This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On August 31, 1999, a contested case hearing was held in_____, Texas, with ________presiding as hearing officer. With regard to the issues before him, the hearing officer determined that appellant (claimant) is not entitled to supplemental income benefits (SIBS) for the fourth compensable quarter, as claimant’s underemployment was not a direct result of his impairment, and that claimant had not attempted in good faith to obtain employment commensurate with his ability to work.
Claimant appeals, making reference to prior quarters of SIBS, and contending that there was new and different evidence which mandates a finding for claimant. Essentially, claimant urges that he has been employed within the restrictions imposed by the treating doctor and, more recently during the fourth quarter filing period, endorsed by the respondent’s (carrier) doctor, and that there was no evidence that claimant received other income or wages from the employer. Claimant requests that we reverse the hearing officer’s decision and render a decision in his favor. Carrier responds, urging affirmance.
DECISION
Affirmed.
At the outset, we note that both parties and the hearing officer make references to hearings involving prior quarters of SIBS and in evidence is a hearing officer’s decision and order denying claimant’s entitlement to SIBS for the third compensable quarter. We also note that two of those hearings were appealed and resulted in Texas Workers’ Compensation Commission Appeal No. 982674, decided December 29, 1998 (Unpublished), where we affirmed the hearing officer’s decision of nonentitlement to SIBS for the second compensable quarter, and Texas Workers’ Compensation Commission Appeal No. 990570, decided April 9, 1999 (Unpublished), where we affirmed the hearing officer’s decision on nonentitlement to SIBS for the third compensable quarter. Because the background facts are recited in both Appeal No. 982674 and Appeal No. 990570, as well as in considerable length and detail in the hearing officer’s decision, we will only very briefly summarize the background.
The parties stipulated that claimant sustained a compensable (left hand) injury on _______________; that claimant has a 26% impairment rating (IR); that impairment income benefits have not been commuted; and that the filing period was from January 24 through April 24, 1999. The parties agreed that this case was to be decided under the “old” SIBS rules. See Texas Workers’ Compensation Commission Appeal No. 991634, decided September 14, 1999 (Unpublished), which holds that the “new” SIBS rules apply if the compensable quarter starts on or after May 15, 1999.
Section 408.143 provides that an employee continues to be entitled to SIBS after the first compensable quarter if the employee: (1) has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment and (2) has made a good faith effort to obtain employment commensurate with his or her ability to work. See also Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.104 (Rule 130.104). 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, “[f]iling 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 employee has the burden of proving entitlement to SIBS for any quarter claimed. Texas Workers’ Compensation Commission Appeal No. 941490, decided December 19, 1994.
Very briefly, claimant, at the time of his injury, was half owner and president of Martin-Haney Masonry, Inc. (employer) and, on the date of injury, cut his left hand in a band saw, causing lacerations and partial amputations of some of the fingers of his left hand, which resulted in the stipulated 26% IR. It appears relatively undisputed that claimant has not had any further active medical care for his left, nondominant hand since________. Claimant testified that he is 69 years old and that he had been a bricklayer. It appears undisputed that claimant is no longer able to perform duties as a bricklayer. Apparently, claimant briefly returned to work for the employer (essentially himself) as a consultant but, upon learning he could not draw both his consultant pay and maximum Social Security (SS) income benefits, adjusted his employment and financial affairs in order to be entitled to maximum SS benefits and SIBS. Claimant testified that he is currently employed by the employer as a part-time (20 hours a week) maintenance man doing yard work at the minimum wage. How active the employer is in pursuing work is unclear. Claimant testified that he no longer engages in the management of his company and that his partner and co-owner is considering retirement. Claimant was asked directly by the hearing officer why he could not bid jobs for his firm or supervise or perform managerial functions for the employer. Basically, claimant’s answer was that there were no jobs to bid and no work to supervise. Although there is no evidence that claimant is receiving other than the reported minimum wage income from the employer, it is also evident that the employer has substantial assets in cash, land and equipment. The hearing officer’s nine-page summarization of the evidence recites other testimony and evidence regarding claimant’s work and ability to work. As noted, claimant was denied entitlement to SIBS for the second and third compensable quarters.
