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 October 9, 2001. With regard to the issue before her, the hearing officer determined that the appellant (claimant herein) was not entitled to supplemental income benefits (SIBs) for the second quarter from April 7, 2001, through July 6, 2001. The claimant appeals contending he both worked and sought other employment during the qualifying period for the second quarter. The claimant also challenges the hearing officer’s findings that he did not satisfactorily participate in a full-time vocational rehabilitation sponsored by the Texas Rehabilitation Commission (TRC) and that he did not in good faith weekly seek employment commensurate with his ability to work. Finally, the claimant requests questioning concerning his prior work history and argument concerning TRC be struck. The respondent (carrier herein) replies that the claimant’s part-time jobs during the qualifying period were not relatively equal to his employment at the time of injury and that the hearing officer’s finding that the claimant did not seek employment weekly or in good faith was supported by the evidence.
DECISION
Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.
Sections 408.142(a) and 408.143 provide that an employee is entitled to SIBs upon the expiration of the impairment income benefit (IIBs) period if the employee has: (1) an
impairment rating of at least 15%; (2) not returned to work or has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment; (3) not elected to commute a portion of the IIBs; and (4) made a good faith effort to obtain employment commensurate with his or her ability to work. Pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b)), the quarterly entitlement to SIBs is determined prospectively and depends on whether the employee meets the criteria during the “qualifying period.” Under Rule 130.101(4), the qualifying period ends on the 14th day before the beginning date of the SIBs quarter and consists of the 13 previous consecutive weeks. Rule 130.102(d)(4), effective January 31, 1999, 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 provided sufficient documentation as described in subsection (e) of this section to show that he or she has made a good faith effort to obtain employment.” Rule 130.102(e) provides that 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. This rule goes on to list a number of factors which may be considered in determining whether a good faith effort was made including the number and types of jobs sought, the existence of applications or resumes to document the job search efforts, any job search plan, and the amount of time spent in attempting to find employment.
In the present case, the hearing officer found that the claimant made only two job searches during the filing period and did not search for employment weekly. The hearing officer also found that the claimant did not attempt in good faith to obtain employment commensurate with his ability to work. The claimant argues that he presented evidence of more than two job searches and that he did seek employment during each week of the qualifying period. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). When reviewing a hearing officer’s decision for factual sufficiency of the evidence, we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust and we do not find it to be so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard, we find no basis to overturn the hearing officer’s findings concerning the claimant’s job search.
Rule 130.102(d)(1) provides that a claimant has made a good faith effort to obtain employment commensurate with the claimant’s ability if the claimant has returned to work “in a position which is relatively equal to the injured employee’s ability to work.” The claimant performed two part-time jobs during the filing period. The carrier argues that neither of these job was relatively equal to the claimant’s ability to work. Whether the claimant returned to work in a position relatively equal to the injured employee’s ability to work is a question of fact for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 011787, decided September 21, 2001. Applying the standard of review set out above, we again find no basis to overturn the hearing officer’s finding that the claimant did not attempt in good faith to obtain employment commensurate with his ability to work.
Rule 130.102(d)(2) 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 enrolled in, and satisfactorily participated in, a full-time vocational rehabilitation program sponsored by the TRC during the qualifying period. The hearing officer found that the claimant did not participate in such a program during the qualifying period for the second quarter. The claimant does not really dispute this, but merely argues that he did not have sufficient time to enroll in such a program. We find sufficient evidence to support the hearing officer’s finding.
Finally, we find no merit to the claimant’s request to strike testimony and argument as the claimant has shown no harm concerning this evidence and argument.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is PETROSURANCE CASUALTY COMPANY and the name and address of its registered agent for service of process is
ROBERT LEE
2221 E. LAMAR, SUITE 500
ARLINGTON, TEXAS 76006.
Gary L. Kilgore – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert W. Potts – Appeals Judge