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 September 9, 1999, in____________, Texas, with ____________presiding as hearing officer. The single issue at the CCH was whether the respondent (claimant) was entitled to supplemental income benefits (SIBS) for the fourth compensable quarter. The hearing officer determined that the claimant was entitled to SIBS and the appellant (carrier) has appealed, urging error as a matter of law based on several of his findings as there was insufficient evidence to support the finding made or it was against the great weight and preponderance of the evidence. Carrier urges that the decision be reversed and a decision rendered that the claimant is not entitled to SIBS for the fourth quarter. Claimant responds that there is sufficient evidence to support the findings made by the hearing officer and urges that the decision be affirmed.
DECISION
Although a finding of fact is reversed, the decision is affirmed on the remaining findings.
Claimant, a driving instructor, sustained a neck injury (disc bulge), on ____________, when a student driver hit a pothole and he had to assist in controlling the vehicle. He has undergone a lengthy period of conservative treatment and is now seeking SIBS for the fourth compensable quarter, the qualifying period for which ran from February 11, 1999, to May 11, 1999. During this period, he states, he worked a few hours on weekends checking fences at his mother’s ranch and was paid $400.00 gross wages for this work during the entire qualifying period (he stated his pay was $200.00 a month but he was only paid $400.00 during the period). He lived in a house that was owned by his mother and claims that he paid rent to his mother. He also testified, and submitted documentation, that he applied for jobs at some 36 prospective employers (three occurred on February 10th and were one day outside the period and the remainder were spread over the weeks of the qualifying period), stated that most prospective employers had not advertised a position or that they were hiring (“cold-calls”), that he did not get any interviews, and that he was not offered any position. He did not seek any positions as a driving instructor because he did not feel he could perform the job because of neck pain and the motion required. However, he indicated that he drove a truck both routinely and in his position as a fence checker but stated his opinion that it was different than the requirements of a driving instructor. He stated he had contacted the Texas Rehabilitation Commission at sometime (not further developed) and that he had not been to work hardening although it was recommended.
Claimant’s doctor, Dr. S (Dr. S), states in an April 19, 1999, note that he was not able to do an evaluation on claimant’s driving ability at the time. In a later note dated May 19, 1999, Dr. S observes that a driving instructor requires more than the usual amount of lateral movement of his neck and that he felt that full-time employment in this capacity “will be problematic for the patient and aggravate his chronic pain.” A functional capacity evaluation (FCE) dated May 11, 1999, finds that the claimant is currently functioning at the medium physical demand level and states under recommendations that “(claimant) could perform duties of driving ed Instructor, but states he has no plans to return to that job” and that “in order to return to work at any level above sedentary he would need work conditioning or hardening to return to work safely.” A report from a carrier review doctor, Dr. C (Dr. C), an orthopedic surgeon, dated April 26, 1999, indicates that considering the evaluation and other medical “in all reasonable medical probability, (claimant) is able to return to the occupation of driving instructor” with lifting restriction of 30-40 pounds. The former employer testified that she would hire a driving instructor with the same condition the claimant has and did not feel it would preclude the employment. Apparently, there were also other reasons for the claimant’s ending employment with the employer.
Under the provisions of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b)), to be eligible for SIBS, one must have an impairment rating of 15% or greater and must not have commuted any impairment income benefits. These two matters are not in dispute here. The two other requirements are that the employee “(1) has earned less than 80% of the employee’s average weekly wage [AWW] as a direct result of the impairment from the compensable injury, and (2) has made a good faith effort to obtain employment commensurate with the employee’s ability to work.” The carrier disputes that these latter two requirement have been proven. Initially, the parties stipulated that the AWW was $432.19. Although there was evidence that the claimant was only paid $400.00 gross wages during the whole period, carrier argues that the claimant was subsidized by his mother by living in a house she owned. There was no evidence as to fair market value as to rent and the claimant testified that he paid rent to his mother for the house. Although the evidence was not well developed on this issue, the hearing officer found that during the period, the claimant’s earnings were less than 80% of his AWW. We conclude that there was a sufficient evidentiary basis for this part of his finding. The hearing officer also found that these reduced earnings were a direct result of claimant’s impairment. Clearly, the evidence was in considerable conflict as to direct result with the claimant indicating he did not feel he could perform as a driving instructor and Dr. S providing some support pointing out the added demands for movement and the potential for aggravation of the compensable injury. It is apparent that the claimant sustained disc bulges from the incident and that he continues to suffer the effects of the injury. The contrary evidence, that is, the FCE and the firm opinion of Dr. C, is certainly significant evidence discounting the direct-result requirement. However; we cannot conclude that it is of such overwhelming character as to require the overturning of the hearing officer’s resolution of the conflicting evidence as being clearly wrong or 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). That a different fact finder might have drawn a different inference alone is not a sound basis for reversal.
Good faith can be shown by an employee who “has returned to work in a position which is relatively equal to the injured employee’s ability to work.” Rule 130.102(d)(1). The hearing officer found that the job as a “fence checker” was commensurate with his ability to work. Finding of Fact No. 3. Insofar as showing good faith, we conclude that this finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. There is just no probative evidence that the claimant’s working for several hours on the weekends for his mother checking fences with gross wages of $400.00 fulfills this requirement. That this limited work activity is demonstrative of good faith under the provisions of the cited rule, particularly considering the claimant’s own testimony concerning his capability and his job-seeking activity together with the opinions expressed in the medical reports and the FCE, cannot be sustained on the record under review. Texas Workers’ Compensation Commission Appeal No. 992085, decided November 5, 1999. We reverse and set aside this finding of fact.
Rule 130.102(d)(4) provides that good faith can be shown by providing sufficient documentation that the claimant has made a good faith effort to obtain employment, giving consideration to various listed criteria. As indicated, there was testimony and documentation that the claimant sought out and applied at some 33 different prospective employers during the weeks of the filing period. Most of the contacts were “cold calls” which we have stated can be considered in evaluating whether a good faith effort is shown. Texas Workers’ Compensation Commission Appeal No. 950199, decided March 24, 1995. While the job search efforts shown in the testimony and documentation may not be a model to follow in pursuing a serious effort to find an appropriate job and may suggest a pro forma approach, and while different inferences could be arrived by another fact finder under the circumstances presented in this case, this is not a sufficient basis to discard the findings, conclusions, and decision of the hearing officer. Salazar, et al. v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 94466, decided May 25, 1994. The evidence could be considered to show at least a minimal number of job contacts during the period; that the claimant filed applications; that the activity occurred during the course of the whole period; and that job applications appeared to generally involve positions that the claimant could reasonably fulfill within his restrictions. We do not conclude from our review of the evidence that the hearing officer’s finding of a good faith job search was so against the great weight and preponderance of the evidence as to be clearly wrong or unjust requiring reversal as a matter of law. Employers Casualty Company v. Hutchinson, 814 S.W.2d 539 (Tex. App.-Austin 1991, no writ).
Accordingly, although we reverse and set aside the finding of fact set out above, we affirm the decision and order.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Alan C. Ernst – Appeals Judge