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 remand on September 11, 2001. The hearing officer noted that neither party had additional evidence and therefore elected not to appear. The first decision of the hearing officer had been remanded in Texas Workers’ Compensation Commission Appeal No. 011114, decided July 5, 2001, because the hearing officer had found that the claimant’s medical records, taken as a whole, proved a total inability to work. On remand, the hearing officer concluded that the claimant had the inability to work and specified those records that he considered to be narratives establishing this. He also stated that there were no other records that showed an ability to work. The carrier has appealed and argues that the claimant failed to meet the “three prongs” of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(4) (Rule 130.102(d)(4). Much of the appeal focuses on the quality of the narratives and whether this hearing officer could find that narratives rejected by a previous hearing officer met the requirements of Rule 130.102(d)(4). The claimant asks that the decision be affirmed.
DECISION
Reversed and rendered.
The claimant’s injury was carpal tunnel syndrome (CTS) and cubital tunnel syndrome, along with indications of developing reflex sympathetic dystrophy (RSD). The qualifying period for the 12th quarter of SIBs ran from November 7, 2000, to February 5, 2001. The hearing officer specified five reports that he held were “narratives” showing a total inability to work. Only one of these, a report of Dr. F, can definitely be identified as having been before another hearing officer who determined the claimant’s non-entitlement for the 9th, 10th, and 11th quarters, as only the decision and order of that hearing officer is in evidence.
One of the reports that the hearing officer identified as a narrative explaining a total inability to work, and the latest in time (November 28, 2000), is that of a required medical examination (RME) doctor. His report was based upon examination, recounts the medications that the claimant takes, takes into account her depression, CTS, and RSD, and concludes:
The patient should follow-up with her treating physician. The patient certainly cannot do any work that involves the use of her right upper extremity. She could use her left upper extremity but has limited potential using that nondominant side. She also has limited ability and pretty much is going to have difficulty doing any type of work.
Consistent with this, the attached Work Status Report (TWCC-73) releases her to work effective December 1, 2000, with numerous restrictions, including an overall 2-hour work limit per day. At the CCH, the carrier pointed out that the TWCC-73 from this doctor “showed” an ability to work.
It is the legislature, not the Texas Workers’ Compensation Commission (Commission) or the Appeals Panel, which has imposed a search for employment as a requisite for qualifying for SIBs. Section 408.143(a)(3). As we have stated before, the purpose of SIBs is to support a return to the workforce; the requirement to work is imposed only to the extent that the employment sought must be commensurate with the ability to work. SIBs may still be paid for “underemployment”; that is, the wage earned in the new job is less than 80% of the injured worker’s preinjury average weekly wage (AWW). Section 408.143(a)(1). The Commission has promulgated Rule 130.102 to set forth standards upon which the evaluation of SIBs criteria should be made.
Rule 130.102(d)(4) states that the injured worker may satisfy the good faith job search requirement if the worker:
(4)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[.]
In considering whether good faith through inability to work has been demonstrated, the hearing officer must consider and make findings on all prongs of this rule. Texas Workers’ Compensation Commission Appeal No. 992197, decided November 18, 1999. Where a hearing officer finds that “no other records show” an ability to work, there must be an explanation where a record on its face would appear to show such ability. Texas Workers’ Compensation Commission Appeal No. 002095, decided October 18, 2000. Even where there is a narrative report meeting the requirements of Rule 130.102(d)(4), the existence of a record which shows an ability to work will preclude qualification with the good faith search for employment requirement. See Appeal No. 002095. The effect of a record that “shows” an ability to work is not trumped by the existence of records showing the contrary. See Texas Workers’ Compensation Commission Appeal No. 992692, decided January 27, 2000.
The report from Dr. J was evidently deemed credible by the hearing officer because he identified the narrative portion of that report as a narrative which supported a total inability to work. (However, the hearing officer did not comment on the attached TWCC-73.) The report from Dr. J was based both upon examination and review of the claimant’s medical records. He found normal range of motion (ROM) of the left upper extremity, but very limited ROM of the right. While he stated that she could not do any work involving her right upper extremity, he said that she could use her left hand. Although he said that she would have “difficulty” doing any type of work, this statement was clarified by the attached TWCC-73, a Commission form specifically used to evaluate an injured worker’s “work status.” Dr. J did not check the offered alternative on the form that the claimant was prevented from working due to her injury, but instead noted that she could return to work effective December 1, 2000, with certain restrictions for one year.
Because this is, for the qualifying period, plainly another record that shows an ability to return to work, the requirements of Rule 130.102(d)(4) were not met. We therefore reverse and render the decision that the claimant was not entitled to SIBs for her 12th quarter of eligibility, and because this is the fourth quarter where it has been so determined, she has permanently lost entitlement to SIBs. Because another record “shows” an ability to work, we will not address the weight of the evidence for each other record identified as a narrative by the hearing officer.
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
C.T. CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Susan M. Kelley – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
DISSENTING OPINION:
The majority has reversed the hearing officer’s finding and has made a determination that another record does show that claimant was able to return to work during the qualifying period. The hearing officer reviewed the evidence and determined that no other record shows that claimant was able to return to work during the qualifying period. The majority refers to the November 28, 2000, report from Dr. J, along with his Work Status Report (TWCC-73), as records showing claimant can work two hours per day. I note that Dr. J said in his November 28, 2000, report that claimant ” pretty much is going to have difficulty doing any type of work.”
Again, I believe this was a fact issue for the hearing officer to consider. In my opinion, hearing officers may consider all of the medical records in determining the fact issue of whether another record shows that a claimant was able to return to work. I would hold that the hearing officer’s determination in this regard is no 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). If I were to reverse and render that another record shows an ability to work, I would have before me a clear record saying such, along with the great weight of the evidence supporting such a reversal. I note that the majority acknowledges the seeming ambiguity in Dr. J’s November 28, 2000, report. Although Dr. J also indicated in another report that claimant can work two hours per day, in my opinion, ambiguity and inconsistency in all of the evidence is a matter for the fact finder to resolve. I would not take a step to actually reverse a hearing officer’s decision and render a different decision based on ambiguous evidence and a report that indicates claimant may work two hours per day. I would hold that the hearing officer was entitled to weigh all the evidence in the record to determine whether another record shows that claimant could work.
It appears to me that the Appeals Panel is holding that any record at all that states that a claimant may work is another record that “shows” that a claimant has an ability to work, unless there is a specific reason given to disbelieve it. In other words, carrier-provided reports saying a claimant can do some work always “trump” a narrative from claimant’s doctor that says a claimant cannot work, unless there’s a clear explanation why the carrier’s doctor’s reports should not be believed. In my opinion, even under the “new” SIBs rules, the hearing officer should be able to judge the carrier’s doctor’s reports based on the record as a whole, and decide if the reports are credible. One record should not automatically trump another record. Whether another record shows an ability to work should be a fact question for the hearing officer and no presumption in favor of any report should apply. I do not read Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(4) (Rule 130.102(d)(4)) that way and I would affirm.
Judy L. S. Barnes – Appeals Judge