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 March 22, 2000. The hearing officer determined that the respondent (claimant herein) is entitled to supplemental income benefits (SIBs) for the 11th compensable quarter, beginning December 12, 1999, and ending March 11, 2000. The appellant (carrier herein) appeals, arguing that the hearing officer erred in granting SIBs for the 11th compensable quarter because the medical evidence did not establish the claimant was unable to work during the filing period for this quarter and that the hearing officer erred in finding there was no medical evidence showing the claimant was able to work. The claimant responds, arguing that the evidence sufficiently supported the findings and decision of the hearing officer.
DECISION
Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.
It was undisputed that the claimant sustained a compensable injury on __________. The claimant described this accident as taking place when the wind blew a trailer door back, causing it to hit the claimant in the head while he was working as a long-haul truck driver. Medical records show that the claimant underwent surgery to remove bilateral subdural hematomas as a result of this injury. The designated doctor certified that the claimant attained maximum medical improvement on May 13, 1996, with a 20% impairment rating (IR). It was undisputed that the claimant had not commuted any portion of his impairment income benefits. The parties stipulated that the qualifying period for the 11th compensable quarter began on August 29, 1999, and ended November 27, 1999; that the compensable quarter began December 12, 1999, and ended March 11, 2000; and that the claimant sought no employment during the qualifying period for the 11th compensable quarter.
There was evidence that in addition to his compensable injury the claimant was nearly blind due to the effects of diabetes. Dr. R, the claimant’s treating doctor, indicated in a number of reports that the claimant was unable to work due to his injury. There was medical evidence from Dr. G, the carrier’s doctor, stating that the claimant was able to do sedentary work in spite of the effects of his injury, but was prevented from working by the effects of left-sided weakness due to a stroke. The claimant disputed that his left-sided weakness was due to a stroke but argued it was due to his compensable injury.
The hearing officer’s findings of fact and conclusions of law include the following:
FINDINGS OF FACT
6.The Claimant provided narratives from Dr. J [sic, should be Dr. R], his treating doctor, which specifically explained that the impairment from the Claimant’s compensable injury resulted in the Claimant’s total inability to work.
7.Although the Carrier provided medical records that show that the Claimant had some ability to work, those records were predicated upon the health care providers’ mistaken beliefs that the Claimant’s difficulties with his left side were caused by a stroke and not the compensable injury.
8.The Claimant was not required to make a good faith effort to seek employment during the qualifying period for the eleventh (11th) compensable quarter as he was wholly unable to work because of the impairment from his compensable injury.
CONCLUSIONS OF LAW
3.The Claimant is entitled to [SIBs] for the eleventh (11th) compensable quarter, beginning December 12, 1999, and ending March 11, 2000.
Sections 408.142 and 408.143 provide that an employee continues to be entitled to SIBs after the first compensable quarter if the employee: (1) has not returned to work or has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment and (2) has in good faith sought employment commensurate with his or her ability to work. Pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b))[1], the quarterly entitlement to SIBs is determined prospectively and depends on whether the employee meets the criteria during the “qualifying period.” Under Rule 130.101, “qualifying period” is defined as the 13-week period ending on the 14th day before the beginning of a compensable quarter.
No one disputes that the claimant met the direct result requirement. The only question before us on appeal is whether or not the hearing officer committed error in finding that the claimant sought employment in good faith commensurate with his ability to work. We have previously held that the question of whether a claimant made a good faith job search is a question of fact. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994; Texas Workers’ Compensation Commission Appeal No. 94533, decided June 14, 1994. Section 410.165(a) provides that the 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 for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer’s decision for factual sufficiency of the evidence, we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
In Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994, the Appeals Panel stated that if an employee established that he or she has no ability to work at all during the filing period, then seeking employment in good faith commensurate with this inability to work “would be not to seek work at all.” In Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994, we emphasized that the burden of establishing no ability to work is “firmly on the claimant,” and, in Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994, we noted that an assertion of inability to work must be “judged against employment generally, not just the previous job where the injury occurred.” We have likewise noted that medical evidence affirmatively showing an inability to work is required if a claimant is relying on such inability to work to replace the requirement of demonstrating a good faith attempt to find employment. Appeal No. 941382, supra; Texas Workers’ Compensation Commission Appeal No. 941275, decided November 3, 1994. Finally, we have emphasized that a finding of no ability to work is a factual determination of the hearing officer which is subject to reversal on appeal only if it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Texas Workers’ Compensation Commission Appeal No. 951204, decided September 6, 1995; Pool, supra; Cain, supra.
Rule 130.102(d) provides as follows, in relevant part:
(d)Good Faith Effort. An injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee:
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(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[.]
Applying our standard of review, as well as the requirements of the 1989 Act and the rules cited above, we find no error in the hearing officer’s determination that the claimant was entitled to SIBs for the 11th compensable quarter. The carrier argues that the claimant failed to provide a narrative report from a doctor which specifically explained how his injury caused a total inability to work. The hearing officer weighed all of the medical evidence and determined that it established an inability to work during the qualifying period. We do find that this factual determination was sufficiently supported by the evidence. The carrier points to contrary medical evidence which it argues showed the claimant was able to return to work. The hearing officer explained why she did not find that this evidence showed an ability to work. The mere existence of a medical report stating the claimant had an ability to work alone does not mandate that a hearing officer find that other records showed an ability to work. The hearing officer still may look at the evidence and determine that it failed to show this. Here the hearing officer explained her reasoning in not giving any weight to the evidence that the claimant was able to work during the qualifying period and we will not substitute our judgment for hers in regard to this factual determination.
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Susan M. Kelley – Appeals Judge
- The “new” SIBs rules which went into effect on January 31, 1999, control in the present case. See Texas Workers’ Compensation Commission Appeal No. 992126, decided November 12, 1999. ↑