This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 11, 2000. The hearing officer determined that the respondent (claimant herein) is entitled to supplemental income benefits (SIBs) for the fourth quarter and that the claimant is not entitled to SIBs for the fifth quarter. The appellant (carrier herein) files a request for review challenging a number of the findings of the hearing officer and contending the hearing officer erred in finding that the claimant was eligible for SIBs for the fourth quarter. There is no response from the claimant to the carrier’s request for review. Neither party appealed the hearing officer’s determination that the claimant was not entitled to SIBs for the fifth compensable quarter and this has become final pursuant to Section 410.169.
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 suffered a compensable injury on __________. The parties stipulated that the claimant’s impairment rating (IR) was 16%; that the claimant did not elect to commute any portion of her impairment income benefits; and that the fourth quarter began on November 10, 1999, and continued through February 8, 2000. The claimant testified that she injured her neck working as a meat trimmer and has undergone surgery as a result. The claimant was released to work with restrictions of no lifting over 25 pounds and no overhead work. After her injury the claimant worked for the employer for a period of time. The claimant testified that during the qualifying period for the fourth compensable quarter she worked part-time for nine weeks for another employer weighing trucks and cleaning. The claimant testified that she left that employment because she was no longer needed for the seasonal work of weighing trucks and because the cleaning job required overhead work. The claimant testified that she sought other employment during the filing period for the fourth quarter and much of her testimony at the CCH focused on that search.
The carrier put into evidence a surveillance film and also a statement from an investigator who states that the claimant told him in April 1999 that she working cleaning houses. The claimant testified that she had worked cleaning houses but stopped doing so when she started the job weighing trucks.
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 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 [AWW] as a direct result of the employee’s impairment;
(3)has not elected to commute a portion of the impairment income benefit under Section 408.128; and
(4)has attempted in good faith to obtain employment commensurate with the employee’s 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.
The fact that the claimant met the first and third of these requirements was established by stipulation. We have previously held that both the question of whether the claimant made a good faith job search and whether the claimant’s unemployment was a direct result of his impairment are questions 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 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 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).
Rule 130.102(e) provides:
(e)Job Search Efforts and Evaluation of Good Faith Effort. Except as provided in subsections (d)(1), (2), and (3) of this section, 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. In determining whether or not the injured employee has made a good faith effort to obtain employment under subsection (d)(4) of this section, the reviewing authority shall consider the information from the injured employee, which may include, but is not limited to information regarding:
(1)number of jobs applied for throughout the qualifying period;
(2)type of jobs sought by the injured employee;
(3)applications or resumes which document the job search efforts;
(4)cooperation with the Texas Rehabilitation Commission;
(5)education and work experience of the injured employee;
(6)amount of time spent in attempting to find employment;
(7)any job search plan by the injured employee;
(8)potential barriers to successful employment searches;
(9)registration with the Texas Workforce Commission; or
(10)any other relevant factor.
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 made a good faith effort to seek employment commensurate with his ability. We do find that this factual determination was sufficiently supported by the evidence. It was up to the hearing officer to weigh the evidence and the factors outlined in Rule 130.102(e) in making his factual determination concerning a good faith job search. We find sufficient evidence to support his findings and no error of law.
Much of the carrier’s appeal revolves around its argument about its contention that the claimant failed to prove that she had returned to work earning less than 80% of her AWW during the qualifying period. While the claimant testified she did not recall the wages she earned during the filing period, she did submit pay stubs and based upon these the hearing officer could have concluded that she earned less than 80% of her AWW. The hearing officer did not make a specific finding on this matter, although he did specifically find that during the qualifying period the claimant worked part-time for nine weeks during the qualifying period, working an average of 24.3 hours per week.
The carrier argues that the claimant did not meet the direct result requirement because she returned to work prior to the qualifying period for the employer and left that employment. We have stated that a finding of “direct result” is sufficiently supported by evidence that an injured employee sustained an injury with lasting effects and could not reasonably perform the type of work being done at the time of the injury. Texas Workers’ Compensation Commission Appeal No. 950376, decided April 26, 1995; Texas Workers’ Compensation Commission Appeal No. 950771, decided June 29, 1995. In the present case the claimant testified that due to her restrictions she was unable to perform the work she had performed for the employer prior to her injury due to her restrictions. We find sufficient evidence to support the hearing officer’s finding that the claimant’s underemployment during the filing period was a direct result of her impairment.
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Kathleen C. Decker – 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. ↑