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 September 12, 2000. The hearing officer determined that appellant/cross-respondent (claimant) is entitled to supplemental income benefits (SIBs) for the 10th and 11th quarters and that respondent/cross-appellant (carrier) is relieved of liability for SIBs for part of the 10th quarter, from May 3, 2000, to July 9, 2000, because claimant was late filing his Application for [SIBs] (TWCC-52). Carrier appealed the determination that claimant is entitled to SIBs, contending that claimant did not meet his burden to prove the good faith or direct result criteria. Claimant responded that he is entitled to SIBs. Claimant appealed the determination that carrier is relieved of liability for a portion of 10th quarter SIBs, asserting that he was excused for late filing because carrier never sent him a TWCC-52 until he called to ask for it. Carrier responded that the hearing officer’s determination in that regard is correct. The hearing officer also made determinations regarding claimant’s weekly earnings during the qualifying periods, which determinations were not appealed by either party.
DECISION
We affirm.
Carrier contends the hearing officer erred in determining that claimant is entitled to SIBs for the 10th and 11th quarters. Carrier asserts that: (1) claimant was voluntarily working selling time shares, making very little money, when he was capable of making more money as a dispatcher, which he was trained for; (2) claimant was not really earning wages because he was paid a “draw” before he earned any commissions; and (3) claimant was employed “below his abilities,” so his employment was not relatively equal to his abilities.
The applicable law and our standard of review are discussed in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d) (Rule 130.102(d)); Texas Workers’ Compensation Commission Appeal No. 000321, decided March 24, 2000; Texas Workers’ Compensation Commission Appeal No. 000608, decided May 10, 2000; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The hearing officer found that: (1) during the qualifying period for the 10th quarter, claimant sold time shares and earned $1,000.00 in total wages; (2) claimant earned $1,186.50 in total wages during the qualifying period for the 11th quarter; (3) claimant worked full-time during both qualifying periods; (4) claimant’s job fell within his physical restrictions and there was no evidence of fraud or overreaching; and (5) claimant’s job “was relatively equal to his ability to work.” Claimant testified that after he was laid off in December 1998 and could not find work, he left to go sell time shares after a friend there told him about the job. Claimant said he worked there full-time during the qualifying periods in question and that he was essentially self-employed, so he could control the type of work he had to do. He did not make very much money, so he moved back to Texas in May 2000, after the qualifying period for the 11th quarter had ended. After reviewing the evidence, we conclude that the hearing officer’s determination that claimant returned to work in a position which is relatively equal to his ability to work is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.
Carrier contends the hearing officer erred in determining that claimant’s underemployment during the qualifying period was a direct result of his impairment from his compensable injury. Carrier asserts that the reasons why claimant was underemployed was because he limited himself and because of the poor economy where he was working selling time shares. To prove direct result, a claimant need not prove that the impairment is the sole cause of his underemployment. Texas Workers’ Compensation Commission Appeal No. 952082, decided January 10, 1996. The evidence in this case established that claimant did suffer a serious work-related injury with lasting effects. In a letter to carrier’s adjuster, Dr. G stated that he certified a 21% impairment rating (IR), which included 10% impairment for loss of range of motion in addition to impairment for specific disorders. In February 2000, Dr. L said claimant had profound muscle weakness and some numbness and noted that claimant said he used to do manual labor, but that he can no longer do manual labor. In August 2000 Dr. B noted that claimant’s restrictions included no prolonged sitting and no lifting over 20 pounds. Whether claimant’s underemployment was the direct result of his impairment was a question of fact for the hearing officer. We have reviewed the record and we conclude that the hearing officer’s direct result determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.
In his cross-appeal, claimant contends the hearing officer erred in determining that he did not file his TWCC-52 for the 10th quarter with carrier in a timely manner. The hearing officer noted in his decision that claimant said carrier did not timely mail a copy of the TWCC-52 to him. The hearing officer determined that carrier received claimant’s TWCC-52 on July 10, 2000. The 10th quarter started on May 3, 2000, so, at the latest, claimant was required to file his TWCC-52 seven days before that date. Claimant said he filed the TWCC-52 late because carrier failed to send him a copy of the TWCC-52. However, the hearing officer apparently rejected claimant’s assertion that carrier did not send the TWCC-52 to claimant with the check for 9th quarter SIBs. The hearing officer judged the credibility of the evidence and determined what facts were established. We have reviewed the record and we conclude that the hearing officer’s implied determinations in this regard are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.
We affirm the hearing officer’s decision and order.
Judy L. Stephens
CONCUR:
Susan M. Kelley – Appeals Judge
Thomas A. Knapp – Appeals Judge