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 November 12, 2001. With respect to the single issue before him, the hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the 12th quarter. In her appeal, the claimant requests an appeal of the hearing officer’s decision. In its response to the claimant’s appeal (and a subsequent appeal filed by her attorney at the CCH), the respondent (carrier) urges affirmance.
DECISION
Reversed and rendered.
Because we agree that the decision of the hearing officer is against the great weight and preponderance of the evidence we reverse and render.
The parties stipulated that the claimant sustained a compensable injury on ___________; that she was assigned at least a 15% impairment rating for her compensable injury; that she did not commute her impairment income benefits; and that the 12th quarter ran from July 12 to October 10, 2001. The qualifying period was identified as the period from March 29 to June 29, 2001. 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). Rule 130.102(e) lists several criteria which must be analyzed in evaluating a job search. Among them are the number of jobs sought in the qualifying period (187 jobs in this case), the education and work experience of the injured employee (in this case 30 years as a registered nurse, 20 years as an educator), the amount of time spent to find employment, cooperation with the Texas Rehabilitation Commission (in this case, the plan calls for her to be actively seeking employment during the qualifying period), registration with the Texas Workforce Commission (where the claimant said she had a current application on file), types of jobs sought (in this case, jobs primarily in the medical field, including registered nurse jobs in a variety of practices, sales jobs, supervisory nursing jobs, recruiting, education, office assistant, and medical case management), and applications or resumes which document search efforts. The evidence indicated that she was assessed by a private vocational counselor for the carrier that did not recommend retraining but stated that she had many transferable skills. The letter from the vocational counselor concluded: “She could be a good candidate for positions in the health care industry for teaching, training or instructing, supervisory or management, sales of healthcare equipment, supplies or services, quality control, case management, pharmaceutical sales, medical research, medical billing, customer service, quality control, loss control or inspection.”
The claimant in this case, post lumbar surgery, was limited to part-time work, with an “occasional” lifting restriction of up to 30 pounds, and required frequent breaks to rest and stretch. There were also limitations on her ability to stand continuously. The claimant is also 72 years old. While she agreed that nursing jobs usually require some lifting, there was no evidence offered to prove that the positions for which she applied would customarily exceed her lifting restriction or that she was intentionally seeking positions that she knew she could not do. While the claimant testified that there was not much demand for part time nursing, she also stated that she was familiar from her experience that such positions did exist. The Appeals Panel has before observed that contacts made during a good faith search will likely yield employers who are not hiring, Texas Workers’ Compensation Commission Appeal No. 982222, decided October 23, 1998, or jobs for which one is not qualified, Texas Workers’ Compensation Commission Appeal No. 981391, decided August 5, 1998.
In this case, the hearing officer determined that the claimant did not satisfy the good faith requirement by conducting a good faith job search, because he characterized her search as “self-limiting.” The hearing officer stated that there “are numerous fields within her restrictions and abilities.” We note that aside from speculative cross-examination about whether the claimant went to department and convenience stores seeking jobs within her restrictions, no evidence was offered to support the hearing officer’s observation that any such jobs would be within her part-time, lifting, or standing restrictions, any more than those she sought. The hearing officer stated that the claimant’s search was not reasonably calculated to result in success, but, to the contrary, her testimony and documented searches are consistent with targeting and seeking jobs she felt she had the best chance to get. Indeed, the jobs she sought were within the very fields specifically listed by the vocational counselor as those for which she would be a “good candidate.”
Because we believe that the hearing officer’s decision is against the great weight and preponderance of the evidence so as to be manifestly unfair or unjust (In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951)), we reverse the decision and render a decision that the claimant is entitled to SIBs for the 12th quarter because she made a good faith search for employment commensurate with her ability to work, and consistent with the criteria listed in Rule 130.102(e).
The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS, SUITE 750, COMMODORE 1
AUSTIN, TEXAS 78701.
Susan M. Kelley – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
DISSENTING OPINION:
I respectfully dissent. In my opinion, the hearing officer’s determination that the claimant did not make a good faith job search in the qualifying period is not against the great weight of the evidence. As such, I would affirm.
Elaine M. Chaney – Appeals Judge