the claimant sustained a repetitive motion injury involving the positioning of her hand while performing pelvic examinations in the course of her employment with (employer). This was undisputed. The date she first knew, or should have known, that her injury was related to her employment was ____________. However, the claimant said that her hand first began to hurt on (date)(which was shown as the date of injury on pertinent paperwork). The claimant was terminated on February 26, 1997, due to a personality conflict with the new director.
The claimant said that she first went to her family doctor on ____________, at which time she was diagnosed with a repetitive trauma injury related to her employment. The hearing officer has agreed that the claimant had disability for the time period beginning at this point until she returned to work as a registered nurse. Much of the controversy surrounds her admitted failure to report her return to work to the carrier, and continued payment of TIBS through January 1998. In early June 1997, the claimant sought and obtained employment from a nursing “pool” that served (the hospital) and she had returned to work primarily, but not exclusively, in the neonatal unit as a registered nurse (RN). The claimant agreed that the RN job did not involve pelvic examinations, repetitious work with her wrist, or very much in the way of writing or typing on a computer; computer work apparently involved the use of “macros” so that few keys had to be pushed. In contrast to the argument made in the appeal (asserting extensive writing on the job), the claimant actually testified that “we didn’t do much writing, luckily” and that there was little writing beyond her name and making a few brief notes, in contrast to her doctor’s office where she was required to fill out “a gazillion” forms. This was corroborated by her coworker, (Ms. W), who testified at the CCH.
The claimant said her sole reason for seeking employment was that her husband was injured, off work without any workers’ compensation, and there was no family income. Her paycheck stubs in evidence show variable income wages paid to her in two-week periods. She stated that this variation was due to the effects of her injury which caused her to schedule herself for fewer hours at times. Statements from coworkers indicate that she complained of pain in her wrist and wore a brace on occasion at work, although it did not affect her ability to do her job.
The medical records during this time, the testimony of (Dr. G), her treating doctor, and an interview she had on January 26, 1998, with a fraud investigator, (Ms. C) (who identified herself as with customer service for the carrier and tape recorded the conversation without disclosing this to the claimant), all indicated that the claimant was not working at the time the record was made. The claimant asserted at the CCH that she did not disclose her work for the hospital as an RN because “working” meant to her that she had returned to her career path as a nurse practitioner, and that conversations that occurred involving whether she was “working” involved the specific context of whether she had made such a return. Although the claimant complains that she was not asked the direct question by Ms. C as to whether she was “currently working,” which she asserted she would have answered truthfully, the transcript indicates that she was asked if she had considered a return to regular nursing (to which her answer was “no” because it paid half as much) and what she did with her days (to which her answer was “not much”). When Ms. C asked if Dr. G had talked to her about his feeling “in terms of your return to work and what type of job you would be able to do,” claimant’s response was to note that Dr. G was under the impression that she should not return to the job she was doing before. When asked in cross-examination why she did not tell Ms. C she had gone back to work, the claimant stated that she did not consider that she had gone back to work because she was not working as a nurse practitioner. Under subsequent questioning by the hearing officer, she agreed she was rendering personal services at the hospital for wages.
Ms. C testified that information about the importance of reporting work and wages was mailed with each TIBS check (except the claimant’s first check). She said that she contacted the claimant after the carrier received a tip that the claimant was working. As noted by the hearing officer, the paycheck records reflect that was paid $2,619.23 gross wages for the two-week period ending January 24, 1998 (two days before her recorded interview with Ms. C).
Dr. G testified that he was unaware that the claimant in fact had returned to work when he wrote on July 7, 1998, that she had been “totally” disabled from ____________, and would continue to be until three months after her surgery. He made clear that he felt a complete prohibition from working was in order only for her nurse practitioner position. Dr. G stated that so long as she did not perform pelvic examinations, do repetitive work, or a lot of writing, she would not be precluded from returning to nursing, although, had he known about it in advance, he would have advised her to return on a trial basis. Dr. G asserted that the fact she had been working would not alter his assessment.
The claimant’s hand surgeon was (Dr. W). As noted by the hearing officer, there are no records from or after her surgery from Dr. W. He diagnosed the claimant’s condition in June 1998 as deQuervain’s disease of the right wrist, torn triangular fibrocartilage of the right wrist, and ulnar impaction syndrome right wrist. He said she should have arthroscopic surgery and possible debridement of the triangular fibrocartilage complex of her right wrist. The only medical opinion concerning post-surgical disability was from Dr. G, as noted above, who opined prospectively that she would likely be disabled for three months. (The August 14, 1998, report of Dr. W referred to in the appeal is not in the record.) Because most of the testimony was otherwise focused on the time she was working for the hospital, there is only scant testimony from the claimant about her post- surgical status. She stated that she had pain in her right hand both before and after the surgery, and asked at the CCH if she felt she could work “now,” she responded by saying no doctor had released her.
