This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). Following a contested case hearing held on January 8, 2001, the hearing officer resolved the sole disputed issue by determining that because the appellant (claimant) had the ability to work at least at the sedentary level and did not return to work or seek employment during the 11th quarter qualifying period, she is not entitled to supplemental income benefits for that quarter. The claimant has appealed, contending that she had no ability to work during the qualifying period at issue. The respondent (carrier) urges in its response that the evidence is sufficient to support the challenged determination.
The hearing officer did not err in determining that the claimant had the ability to work at the sedentary level during the qualifying period for the 11th quarter. The medical evidence on that issue was in conflict. However, it was within the province of the hearing officer to find that Dr. B report of February 22, 2000, is more persuasive than the May 24, 2000, report of the treating doctor, Dr. S, who, the claimant testified, performed six surgical procedures on her lumbar spine. The hearing officer could also consider the content of the January 25, 2000, report of the functional capacity evaluation ordered by Dr. B and the claimant’s testimony concerning her relative ability to drive and perform various activities of her daily living.
We cannot say that the challenged determination of the hearing officer, who is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill
Thomas A. Knapp
Robert W. Potts