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 November 1, 2001. The hearing officer determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBs) for the 15th and 16th quarters.
The claimant appeals various of the hearing officer’s findings, asserting that they are contrary to certain medical reports and contending that he had made a good faith effort to obtain employment commensurate with his ability by seeking employment as a “professional author.” In addition, the claimant argues that his objection to three surveillance videotapes should have been sustained because the videotapes did not comply with “the Federal Rules of Evidence; Rule 103 Rulings on Evidence” (as well as other rules of evidence) and that the videotapes had been “edited.” The respondent (carrier) responded to the points raised by the claimant, urging affirmance.
DECISION
Affirmed.
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 impairment rating (IR) of 15% or greater, and who has not commuted any impairment income benefits (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.
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.
The parties stipulated that the claimant sustained a compensable (low back) injury on March 11, 1996, with a 23% IR; that IIBs have not been commuted; and that the qualifying period for the 15th quarter began on March 7, 2001, with the qualifying period for the 16th quarter ending on September 4, 2001. Both the noncompliance with the good faith job search and direct result determinations are appealed.
Although the claimant disagrees with the hearing officer’s summary of a functional capacity evaluation, the claimant clearly has some ability to work as evidenced in three surveillance videotapes (one of which has audio). The claimant, who had been an auto repair shop foreman, apparently had received an associate’s degree in desk top publishing through the Texas Rehabilitation Commission at some time in the past. It appears that the claimant made some 14 job contacts during the 15th quarter qualifying period; however, it appears that all, or nearly all, were to the same business for a position as an “author.” Similarly, in the 16th quarter qualifying period, the claimant listed 20 job contacts, all for positions as an “author.” The hearing officer commented that the claimant did not seek employment in each of the weeks of the qualifying periods. The July 13, 2001, audio videotape shows the claimant, if not actually doing heavy landscape work, supervising a crew doing a $22,000 landscape job (which apparently included patio and gazebo). The claimant explained that he was doing it at no cost for his “spiritual advisor.” The hearing officer commented that he found the claimant’s “testimony was reluctant, evasive and not credible.” The hearing officer’s decision is supported by the evidence.
The claimant also contends that the hearing officer erred by admitting the surveillance videotapes, arguing that he was unable to cross-examine the “producer” of the videotapes, that the tapes had been edited, and that the admission of the tapes was contrary to several “Federal Statutes.” First of all, the Texas Workers’ Compensation Act (1989 Act) is a state law and “Federal Statutes” are not applicable. Secondly and more importantly, Section 410.165(a) of the 1989 Act specifically provides that “[c]onformity to legal rules of evidence is not necessary.” We find the claimant’s appeal on this ground totally without merit.
The hearing officer did not err in his application of the law and his decision is not against the great weight and preponderance of the law. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Accordingly, the hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is TRINITY UNIVERSAL INSURANCE COMPANY OF KANSAS and the name and address of its registered agent for service of process is
BURNIE BURNER
515 CONGRESS AVE., STE. 1500
AUSTIN, TEXAS 78701.
Thomas A. Knapp – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Michael B. McShane – Appeals Judge