Following a contested case hearing held on November 15, 2000, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, resolved the disputed issue by finding that the appellant (claimant), who stipulated that she did not look for work, had some ability to work during the qualifying period for the 10th supplemental income benefits (SIBs) quarter, that she, therefore, did not make a good faith effort to seek employment during that qualifying period, and that she is not entitled to SIBs for the 10th quarter. The claimant appeals, asserting that, as she testified, the evidence showed that she had no ability to work during the qualifying period, and that her physical condition had deteriorated since the time of the last determination of her non-entitlement to SIBs. The respondent (carrier) urges that the Appeals Panel affirm the hearing officer’s decision and order.
DECISION
Affirmed.
The parties stipulated that the 10th SIBs quarter began on September 12, 2000, and ended on December 11, 2000, and that the claimant did not seek employment during the qualifying period for the 10th quarter. Even though the claimant has couched her challenge in four points on appeal, the singular issue before this panel is whether the evidence is sufficient to support the findings that the claimant had some ability to work during the qualifying period for the 10th SIBs quarter and that she therefore failed to make a good faith effort to obtain employment commensurate with her ability.
The hearing officer did not err in determining that the claimant had some ability to work and that she did not make a good faith effort to find work commensurate with her ability during the qualifying period. The carrier introduced two prior decisions with respect to the claimant’s entitlement to SIBs, Texas Workers’ Compensation Commission Appeal Nos. 000085, decided February 28, 2000, and 002126, decided October 24, 2000, concerning the 4th through 6th SIBs quarters and the 8th and 9th SIBs quarters, respectively. In Appeal No. 002126, we affirmed the hearing officer’s determination that the claimant was not entitled to SIBs for the 8th and 9th quarters.
The carrier argued that considering the evidence in Appeal No. 002126, the hearing officer should find that the claimant’s physical condition remains unchanged since that decision and that, therefore, the claimant is not entitled to SIBs for the 10th quarter. The claimant testified, however, that her condition had become worse in the last “six to eight months.” The claimant did not introduce any medical records opining that her condition had deteriorated.
One of the statutory requirements for entitlement to SIBs is that a claimant have made a good faith attempt to obtain employment commensurate with the ability to work. Section 408.142(a)(4). As stated in Appeal No. 002126, Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(4) (Rule 130.102(d)(4)) provides, in pertinent part, that an injured employee has made a “good faith effort to obtain employment commensurate with the employee’s ability to work 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 work[.]”
Evidence supporting the hearing officer’s determinations include a medical report from Dr. D, dated February 8, 1999, conveying that the claimant did have some ability to work, if the work were flexible and sedentary. Bolstering her argument, the claimant introduced a report from her treating doctor, Dr. E, dated May 31, 2000, stating merely that “this lady is not a candidate for gainful employment and it is doubtful that she ever will be.” In addition, the claimant introduced another of Dr. E’s reports, dated February 11, 2000, that partially read:
[The claimant] should not drive a motor vehicle, nor should she attempt to do any sort of work when taking the Hydrocodone or Diazepam. Either of these medications can cause sedation with weakness and vertigo. In the event she should have a problem with the side-effects of the medications, she might further injure herself or injure innocent people.
The claimant introduced other reports of Dr. E which are virtually identical in pertinent parts with the above report.
As noted, the parties introduced conflicting evidence regarding whether the claimant had some ability to work during the qualifying period for the 10th SIBs quarter and whether, not looking for employment, she therefore failed to make a good faith effort to obtain employment commensurate with her ability. Pursuant to Section 410.165(a) of the 1989 Act, the hearing officer is the sole judge of the weight and credibility of the evidence. Further, the hearing officer resolves the conflicts and inconsistencies in the evidence and determines what facts have been established from the conflicting evidence. Garza v. Commercial Ins. Co. of Newark, N.J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ); St. Paul Fire & Marine Ins. Co. v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). This tribunal will not upset the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust; we do not find them so here. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
We observe that while the claimant asserts a fourth point of error, it is unfounded. The claimant’s “Point of Error No. 4” reads “[t]he hearing officer erred in her determination that the claimant’s unemployment is not a direct result of her impairment.” Contrary to the claimant’s contention, the hearing officer did find that her unemployment during the qualifying period for the 10th SIBs quarter was a direct result of her impairment.
For these reasons, we affirm the hearing officer’s decision and order.
Philip F. O’Neill – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Kenneth A. Huchton – Appeals Judge