This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 9, 1999. The appellant/cross-respondent (carrier) and the respondent/cross-appellant (claimant) stipulated that the fourth quarter for supplemental income benefits (SIBS) began on December 4, 1998, and ended on March 4, 1999. The hearing officer determined that during the filing period for the fourth quarter for SIBS the claimant’s unemployment was a direct result of his impairment from the compensable injury. The carrier appealed that determination, contending that it is against the great weight and preponderance of the evidence. The claimant did not file a response to the carrier’s appeal. The hearing officer determined that during the filing period the claimant did not in good faith seek employment commensurate with his ability to work, that the claimant was referred to the Texas Rehabilitation Commission (TRC) and did not follow up on the referral, and that he is not entitled to SIBS for the fourth quarter. The claimant appealed those determinations, urged that they are against the great weight and preponderance of the evidence, and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision that he is entitled to SIBS for the fourth quarter. The carrier responded, urging that the evidence is sufficient to support those appealed determinations of the hearing officer and requesting that they be affirmed.
DECISION
We affirm.
The claimant, who is 62 years old and does not speak English, testified that, from age 14 until he was injured, he performed manual labor; that he had to carry heavy cable in the job he was working on when he was injured; that he now has a lifting restriction and could not carry the cable; that he looked for light-duty work; that when he looked for work, he had the person write down his or her name; that he does not know the people who wrote their names; and that one place gave him an application, he completed the application, but did not hear anything about his application. The Statement of Employment Status (TWCC-52) for the fourth quarter indicates that the claimant sought employment at 28 places. A report from Mr. C, a case manager, indicates that Mr. C attempted to contact the 28 places listed; that he did not have telephone numbers for five places; that at one place the person said that the claimant just wanted her to sign the paper and did not want a job; that the person at one place said that the claimant was given an application; that one telephone number was that of a residence and that the person who answered the telephone was upset that the claimant had said that he looked for employment there; and that the people at most of the places had no record of the claimant contacting them or did not remember his name. The claimant said that one time Mr. C gave him a list of companies; that he, the claimant, had already contacted those places and told Mr. C that he had done so; and that he did not tell anyone he just wanted the person to sign and did not want a job.
We first address the hearing officer’s Finding of Fact No. 5 that A[c]laimant was referred to the [TRC] but did not follow up on the referral. The letter from the Texas Workers’ Compensation Commission (Commission) to the claimant dated November 19, 1997, is the letter issued under the provisions of Section 409.012 that has no impact on entitlement to SIBS and not the letter issued under Section 408.150 that results in a claimant not being entitled to SIBS for refusing the services of or refusing to cooperate with TRC. See Texas Workers’ Compensation Commission Appeal No. 961344, decided August 26, 1996, in which the provisions of those sections are set forth and explained. Finding of Fact No. 5 is surplusage and will be disregarded.
We next address the determination that, during the filing period for the fourth quarter for SIBS, the claimant did not in good faith seek employment commensurate with his ability to work. Whether good faith was shown is usually a question of fact for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 941741, decided February 9, 1995. Consideration can be given to the manner in which a job search is made and timing, forethought, and diligence may be considered in determining whether a good faith job search was made. Texas Workers’ Compensation Commission Appeal No. 961195, decided August 5, 1996. In Texas Workers’ Compensation Commission Appeal No. 950364, decided April 26, 1995, the Appeals Panel rejected the contention that a certain number of job applications showed good faith and stated the following about good faith:
In common usage this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and generally speaking, means being faithful to one’s duty or obligation.
And, in Texas Workers’ Compensation Commission Appeal No. 960252, decided March 20, 1996, the Appeals Panel stated that the trier of fact, in determining whether the claimant in good faith sought employment commensurate with the ability to work, sometimes assesses whether undeniable contacts made with prospective employers constitute a true search to reenter employment or are done instead in a spirit of meeting, on paper, eligibility requirements for SIBS.
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 because the finder of fact judges the credibility of each and every witness, the weight to assign to each witness’s testimony, and resolves conflicts and inconsistencies in the 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. An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). The hearing officer’s determination that during the filing period the claimant did not in good faith seek employment commensurate with his ability to work is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
Lastly, we address the hearing officer’s determination that during the filing period the claimant’s unemployment was a direct result of his impairment from the compensable injury. The claimant testified that his neck was causing considerable problems and that cervical spinal surgery was being considered. Medical records indicate that the claimant has cervical problems and that the spinal surgery process is being used for the Commission to determine whether the carrier will be liable for cervical spinal surgery. The carrier agreed that the claimant’s compensable injury includes injury to the neck. However, it contends that, since the claimant did not receive an impairment rating for the neck, injury to the neck cannot be considered in determining whether the claimant’s unemployment is a direct result of the impairment from the claimed injury. In Texas Workers’ Compensation Commission Appeal No. 970050, decided February 21, 1997, the Appeals Panel held that a claimant must prove that the unemployment was a direct result of impairment from the compensable injury, not the rated impairment. The medical evidence clearly indicates that during the filing period the claimant had impairment as the result of his neck injury. Applying the standards concerning the direct result criteria, the determination that during the filing period the claimant’s unemployment was a direct result of his impairment from the compensable injury is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust.
We affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Philip F. O’Neill – Appeals Judge