Claimant contends that he has additional evidence for the quarter at issue here, namely, a report made during the filing period from Dr. J (Dr. J), who claimant emphasizes is the carrier’s doctor. Dr. J’s report is dated _______________, recites claimant’s medical history, that claimant’s treating doctor is Dr. E (Dr. E), claimant’s prior workers’ compensation hearings, and the results of his examination. Dr. J concludes:
This patient’s hand status is basically unchanged since his evaluation in________, almost 3 years ago. His traumatic condition has plateaued without improvement in his motion, subjective numbness and hypersensitivity… . His functional limitations and activities are also unchanged.
Over the years, he has come to realize that his hand will never be normal and has attempted to utilize this as best he can. He will never be able to return to his bricklaying trade. He has returned to part-time menial labor, finding even this to have limits. I concur with [Dr. E] regarding his work restrictions. Based on his skill/educational level, he is attempting to carry out some work activities. I too, am not sure as to what type work is appropriate for a 69 year old retired man with the left hand injuries he has sustained. He is attempting to perform some work within his physical limitation. He has tried going through TRC [Texas Rehabilitation Commission] without avail; they seemingly have nothing to offer, or are not interested as he is working. Perhaps a Vocational Rehab Nurse may offer some in-sight into other acceptable work positions.
Dr. E has limited claimant to working only half days at some kind of light duty because of his left hand injury. How claimant’s left hand injury precludes him from working full time in a managerial position, or as a security person, on a full-time basis at a wage higher than the minimum wage claimant is paying himself, is not evident. Appeal No. 990570, supra, recites that claimant “is paid minimum wage for his maintenance work, that he keeps his own hours, that he writes himself a check each week for the hours he worked… .” Claimant contends that he is doing what Dr. E and Dr. J have prescribed that he can do, that Dr. J, as the carrier’s doctor, agrees with Dr. E’s restrictions and that, therefore, he is entitled to SIBS. We observe that claimant’s arguments would have a far greater ring of credibility were he working for a truly unrelated employer, in an arm’s length relationship, in the open market. In any event, it is the hearing officer that is the sole judge of the weight and credibility that is to be given to the evidence. Section 410.165(a). The hearing officer recites at length from Appeal No. 982674, supra, and we need not repeat those observations here, other than to note that, in that case, the Appeals Panel also commented that if “claimant [were] cast out into the working world to seek employment from third persons, the hearing officer’s analysis might well have been different. . . .”
We have frequently, and early on, attempted to define good faith, noting that good faith is an intangible and abstract quality with no technical meaning or statutory definition. It encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or seek an unconscionable advantage. An individual’s personal good faith is a concept of his own mind and inner spirit and, therefore, may not be determined by his protestations alone. Texas Workers’ Compensation Commission Appeal No. 950364, decided April 26, 1995, citing BLACK’S LAW DICTIONARY, 693 (6th ed. 1990). Whether good faith exists is a fact question for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994. The hearing officer quite clearly found and believed that claimant’s restrictions to the minimum wage part-time work, for his own company, was self-limiting, the doctors’ opinions of claimant’s ability notwithstanding. The hearing officer recites that claimant “willfully limited his time and efforts to doing minimal work . . . for minimum wage when he could be doing more substantial and gainful work.” While the Appeals Panel has held that an injured worker is not obligated to seek a better paying job if the injured worker is working in accordance with his restrictions, we would add that that lower paying job must be commensurate with his ability to work. In this case, the hearing officer observed claimant’s left hand and saw the extent of the limitations in the hand, and concluded that that injury would not preclude full-time work in a managerial or other higher-paying job. How the left hand injury precludes full-time work at a higher wage is not evident in either Dr. E’s restrictions or Dr. J’s report.
We hold that the hearing officer’s finding and decision are supported by the evidence as we cannot agree that the hearing officer was required to accept Dr. J’s report at face value when the nature of claimant’s relationship with the employer (himself) and the hearing officer’s own observations and common sense would dictate otherwise. Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer’s determinations unless they are 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). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
Dorian E. Ramirez – Appeals Judge