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 May 19, 1999. He (hearing officer) determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBS) for the ninth through the 14th quarters; that the claimant permanently lost entitlement to SIBS because he was not entitled to SIBS for 12 consecutive months; that the claimant’s compensable injury did not include the back, but did include a “hip injury”; and that the respondent (carrier) did not waive the right to contest the compensability of the claimed back injury. The claimant appeals the adverse determinations, contending that they are contrary to the great weight and preponderance of the evidence. The carrier replies that the decision is correct, supported by sufficient evidence, and should be affirmed.
DECISION
Affirmed in part as reformed and reversed and rendered in part.
On ________, the claimant suffered a compensable right leg injury in a fall. The lacerations of the leg developed into a bone infection. He underwent five operations, including bone grafts from both hips, to treat the bone infection. The definition of injury is “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.” Section 401.011(26). Injuries resulting from medical care of a compensable injury are also compensable. Texas Workers’ Compensation Commission Appeal No. 931136, decided January 27, 1994. The hearing officer found that the claimant’s “hip injury” naturally resulted from the compensable injury. This finding has not been appealed by the carrier. The claimant appeals the finding to the extent that it does not clearly include both hips. The carrier does not take issue with this position. We agree that the evidence supports, and the hearing officer implicitly found, a compensable bilateral hip injury. For this reason, we reform the decision and order of the hearing officer to reflect that the compensable injury included a bilateral hip injury.
The claimant also contended that when he fell he injured not only his leg, but also his lower back and submits that he early on complained of back pain, but this does not appear in the medical records of Dr. L, his initial treating doctor, because the focus of concern was the leg. The Employee’s Notice of Injury or Occupational Disease & Claim for Compensation (TWCC-41) signed by claimant on April 27, 1993, refers only to a right leg injury. On December 12, 1997, the claimant signed an Employee’s Request to Change Treating Doctors (TWCC-53) in which he requested to change treating doctors to Dr. G. The type of injury listed on the form was a “leg.” No mention was made of a back injury. At the claimant’s first visit with Dr. G, apparently on January 22, 1998, Dr. G diagnosed possible lumbar herniation. In a report of August 20, 1998, Dr. G noted that the carrier was disputing a back injury and until this was settled, he said, his treatment would be limited to the knee. On February 1, 1999, Dr. G wrote that, in his opinion, the claimant “did sustain an injury to his low back as a result of the fall, however, due to the complications of his lower extremity, this was not addressed. I feel that a degree of pain in his back is a result of his gait, but not the primary cause of his back pain.”
Whether the claimant injured his back in the fall or whether a back injury naturally resulted from the leg injury were questions of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. The claimant had the burden of proof on this issue. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). The hearing officer stated that he did not consider Dr. G to be persuasive in his opinions about the claimant. In particular, he noted that, although the fall was in ____________, the first reference to a back injury in a medical record did not appear until January 1998. He, therefore, found that the claimant’s injury did not include a back injury. 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 evidence for that of the hearing officer, but find the determination of the hearing officer that the compensable injury did not include the back to be supported by sufficient evidence. For this reason, we affirm that determination.
There remains the question of whether the carrier timely disputed the back injury. A carrier’s failure to dispute an injury within 60 days of receiving written notice of the injury makes the injury compensable as a matter of law. Section 409.021(c); Texas Workers’ Compensation Commission Appeal No. 961176, decided July 26, 1996. Written notice of injury, regardless of its source, is adequate to trigger the dispute requirement if it “fairly informs the insurance carrier of the name of the injured employee, the identity of the employer, the approximate date of the injury, and facts showing compensability.” Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.1(a)(3) (Rule 124.1(a)(3)). The hearing officer found the carrier did not waive the right to timely contest compensability. The claimant contends that written notice in this case consisted of his answers to interrogatories submitted to him by the carrier and returned to the carrier’s attorney by fax on February 12, 1997, and on April 4, 1997. Interrogatory 7 in each set asked the claimant to “describe the nature and extent of the claimed injury, including all parts of your body affected.” The response was “I injured my back and right leg. See carrier file for further details.” On the last page of each set of answers was a “Transmission Verification Report” which indicated that the fax was sent to a telephone number. The letterhead of the carrier’s attorney reflects a fax number, but this number is not the same as the number to which the fax was sent. The hearing officer commented that the information contained in “answers” to the interrogatories failed to show facts “tending to show compensability” of a back injury as required by Rule 124.1. We cannot agree with this conclusion because the immediately preceding question asked how the injury occurred and the claimant answered “I was unloading a truck when I fell off of the truck.” The hearing officer’s discussion did not expressly rely on the inadequacy of the notice in his findings of fact to support his conclusion of law that there was no carrier waiver. He based the non-waiver conclusion on a finding that there was “insufficient evidence to establish the date on which Carrier received written notice of the claimed back injury.” Finding of Fact No. 12. No explanation of the finding was made.
