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 October 11, 2001. With regard to the disputed issues, the hearing officer determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBs) for the third and fifth quarters.
The claimant appealed, citing several medical reports, contending that there are “no credible medical records [that] show an ability to return to work in any capacity.” The respondent (carrier) responds, urging affirmance.
DECISION
Affirmed.
The claimant was employed as a truck driver. The parties stipulated that the claimant sustained a compensable (low back) injury on __________; that the claimant has a 21% impairment rating (IR); that impairment income benefits (IIBs) have not been commuted; and that the qualifying period for the third quarter was from March 9, 2000, through June 7, 2000, with the qualifying period for the fifth quarter being September 7, 2000, through December 6, 2000.
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). Rule 130.102(b) provides that an injured employee who has an IR of 15% or greater and who has not commuted any IIBs is eligible to receive SIBs if, during the qualifying period, the employee: (1) has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment from the compensable injury; and (2) has made a good faith effort to obtain employment commensurate with the employee’s ability to work. The hearing officer’s finding that the claimant’s unemployment during the applicable quarters was a direct result of the impairment from the compensable injury has not been appealed and will not be discussed further.
At issue is whether the claimant made the requisite good faith effort to obtain employment commensurate with his ability to work during the third and fifth qualifying periods. The claimant contended that he had a total inability to work. The requisite good faith effort to obtain employment commensurate with the ability to work can be asserted by meeting the requirements of Rule 130.102(d)(4). That rule provides that the good faith element is met when the injured employee is (1) unable to perform any type of work in any capacity; (2) that a narrative from a doctor specifically explains how the injury causes a total inability to work; and (3) that “no other records show that the injured employee is able to return to work.”
The hearing officer referenced Rule 130.102(d)(4) finding that the claimant had some ability to work during the applicable qualifying periods. The hearing officer does not make any findings whether the evidence contains a narrative from a doctor which specifically explains how the injury causes a total inability to work; however, our review of the record indicates only one report, dated October 10, 2000, from the treating doctor which arguably would meet this requirement. The hearing officer did reference two functional capacity evaluations, one, performed on January 6, 2000, indicates that the claimant is in the “light level work category” (emphasis in the original) and the other, an undated report states “[claimant] demonstrated the ability to work in the ‘Sedentary’ physical demand level, although it is questionable as to whether or not he would be able to work in any type of gainful employment.” After the qualifying quarters at issued, and after a pain management course, the claimant was able to obtain gainful employment as a security guard working in a guard house.
The hearing officer concluded that the claimant failed to meet the third element of Rule 130.102(d)(4) and that because he did not look for work during the qualifying periods, he had failed to prove that he had made a good faith effort to obtain employment commensurate with his ability to work. We conclude that the hearing officer’s decision is supported by the evidence.
The claimant cites different portions of the various reports and the claimant’s use of medication; however, that is insufficient to prove that the hearing officer’s decision is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Accordingly, the hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is CLARENDON NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
UNITED STATES CORPORATION
800 BRAZOS
AUSTIN, TEXAS 78701.
Thomas A. Knapp
CONCUR:
Judy L. S. Barnes – Appeals Judge
Philip F. O’Neill – Appeals Judge