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 August 2, 2000. With regard to the disputed issue before him, the hearing officer determined that the appellant (claimant) was not a minor, apprentice, trainee, or student on _________ (all dates are 1999), and that the claimant’s average weekly wage (AWW) for purposes of computing impairment income benefits (IIBs) and/or supplemental income benefits (SIBs) is not subject to adjustment.
The claimant appeals, principally attacking the hearing officer’s interpretation of the 1989 Act and Texas Workers’ Compensation Commission (Commission) rules, and the workers’ compensation system in general. The claimant contends that he was a trainee under Section 408.044 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.6 (Rule 128.6). The claimant requests that we reverse the hearing officer’s decision and render a decision in his favor. The respondent (carrier) responds to the claimant’s appeal and urges affirmance.
DECISION
Affirmed.
The claimant testified that he is 21 years old, completed a course in diesel technology at a junior college, and was hired by (employer), a small truck repair shop at $6.00 an hour. It is undisputed that on _________, two weeks after being hired, the claimant was working on a grinding wheel which failed, resulting in traumatic injuries to the claimant’s face and the loss of vision in one eye. It is further undisputed that the claimant has a 25% impairment rating and that the claimant was released to return to full duty on November 9, that he continued to work for the employer in his preinjury job at his preinjury wage and that he was laid off on December 30.
Much of the testimony and evidence at the CCH, including the testimony of a college professor who did a wage survey, dealt with what the hourly wage of a “diesel mechanic” with three years experience would be. There were differences of opinion depending on whether it was a large shop or small shop, whether the employee was being paid at a straight rate or flat rate and whether the individual was a “fleet mechanic,” a “diesel mechanic,” or a tracked heavy equipment diesel mechanic. Most of that testimony and evidence ignores the threshold question, and the issue in this case, of whether the claimant was a trainee and entitled to an adjustment of his wage.
The applicable statutory provision in this case is Section 408.044, which states:
Section 408.044. [AWW] FOR MINOR, APPRENTICE, TRAINEE, OR STUDENT. (a) For computing [IIBs], [SIBs], lifetime income benefits [LIBs], or death benefits, the [AWW] of an employee shall be adjusted to reflect the level of expected wages during the period that the benefits are payable if:
(1)the employee is a minor, apprentice, trainee, or student at the time of the injury;
(2)the employee’s employment or earnings at the time of the injury are limited primarily because of the apprenticeship, continuing formal training, or education intended to enhance the employee’s future wages; . . .
Those provisions have been implemented in Rule 126.6, which states:
(a)In order to adjust [AWW] under this rule, for purposes of computing [IIBs], [SIBs], [LIBs], and death benefits, an injured employee must come within one of the following definitions, on the date of injury:
* * * *
(2)an “apprentice” is an employee learning a skilled trade or art by practical experience under the direction of a skilled crafts person or artisan;
(3)a “trainee” is an employee undergoing systematic instruction and practice in some art, trade, or profession with a view towards proficiency in it; … .
The claimant contends that he was a trainee under the cited provisions and that his AWW should be adjusted accordingly. As evidence to support that contention is a note dated January 12, 2000, which states:
To whom this may concern,
[The claimant] was hired as a mechanic trainee at [employer].
A letter dated April 18, 2000, from the employer’s safety director to the carrier’s adjusting service, states:
[the claimant] was hired as a trainee. He had no prior training as a diesel mechanic. He worked as a helper in the shop for twelve weeks [sic, should be two weeks] prior to his accident.
The uncontroverted testimony was that whatever title the claimant may have had, the claimant was hired and worked as a mechanic’s helper, and that the employer did not have a program of “systematic instruction and practice” in the art, trade, or profession of a diesel mechanic. It was anticipated that the claimant would increase his proficiency as a mechanic’s helper to the point where he may, or may not, have been considered a diesel mechanic at some time in the future. The claimant testified that after he was laid off by the employer, he subsequently obtained employment by another employer (employer 2) as a “mechanic’s helper” earning $8.00 an hour.
The hearing officer made the following determinations:
FINDINGS OF FACT
5.At the time of his injury, Claimant was not learning a skilled trade or art by practical experience under the direction of a skilled crafts person or artisan and was not an apprentice nor was he involved in an apprenticeship program.
6.At the time of his injury, Claimant was not undergoing systematic instruction and practice in some art, trade, or profession with a view towards proficiency in it and was not a trainee nor was he involved in a trainee program.
7.At the time of his injury, Claimant’s employment or earnings were not limited primarily because of apprenticeship, continuing formal education, or education intended to enhance his future wages.
CONCLUSION OF LAW
3.Claimant was not a minor, apprentice, trainee or student on _________ and his [AWW] for the purpose of computing [IIBs] and/or [SIBs] is not subject to adjustment.
The claimant, in a somewhat intemperate appeal, argues that the Commission was attempting to deny him benefits, that he “was, in fact, a trainee,” that the hearing officer “chose to violate the spirit of the law by choosing to narrowly define apprentice and trainee,” that the hearing officer’s interpretation “is far removed from the real world of true apprentices and trainees,” that the hearing officer was “in concert with the employer and an insurance company” to limit the claimant’s benefits, and that the on-the-job training puts the claimant in the category of a trainee.
Although the claimant was referred to as a “trainee” in two documents, even the claimant’s own testimony indicated that he was in fact a mechanic’s helper, hoping some day to become a mechanic and that the employer had no systematic training program for instruction and practice on becoming a diesel mechanic. There was no evidence that the claimant was involved in a training or apprenticeship program with the employer other than what the claimant would get working on the job. We do not find the hearing officer’s interpretation unreasonable or contrary to the law, and it was in fact supported by the evidence. In that we are affirming the hearing officer’s determinations on the threshold issue of whether the claimant was a trainee entitled to an adjustment we do not get to the question of what his wage might have been after an adjustment.
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 of the evidence 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
Tommy W. Lueders – Appeals Judge