This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). This case is back before us after our remand in Texas Workers’ Compensation Commission Appeal No. 011571, decided August 8, 2001, wherein we remanded for the hearing officer to comply with HB2600 amending Section 410.164, effective June 17, 2001. No additional hearing was held on remand and the hearing officer, after complying with the remand, reissued her original decision. The original contested case hearing (CCH) was held on June 19, 2001. With respect to the issues before her, the hearing officer determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBs) for the 15th, 16th, and 17th quarters. The claimant appeals, contending that the hearing officer’s decisions are against the great weight and preponderance of the evidence because there were medical records which indicated she had no ability to work. The respondent (carrier) responds, urging affirmance. There is no response to the claimant’s request for review from the respondent (self-insured) in the appeal file.
DECISION
We affirm.
The hearing officer’s determination that the claimant’s unemployment was a direct result of the impairment from the compensable injury has not been appealed and has become final.
The claimant attached documents to her request for review. We do not generally consider evidence first offered on appeal, and particularly so where it was known and available at the time of the hearing. That is the situation in this case, and no other sound basis is shown for it to be considered at this time. Texas Workers’ Compensation Commission Appeal No. 980299, decided April 2, 1998.
At issue in this case is whether the claimant made the requisite good faith effort to obtain employment commensurate with her ability to work. Although the claimant is seeking SIBs for the 15th, 16th, and 17th quarters, she testified that she only searched for employment during each week of the qualifying period for the 16th quarter because her doctors have told her that she has a total inability to work and that she should not look for work. She testified that she conducted her search because the Texas Workers’ Compensation Commission told her she had to have a documented job search for each week of the qualifying periods to qualify for SIBs. The claimant also testified that her friends took her to places of employment and she would walk in with her walker to apply for the jobs. Some of the jobs she looked for were nursing- type jobs that she could no longer perform. The hearing officer determined that the claimant did not conduct a good faith job search. Whether there was a good faith job search is a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994.
In addition, the claimant contends that, although she did look for employment during the 16th quarter, she has not been able to work since the date of her injury, even in the 16th quarter. The standard of what constitutes a good faith effort to obtain employment in cases of a total inability to work was specifically defined and addressed after January 31, 1999, in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d) (Rule 130.102(d)). Rule 130.102(d)(4) provides that the statutory good faith requirement may be met if the employee:
(4)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[.]
The hearing officer determined that there was no narrative report from a doctor which specifically explained how the injury caused the claimant to have a total inability to work. In regard to the narrative report, Texas Workers’ Compensation Commission Appeal No. 000835, decided June 5, 2000, and Texas Workers’ Compensation Commission Appeal No. 002192, decided October 27, 2000, held that the narrative report from the doctor must specifically explain how the compensable injury causes a total inability to work. The report from Dr. U, dated March 29, 2000, would seem to satisfy that requirement. While it would be reasonable to draw different inferences and conclusions, that is not a basis for setting aside the hearing officer’s decision. Garza v. Commercial Ins. Co. of Newark, N. J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The hearing officer is the sole judge of the weight and the credibility of the evidence. Section 410.165(a).
The hearing officer also determined that there were other records showing that the claimant had an ability to work. Prior to the qualifying periods, there was a functional capacity evaluation performed on the claimant in April 1999, which indicated that the claimant could perform sedentary work. During the qualifying period for the 15th SIBs quarter, there was also a report from Dr. PE, dated September 29, 2000, wherein he states that there are “no objectively demonstrated limitations that would prevent [the claimant] from performing sedentary work.” During the qualifying period for the 16th SIBs quarter, Dr. PA opined that the claimant can return to work but for emotional or mental reasons. The emotional or mental reasons are not part of the compensable injury in accordance with a prior CCH decision on an extent-of-injury issue in this case.
The hearing officer had to judge the credibility of the evidence before her in order to determine whether the evidence presented was sufficient to meet the criteria of Rule 130.102(d)(4). The question of whether another record shows an ability to work is a factual question, just as the questions of whether the claimant is unable to work and whether a narrative report specifically explains how the injury caused a total inability to work are factual questions. See Texas Workers’ Compensation Commission Appeal No. 000177, decided March 16, 2000.
The hearing officer’s determinations are supported by the evidence. We will reverse a factual determination of a hearing officer only if that determination is 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, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we find the evidence sufficient to support this determination.
Accordingly, the hearing officer’s decision and order are affirmed.
The true corporate name of the self-insured is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity), and the address of its registered agent for service of process is
STATE OFFICE OF RISK MANAGEMENT
IN CARE OF RON JOSSELET
P.O. BOX 13777
300 WEST 15TH STREET, 6TH FLOOR
AUSTIN, TEXAS 78711.
Gary L. Kilgore – Appeals Judge
CONCUR:
Robert E. Lang
Appeals Panel
Manager/Judge
Michael B. McShane – Appeals Judge