This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 17, 2001. The hearing officer resolved the disputed issue by concluding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the 11th quarter, beginning July 21, 2001, and ending October 19, 2001. The claimant appealed, disputing the determinations made by the hearing officer. The appeal file does not contain a response to the claimant’s appeal from the respondent (carrier).
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.
We note that the claimant has provided certain documents with his appeal that are not contained in the record. We do not normally consider new evidence for the first time on appeal. We may, in very limited circumstances, remand a case when new evidence is presented if that evidence came to the party’s knowledge after the CCH, is not cumulative of the evidence presented is so material that it would probably produce a different result, and was not through lack of diligence that the evidence was not presented at the CCH for the hearing officer to consider. Texas Workers’ Compensation Commission Appeal No. 93536, decided August 12, 1993. In this case, there is no indication that this evidence could not have been secured prior to the CCH or that it is so material that it would probably have produced a different result. We decline to consider the evidence submitted by the claimant for the first time on appeal. See Texas Workers’ Compensation Commission Appeal No. 992873, decided February 4, 2000. Also attached to the claimant’s request for review is an exhibit which was not admitted at the CCH. The hearing officer’s evidentiary ruling on this exhibit was not appealed and this document will not be considered on appeal.
The hearing officer did not err in determining that the claimant was not entitled to 11th quarter SIBs. Sections 408.142 and 408.143 provide, in part, that an employee continues to be entitled to SIBs after the first compensable quarter if the employee (1) has not returned to work or has earned less than 80 percent of the employee’s average weekly wage (AWW) as a direct result of the impairment, and (2) has in good faith sought employment commensurate with the employee’s ability to work.
The claimant was employed as a truck driver. It is undisputed that the claimant sustained a compensable injury as a result of a motor vehicle accident which occurred on __________. The claimant asserts that he had no ability to work and, therefore, did not make a job search during the qualifying period. 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 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 hearing officer found that the claimant was capable of working in a sedentary capacity, as shown by the medical records in evidence. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence, including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). In view of the evidence, and applying our standard of review, we find sufficient evidence to support the hearing officer’s findings.
The claimant argues in his appeal that the hearing officer’s finding of fact that the claimant’s unemployment during the qualifying period for the 11th quarter was a direct result of the impairment from his compensable injury is inconsistent with the decision that the claimant is not entitled to SIBs for the 11th quarter. However, in order to qualify for SIBs, the claimant must not only show that he has not returned to work or earned less than 80% of his AWW as a direct result of the impairment, he must also show he has in good faith sought employment commensurate with his ability to work.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is OLD REPUBLIC INSURANCE COMPANY and the name and address of its registered agent for service of process is
PRENTICE-HALL CORPORATION SYSTEM, INC.
800 BRAZOS
AUSTIN, TEXAS 78701.
Gary L. Kilgore – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert E. Lang
Appeals Panel
Manager/Judge