This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing on remand was scheduled for May 24, 2000. The issue in both the original case and on remand is entitlement to supplemental income benefits (SIBs) for the second compensable quarter. In Texas Workers’ Compensation Commission Appeal No. 000448, decided April 13, 2000, the hearing officer found that the respondent (claimant) had a total inability to work and was entitled to SIBs for the second quarter without any reference or mention of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d) (Rule 130.102(d)). The Appeals Panel remanded the case back for the hearing officer to apply Rule 130.102(d)(3), the version then in effect, and reach conclusions of law supported by the evidence and specific findings of fact. The parties on remand both elected not to appear, indicating that they had no additional evidence to present and requested that a decision be entered based on the February 10, 2000, record. On remand, the hearing officer determined that the claimant was entitled to SIBs for the second compensable quarter.
The appellant (carrier) appeals, contending that the hearing officer “totally disregards the FCE [functional capacity evaluation] dated January 17, 2000 finding the Claimant capable of modified sedentary work”; disputes the hearing officer’s finding that the claimant’s condition is worsening; and contends that the hearing officer should have given greater weight to the “fact that the Claimant is refusing a medical treatment which has been recommended for over a year.” The carrier asserts that the claimant can do some work, that the treating doctor in using the phrase “resume his work” is only referring to the claimant’s preinjury work, and that the claimant can do some activities such as driving and “perform his personal hygiene tasks.” The carrier requests that we reverse the hearing officer’s decision and render a decision in its favor. The appeal file does not contain a response from the claimant.
DECISION
Affirmed.
The background facts, statutory requirements of Sections 408.142(a) and 408.143 and much of the medical evidence is set out in Appeal No. 000448, supra, and will not be repeated here. As indicated, the case was remanded for the hearing officer to apply Rule 130.102(d)(3), which provides that an injured employee has satisfied the good faith effort requirements of Section 408.143 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 qualifying period for the second quarter was from August 12 through November 10, 1999. The hearing officer references a report dated November 11, 1999, from Dr. HB, the claimant’s treating doctor, which states that “[d]ue to the complications that [the claimant] suffers with on a daily basis, he can not resume his work and or daily responsibilities.” Another report of the same date states that the claimant “has had two back surgeries and [Dr. G] wants to do a fusion. [The claimant] does not want anymore surgeries.” The latter remark is repeated by Dr. HB in a report dated January 24, 2000, which goes on to say:
[The claimant] has gone to [sic, (Dr. B)] who said he can do just sedentary work and I think he is very limited in any type of work that he can do because of the trouble with sitting for any length of time. He can do no lifting. I feel that at the present time he probably cannot do any type of work.
The hearing officer finds that the medical evidence from Dr. HB, “when read as a whole and coupled with the results of the January 17, 2000 FCE” are sufficient to constitute a narrative report explaining why the claimant is unable to work. We agree that the reports can be interpreted as the hearing officer has done. We do, however, note that Dr. G has recommended a third surgery which the claimant has refused. We agree that the recommendation for surgery, and the claimant’s refusal, are factors for the hearing officer to consider and believe that he did so.
The carrier relies on two FCEs to show an ability to work. One FCE performed in August 1998, a year before the qualifying period, is dismissed by the hearing officer as being “simply too remote in time to provide probative evidence concerning the Claimant’s current physical capabilities.” The other FCE, performed on January 17, 2000, describes the claimant’s physical abilities as “modified sedentary work,” recommends a work hardening program and retraining by the Texas Rehabilitation Commission, and concludes that the claimant “[d]id not meet these maximum SEDENTARY level DOL requirement…..” (Emphasis in the original.) The hearing officer comments:
The Dictionary of Occupational Titles does not have a category “modified sedentary”. The lowest category is sedentary. If the Claimant is unable to perform sedentary work, it is reasonable to assume that he is totally unable to work, at least based on the Department of Labors, Dictionary of Occupational Titles. The FCE clearly sets out the Claimant’s physical limitations and why the Claimant is unable to perform any type of work in any capacity.
We disagree with the carrier’s contention that the hearing officer totally disregarded the January 2000 FCE and point out that in fact the hearing officer interpreted it as not showing an ability to work pursuant to Rule 130.102(d)(3). The hearing officer went on to find that there is no other credible or probative record showing that the claimant could work during the qualifying period. 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 decline to substitute our opinion for that of the hearing officer.
Upon review of the record submitted, we find no reversible error. We will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Alan C. Ernst – Appeals Judge