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 9, 2001. With regard to the issues before her, she determined that the appellant (claimant) reached maximum medical improvement (MMI) on April 13, 2000, with an impairment rating (IR) of 16%, and that the claimant is not entitled to supplemental income benefits (SIBs) for the first or second quarter. The claimant appealed, arguing that the hearing officer erred in determining that the claimant was not entitled to SIBs for the first and second quarters. The respondent (carrier) replied, urging affirmance. The determination that the claimant reached MMI on April 13, 2000, with an IR of 16%, has not been appealed and has become final. Section 410.169.
DECISION
Affirmed.
The parties stipulated that the first and second SIBs quarters began on March 16, 2001, and ended on September 13, 2001.
The claimant testified that she was employed by a children’s daycare. On __________, while at work, the claimant tripped and fell to the ground, injuring her left knee, left shoulder and back. The claimant had surgery to her left knee on November 3, 1999. She stated that after the surgery she was in constant pain and required the use of a cane to walk. She testified that she had been under the care of her treating doctor, Dr. A, and that Dr. A released her to return to work in August 2001. The claimant stated that she had no ability to work during the qualifying periods for the first and second SIBs quarters. The claimant stated that the Texas Rehabilitation Commission did not assist her because of her age and physical condition.
The claimant contended that she had a total inability to work at any job since December 2, 2000. 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 the claimant did not sustain her burden of proof that she had a total inability to work. The claimant did not provide a narrative from a doctor which specifically explained how the compensable injury caused a total inability to work during the qualifying quarters periods as issue, did not make a good faith effort to obtain employment commensurate with her ability to work, and, during the second quarter qualifying period, records showed that the claimant was able to return to work. The evidence sufficiently supports the hearing officer’s determination that the claimant is not entitled to SIBs for the first or second quarters.
It is the hearing officer, as the sole judge of the weight and credibility of the evidence (Section 410.165(a)), who resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). This is equally true of medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The claimant requests that the Appeals Panel ask the hearing officer to make a finding of fact identifying the report she refers to in Finding of Fact No. 9. We need not do so, as it is readily apparent from reading the exhibits that the hearing officer was relying on the undated (but obviously completed by early June 2001) report of Dr. S, the independent medical evaluation doctor, who, in turn, relied on the May 10, 2001, functional capacity evaluation of the claimant. Dr. S concluded that the claimant was able to work, albeit with some restrictions. The Appeals Panel has held that while it is desirable that the medical reports be as close to the qualifying period as possible, medical reports generated outside the qualifying periods at issue may be considered. Texas Workers’ Compensation Commission Appeal No. 961403, decided August 30, 1996 (Unpublished); Texas Workers’ Compensation Commission Appeal No. 960901, decided June 20, 1996. The evidence of record supports the hearing officer’s determinations. The claimant’s request for more specificity is denied.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is ZNAT INSURANCE COMPANY and the name and address of its registered agent for service of process is
JEFF W. AUTREY
400 WEST 15TH STREET
SUITE 710
FIRST STATE BANK TOWER
AUSTIN, TEXAS 78701.
Michael B. McShane – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Robert E. Lang
Appeals Panel
Manager/Judge