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 May 5, 2000. The hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the fourth quarter.[1] The claimant appealed, expressing her disagreement with this determination. The respondent (carrier) replies that the decision is correct, supported by sufficient evidence, and should be affirmed.
DECISION
Affirmed.
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. The fourth SIBs quarter was from January 26 to April 25, 2000, and the qualifying period for this quarter was from October 14, 1999, to January 12, 2000.
At issue in this case was whether the claimant made the required good faith job search commensurate with her ability to work. The claimant failed to make any job search effort in the qualifying period and contended she had no ability to work in any capacity. The version of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(3) (Rule 130.102(d)(3)) then in effect provides that an injured employee has made the required good faith effort 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 hearing officer commented that the opinions of Dr. B, the treating doctor, and Dr. D, a required medical examination doctor, constituted narratives which specifically explained that the injury caused an inability to work. This determination has not been appealed. He also found that the report of Dr. BL, based on a records review and physical examination of the claimant, constituted an other record showing an ability to work. In this report, Dr. BL commented that the claimant could perform sedentary work. The hearing officer concluded from this evidence that the claimant did not meet the requirements of Rule 130.102(d)(3) and, for this reason, was not entitled to fourth quarter SIBs.
The claimant appeals, asserting that her evidence established her inability to work. Whether the claimant did or did not have the ability to work in some capacity presented a question of fact for the hearing officer to decide. Section 410.165(a) provides that the hearing officer is the sole judge of the weight and credibility of the evidence. We will reverse a factual determination of a hearing officer only if that 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, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we find the evidence sufficient to support the hearing officer’s determination that A[o]ther records showed that the claimant was able to return to work.” Finding of Fact No. 4. Because the claimant failed to seek employment commensurate with this ability during the qualifying period, she was not entitled to fourth quarter SIBs.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Kathleen C. Decker – Appeals Judge
Robert W. Potts – Appeals Judge
- We construe the hearing officer’s reference to the fifth quarter in the formulation of the issue to be a typographical error corrected in his findings of fact and conclusions of law. ↑