In its appeal, the claimant correctly noted that the carrier’s attorney did not deny receiving the fax. In its response, the carrier argues that the claimant could “never show a date of notice meeting the requirements of Rule 124.1.” We construe this response not to be a denial of receipt of the fax, but simply an assertion that the contents of the fax were not sufficient. As indicated above, we disagree with this analysis and find any determination that the notice was insufficient under Rule 124.1 to be contrary to the great weight and preponderance of the evidence. The carrier goes on to assert categorically that “interrogatory responses do not serve as notice of injury meeting the requirements of Section 409.021 and Rule 124.1.” The assertion seems on its face to be contrary to the text of the rule which refers to “any other notification regardless of source.” In support of its position that interrogatories as a matter of law cannot constitute notice of an injury for purposes of triggering the dispute provisions of Section 409.021, the carrier cites Texas Workers’ Compensation Commission Appeal No. 92154, decided June 4, 1992. This case did not deal with interrogatories or a carrier waiver issue. It also cites Texas Workers’ Compensation Commission Appeal No. 962216, decided December 16, 1996, which cited Texas Workers’ Compensation Commission Appeal No. 94904, decided August 25, 1994. These cases were decided on the basis of the adequacy of the information in the answer to the interrogatory. They do not provide authority for the proposition that an answer to an interrogatory cannot as a matter of law constitute notice to a carrier and we categorically reject such a proposition. See Texas Workers’ Compensation Commission Appeal No. 991183, decided July 14, 1999. We hold that the answers to the interrogatories in this case constituted written notice of a back injury. While it would have been preferable to have pursued the question of whether the phone number to which they were faxed was effective as a fax number for the carrier’s attorney, in this case the fax was addressed to the carrier’s attorney. In the absence of any representation whatsoever by the carrier that the fax number was incorrect or did not effect delivery of the answers to the carrier’s attorney, we conclude that Finding of Fact No. 12, quoted above, is contrary to the great weight and preponderance of the evidence. For this reason, we reverse that determination and render a decision that adequate written notice of a back injury was received by the carrier on February 4, 1997, and again on April 14, 1997. Because it is undisputed that the carrier did not contest compensability of this claimed injury until it completed a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) on March 18, 1998, the contest of compensability of a back injury was untimely and the back injury became compensable as a matter of law.
There remain the issues of six quarters of SIBS entitlement.
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 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 ninth SIBS quarter began on October 22, 1997, and the 14th quarter ended on April 20, 1999. The filing period for each quarter was the preceding 90 days. A finding that for each of the quarters in issue, the claimant’s unemployment was a direct result of his impairment has not been appealed and has become final. Section 410.169.
Section 408.146(c) provides that “[n]otwithstanding any other provision of this section, an employee who is not entitled to [SIBS] for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury.” At prior separate hearings, two different hearing officers determined that the claimant was not entitled to SIBS for the seventh and eighth quarters. These determinations were affirmed on appeal. Texas Workers’ Compensation Commission Appeal No. 990418, decided April 15, 1999 (Unpublished), and Texas Workers’ Compensation Commission Appeal No. 971690, decided October 8, 1997 (Unpublished). There is no indication in the record that judicial review of these decisions was sought. See Section 410.252. Given these findings of non-entitlement to SIBS for the seventh and eighth quarters, the entitlement findings for the ninth and 10th quarters became especially important in light of the provisions of Section 408.146(c). The claimant’s attorney acknowledged at the CCH that the claimant did not have the evidence to support entitlement to ninth quarter SIBS. For this reason, and fearing the impact of Section 408.146(c) on a finding of non-entitlement to ninth and 10th quarter SIBS, the attorney said (and the claimant verified this line of thought by his testimony) that the claimant’s predecessor attorney drafted an agreement which was reduced to writing on a Benefit Dispute Agreement (TWCC-24) form, which was signed by the claimant, the claimant’s attorney, the carrier representative, and the dispute resolution officer. The disputed issue printed on the form in substance was:
Is the claimant entitled to [SIBS] for the 9th and 10th compensable quarters. (Emphasis added.)
