This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On July 27, 1999, a contested case hearing (CCH) was held. The issue concerned the entitlement of the appellant, who is the claimant, to her 12th and 13th quarters of supplemental income benefits (SIBS).
The hearing officer determined that the claimant was not entitled to SIBS for either of the quarters in issue. He found that she had some ability to work but failed to make a good faith search for employment commensurate with this ability. He also found that her unemployment was not the direct result of her impairment.
The claimant has appealed. She argues that she made the very best search she could in good faith. She argues that the fact that she made “cold calls” is permissible under a previous Appeals Panel decision. She argues that her foot (which the hearing officer observed was not part of her compensable injury but caused limitations in her job search) was part of her compensable injury. Finally, the claimant asserts that the respondent’s (carrier) witness should not have been allowed to testify because her identity was not timely disclosed. The carrier responds by reciting facts that support the decision, and asking that it be affirmed.
DECISION
We affirm.
The claimant was injured when she fell backwards over a pallet while carrying a box, which then fell on her. The accident happened on ________. At the time of the CCH, the claimant was 50 years old. She had shoulder surgery for an impingement, but her other injuries were, by and large, strains and sprains.
The hearing officer has summarized the facts well. We will just briefly note that the claimant had a list of jobs she sought during each quarter. She said generally that she located prospective employers through the newspaper or through the telephone book. In one case, she applied at a company that she usually rode by on her way to visit relatives in (State 2). When the vocational counselor for the carrier sent her jobs, she said, she would follow up if she had enough money for transportation. The claimant also said that her contacts with some of these companies yielded the information that there were no jobs available. On cross-examination, she stated that she did not contact any of those employers that were referred by the vocational counselor. She identified as a barrier to searching her lack of transportation, and therefore her ability to search was somewhat dependent upon her cash at hand to ride the bus. The claimant also stated that she did not leave a contact telephone number where an employer could reach her, but instead obtained the business card and would recontact the employer by using the pay telephones across the street. Again, her funds available would dictate how often she followed up. It came out on cross-examination that she lived with her son, who had a telephone, the number of which she knew, and who also had a car and could drive. Later on in redirect testimony, she said that her son did not have a telephone until just recently, the week of the hearing. She said that neighbors and friends in the neighborhood had telephones, and in some applications she filed she used a neighbor’s number.
The claimant applied for cleaning jobs which she felt she was able to do. As her Statement of Employment Status (TWCC-52) forms were reviewed, it appeared that her contacts at the various employers tended to be secretaries, clerks, or salespeople, rather than persons obviously identified with human resources or personnel departments. She was unable to recall many details of her job search when asked on cross-examination. The claimant testified that for four years, she had gone to school to learn English five days a week, four hours a day. The claimant had a fourth grade level education.
Dr. N, the treating doctor, completed a brief off-work slip stating the claimant was unable to work in early 1999. Dr. N, who listed her conditions as spinal strains and a left shoulder impingement, stated that she could “never” return to full-time work. The claimant briefly testified that she had trouble walking due to foot pain, but that she could walk a couple of blocks.
The only proven “referrals” of the vocational counselor, made in October 1998, consisted simply of a long list of employers and addresses, with no indication that jobs were available, what they were, or who to contact. The vocational counselor documented investigations of the claimant’s listed contacts somewhat more thoroughly than it supplied leads. On January 26, 1999, a report of 24 listed employers for the 12th quarter indicated that there were telephone numbers given that related to other business, that the businesses listed did not have phone numbers, that jobs were not available during the time period claimed contacts were made, that an application for the claimant could not be found, or that contact was not made. There was one employer who searched and found an application from the claimant. There were a few employers who were unable to confirm an application due to the great number of them on file. For the 13th quarter, 35 employers and a state agency were contacted (or attempts made) with similar results. One who identified an application on file stated that it had only recently been placed.
Ms. M testified over objection from the claimant. The claimant objected that the witness was not disclosed, and when a timely filed document was produced identifying the witness, the claimant contended she did not recall having received it. The carrier asserted that the exchange letter was mailed July 2, 1999, which was the 15th day. It was Ms. M who conducted the investigation of claimant’s listed job leads. The substance of Ms. M’s testimony was to describe her investigation. She also said that job leads would be identified with reference to restrictions set out by a doctor and that her company worked primarily for insurance companies. The sources of information for the jobs were the newspaper, the Internet, direct contacts with employers, or the Texas Workforce Commission.
As an example of her verification process, Ms. M described how she had contacted the County, and she confirmed that the County was hiring for cleaning positions, but that there was no application on file from the claimant, although she said she had applied and followed up. She also noted that some companies where claimant contended she had applied said they were not even giving out applications as there were no vacancies on the listed dates. In April, Ms. M contacted one retailer listed by the claimant who said that, while there had not been openings at the time claimant said she applied, they had an opening at the time of Ms. M’s call. Ms. M relayed this information to the claimant.
We cannot agree that the hearing officer erred by allowing Ms. M to testify. He could believe that her identity as a witness was timely disclosed.
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 has in good faith sought employment commensurate with the employee’s ability to work. The legislative requirement to look for work serves the objective of SIBS as a “bridge” benefit to support a reentry to employment.
Good faith is a subjective concept and generally means honesty of purpose, freedom from intent to defraud, and being faithful to one’s obligations. Texas Workers’ Compensation Appeal No. 960107, decided February 23, 1996. Whether good faith exists is a fact question for the hearing officer. Texas Workers’ Compensation Appeal No. 94150, decided March 22, 1994.
The hearing officer is the sole judge of the relevance, materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). Frankly, the totality of the claimant’s testimony would support the hearing officer’s apparent inference that claimant’s job search was aimless, unfocused, and not of the character likely to elicit offers for employment. While a good faith search may indeed yield employers who have no current openings, it would seem that by the 12th and 13th quarter, “cold calls” would not comprise a major portion of the job search directed at obtaining employment. The hearing officer could also
have questioned why, if claimant took business cards from prospective employers, there would have been so many employers whose correct telephone numbers, or existence, could not be verified by Ms. M. While the claimant’s foot injury was not as significant as it would appear from the hearing officer’s decision, the hearing officer could nevertheless have concluded that claimant’s impairment was not a direct factor in her unemployment. We affirm the decision and order of the hearing officer as having sufficient support in the record.
Susan M. Kelley – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Philip F. O’Neill – Appeals Judge