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 May 22, 2001. With regard to the issues before him, the hearing officer determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBs) for the first compensable quarter. With respect to the issue of whether the respondent (self-insured) waived its right to contest the claimant’s entitlement to first quarter SIBs, the parties resolved that issue by a stipulation that the self-insured did timely contest entitlement. The claimant appeals the determination that she is not entitled to first quarters SIBs, challenging the sufficiency of the evidence. The self-insured responds and urges affirmance.
DECISION
Affirmed.
At issue in this case is whether the claimant made the requisite good faith effort to obtain employment commensurate with her ability to work. The standard of what constitutes a good faith effort to obtain employment in cases of a total inability to work was specifically defined and addressed after January 31, 1999, in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d) (Rule 130.102(d)). Rule 130.102(d)(4) provides that the statutory good faith requirement may be met if the employee:
(4)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 return to work[.] (Emphasis added.)
The hearing officer determined that there were other records showing that the claimant did have the ability to work. Although the claimant testified to what she could or could not do, the evidence is conflicting. Dr. D report states that the claimant could do sedentary work with restrictions. The claimant contends that Dr. D’s report was after the qualifying period and should not be considered. There is no condition in Rule 130.102(d)(4) which limits the “other records” as to time of inception or as to when an examination was conducted.
The 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). In this case, the claimant presented evidence tending to demonstrate that she had no ability to work, and the self-insured presented evidence tending to demonstrate that the claimant had some ability to work. The hearing officer had to judge the credibility of the evidence before him in order to determine whether the evidence presented was sufficient to meet the criteria of Rule 130.102(d)(4). The question of whether another record shows an ability to work is a factual question.
The hearing officer’s finding that there were records showing that the claimant did have an ability to work, is supported by the evidence. 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 find the evidence sufficient to support this determination.
Accordingly, the hearing officer’s decision and order are affirmed.
Gary L. Kilgore
CONCUR:
Judy L. S. Barnes
Susan M. Kelley
Appeals Judge