The resolution text reads:
The parties agree that the carrier is not liable for [SIBS] for the 9th and 10th quarters and shall not pay [SIBS] for those quarters.
The letter from the claimant’s attorney that transmitted the proposed agreement signed by the parties to the dispute resolution officer for approval states that “[t]his agreement finally resolves the issue of entitlement to ninth and tenth quarters of [SIBS].” (Emphasis added.) The claimant asserted both at the CCH and again on appeal that there is a distinction between the concepts of a carrier’s liability for SIBS and a claimant’s entitlement to SIBS. He argues that only a determination of non-entitlement invokes the provisions of Section 408.146(c) and that this agreement resolves only the carrier’s liability for ninth and 10th quarter SIBS and not the claimant’s entitlement to SIBS for these quarters. He goes on to assert that the effect of this agreement was to “foreclose” a ruling by the hearing officer (and presumably the Texas Workers’ Compensation Commission (Commission)) on entitlement to ninth and 10th quarter SIBS. To do otherwise, the claimant argues, would deprive him of any benefit of the agreement. The hearing officer disagreed with the position of the claimant and found that the agreement “resolved the issue of entitlement to 9th and 10th quarter SIBS.” Finding of Fact No. 8.
We recognize the distinction between the concepts of liability for and entitlement to SIBS as enunciated in prior decisions of the Appeals Panel. See, e.g., Texas Workers’ Compensation Commission Appeal No. 950723, decided June 23, 1995. It is also important to emphasize that the claimant is seeking enforcement of the agreement in accordance with his understanding of the intent of the agreement. The use of the word entitlement in the contemporaneous description of the agreement by the claimant’s attorney and his failure to clarify what to him was the critical value of the agreement raises questions about the claimant’s interpretation of the agreement. Nonetheless, for purposes of this opinion only and limited to the facts of this case, we assume that the agreement maintained the distinction between liability for and entitlement to SIBS and that entitlement was not resolved by the agreement. Where we part company with the claimant is his assertion that the agreement, as so understood and interpreted, also precluded the hearing officer from making any findings on entitlement. Such a position on the part of the claimant seems contradictory, that is, on the one hand, he seeks a strict construction of the agreement to limit its terms to a resolution of liability only, and, on the other hand, seeks to interpret it further as foreclosing any findings on entitlement. Either the agreement addresses entitlement or it does not. The claimant cannot have the agreement exclude entitlement considerations for some purposes, but not others. Accepting the claimant’s position that the agreement only resolves the liability issue, we see nothing in it that would foreclose the hearing officer from addressing the claimant’s entitlement to ninth and 10th quarter SIBS and find no error in his doing so.[1]
As to the merits of the SIBS entitlement issue, we find, as the claimant admitted, that he did not have persuasive evidence to meet his burden of proving a good faith job search for ninth quarter SIBS and affirm the hearing officer’s determination to this effect.[2] The claimant testified and submitted a Statement of Employment Status (TWCC-52) for the 10th quarter in which he listed some 24 job contacts. He testified that he did not have a “specific plan” for finding work, but went to places that displayed “now hiring” signs. He sought employment under the assumption that he could do sedentary work and had a 20- pound lifting restriction.[3] Although the claimant testified that all job contacts were in the 10th quarter filing period, he did not identify the actual dates of the contacts. He also said that he went back after the initial contacts to verify them in writing with the potential employer. The hearing officer noted the lack of a job search plan and concluded that the claimant was pursuing a record of job contacts rather than making a good faith effort to find employment. Whether the required good faith job search has been made is a question of fact for the hearing officer to determine. Texas Workers’ Compensation Commission Appeal No. 950307, decided April 12, 1995. Although a legitimate question can be raised whether the claimant is in fact appealing the finding of no good faith job search during the 10th quarter filing period, under our standard of appellate review of factual determinations of hearing officers, we find the evidence sufficient and affirm the finding of no good faith job search during the 10th quarter filing period.
