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 November 2, 2001. The hearing officer determined that the respondent (claimant) was entitled to the second quarter of supplemental income benefits (SIBs) and that he had no ability to work.
The appellant (carrier) has appealed, pointing out that the discussion of the hearing officer indicates that he employed standards for analyzing inability to work that predate the effective date of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d) (Rule 130.102(d)). The claimant has responded that the decision is correct.
DECISION
Reversed and rendered.
The claimant had cervical and thoracic injuries and had surgery. He stated that he had “intercostal” nerve damage. The qualifying period, according to the SIBs application in evidence, ran from March 22 through June 20, 2001. The claimant said that his treating doctor told him he could not do any work because he could aggravate his condition. The claimant said that he could drive only to destinations about a mile away; that he did some light housework, such as washing the dishes; and that he could carry lighter sacks of groceries or items close to his body. When asked if he thought he could take tickets at a movie theater, he said that he could if it was early in his day but not after he had been up a while. The claimant testified that there was not much work available in his small town.
The claimant said his primarily debilitating symptom was the occurrence of muscle spasms that caused him to double over and which lasted about 15 to 20 minutes. How frequently these spasms occurred in a given period was not developed. The claimant had been treated twice with a radiofrequency treatment for nerve damage. He could not say when the first such treatment had occurred, but indicated that it had effectiveness in stopping his spasms. Medical records indicate that he received such treatment on April 25, 2001, and then six months before that date.
The claimant was examined by a required medical examination (RME) doctor on November 13, 2000, and August 28, 2000. In the first report, this doctor said that the claimant could not return to light duty at that time due to significant cervical and thoracic symptoms. He suggested an x-ray to make sure that two thoracic cages had not migrated. After reviewing these x-rays, the RME doctor said that the claimant would be able to work full-time, light duty. He put a permanent light-duty restriction on the claimant. He noted that the claimant would need periodic rest.
In the August 28, 2001, report, the RME doctor stated that objective tests showed a stable cervical fusion and thoracic cages at two levels. This doctor further stated that the claimant was capable of working light duty “during the period of the radio-frequency procedures.” He noted the problems posed by the claimant’s hepatitis C and the need for monitoring of that condition.
A February 2001 report from the claimant’s treating doctor indicated that the claimant was unable to take many available medications because of hepatitis C. The treating doctor noted that the RME doctor opined that the claimant could work light duty but the treating doctor said that this would be difficult for the claimant with his symptoms the way they were on a regular basis. On April 23, 2001, the treating doctor noted that the claimant would be having another radiofrequency treatment and that he should hold off on a job search until after this procedure led to better control of his symptoms. On May 21, 2001, an unsigned letter from the treating doctor asserted that the claimant’s current pain level was such that he was not employable. The treating doctor noted on June 18, 2001, that the claimant had success with a TENS unit for his pain “at 2 on a 10 scale” and that injections he had received also helped his spasms.
The legislature has required that applicants for SIBs must make a good faith search for employment commensurate with the ability work. Section 408.143(a)(3). As the carrier correctly notes in its appeal, the Texas Workers’ Compensation Commission (Commission) has defined what will equate to a good faith search for employment in Rule 130.102(d). As pertains to a case where a claimant asserts a complete inability to work, he must show, as required in Rule 130.102(d)(4), that he:
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[.]
This rule reflects a Commission intent that the determination is to be made primarily with medical evidence, and that a finding of inability to work can no longer be based upon a subjective determination that asserted inability is “so obvious as to be irrefutable.” Moreover, the Appeals Panel has repeatedly stated that findings must be made on all elements of Rule 130.102(d)(4). That was not done in this case, and the terse discussion of the hearing officer indicates he considered lay testimony and applied the prerule standard to his analysis of the evidence.
A job that should be sought must be one “commensurate with” the injured worker’s ability, which will not mean full-time work in every case. While we would ordinarily remand for fact findings to be made consistent with the rule in effect for the qualifying period, the records of the RME doctor in this case are “other records” that show an ability to work. We do not agree with the hearing officer’s observation that this assessment is based upon conditions subsequent. The claimant had a radiofrequency treatment within the beginning month of the qualifying period. He agreed that these afforded relief and this is supported by the medical evidence. The RME doctor stated before and immediately after the qualifying period that the claimant had a light duty ability to work, subject to many restrictions, and was only unable to work the day after the radiofrequency treatment. The hearing officer made no other observations why the RME doctor’s report may not be credible and we did not find information indicating the RME doctor’s reports were not credible. While the claimant argued at the CCH that there were not many jobs in his community, the fact that jobs may be few does not mean that they should not be sought.
Accordingly, we reverse and render a decision that the claimant did not qualify for SIBs because he did not make a good faith search for employment and had some ability to work during the qualifying period.
The true corporate name of the insurance carrier is NATIONAL STANDARD INSURANCE COMPANY and the name and address of its registered agent for service of process is
GARY SUDOL
ZURICH NORTH AMERICA
9330 LBJ FREEWAY, SUITE 1200
DALLAS, TEXAS 75261-9507
Susan M. Kelley – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert E. Lang
Appeals Panel
Manager/Judge