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 July 28, 1998. In response to the issues before him, the hearing officer determined that respondent (claimant) is entitled to supplemental income benefits (SIBS) for the first three compensable quarters, that appellant (carrier) is relieved of liability for SIBS for the second quarter for the period from January 2, 1998, to February 12, 1998, and that carrier is relieved of liability for SIBS for the third quarter for the period from April 3, 1998, to May 1, 1998. Carrier appeals, contending that the hearing officer erred in determining that claimant is entitled to SIBS for the first three quarters and in limiting the amount of time for which carrier is relieved of liability for the second and third quarters. The file does not contain a response from claimant.
DECISION
We affirm in part and reverse and render in part.
Carrier contends the hearing officer erred in determining that claimant had no ability to work, that she met the good faith requirements, and that she is entitled to SIBS. Carrier contends that claimant’s own testimony shows that she could work during the filing periods in question, that there was no medical evidence written in the filing periods stating that claimant was totally unable to work, that Dr. K had released claimant to return to work on February 4, 1997, and that the off-work slip from Dr. B was not written until April 1998, was “conclusory,” and did not cover the first quarter filing period.
The hearing officer determined that claimant sustained a compensable injury to her hands, neck, and shoulders with a date of injury of _____. Claimant’s employer was (employer) and she had worked there as a seamstress and packer since 1985. It was undisputed that: (1) claimant had an impairment rating (IR) of 15%; (2) she did not commute any of her impairment income benefits (IIBS); (3) the filing period for the first quarter was from July 4, 1997, to October 2, 1997; (4) the filing period for the second quarter was from October 3, 1997, to January 1, 1998; and (5) the filing period for the third quarter was from January 2, 1998, to April 2, 1998.
Claimant testified that she was unable to work during the filing periods in question. She said that she had pain in her hands and that she was unable to use her hands properly because they did not “respond.” She said she was able to dress herself but that she had difficulty with bathing. She indicated that she can drive but that she did not drive very much because she “did not feel capable.” She said she tried to help with the housework at her daughter’s house where she lived, but that her daughter did most of the work. Claimant said her condition grew worse and that she had repeat surgery on her right hand in March 1998, during the filing period for the third compensable quarter. Claimant said she had one surgery on her left wrist, one on her right elbow, and three on her right hand. Claimant said she did not look for work except that, during the filing period for the second quarter, she looked for work with three employers. She said she did not think she could work at that time, but that she looked because she thought it was required. Claimant admitted that she had approached employer in February 1997 and again during the filing period for the second compensable quarter, seeking some kind of work.
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 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. Whether good faith exists is a fact question for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994.
The Appeals Panel has held that if an employee established that he or she has no ability to work at all, then he or she may be able to show that seeking employment in good faith commensurate with this inability to work “would be not to seek work at all.” The burden to establish this is “firmly on the claimant.” Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994. Generally, a finding of no ability to work must be based on medical evidence. Texas Workers’ Compensation Commission Appeal No. 950173, decided March 17, 1995. A claimed inability to work is to be “judged against employment generally, not just the previous job where the injury occurred.” Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994. The absence of a doctor’s release to return to work does not in itself relieve the injured worker of the good faith requirement to look for employment, but may be subject to varying inferences. Appeal No. 941382, supra. The claimant has the burden to prove he has no ability to work because of the compensable injury. Appeal No. 950582. When a claimant alleges a total inability to do any work, that contention must be supported by medical evidence or must be so obvious as to be irrefutable. Texas Workers’ Compensation Commission Appeal No. 941439, decided December 9, 1994.
The 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995.
In this case, the claimant contended and had the burden to prove he had no ability to work. Appeal No. 950582, supra. The hearing officer was the sole judge of the credibility of the medical evidence and determined whether the medical evidence showed that claimant had no ability to work. There was evidence from Dr. K that claimant “was unable to work during the period of 9/24/97 [through] March 25, 1998.” This period of time applies to the filing period for the second compensable quarter and part of the filing period for the third compensable quarter. In the April 1998 letter, Dr. K goes on to state that claimant underwent surgery on her right hand on March 12, 1998. This was during the filing period for the third quarter. The filing period for the third quarter ended on April 2, 1998. We have reviewed the evidence and we conclude that the hearing officer’s determination that claimant had no ability to work during the filing periods for the second and third compensable quarters is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Although a January 1997 functional capacity evaluation stated that claimant could do sedentary work and Dr. K noted in March 1998 that claimant had been released to return to work in February 1997, Dr. K later stated in April 1998 that she was unable to work during the filing periods for the second and third quarters. The hearing officer was the sole judge of the medical evidence and he chose to credit the evidence from Dr. K that claimant could not work during the filing periods for the second and third quarters. The hearing officer made his determinations regarding claimant’s good faith and her ability to work based on the evidence before him. Because the hearing officer’s good faith determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, we will not substitute our judgment for his. Cain, supra. We affirm the hearing officer’s determinations that claimant had no ability to work during the filing periods for the second and third quarters, that claimant met the good faith requirement for those two quarters, and that claimant is entitled to SIBS for the second and third compensable quarters.
