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 August 18, 1999. She (the hearing officer)determined that the appellant (claimant) did not sustain disability as a result of a ___________, compensable finger injury. The claimant appeals this determination, contending that it is wrong. The respondent (self-insured) replies that the decision is correct, supported by sufficient evidence, and should be affirmed.
DECISION
Affirmed as reformed.
We consider this appeal timely based on a date of receipt by the claimant of the decision and order on September 2, 1999, and receipt of the appeal by the Texas Workers’ Compensation Commission (Commission) on September 15, 1999.
The claimant was hired by the self-insured as a probationary detention service officer on December 18, 1998. In order to be certified and obtain a permanent position as a detention service officer he was required to pass first a basic corrections officer course and then a final course. On January 20, 1999, he was assigned to attend the basic course scheduled to begin on February 15, 1999. On ___________, he crushed, or smashed, the top portion of his right middle finger while closing a door. The self-insured accepted the compensability of the injury. The claimant is right hand dominant. He testified that he was taken to the nurse’s station where a band-aid was applied and on the same day saw Dr. N, his family doctor. Dr. N issued a light-duty release, with a limitation on lifting “heavy objects.” The “heavy objects” were not otherwise defined or quantified.
The claimant returned to work the same day, ___________, and completed an employer’s report of accident in which he stated that he would not miss one or more days of work. He testified that his work was within Dr N’s restrictions. Mr. S, the training coordinator, testified that if the claimant had come to class with a light-duty release, he would not have been permitted to take the course. The claimant described the course as involving book work and writing, but he said he also attended firefighter training, which was “difficult” because of the lifting requirement. In any case, he said he passed the “rights and responsibilities” and the spelling portions of the course the second time. He failed the final exam when he took it for the first time on February 25, 1999. The rules permitted one re-take. He again took the final test on February 26, 1999, and failed it. The test itself consisted of marking blocks on an electronically-scored answer sheet. According to the claimant, he failed the test the second time because the pain from his injury interfered with his concentration. He said he could fill in the blanks, but just did not have enough time to finish. Because of this failure, he was ineligible to take the final course for certification and was terminated from his employment. The claimant has not worked since his termination.
Dr. N referred the claimant to Dr. R, whom he saw on March 1, 1999. Dr. R prescribed a splint and placed the claimant on modified work to include no lifting, pushing or pulling with the right hand and “no exposure to combative prisoners.” On March 15, 1999, Dr. R limited the claimant to left-handed work only and no use of the right hand “at all.” On April 2, 1999, the Commission approved the claimant’s request to change treating doctors to, D.C. Dr. G. At the claimant’s first visit on April 6, 1999, Dr. G placed the claimant in an off-work status and has renewed that status at each subsequent visit through the date of the CCH. According to the claimant, he had asked Dr. G at his visit the day before the CCH to return him to work.
Attached to the claimant’s appeal was a June 3, 1999, letter of Dr. W to Dr. N. The letter refers to the injury as an avulsion fracture, but does not otherwise address disability. The claimant asked that it be considered in his appeal. Generally, an appeal is limited to the record of proceedings at the CCH. Section 410.203(a). The claimant offered no explanation for why he did not offer this document into evidence at the CCH some six weeks after the letter was dated. Under these circumstances, we decline to consider it for the first time now. Texas Workers’ Compensation Commission Appeal No. 93970, decided December 9, 1993; Texas Workers’ Compensation Commission Appeal No. 91121, decided February 3, 1992.
Section 401.011(16) defines disability as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” The claimant has the burden of proving disability arose after the termination. Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993. Whether disability exists is a question of fact for the hearing officer to decide and can be proved by the testimony of the claimant alone if found credible. Texas Workers’ Compensation Commission Appeal No. 93560, decided August 19, 1993. Critical to the resolution of a disability issue is the determination that the inability to earn the preinjury wage was a result of the compensable injury. In this regard, we have noted that termination for cause does not necessarily preclude disability, but may be considered by the hearing officer in determining why a claimant is unable to earn the preinjury wage. See Texas Workers’ Compensation Commission Appeal No. 91027, decided October 24, 1991. Thus, disability can continue after termination if a cause of the inability to earn the preinjury wage after termination was the compensable injury. Texas Workers’ Compensation Commission Appeal No. 93850, decided November 8, 1993. We have also held that the 1989 Act does not “impose on an injured employee the requirement to engage in new employment while still suffering some lingering effects of his injury unless such employment is reasonably available and fully compatible with his physical condition and generally within the parameters of his training, experience and qualifications. On the other hand, we do not believe the 1989 Act is intended to be a shield for an employee to continue receiving temporary income benefits where, taking into account all the effects of his injury, he is capable of employment but chooses not to avail himself of reasonable opportunities… .” Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991.
