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 July 26, 2001. The hearing officer determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBs) for the seventh compensable quarter because she did not make a good faith attempt to look for employment during the qualifying period.
The claimant appealed, contending that she had a total inability to work pursuant to her doctor’s reports. In its response, the respondent (carrier) argues that the hearing officer should be affirmed because there are medical records showing that the claimant had an ability to work, as well as other evidence showing the claimant’s ability to perform pedestrian duties.
DECISION
Affirmed.
The parties stipulated that the claimant sustained a compensable (low back) injury on ________; that the claimant has an impairment rating (IR) of 21%; that impairment income benefits (IIBs) have not been commuted; that the qualifying period for the seventh quarter began on January 9, 2001, and ended on April 9, 2001; and that the seventh quarter began on April 23, 2001, and ended on July 22, 2001. The claimant has had five surgeries, claims to have “failed back syndrome,” and proceeds under a total inability to work theory.
Eligibility criteria for SIBs entitlement are set forth in Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102). Rule 130.102(b) provides that an injured employee who has an IR of 15% or greater, and who has not commuted any IIBs, is eligible to receive SIBs if, during the qualifying period, the employee: (1) has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment from the compensable injury; and (2) has made a good faith effort to obtain employment commensurate with the employee’s ability to work. The hearing officer’s determination that the claimant’s unemployment during the qualifying period was a direct result of her impairment has not been appealed and will not be discussed further.
Rule 130.102(d)(4) provides 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 return to work.
The criterion in dispute is whether the claimant attempted in good faith to obtain employment commensurate with her ability to work during the qualifying period. Section 408.142(a)(4); Rule 130.102(b)(2). The claimant contends that she had no ability to work during the qualifying period. The hearing officer found that during the qualifying periods, the claimant “had an ability to work” thereby addressing the first element of Rule 130.102(d)(4). The hearing officer found that the claimant had the ability to work sedentary duty, up to four hours per day and, therefore, the claimant had not established a total inability to work in any capacity.
The hearing officer was not persuaded that the claimant had shown she was unable to perform any type of work in any capacity during the qualifying period. The hearing officer’s decision is supported by the evidence and is not 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).
Accordingly, the hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is LIBERTY MUTUAL FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEMS
350 NORTH ST. PAUL, SUITE 2900
DALLAS, TEXAS 75201
Thomas A. Knapp – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Gary L. Kilgore – Appeals Judge