The claimant sought to have admitted her own computation of what the amount of overpayment was. The hearing officer pointed out that the working out of amounts was a matter to be resolved between the parties, but that, in any case, he could see that the figures used by the claimant’s attorney in the computations did not “jibe” with what paycheck records show in some instances. Moreover, the method used by the attorney was to simply divide a two-week period by half, which he conceded may not reflect the actual hours and pay worked in each separate week. The actual amounts earned in each week would have to be established, however, in order to compute the amount of TIBS that should have been done and the resultant overpayment. We do not agree that the hearing officer abused his discretion by not admitting this computation document.
In light of arguments raised both on appeal and at the CCH, we will generally discuss the concept of disability as used in the 1989 Act. First of all, we believe it axiomatic that one is charged with knowledge of applicable statutes and rules; there was no supervening duty of the carrier in this case to recite to the claimant her responsibilities and obligations under that law, although there was evidence that it did send such information with most of the claimant’s TIBS checks. The claimant is charged with knowledge of, for example, the obligation imposed by Tex. W. C. Comm’n. 28 TEX. ADMIN. CODE § 129.4(d) (Rule 129.4(d)) to report earnings and offers of employment where one is not retained in employment by the employer at the time of injury. Likewise, the claimant is charged with knowledge of Section 408.103(a), which establishes that an essential element upon which the amount of TIBS is calculated is the “employee’s weekly earnings after the injury.”
Whether one’s post-injury job is “full” or “part” time is not the determining factor. Rather, the definition of “disability” which is necessary to entitlement to TIBS is in Section 401.011(16):
“Disability” means the inability because of a compensable injury to obtain and
`retain employment at wages equivalent to the pre-injury wage.
The Appeals Panel has stated that the analysis of equivalency is made not with reference to hourly earnings, but a comparison of the pre-injury average weekly wage with the weekly earnings when employment is resumed. Texas Workers’ Compensation Commission Appeal No. 92087, decided April 23, 1992; Texas Workers’ Compensation Commission Appeal No. 951980, decided January 8, 1996. The determination as to an employee’s disability is a question of fact for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 92147, decided May 29, 1992. The disability issue was not limited to dates, as the claimant argues in her appeal; the issue was broadly stated and the hearing officer was asked to decide the periods of any disability resulting from the compensable injury.
Medical evidence is not required to establish disability, which can be established by the claimant’s testimony alone, if believed. Gee v. Liberty Mutual Fire Insurance Company, 765 S.W.2d 394 (Tex. 1989). The hearing officer was not bound by Dr. G’s broad assessment of “disability.” In this case, the hearing officer determined that there was no disability following the date the claimant returned to work, and apparently was of the opinion that diminished wage resulted from her intentional scheduling of fewer hours. We find that this is sufficiently supported by the evidence. As to the period following her August 1998 surgery, this finding may seem, at first blush, more harsh. However, the surgery performed, and the expected recovery time, are not a matter of common experience. As noted by the hearing officer, there is no medical guidance, leaving him to rely on the scant testimonial record from the claimant on this matter. Frankly, the claimant’s credibility was not enhanced by the fact that she narrowly defined her concept of what it was to “work” with reference only to her former job. Whether asked the direct question by Ms. C, a fair reading of her side of that interview is that she left the impression with Ms. C that she had not been employed in any capacity since leaving her job for the employer. Consequently, the trier of fact could conclude that this was not simply a case of the claimant’s not understanding her responsibility to report her work to the carrier, since she also did not mention work to her doctors when common experience might tell the trier of fact that she would have. The hearing officer was not required in his tribunal to believe, one way or the other, that there was overt intent to deceive on the matter of reporting her hospital employment. He could take her testimony at the CCH alone, including her technical assertion that she was not “working” if she was not serving as a nurse practitioner, as casting some doubt on her credibility to accurately assess her status.
On the matter of recoupment, we do not find error. The assertions in the appeal concerning any settlement negotiations are not part of the record here. Had the claimant been found to have disability during the period of time she worked for the hospital, then only the amount of overpayment would be in question, as the claimant appears to argue. Because the amount of TIBS that a high wage earner can earn is “capped” at the maximum weekly benefit under Section 408.061(a), there could be cases where the maximum TIBS amount might be due even where a person had gone back to work, so long as there was a wage disparity due to the compensable injury, and the arithmetical calculation set forth in Section 408.103(a)(1) yields a figure equal to or higher than the maximum benefit. However, if it is held, as in this case, that the lower wages paid were not due to the compensable injury, then the entire amount of TIBS would represent an overpayment.
For these reasons, we affirm the hearing officer’s decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Elaine M. Chaney – Appeals Judge