This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). Following a contested case hearing held on October 22, 2001, the hearing officer determined that during the qualifying period for the fourth quarter of supplemental income benefits (SIBs), the respondent (claimant) had no ability to work, that she made a good faith attempt to obtain employment commensurate with her ability to work, and that she is entitled to SIBs for the fourth quarter. The appellant (carrier) has appealed these determinations on evidentiary sufficiency grounds. The claimant has responded and urges that the challenged findings are correct and should be affirmed.
DECISION
Affirmed.
The claimant testified that on ___________, she banged her right wrist against a table while vacuuming at her place of employment; that she subsequently developed reflex sympathetic dystrophy (RSD); that she underwent a sympathectomy in late 1998 or early 1999; that the pain from her RSD is constant and prevents her from doing any work; and that despite the fact that she could not work due to her pain, she made the 20 job contacts listed on her Application for [SIBs] (TWCC-52), most of which were provided by the adjuster, because she understood from the adjuster that she was required to do so. The hearing officer noted that the claimant is 72 years of age. She said she had been working to supplement her Social Security benefits and still would be were she able to. The claimant further testified that she has moved into a senior citizen’s residence (not assisted living) because she can no longer take care of a house; that she can take care of her personal daily needs and do a little cooking but not much else; that she occasionally drives her car, using her left hand to steer it; and that she can no longer garden, go bowling, or pursue other former interests.
The hearing officer determined from the evidence, particularly the medical evidence, that the claimant had no ability to work during the qualifying period at issue. The requirements for SIBs are found in Sections 408.142 and 408.143 and in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102). Concerning the requirement that the claimant have made a “good faith” attempt to obtain employment commensurate with her ability to work during the qualifying period, Rule 130.102(d)(4) provides that an employee has made such an effort 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’s decision meticulously explains why, in his opinion, the report of Dr. G, a required medical examination doctor who conducted a functional capacity evaluation (FCE) for the carrier, does not show that the claimant has an ability to return to work but also how this report in fact satisfies the narrative report requirement of Rule 130.102(d)(4). The hearing officer also explained in detail why he did not find a much earlier FCE report from (hospital) to constitute an “other record [that] shows” an ability to return to work, another requirement of Rule 130.102(d)(4).
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)). The Appeals Panel, an appellate reviewing tribunal, will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is STATE FARM FIRE AND CASUALTY COMPANY and the name and address of its registered agent for service of process is
MR. RON DODD
8900 AMBERGLEN BOULEVARD
AUSTIN, TX 78729-1110.
Philip F. O’Neill – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert E. Lang
Appeals Panel
Manager/Judge