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 17, 2001. The hearing officer resolved the disputed issue by concluding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the 12th and 13th quarters. The claimant appeals, arguing that the determination of the hearing officer is against the great weight of the evidence. The respondent (carrier) replied, urging affirmance.
DECISION
Affirm.
It is undisputed that the claimant sustained a compensable injury on ___________; that the claimant’s compensable injury resulted in an impairment rating of 17%; and that the claimant has not commuted any portion of his impairment benefits. The 12th quarter of SIBs was identified as the period from March 30, 2001, to June 28, 2001, and the qualifying period was identified as the period from December 16, 2000, to March 16, 2001. The 13th quarter of SIBs was identified as the period from June 29, 2001, to September 27, 2001, and the qualifying period was identified as the period from March 17, 2001, to June 15, 2001.
The claimant contended that he had no ability to work during the qualifying periods of the 12th and 13th SIBs quarters. The statutory requirements for entitlement to SIBs are provided for in Sections 408.142 and 408.143 of the 1989 Act and in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102). Rule 130.102(d)(4) provides that an injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee 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 claimant testified that during the relevant qualifying periods he felt he could lift 10 to 15 pounds regularly, and further testified that during part of the qualifying period for the 13th SIBs quarter he worked as a dishwasher. The Application for [SIBs] (TWCC-52) forms for the 12th and 13th quarters indicate that the only contact the claimant made during the relevant qualifying periods was the job he obtained as dishwasher.
In her discussion of the evidence, the hearing officer stated that she found two records in evidence that showed an ability to work. The hearing officer found the report of the designated doctor most persuasive. Dr. S, the designated doctor, in a written report, stated that, based on his examination and the history and review of medical records, the claimant could “work part time, maybe up to four hours a day at sedentary work as long as he had an opportunity to stretch on a regular basis.”
The determination of whether the claimant made a good faith effort to obtain employment commensurate with his ability was a question of fact for the hearing officer to resolve and is subject to reversal only if so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. The 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995. Accordingly, after review of the record and the evidence adduced at the CCH, we conclude that the findings of the hearing officer are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986).
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. RUSSELL R. OLIVER, PRESIDENT
221 WEST 6TH STREET
AUSTIN, TEXAS 78701.
Gary L. Kilgore – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Susan M. Kelley – Appeals Judge