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 21, 2002. The hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the first and second compensable quarters and that he is not entitled to reimbursement relating to travel expenses for medical treatment. The claimant appeals the determination that he is not entitled to SIBs. The respondent (carrier) urges affirmance of the hearing officer’s decision
DECISION
Affirmed.
Section 408.142(a) outlines the requirements for SIBs eligibility as follows:
An employee is entitled to [SIBs] if on the expiration of the impairment income benefit [IIBs] period computed under Section 408.121(a)(1) the employee:
(1)has an impairment rating of 15 percent or more as determined by this subtitle from the compensable injury;
(2)has not returned to work or has returned to work earning less than 80 percent of the employee’s average weekly wage as a direct result of the employee’s impairment;
(3)has not elected to commute a portion of the [IIBS] under Section 408.128; and
(4)has attempted in good faith to obtain employment commensurate with the employee’s ability to work.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § Rule 130.102(d)(4) (Rule 130.102(d)(4)) states that the “good faith” criterion will be met 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[.]
Rule 130.102(e) provides that 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. This rule goes on to list a number of factors which may be considered in determining whether a good faith effort was made, including the number and types of jobs sought, the existence of applications or resumes to document the job search efforts, any job search plan, and the amount of time spent in attempting to find employment.
Whether the claimant satisfied the good faith requirement for SIBs entitlement by complying with the provisions of either Rule 130.102(d)(4) or Rule 130.102(e) was a factual question for the hearing officer to resolve. Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was the hearing officer’s prerogative to believe all, part, or none of the testimony of any witness, including that of the claimant. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). Nothing in our review of the record indicates that the hearing officer’s SIBs determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). We note that the claimant appeals the finding that he did not elect to commute any portion of IIBs. As this finding is a prerequisite to SIBs eligibility, and the claimant was not aggrieved by it, we perceive no error in the finding of fact.
The hearing officer’s decision and order is affirmed.
The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is
SA
(ADDRESS)
(CITY) TEXAS (ZIP CODE).
Chris Cowan – Appeals Judge
CONCUR:
Daniel R. Barry – Appeals Judge
Gary L. Kilgore – Appeals Judge