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 March 30, 1997. With regard to the issues at the CCH, she determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBS) for the sixth and seventh quarters. The claimant appeals, seeking a reversal of the decision and the respondent (carrier) responds, seeking its affirmance.
DECISION
We affirm.
The parties stipulated that on _____, the claimant was employed as a sewer for (employer); that on that day he sustained a compensable low-back injury; that the filing period for the sixth quarter of SIBS was from June 30 to September 28, 1996; and that the filing period for the seventh quarter of SIBS was from September 29 to December 28, 1996. The disputed SIBS criteria are whether, during each filing period, the claimant, or employee, has “not returned to work or has returned to work earning less than 80% of the employee’s average weekly wage [AWW] as a direct result of the employee’s impairment” and whether he “has attempted in good faith to obtain employment commensurate with the employee’s ability to work.” Sections 408.142(a)(2) and 408.142(a)(4). It was not disputed that the claimant worked 30 to 35 hours per week at (company) for most of each filing period, but earned less than 80% of his AWW. The hearing officer determined that the claimant’s underemployment was not a direct result of the impairment and that he did not attempt in good faith to obtain employment commensurate with his ability to work.
The claimant argues that his underemployment while working at the company was a direct result of his impairment. He maintains that during each SIBS filing period he was unable to obtain employment which required him to work in excess of 30 hours per week or lift in excess of 25 pounds. The claimant testified that he did not have to lift more than 10 pounds while working at the employer, but that he had to stand and sit for long periods of time. Dr. N, the claimant’s treating doctor, in his June 11, 1996, report, states that the claimant was restricted from lifting over 15 pounds. His February 14, 1997, report states the claimant may work 35 hours per week. Both a March 22, 1996, functional capacity evaluation (FCE) and Dr. P, the carrier-selected required medical examination doctor, place a 50-pound lifting restriction on the claimant. Ms. G, the employer’s health and safety coordinator, testified that she reviewed the FCE and Dr. P’s report and that she thought the claimant could perform the duties required of a sewer. She described the employer’s hiring during the sixth and seventh quarter filing periods as “minimal” and “real sporadic.”
“There is no absolute requirement that a claimant who is working full time must also be actively engaging in a job-seeking effort for higher pa…..” Texas Workers’ Compensation Commission Appeal No. 951045, decided August 8, 1995. The rationale therein does not necessarily apply to the facts of the case in review since it is unclear whether the claimant worked “full-time” or “part time.” The determination with regard to whether an employee’s underemployment is a direct result of the impairment may be based on circumstantial evidence. Texas Workers’ Compensation Commission Appeal No. 960684, decided May 20, 1996. An employee is not required to show by evidence from each potential employer and by specific medical evidence that he was turned down for each position due to his restrictions. Id.
The claimant’s Statement of Employment Status (TWCC-52) for each SIBS quarter lists his employment at the company, but does not list any employers where he sought employment during each filing period. The claimant testified that he sought employment with several employers during each filing period but that he did not know he was supposed to list them on the TWCC-52s. He testified that he sought work at the state, a factory, and a restaurant sometime during the sixth quarter filing period, and at 25 different employers during the seventh quarter filing period. However, the hearing officer comments in the decision that the employers the claimant testified that he applied at during the seventh quarter filing period were the same as those he had applied at during the fifth quarter filing period. The claimant could not remember any dates that he visited those employers during the seventh quarter filing period. He testified that he approached the employer twice during the sixth and seventh quarter filing periods, but was not hired. He said that he has been registered with the Texas Workforce Commission since January 1996.
Whether an employee has met the good faith and direct result criteria are factual matters for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994; Appeal No. 951045, supra. There is conflicting evidence with regard to the claimant’s work restrictions and impairment and with regard to his job search efforts. The contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). 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. Although a different finder of fact may have found differently, we do not consider the decision to merit reversal. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.). We do not conclude that, given the evidence presented, the determinations as to the good faith and direct result criteria are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.
Since the decision is not against the great weight and preponderance of the evidence, we affirm.
Christopher L. Rhodes – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Tommy W. Lueders – Appeals Judge