This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 4, 2001. The hearing officer resolved the disputed issue by deciding that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the third quarter. The appellant (carrier) appealed and the claimant responded.
DECISION
The hearing officer’s decision is affirmed.
The hearing officer did not err in determining that the claimant is entitled to SIBs for the third quarter. Eligibility criteria for SIBs entitlement are set forth in Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102). The SIBs criteria in issue are whether the claimant’s unemployment is a direct result of the impairment from the compensable injury and whether the claimant made a good faith effort to obtain employment commensurate with his ability to work during the qualifying period for the third quarter, which was from October 30, 2000, through January 29, 2001.
The parties stipulated that on ___________, the claimant sustained a compensable cervical spine and right shoulder injury; that he has a 15% impairment rating (IR), and that he did not commute impairment income benefits. It is undisputed that the claimant did not work or look for work during the qualifying period. It is also undisputed that the claimant was not enrolled in a full-time vocational rehabilitation program sponsored by the Texas Rehabilitation Commission or provided by a private provider during the qualifying period. The claimant claimed he had no ability to work during the qualifying period.
The hearing officer found that during the qualifying period the claimant’s unemployment was a direct result of the impairment from the compensable injury. Rule 130.102(c) provides that an injured employee has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment from the compensable injury if the impairment from the compensable injury is a cause of the reduced earnings. The Appeals Panel has noted that a finding that the claimant’s unemployment or underemployment is a direct result of the impairment may be sufficiently supported by evidence that an injured employee sustained a serious injury with lasting effects and could not reasonably perform the type of work being done at the time of injury. Texas Workers’ Compensation Commission Appeal No. 981257, decided July 17, 1998. There is sufficient evidence from the claimant’s testimony and reports of his treating doctors to support the hearing officer’s finding for the claimant on the direct result criterion and that finding is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. The carrier’s main argument regarding direct result is that the claimant’s neck condition is not related to his injury; however, we do not find that argument persuasive in light of the parties’ stipulation that the claimant sustained a compensable cervical spine and right shoulder injury.
Rule 130.102(d)(4) provides that an injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work. Rule 130.102(e) provides in part that, except as provided in subsection (d)(1), (2), (3), and (4) of Rule 130.102, an injured employee who has not returned to work and is able to return to work in any capacity shall look for employment commensurate with his or her ability to work every week of the qualifying period and document his or her job search efforts.
Dr. S was the claimant’s treating doctor up until January 9, 2001, when the claimant obtained approval to change treating doctors to Dr. G. The hearing officer found that during the qualifying period the claimant was unable to work in any capacity pursuant to narrative reports provided by his treating doctors, Drs. S and G, and that the narrative reports from the claimant’s doctors’ offices specifically explain how the claimant’s compensable injury caused his total inability to work during the qualifying period.
In Texas Workers’ Compensation Commission Appeal No. 000041, decided February 22, 2000, the Appeals Panel, in commenting on the SIBs rules, wrote “it is clear that the Commission no longer intends the determination of an inability to work to be made from a patchwork of various statements put together from a range of medical evaluations performed for purposes other than an evaluation of work ability.” While we agree that Dr. G’s reports, which essentially state that the claimant needs cervical surgery for a herniated disc and that the claimant is unable to work due to the injury to his cervical spine, do not specifically explain how the injury causes a total inability to work, there is a report from Dr. S dated October 13, 2000, which we believe suffices as a narrative report from a doctor which specifically explains how the injury causes a total inability to work.
The claimant was examined by Dr. F at the carrier’s request in November 1998, at which time he reported that the claimant was at maximum medical improvement (MMI) with a 0% IR. He also examined the claimant on February 6, 2001. In the February 6, 2001, report Dr. F opined that the claimant “is physically capable of employment at this time without restriction as he has been since my assessed date of MMI.”
The hearing officer found that “No other records credibly show that the claimant could have returned to work between October 30, 2000 and January 29, 2001 given his condition due to the _____________, injury and the medication he was taking for the condition.”
In Texas Workers’ Compensation Commission Appeal No. 011145, decided July 3, 2001, the Appeals Panel wrote that “When there are records that state on their face an ability to work, a hearing officer is not free to simply reject such records as not credible without an explanation as to why they are not.” In Texas Workers’ Compensation Commission Appeal No. 000098, decided March 1, 2000, the Appeals Panel stated “a record might state that a claimant could work, but still be found not to ‘show’ that the claimant could work,” noting that this presents a factual determination for the hearing officer to make.
The several pain medications that the claimant has been prescribed for his compensable injury are mentioned throughout the medical records and Dr. S also refers to medication in his October 13, 2000, report. The claimant said that the medications make him drowsy and unable to operate a vehicle or machinery. In her finding regarding other records, the hearing officer mentions the claimant’s “condition” due to his compensable injury. The evidence reflects that the claimant had shoulder surgery for his compensable injury on some unspecified date, that Dr. G is recommending that the claimant undergo spinal surgery for a herniated cervical disc, and that the parties stipulated that the claimant sustained a compensable cervical spine injury and right shoulder injury and has a 15% IR. Despite all that, Dr. F wrote in his report three times that the claimant has an “invisible” injury in making his determination that the claimant is able to work, and makes it quite clear that he does not believe the claimant has any work-related injury. Apparently, the hearing officer did not find Dr. F’s report to be credible.
The hearing officer found that during the qualifying period the claimant acted in good faith in not seeking employment since he had no ability to work (another finding previously noted relates the claimant’s total inability to work to his compensable injury). The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established from the evidence presented. We conclude that the hearing officer’s determination that the claimant is entitled to SIBs for the third quarter is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Michael B. McShane – Appeals Judge