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 5, 2001. The hearing officer resolved the disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the first quarter. The claimant appealed the hearing officer’s decision and the respondent (self-insured) responded.
DECISION
The hearing officer’s decision is affirmed.
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). The SIBs criterion in dispute is whether the claimant made a good faith effort to obtain employment commensurate with her ability to work during the qualifying period for the first quarter. The claimant testified that her current treating doctor had her on an off-work status during the qualifying period, and she proceeded on a total inability to work argument. It is undisputed that the claimant did not work or look for work during the qualifying period.
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. Rule 130.102(e) provides in part that, except as provided in subsection (d)(1), (2), (3), and (4) of Rule 130.102, an injured employee who has not returned to work and is able to return to work in any capacity shall look for employment commensurate with his or her ability to work every week of the qualifying period and document his or her job search efforts.
The claimant’s treating doctor and a referral doctor opined that the claimant was unable to work due to pain from her injury. The claimant testified that she cannot work and has pain along with numerous side effects from her many medications. A functional capacity evaluation report noted that the claimant self-limited her test results due to exaggerated pain behavior. The hearing officer found that the claimant failed to meet her burden to show her total inability to work during the relevant qualifying period, and that the claimant had some ability to work during that qualifying period. Specifically, the hearing officer determined that the claimant failed to present into evidence a narrative report from a doctor which specifically explained how the injury causes a total inability to work, as required by Rule 130.102(d)(4). Thus, the hearing officer found that the claimant did not make a good faith effort to obtain employment commensurate with her ability to work during the relevant qualifying period.
The hearing officer determined that the claimant is not entitled to SIBs for the first quarter. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established from the evidence presented. The hearing officer’s decision that the claimant is not entitled to SIBs for the first quarter is supported by sufficient evidence and is not 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 (Tex. 1986).
Accordingly, the hearing officer’s decision and order are affirmed.
The true corporate name of the self-insured is (SELF-INSURED) and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Robert W. Potts – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Michael B. McShane – Appeals Judge