Following a contested case hearing (CCH) held in (City), Texas, on November 11, 1997, and continued to December 29, 1997, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, resolved the disputed issues by concluding that the appellant (claimant) is not entitled to supplemental income benefits (SIBS) for the 12th compensable quarter and that the respondent (carrier) did not waive the right to dispute claimant’s entitlement to SIBS for the 12th compensable quarter because it requested a benefit review conference (BRC) within 10 days after receiving claimant’s Statement of Employment Status (TWCC-52). Claimant has appealed on evidentiary grounds these conclusions and as well as findings that he did not attempt in good faith to obtain employment commensurate with his ability to work and that the carrier requested a BRC on July 10, 1997. The carrier has responded urging the sufficiency of the evidence.
DECISION
Affirmed.
The parties stipulated that claimant on ___________, sustained a compensable injury to his low back and received an impairment rating (IR) of 26%, that he has not commuted any portion of the impairment income benefits (IIBS), and that the 12th SIBS quarter was from July 15 through October 13, 1997 (all dates are in 1997 unless otherwise stated). The parties represented that the filing period was from April 14th through July 15th.
Claimant testified that during the filing period, he had restrictions against lifting more than 10 pounds and against prolonged sitting, walking, and standing; that he did not have contact with either the Texas Rehabilitation Commission or the Texas Workforce Commission; that he looked for five jobs over the course of approximately six hours during the period April 14th through April 18th by contacting friends at these businesses; and that his efforts were unsuccessful because of his inability to lift and his being on medication. Claimant’s TWCC-52 attachment reflected that two of the businesses told him to check back, that one business said to come back in five months; and that two had no openings. He did not indicate whether he did check back at any of the businesses. Claimant further testified that during this period he was awaiting the carrier’s approval for his attendance at a back pain clinic and that he “looked for only a few jobs” because if he was approved to attend the clinic he would have to quit any job due to the hours he would be spending at the clinic. Claimant said that the carrier eventually disapproved his attending the back clinic and that on May 30th, Dr. C took him “off everything.”
An October 4, 1996, report from Dr. M, who performed an independent medical evaluation for the carrier, stated that in his opinion it was likely that claimant will remain “permanently disabled for the remainder of his life.”
Dr. C wrote on April 11th that in his opinion claimant is not able to be gainfully employed because the only job he could do is one in which he “could come and go as he pleases and rest, stand, sit, stoop, and lie down as he pleases and that because he, Dr. C, knows of no job that would allow that degree of latitude, [claimant] is totally unemployable.” Dr. C’s note of May 30th states “Pt not fit for gainful employment.” On August 28, 1996, Dr. C checked a block on a functional capacity evalulation (FCE) for sedentary work.
In a March 6th FCE report, Dr. P, who examined claimant for the carrier, wrote that claimant was 47 years of age, that he underwent a two level fusion by Dr. C on November 19, 1992, that he is not a candidate for further surgery, and that he has had no postoperative rehabilitation. Dr. P diagnosed chronic postoperative “failed back” syndrome,right lower extremity atrophy post childhood polio with secondary thoracolumbar scoliosis, chronic, severe deconditioning syndrome, and chronic pain syndrome with medical/psychological features and ongoing psychosocial barriers. Dr. P further reported that it is “very clear that [claimant] does not feel that he is able to work”; that he clearly has the vocational history and skills to work at the very least in a part-time, sedentary capacity which would allow him to change positions on an as needed basis; that because of his level of expertise in data entry, this should not be problematic for him, and that his FCE is invalid and not indicative of any specific work capacity.
As for the carrier wavier issue, claimant testified that his TWCC-52 was mailed on June 23rd and that the Texas Workers’ Compensation Commission (Commission) did not receive the carrier’s Request for Benefit Review Conference (TWCC-45) disputing his entitlement to SIBS until July15th. Claimant’s TWCC-52 was dated June 23rd and bears date stamps reflecting receipt by the carrier on July 3rd, receipt by the Commission on July 10th, and receipt by the carrier again on July 14th. In evidence is a TWCC-45 bearing a Commission stamp reflecting receipt on July 10th.
In addition to the dispositive conclusions, claimant has appealed findings that he did not attempt in good faith to obtain employment commensurate with his ability to work and that the carrier requested a BRC on July 10, 1997. In her discussion the hearing officer indicates that she credited the report of Dr. P that claimant had the ability to perform sedentary work and that she did not view his efforts during the filing period as constituting a good faith attempt to obtain employment commensurate with his ability. Sections 408.142(a) and 408.143 provide that an employee is entitled to SIBS when the IIBS period expires if the employee has: (1) an IR of at least 15%; (2) not returned to work or has earned less than 80% of the employee’s average weekly wage (AWW) as a direct result of the impairment; (3) not elected to commute a portion of the IIBS; and (4) made a good faith effort to obtain employment commensurate with his or her ability to work. We have noted 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 to 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 (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 is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, is to resolve the conflicts and inconsistencies in the evidence including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). As an appellate reviewing body, we will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The hearing officer could determine from the evidence that claimant had the ability to perform sedentary work and that the approximately six hours he spent over the course of four days during the 90-day filing period did not amount to a good faith effort to obtain employment. As for the carrier waiver issue, the hearing officer could determine from the date stamps that the carrier received claimant’s TWCC-52 on July 3rd and filed the TWCC-45 on July 10th, a period which did not exceed the 10-day requirement to dispute entitlement to SIBS. Section 408.147(b).
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Robert W. Potts – Appeals Judge