Regarding the first compensable quarter, we note that Dr. K’s April 1998 letter states that claimant was “unable to work” beginning September 24, 1997. However, the filing period for the first quarter ended on October 2, 1997, so this period that claimant could not work covered only about a week and one-half of the filing period for the first quarter. In his March 18, 1998, letter, Dr. K said:
[Claimant] ceased working on August 24, 1995. She was originally released to return to work on February 4, 1997, with restrictions. She returned for follow-up on February 7, 1997, and she related that she had been fired from her job . . . . It should be noted that she was off work due to her injury and she had not resigned her job. She was unable to find work.
She continued with pain in her arm and she visited several different physicians. Eventually she was seen by [Dr. B] who released her to work on November 10, 1997. She was unable to find a job with restrictions. Eventually [Dr. B] suggested surgery and this was performed on March 12, 1998.
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There is no medical evidence in the record to show that claimant had no ability to work at all during the majority of the filing period for the first quarter: from July 4, 1997, to September 23, 1997. Therefore, we reverse the hearing officer’s determination that claimant had no ability to work at all. We have said that there must be medical evidence to support the hearing officer’s determination in this regard. Although the medical evidence need not necessarily be written during the filing period, here, the evidence suggested that claimant had been released to go back to work and that she merely could not find a job. Her condition did eventually deteriorate and she was taken off work. However, the medical evidence does not support a finding of no ability to work during the filing period for the first quarter. We reverse the hearing officer’s determination that claimant is entitled to SIBS for the first quarter and we render a determination that she is not entitled to first quarter SIBS.
Carrier contends the hearing officer erred in determining that it was relieved of liability for SIBS for only a portion of the filing periods for the second and third quarters. Carrier contends that it did not receive the TWCC-52 for the second quarter until February 19, 1998, and that it was relieved of liability for SIBS until that date. The hearing officer determined that carrier was relieved of liability for second quarter SIBS from January 2, 1998, to February 12, 1998. February 12, 1998 was the date that claimant signed the TWCC-52 for the second quarter. Carrier also contends that it did not receive the TWCC-52 for the third quarter until May 6, 1998, and that it was relieved of liability for SIBS until that date. The hearing officer determined that carrier was relieved of liability for third quarter SIBS from April 3, 1998, to May 1, 1998. May 1, 1998 was the date that claimant signed the TWCC-52 for the third quarter. There was no evidence of when carrier actually received the TWCC-52s for these two quarters.
An employee’s TWCC-52 “must be filed quarterly on a form and in a manner provided by the commission [Texas Workers’ Compensation Commission].” Section 408.143(b). The employee shall file the TWCC-52 with the carrier and “[t]o ensure no lapse in benefits, the [TWCC-52] should be filed no later than the 15th day after receipt of the [TWCC-52].” Rule 130.104(c). An employee’s failure to file a TWCC-52 “relieves the insurance carrier of liability for [SIBS] for the period during which a [TWCC-52] is not filed.” Section 408.143(c). There is no evidence regarding whether claimant faxed or mailed or otherwise sent the TWCC-52s to carrier, and there is no date-stamp or affidavit regarding receipt by carrier. Therefore, there is no reason to substitute our judgment for the hearing officer’s regarding this fact issue. The hearing officer’s determinations in this regard are not against the great weight and preponderance of the evidence. We affirm the determinations regarding the dates during these filing periods that carrier is relieved of liability for SIBS.
We affirm that part of the hearing officer’s decision and order that awards SIBS for the second and third compensable quarters, and that determines the dates that carrier is relieved from liability for those two quarters. We reverse the determination that claimant is entitled to first quarter SIBS and render that claimant is not entitled to first quarter SIBS.
Judy Stephens – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Gary L. Kilgore – Appeals Judge