In the case before us, the hearing officer commented that the claimant’s testimony was “not persuasive” and that Dr. G’s total work excuses “for complaints of pain” in the finger were “not credible.” Despite the claimant’s testimony that he had some trouble doing the firefighter part of his training, there was no evidence that he did not finish this training. He also completed an accident report on the date of injury in which he said he was able to continue working. This was consistent with Mr. S’s testimony that even a light-duty release would preclude enrollment in the training program. There was also undisputed evidence that the claimant continued working until he failed the final examination re-take. His reason for this failure was inattention to the test due to pain from the injury. In his appeal, the claimant somewhat changes his explanation from inability to concentrate to the employer’s refusal to abide by his restricted work release and instead forcing him into a “very rigorous training programme.” With regard to the claimant’s March 1, 1999, visit with Dr. R, the hearing officer comments that “[n]o work release slip was issued.” We assume the hearing officer meant that no duty excuse was issued. In evidence was a light-duty release on this date, as discussed above, which limited work with the right hand. This was followed by the work excuse of March 15, 1999, which limited activity to the left hand. The hearing officer commented that there was no evidence of an office visit on March 15, 1999, and thus seemingly questioned why the terms of the light-duty release became more restrictive. Ultimately, the hearing officer decided this case on the basis of her conclusion that the reason why the claimant was no longer earning his preinjury wage after his termination on February 26, 1999, was simply that he failed his final examination and was terminated in accordance with the employer’s policy.
In his appeal, the claimant cites Texas Workers’ Compensation Commission Appeal No. 960939, decided June 26, 1996, for the proposition that a light-duty work release “implies” disability.[1] We do not quibble with this proposition, but stress that it implies that the light-duty release will be found credible and persuasive by the hearing officer. The claimant also relies on Texas Workers’ Compensation Commission Appeal No. 970597, decided May 19, 1997, for the proposition that a claimant with a light-duty release “does not have to look for work.”[2] As the lengthy quote from Appeal No. 91045, supra, the seminal case on this question, points out, the effect of a light-duty release is not automatic disability as defined in the 1989 Act. Rather, other considerations such as the reasonable availability of work and the claimant’s capabilities must also be taken into account, along with an evaluation of the claimant’s credibility. The claimant appears to argue that a light-duty release was tantamount to irrefutable proof of disability. We disagree. The hearing officer considered all the evidence along with the credibility of the claimant and found that he did not establish disability after his termination from employment. 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 find the evidence sufficient to support her determination that the claimant did not have disability.
One final matter requires comment. The undisputed evidence established that the claimant was terminated from his employment on February 26, 1999. This date is reflected in the hearing officer’s discussion of the evidence. However, as the claimant points out on appeal, in Finding of Fact No. 2, the hearing officer found that the termination was on August 26, 1999, a date after the CCH and after the decision and order was signed. We consider this to be in the nature of a clerical error and, for this reason, reform this finding of fact to reflect termination on February 26, 1999.
For the foregoing reasons, we affirm the decision and order of the hearing officer as reformed.
Alan C. Ernst – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Elaine M. Chaney – Appeals Judge
- We observe that the hearing officer in this case made a finding that the claimant had a limited ability to work, whereas in the present case, no such finding was made and the hearing officer appears to reject such a finding based on her evaluation of the credibility of the evidence. ↑
- In this case, the claimant had returned to light duties based on a light-duty release considered credible. In the case we now consider, there was evidence that the claimant did not present a light-duty release to the employer and continued his regularly assigned duties, including enrollment in the training program. ↑