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 October 22, 2001. The hearing officer determined that the respondent (claimant) was entitled to supplemental income benefits (SIBs) for the 10th quarter and that Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.105(a) (Rule 130.105(a)) does not apply. The determination on the Rule 130.105(a) issue has not been appealed and has become final pursuant to Section 410.169.
The appellant (carrier) appealed, contending that there was insufficient evidence to establish that the claimant’s unemployment was due to the compensable back injury but rather was due to an “unrelated illness” and that the claimant does have some ability to work as indicated by her volunteer activities and dance lessons. The claimant responded urging affirmance.
DECISION
Affirmed.
The claimant had been employed as an airline passenger service agent. The parties stipulated the claimant sustained a compensable injury on ___________, that the claimant reached maximum medical improvement (MMI) on March 14, 1998 with a 19% impairment rating (IR), that impairment income benefits (IIBs) were not commuted and that the qualifying period was from April 1, 2001 through June 30, 2001.
Eligibility criteria for SIBs entitlement is set out in Rule 130.102(b) which 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. Both requirements are appealed.
What makes this case somewhat unusual is that the claimant appears to have made a good recovery from her initial low back injury but most, if not all, the medical evidence indicates a total inability to work due to significant psychological or psychiatric problems. Early in the CCH the hearing officer asked if the psychological problems were an impairment from the compensable injury and when neither party was able to satisfactorily agree on an answer the hearing officer recessed the CCH and together with the parties reviewed the claims file making portions of it Hearing officer’s exhibits. Clearly the designated doctor in his December 1998 report recognized that the claimant had a “psychiatric disorder” and asked the Texas Workers’ Compensation Commission (Commission) whether the claimant’s “psychiatric status is included in her original injury.” (The designated doctor in January 1998 had said the claimant was not at MMI based on records of psychological treatment, that the Commission had sent him.) Although the carrier filed a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) in November 1997 disputing the claimant’s “psychological problems” neither party apparently did anything to resolve the extent-of-injury question and the carrier continued to pay for psychological and psychiatric care.
The hearing officer made no specific finding whether or not the claimant’s psychological condition was part of the compensable injury (as extent of injury was not an issue before her) but rather appeared to accept that the compensable injury included the psychological component commenting “[t]here is a severe mental condition or psychological overlay that has resulted from the compensable injury.” This is supported by the medical evidence including a preauthorization medical request for treatment of a “mood Disorder due to injury.” Dr. B, the carrier’s independent medical examination (IME) doctor, in a report dated March 20, 2001, regarding whether the claimant’s psychological condition was related to the compensable injury commented:
The previous I.M.E, and doctors are stating that psychiatric issues need to be addressed prior to a physical assessment. I am sure that that is the case, because there has been no evidence from all of the data that I have seen in the 6-inch thick record that she has had significant physical damage when she pushed the wheel chair up the ramp. But she certainly has had tremendous emotional difficulties. It’s probably too late now to look back to see whether her emotional difficulties pre-dated the pushing of the passenger up the ramp, because already this has been diagnosed by several doctors as a problem related to her work situation.
Under the particular circumstances of this case we conclude that the hearing officer did not err in accepting the claimant’s psychological and psychiatric condition as part of the impairment from the compensable injury, particularly where there is no evidence to the contrary.
At issue is whether the claimant made the requisite good faith effort to obtain employment commensurate with her ability to work during the 10th qualifying period. The claimant contended that she 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 (1) is unable to perform any type of work in any capacity; (2) has provided 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) and found that the claimant had no ability to work. Although the hearing officer did not address the requirement of a narrative from a doctor that specifically explains how the injury causes a total inability to work, the hearing officer does summarize a functional capacity evaluation performed by Dr. M on Monday May 22, 2001, which concludes:
I believe from a physicality standpoint that she can operate a computer, lift bags up to 25 pounds, and push and pull passengers in wheelchairs, along with all of the other duties that she has described in her occupation. Unfortunately, from the functional capacity standpoint, it is not the physicality aspect that has her disabled, but rather longterm mental disease. She should not be allowed to return back to employment until further appreciable improvements have been made relative to her mental status. In my opinion she would pose a definite liability to herself, her employer, and possibly her coworkers.
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I cannot clear [claimant] for a return to work at this time. Once again it is not so much the physicality standpoint of her disability, as it is the emotional or mental. Furthermore, I do not anticipate any gainful improvements in her mental disability for the near future.
Regarding the other record which shows that the claimant’s able to return to work, the carrier cites Dr. B’s report as being such a record and the fact that the claimant was doing some volunteer work and had at least for a period of time, joined a dance club. First, addressing Dr. B’s report dated March 20, 2001, Dr. B concludes that while the claimant “is capable of part-time work” she “will continue to need psychiatric intervention” and “after 4.5 years, has become emotionally crippled to the point that she will not be a capable member of the workforce again.” The hearing officer found Dr. B’s report “equivocal outside the qualifying period.” We agree that the report taken in its totality does not show the claimant is able to return to work.
The claimant at one point sought counseling from the Texas Rehabilitation Commission (TRC). The claimant testified that the TRC vocational rehabilitation counselor (who also testified at the CCH) had advised her to volunteer a few hours a week as therapy in order to get back in the workplace. The claimant apparently began volunteering two hours a day one day a week and had perhaps increased the hours to four hours a day, one day a week. The claimant volunteered at a pizzeria, a hair and nail salon, and did some babysitting. The circumstances are not clear. The owner/manager of the pizza place, in a letter dated August 18, 2001, wrote that the claimant was “a volunteer receptionist since May 5th, 2001,” that the claimant gives her “best effort” but “gets frustrated if there is more than one thing to be done” and “that [claimant’s] attention span is extremely short.” The letter went on to say that if the claimant is asked to do more than one task at a time “she generally messes up the customer transaction.” The hearing officer did not err in concluding that the claimant’s activities at the pizza restaurant did not constitute a record which shows the claimant is able to work.
Last the claimant testified that she did join a dance club and for a period of time dated the instructor. All the doctors and documentary evidence seem to agree that the claimant can be physically active and work but that it is the claimant’s mental problems which preclude the claimant from working and “could pose a definite liability to herself, her Employer, and possibly coworkers.”
The hearing officer did not err in her conclusion and her decision is not against the great weight and preponderance of the evidence. 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 INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is
WILLIAM PARNELL
8144 WALNUT HILL LN., SUITE 1600
DALLAS, TX 75231.
Thomas A. Knapp – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Philip F. O’Neill – Appeals Judge