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 27, 2001. The hearing officer determined that the respondent (claimant) was entitled to supplemental income benefits (SIBs) for the 13th quarter. The appellant (carrier) appeals the determination on sufficiency grounds. The claimant urges affirmance.
DECISION
Reversed and remanded.
Sections 408.142 and 408.143 provide, in pertinent part, that an employee continues to be entitled to SIBs after the first compensable quarter if the employee has in good faith sought employment commensurate with his ability to work. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(4) (Rule 130.102(d)(4)) provides that an injured employee has made a good faith effort to obtain employment commensurate with his 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 parties stipulated to the required elements of compensable injury, impairment rating, and noncommutation of impairment income benefits, and that the qualifying period for the 13th quarter was from April 9, 2001, through July 8, 2001. At issue was whether the claimant had a total inability to work as set out in Rule 130.102(d)(4).
The hearing officer found that the claimant had no ability to work during the qualifying period for the 13th quarter. In the Statement of the Evidence portion of the decision, the hearing officer stated that the reports of both of the claimant’s doctors “show, in narrative form, that Claimant is unable to perform any type of work in any capacity and specifically explain how the injury causes a total inability to work.” Additionally, the hearing officer determined that the functional capacity evaluation (FCE) performed on April 26, 2001, which purported to show that the claimant could work in the light physical demand level, was not credible. The hearing officer stated:
It is clear from the results that Claimant’s abilities are extremely limited and do not rise to the level of the light physical demand level. Further, the so-called “reliability profile” is suspect at best, as it is based solely on grip strength testing and does not evaluate any other criteria. Other testing performed by the evaluator showed Claimant’s movements and activities to be consistent and valid. The FCE was performed by a physical therapist and was not reviewed by any doctor. The Appeals Panel has held that the mere existence of a medical report stating that the claimant has an ability to work, does not mandate that a hearing officer find that other records showed an ability to work. [Texas Workers’ Compensation Commission Appeal No. 000302, decided March 27, 2000.] In this case, the FCE does not even rise to the level of a medical record. For the reasons stated herein, that record is not a credible record showing that the injured employee is able to return to work.
We have said that a determination of an inability to work cannot be made from a patchwork of various medical reports. See Texas Workers’ Compensation Commission Appeal No. 010787, decided May 9, 2001. Rather, a narrative report from a doctor which specifically explains how the injury causes a total inability to work is needed. Rule 130.102(d)(4). The report of Dr. K does not contain a narrative that specifically explains how the injury causes a total inability to work; however, we are affirming the hearing officer’s decision on this point, finding that Dr. J’s August 15, 2001, report is marginally sufficient to be a narrative report which specifically explains how the injury causes a total inability to work.
With regard to the requirement that no other records show that the injured employee is able to return to work, we have said that the “other record” need not be a medical record by a doctor. Texas Workers’ Compensation Commission Appeal No. 001723, decided September 8, 2000. Indeed, we have recognized that “other records” may include such things as surveillance videotapes. Id. Accordingly, it appears that the hearing officer may have imposed a requirement that is not in Rule 130.102(d)(4), namely that the “other record” be a medical record or a record adopted or affirmed by a doctor.
In cases where a total inability to work is asserted and there are other records which on their face appear to show an ability to work, the hearing officer is not at liberty to simply reject those records as not credible without explanation or support in the record. Texas Workers’ Compensation Commission Appeal No. 002498, decided November 30, 2000. We conclude that the hearing officer did not adequately explain her basis for rejecting the FCE in this case. This is particularly true, in view of our decision that the hearing officer erred in stating that the other record “does not even rise to the level of a medical record.” The hearing officer applied the incorrect standard in requiring a medical report or an “other record” to be a doctor’s report or affirmed by a doctor.
The hearing officer’s decision is reversed and remanded for further findings with regard to the credibility of the “other record” in this case. The hearing officer is to review the FCE and state in unambiguous terms if, how, or why she found the FCE not credible. No further hearing on remand is necessary.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 working days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202 (amended June 17, 2001). See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. RUSSELL R. OLIVER, PRESIDENT
221 WEST 6TH STREET
AUSTIN, TEXAS 78701.
Thomas A. Knapp
CONCUR:
Elaine M. Chaney – Appeals Judge
Philip F. O’Neill – Appeals Judge