Our affirmance of the findings that the claimant was not entitled to ninth and 10th quarter SIBS, along with prior determinations of non-entitlement to seventh and eighth quarter SIBS, provides sufficient support for the finding that the claimant has lost entitlement to further SIBS under the provisions of Section 408.146(c). We, nonetheless, address the claimant’s appeal of the findings that he was not entitled to 11th through 14th quarter SIBS. The claimant contended that during the filing periods for these quarters he had no ability to work. The Appeals Panel has held in Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994, 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 “would be not to seek work at all.” Under these circumstances, a good faith job search is “equivalent to no job search at all.” Texas Workers’ Compensation Commission Appeal No. 950581, decided May 30, 1995. The burden of establishing no ability to work at all is “firmly on the claimant,” Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994, and we have also stressed the need for medical evidence to affirmatively show an inability to work. Texas Workers’ Compensation Commission Appeal No. 960123, decided March 4, 1996. See also Texas Workers’ Compensation Commission Appeal No. 941332, decided November 17, 1994. A claimed inability to work is to be “judged against employment generally, not just the previous job where the injury occurred.” Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994. The absence of a doctor’s release to return to work does not in itself relieve the injured worker of the good faith requirement to look for employment, but may be subject to varying inferences. Appeal No. 941382, supra. 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 claimant relied on the opinion of Dr. G to establish no ability to work. Dr. G, from his initial treatment of the claimant in January 1998, noted a possible back injury. Based on his diagnoses of the claimant’s numerous medical problems, he concluded the claimant had no ability to work. This conclusion appears regularly throughout his medical reports, with the reasons given being his pain and medication. The hearing officer commented that he found Dr. G unpersuasive in asserting the claimant’s inability to work because of the other medical evidence, because he found Dr. G’s reports conclusory, and because the appearance of the claimant at the CCH contradicted the notion that he was unable to work at all. He therefore concluded that the claimant had some ability to work during the 10th through 14th quarter filing periods. Having failed to look for work at all during these periods, the claimant was found not to have made the required good faith job search and not entitled to SIBS for these quarters.
The claimant appeals these determinations, arguing that the hearing officer’s use of the word “conclusory” in describing Dr. G’s opinion was “bothersome” because it suggests the hearing officer applied the wrong standard. We agree that our opinions which point out the problems with so-called conclusory opinions of doctors do not establish a new standard of proof in SIBS no-ability-to-work cases. Rather, this notion of “conclusory opinions” is appropriately used as a tool to evaluate the persuasiveness of those opinions and does no more than to reiterate the concept that expert opinion is to be evaluated in terms of its thoroughness and credibility. See Texas Workers’ Compensation Commission Appeal No. 970834, decided June 23, 1997. While we question the hearing officer’s use of the word “conclusory” to describe Dr. G’s opinions, we believe that this word reflected no more than the degree of persuasiveness he was willing to afford Dr. G in light of the other medical evidence and the claimant’s appearance at the CCH. The hearing officer was the sole judge of the weight and credibility of the evidence. Section 410.165(a). We cannot agree that he applied an erroneous standard of proof in this case or that his determination that the claimant had some ability to work during the 11th through 14th SIBS quarters was not supported by sufficient evidence. For this reason, we affirm his finding that the claimant was not entitled to SIBS for these quarters. This finding provides sufficient independent support for the conclusion of law that the claimant has lost entitlement to SIBS pursuant to Section 408.146(c).
For the foregoing reasons, we reform and affirm the finding as reformed that the compensable injury included both the left and right hips. We affirm the determination that the original injury did not extend to the low back. We reverse the determination that the carrier timely disputed a low back injury and render a decision that the carrier did not timely dispute a low back injury and that for this reason a low back injury became compensable as a matter of law. We affirm the determinations that the claimant was not entitled to ninth through 14th quarter SIBS. And we affirm the determination that the claimant has permanently lost entitlement to SIBS.
Alan C. Ernst – Appeals Judge
CONCUR:
Judy L. Stephens – Appeals Judge
Dorian E. Ramirez – Appeals Judge
- 1We note that the claimant did not object to the hearing officer’s statement at the beginning of the CCH that an issue before him was whether the claimant was entitled to ninth and 10th quarter SIBS. ↑
- The law applicable to the analysis of a good faith job search is contained in Appeal No. 990418, supra, and Appeal No. 971690, supra, and need not be repeated here. ↑
- We note that the filing period for the 10th quarter ended before he saw Dr. G. ↑