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 June 21, 2000. With respect to the single issue before him, the hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the first quarter. In his appeal, the claimant argues that the hearing officer’s determinations that he did not make a good faith effort to look for work commensurate with his ability to work and that he is not entitled to first quarter SIBs are against the great weight of the evidence, contending that the evidence “clearly demonstrates that the Claimant looked for work every week during the first quarter qualifying period and was attempting to get into a full time retraining program.” In its response to the claimant’s appeal, the respondent (carrier) urges affirmance.
DECISION
Affirmed.
The parties stipulated that the claimant sustained a compensable injury on _________; that he was assigned an impairment rating of 15% or greater for his compensable injury; that he did not commute his impairment income benefits; that the first quarter of SIBs ran from July 13 to October 11, 1999; that the qualifying period for the first quarter ran from March 31 to June 29, 1999; and that the Texas Workers’ Compensation Commission (Commission) made the initial determination that the claimant was not entitled to SIBs for the first quarter. Claimant’s Exhibit No. 2 indicates that the Commission did not send the form letter providing information about qualifying for SIBs to the claimant until June 2, 1999, less than one month before the end of the qualifying period. The claimant’s Statement of Employment Status (TWCC-52) reflects that the claimant made 17 employment contacts. However, the dates of those contacts were not included on the TWCC-52. The claimant submitted a second document that provides the information concerning when the claimant’s employment contacts were made. That document states that the claimant’s first employment contact was made on April 14, 1999, and it does not reflect any employment contacts in the weeks of March 31 to April 6, 1999, and April 7 to April 13, 1999. In addition, the document indicates that the claimant did not make any job search efforts in the week of June 16 to June 22, 1999, and that two of the contacts listed were made in July 1999, after the end of the qualifying period.
The claimant also introduced in evidence a January 3, 2000, letter from the Texas Rehabilitation Commission (TRC) stating that the claimant applied for services on May 25, 1999, and that he began a retraining program to become a computer operator in November 1999. The claimant testified that he attempted to register with the TRC prior to May 25, 1999, but the TRC would not assist him at that time. The claimant stated that he actually began taking classes in the TRC retraining program in September 1999 and not November as the TRC letter states.
The claimant’s entitlement to SIBs is to be determined in accordance with the “new” SIBs rules. Texas Workers’ Compensation Commission Appeal No. 991555, decided September 7, 1999. The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The trier of fact decides the weight to assign to the evidence before him and resolves conflicts and inconsistencies in the evidence. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its judgment for that of the trier of fact even if the evidence would support a different result. National Union Fire Ins. Co. v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied).
On appeal, the claimant contends that he looked for work in each week of the qualifying period for the first quarter. The hearing officer noted that when the job searches listed on the claimant’s TWCC-52 and the supplement thereto are considered, they do not reflect that the claimant sought employment during the weeks of March 31 to April 6, 1999; April 7 to April 13, 1999; and June 16 to June 22, 1999. That is, neither the claimant’s TWCC-52 nor any other documentation reflects that the claimant made any job contacts in those weeks. The hearing officer’s determination that the claimant did not look for work in each week of the first quarter qualifying period is not so contrary to the great weight of the evidence as to be clearly wrong or manifestly unjust. Accordingly, no sound basis exists for us to reverse that determination on appeal. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In light of our affirmance of that determination, the hearing officer properly determined that the claimant did not make a good faith effort to look for work commensurate with his ability to work in the relevant qualifying period because he determined that the claimant did not look for work in each week of the qualifying period as he was required to do under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE §130.102(e) (Rule 130.102(e)).
The claimant also appears to argue that he should be excused from the requirement to search for employment in each week of the qualifying period because he did not receive the notice from the Commission setting out the requirements for SIBs until two-thirds of the qualifying period had already expired. While we agree that such a delay is unfortunate, we are without the authority to provide the relief sought by the claimant or any other relief under these circumstances.
The hearing officer’s decision and order are affirmed.
Elaine M. Chaney – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge