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 8, 2000. The hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the first, second, or third quarters. The claimant appeals and argues that the determinations of the hearing officer are against the great weight and preponderance of the evidence. The claimant contends that her medical evidence was ignored by the hearing officer although the doctor who said she could not work is more familiar with her treatment than other physicians. The respondent (carrier) responds that the decision is supported by the evidence and was within the hearing officer’s responsibility as finder of fact.
DECISION
The hearing officer’s decision is affirmed.
The claimant had a repetitive trauma injury on _________, to her hands and wrists, including cubital tunnel syndrome, carpal tunnel syndrome, and de Quervain’s syndrome (and trigger thumb) for which she had had several surgeries. The periods under review ran from around May 26, 1998, through February 22, 1999. The claimant said she was left-hand dominant.
The claimant was treated by Dr. E and then referred for pain management to Dr. S in early 1998. After Dr. E discharged her from treatment, Dr. C became her treating doctor. Dr. E had performed one, but not all, of her surgeries. Dr. E noted in his October 27, 1998, report that claimant had been doing charity work and that after a day’s work, her thumbs were “killing her.” On October 23, 1998, Dr. S wrote that claimant was doing well with her medication combination, although it caused excessive tiredness. He noted she was unable to use her thumbs. He wrote a prescription slip on February 12, 1999, stating that claimant was unable to work due to neuropathic pain in both upper extremities. A report from Dr. S to Dr. E on February 17, 1999, said that her pain had been relieved about 20% with medication and that she had trouble grasping, with particular pain in her left thumb.
Dr. S wrote on March 2000 that claimant had been completely unable to work from August 1998 through May 1999, due to excessive tenderness to light touch and inability to tolerate repetitive activity. Dr. S said that working with her hands would have been likely to aggravate her condition. He said that her condition was the same in April 1999 as in November 1998. Dr. S asserted that “most” of the jobs of which he was aware would require frequent or repetitious use of the hands. However, he said that she could perform jobs not requiring significant activity with her upper extremities.
On December 28, 1998, Dr. E discharged her and wrote that he saw no reason why she could not be employed, and that while claimant could not do repetitive manual labor involving her hands, she could do light duty. The claimant said she was discharged at this point only because the carrier would not approve a cubital tunnel release. An unsigned report from Dr. E dated February 24, 1999, stated that claimant required a cubital tunnel release surgery and that otherwise Dr. E had nothing further to offer her.
The claimant testified at length about her medications, which she said caused some lack of mental alertness, and said that when she was able to do light housekeeping and grocery shopping, she ended up essentially unable to perform tasks the following day. She stated that there was no time between May 1998 and February 1999 when she was not taking some form of narcotic drug. In spite of taking pain and anti-inflammatory medication on a regular basis, she maintained that she continued to have pain and numbness in her hands and underside of her forearms, and that she had trouble gripping and holding things. She said these problems persisted up to a September 30, 1999, surgery.
She said that she did not believe she could work at all but searched for employment because the carrier told her she had to in order to qualify for SIBs. The claimant said she sought flexible hours, because she would not regularly be able to show up at a set time each day. She had not worked since March 1996, a month before her youngest child was born. The claimant said her primary duties were child care, in which she was assisted by her husband and parents, and light housekeeping. On May 12, 1998, the Texas Workers’ Compensation Commission referred the claimant to the Texas Rehabilitation Commission but there was no evidence that contact was made by the claimant.
In contrast to a bleak picture of claimant’s abilities as portrayed by her testimony, a videotape in evidence taken over a few hours each day on August 5 and 6, 1999, shows essentially normal use of claimant’s hands in the course of gardening, driving, and attending to her children each day at a swim club. Claimant is shown: gesturing forcefully with her hands in the course of conversation with someone else, at one point slapping her thighs for emphasis; holding a garden hose and hanging flower baskets overhead; lifting a heavy tote to and from her car; untangling knots from a cord to either nose plugs or swimming goggles with small fine hand movements; holding a tabloid newspaper with flexed elbows for long periods of time while reading; disciplining a recalcitrant child with a swat on the buttocks; passing out lunch to her family at a public swimming pool; carrying pizza boxes; popping the tops of beverage cans; dressing her toddler and putting on his shoes; and driving to and from the swimming pool on each of the two days. Never does she appear to massage or grip her arms and hands or appear to be in pain. The second day did not show any apparent diminished activity. While the children assisted in carrying items to and from the car, the number of items carried in total would have been more than one person alone could carry in one trip.
On her Application for [SIBs] (TWCC-52) for the first quarter, the claimant listed 16 job contacts, and wrote at the bottom that she made “numerous other attempts.” Her explanation was that if a company were not accepting applications when contacted, she, for the most part, did not write them on the list. For the second quarter, 26 contacts are indicated. None were made for the third quarter. The claimant contended that she sought employment anytime she was not taken totally off work by a doctor. The jobs sought appear to be reception, sales, counter work, and light office. It was claimant’s position that no jobs were offered, however, because they were not within her restrictions and need for flexibility.
There are four eligibility criteria that must be met to qualify for SIBs, set out in Section 408.142(a): that the employee “(1) has an impairment rating of 15 percent or mor…..(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 impairment income benefi….. and (4) has attempted in good faith to obtain employment commensurate with the employee’s ability to work.” To continue after the first quarter to qualify for SIBs, the injured employee must continue to demonstrate a good faith search for employment and that unemployment or underemployment was the “direct result” of the impairment.
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, then seeking employment in good faith commensurate with this inability to work “would be not to seek work at all.” Under these circumstances, a good faith job search is “equivalent to no job search at all.” Texas Workers’ Compensation Commission Appeal No. 950581, decided May 30, 1995. We have held that the burden of establishing no ability to work at all is “firmly on the claimant,” Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994, and that a finding of no ability to work must be based on medical evidence. Texas Workers’ Compensation Commission Appeal No. 950173, decided March 17, 1995. See also Texas Workers’ Compensation Commission Appeal No. 941332, decided November 17, 1994. A claimed inability to work is to be “judged against employment generally, not just the previous job where injury occurred.” Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994. Whether a claimant has no ability to work at all is essentially a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 941154, decided October 10, 1994.
Good faith is a subjective concept and generally means honesty of purpose, freedom from intent to defraud, and being faithful to one’s obligations. Texas Workers’ Compensation Commission Appeal No. 960107, decided February 23, 1996. Whether good faith exists is a fact question for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994.
We affirm the hearing officer’s decision that claimant had some ability to work. Although the August 1999 videotape was after the periods in question, it was given relevance by the claimant’s testimony that she was essentially debilitated until her September 1999 surgery. Although claimant argues that she could not perform any work without using her upper extremities, the evidence shows that she was never precluded from all use of her upper extremities, only repetitive use. The hearing officer could consider this as well as the medical evidence and conclude that claimant was not totally without the ability to work.
The hearing officer was faced with assessing whether the efforts made by the claimant were directed toward obtaining employment, or merely fulfilling a paper requirement in order to obtain SIBs. We cannot agree that the hearing officer’s determinations were against the great weight and preponderance of the evidence and affirm her decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Thomas A. Knapp – Appeals Judge