This appeal arises pursuant to the Texas Workers’ Compensation Act of 1989, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On August 30, 1999, a hearing was held in__________, Texas, with ________________presiding. She determined that appellant (claimant) was not entitled to supplemental income benefits (SIBS) for the 10th and 11th compensable quarters. Claimant asserts that medical evidence shows she had no ability to do any work at all, that her unemployment was a direct result of the impairment, that medical evidence supporting her position was not “conclusory,” and that a finding of fact addressing psychological problems should be “struck” because there was no issue on this point. Respondent (carrier) replied that the decision should be affirmed.
DECISION
We affirm the decision but reverse certain findings of fact.
Claimant worked for Fun Time Day Care (employer) on ____________. She testified that on that date she was using a buffing machine to shine waxed floors when the machine “got away from me” implying that this incident injured her wrists. The records in evidence show that she had surgery on three occasions in 1995 to her arms and once in 1997. The parties stipulated that claimant had received SIBS for the ninth compensable quarter and the hearing officer stated that it was not necessary this late in SIBS periods to stipulate as to commutation of benefits. In evidence is a copy of Texas Workers’ Compensation Commission Appeal No. 991244, decided July 26, 1999 (Unpublished), which addressed ninth quarter SIBS and stated that the parties stipulated the impairment rating was 15% or more. At the hearing under review, the parties also stipulated that the filing period for the 10th quarter began December 25, 1998; that the qualifying period for the 11th quarter began March 13 and ended June 11, 1999; and that claimant did not seek work during any filing or qualifying period in issue.
Claimant testified by telephone. She is now being treated by Dr. F (Dr. F) of_________, Virginia. Dr. F has made various statements, as shown by the records in evidence, in regard to claimant’s ability to work. Prior to the filing period for the 10th quarter, in November 1998, Dr. F said that claimant could do sedentary work with restrictions as to repetition. Dr. F then said on December 3, 1998 (three weeks before the first filing period in issue), that claimant is “unable to work.” Claimant testified that she had tried to work and obtained a trial job in a flower shop just before Dr. F’s December 3rd entry, but that she dropped too many vases and was not continued in the job.
The issues at this hearing only addressed SIBS for the 10th and 11th quarters. There was no issue as to extent of injury. Claimant did provide some documents from Dr. L (Dr. L) (previously identified as Dr. F (Dr. Fo) in both a hearing officer’s opinion and an Appeals Panel decision). Dr. L stated in August 1999 that claimant has a “major depressive disorder” which “markedly interferes with her ability to work.” Dr. L did not opine as to the cause of the depression, or its relation to (if any) the compensable injury. See Texas Workers’ Compensation Commission Appeal No. 970050, decided February 21, 1997, which said that a condition such as a psychological condition may be considered in determining whether the direct result test is met when the condition is part of the compensable injury and is permanent, which is a requirement for “impairment.” Since there was no prior adjudication of whether the injury included depression and no issue as to extent of injury (carrier did question claimant about her depression by asking her, “that’s not a part of your work injury, is it?” to which claimant replied, “no,” but claimant then appeared to contradict that reply by relating her depression to being unable to work), the finding of fact that claimant’s compensable injury does not extend to psychological problems is set aside and will be disregarded.
Claimant indicates that the medical evidence in this case is similar to that in regard to the ninth quarter in which claimant received SIBS. However, as pointed out in Appeal No. 991244, supra, the functional capacity evaluation (FCE) provided in March 1999 was accomplished more than two months beyond the end of the filing period for the ninth quarter, while the same FCE dated March 3, 1999, is now situated within the filing period of the 10th quarter (note that the issue of 10th quarter SIBS is determined under pre-1999 Texas Workers’ Compensation Commission (Commission) rules, while the question of 11th quarter SIBS is determined under 1999 Commission rules. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102)). In addition, carrier has provided an evaluation by Dr. D (Dr. D) dated February 25, 1999. While Dr. D’s narrative does not address claimant’s current ability to work, that narrative did question whether claimant’s wrist problems stemmed from her use of the buffing machine (but compensability is not an issue either). Dr. D did annotate the FCE which took place a week after his narrative, by adding to it the words, “I agree with [FCE]. May return to job within above restrictions. May perform light-medium activities.” The FCE stated that claimant could do light-medium work.
Claimant testified that after one day of the FCE conducted on March 3, 1999, her arms were swollen; she saw Dr. F and did not go back for the second day of the FCE. Claimant’s testimony and Dr. F’s note of March 4, 1999, in which he said that she was “relatively unchanged with her complaint pain level. . . . No voc rehab yet. Seen by Dr. D who (restarted) PT [physical therapy] including use of weight, pushing/pulling – developed acute increase in pain and swelling left wrist,” were matters for the hearing officer to weigh in regard to the results of the FCE. The hearing officer could also note that Dr. F on December 3, 1998, the date of Dr. F’s letter which said that claimant was unable to work, entered in his progress notes that claimant could not completely close the fingers on her left hand, but also assessed that claimant needed vocational rehabilitation and said that he planned to write to the insurance company about vocational rehabilitation. Again, in February 1999, Dr. F mentioned getting vocational rehabilitation.
While claimant objects to the hearing officer stating both that Dr. F’s opinion is “conclusory” and that Dr. F does not state why claimant’s wrist condition keeps her from working, the hearing officer may certainly weigh evidence based on its credibility. She could also consider Dr. F’s observations as lacking in credibility when little explanation is given and also when his notes could be interpreted to contradict an opinion that claimant has no ability to do any work at all from a medical standpoint. The hearing officer does not indicate that she must, under pre-1999 Commission rules, disregard an opinion because it is conclusory; she may certainly use that term to describe her judgment as to evidence presented. See Texas Workers’ Compensation Commission Appeal No. 970834, decided June 23, 1997. The determination that claimant did not attempt in good faith to obtain employment during the filing period of the 10th quarter is sufficiently supported by the evidence.
During the qualifying period of the 11th quarter, the applicable rule (see Rule 130.102) relative to finding that a claimant is unable to perform any type of work requires a “narrative report from a doctor which specifically explains how the injury causes a total inability to work.” [Emphasis added.) The hearing officer found that medical documents applicable to the question of 11th quarter SIBS were conclusory and did not sufficiently specify why claimant’s injury prevented any work. (We note that the hearing officer uses the term “concomitant” in regard to medical records applicable to the 11th quarter; that term may or may not reflect what is required by the applicable rule which calls for claimant to have “provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work.”) A fact finder in applying standards set forth in this rule would not be remiss to use the language of the rule itself. With Dr. F’s report of December 3, 1998, saying that claimant:
is currently unable to work due to pain which has persisted since surgery for work related injuries. She has tried to find employment but has yet to find an appropriate job. She would benefit most from rehabilitation assistance. I am requesting your assistance in providing this for her. A short course in [PT] for two or three weeks would also be helpful[,]
and his report of April 23, 1999 (within the qualifying period of the 11th quarter), saying:
[claimant] is under my care for work-related injuries involving her wrists. On the bases [sic] of my examination of her, and on my review of the statement dated 11/19/98 from her psychiatrist, it is unlikely that she can work in any capacity[,]
the hearing officer was sufficiently supported in making the finding of fact that claimant’s medical evidence does not specifically show why her injury prevents her from working. In addition, while the applicable rule requires that a “narrative . . . [which] . . . specifically explains” be provided, it also requires that claimant has “been unable to perform any type of work in any capacity” and this requirement is set forth on an equal level with the requirement for the “narrative.” Therefore, even if a narrative was provided that met the requirement, the hearing officer would still have to decide whether claimant was unable to perform any type of work in any capacity, which could be determined by considering evidence in additon to the “narrative report” from a doctor. With Dr. F referencing the need for vocational rehabilitation in April 1999, the hearing officer could question whether claimant was “unable to perform any type of work in any capacity.” Since the hearing officer found no entitlement to SIBS for the 11th quarter based on claimant’s assertion of no ability to work and her failure to search for any jobs, the hearing officer did not have to make findings on all requirements set forth in Rule 130.102(d)(3), which also requires that “no other records show that the injured employee is able to return to work.”
The affirmed findings that claimant did not attempt in good faith to obtain employment relative to either the 10th or 11th quarter provide a sufficient basis for affirming the conclusions of law that claimant is not entitled to SIBS for either quarter. However, the evidence does not sufficiently support findings of fact that claimant’s unemployment for either the 10th or 11th quarter is not a direct result of the impairment. Claimant testified to being unable to return to her prior work and there was no evidence that she could. Lasting effects of the injury are shown by medical records addressing her inability to close her fingers completely, which resulted in the dropped vases.
Finding that the decision and order are suffciently supported by the evidence, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Alan C. Ernst – Appeals Judge