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 7, 2001. The hearing officer resolved the disputed issues by concluding that the respondent/cross-appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the third and fourth quarters. In its appeal, the appellant/cross-respondent (carrier) argues that there is no evidence to support the finding that the claimant did not return to work during the qualifying periods for the third and fourth quarters as a direct result of his impairment or to support the finding that the claimant established by medical evidence that he was unable to perform any work at all during the latter part of the qualifying period for the fourth compensable quarter. The carrier argues alternatively that these findings are against the great weight and preponderance of the evidence. The appeals file does not contain a response from the claimant. In his cross-appeal, the claimant contends that the hearing officer failed to properly apply the evidence presented to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(4) (Rule 130.102(d)(4)), and incorrectly found that the claimant was not entitled to SIBs for the third and fourth quarters. In its response, the carrier argues that the challenged findings are supported by sufficient evidence.
DECISION
Affirmed.
The parties stipulated that the claimant sustained a compensable injury on _______________, to the cervical spine and left elbow; that the claimant did not commute any portion of the impairment income benefits; that the qualifying period for the third quarter began December 23, 2000, and ended March 23, 2001; and that the qualifying period for the fourth quarter began March 24, 2001, and ended June 22, 2001. Though the claimant testified that he could have performed some light-duty work, he contended at the CCH and on appeal that he had no ability to work during the qualifying periods of the third and fourth quarters. The evidence reflected that the claimant had surgery on May 7, 2001, approximately a month and a half before the end of the fourth quarter qualifying period. Dr. Y in an office visit note dated June 21, 2001, discusses some of the limitations placed on the claimant due to the surgery.
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 claimant argues the hearing officer failed to properly apply the evidence presented at the CCH to the requirements of this rule.
The Appeals Panel has said that a hearing officer may consider one doctor’s reports and narrative together to determine whether there is an adequate narrative for the purposes of Rule 130.102(d)(4). Texas Workers’ Compensation Commission Appeal No. 011152, decided on July 16, 2001. There are several reports from the claimant’s treating doctor, Dr. Y, in evidence which discuss the pain the claimant experiences and state the need for additional surgery. The report dated February 28, 2001, states specifically that the claimant “is unable to work at this time.” However, the hearing officer was not persuaded that the records indicate how the injury caused a total inability to work.
Though a specific finding was not made by the hearing officer regarding other records, the failure to provide a narrative from a doctor which specifically explains how the injury causes a total inability to work will preclude entitlement to SIBs.
The 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). The hearing officer had to judge the credibility of the evidence before her in order to determine whether the evidence presented was sufficient to meet the criteria of Rule 130.102(d)(4). The questions of whether a narrative report specifically explains how the injury caused a total inability to work and whether an “other record” shows an ability to work are factual questions. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we find the evidence sufficient to support the hearing officer’s determinations.
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 CORP. SYSTEM INC.
800 BRAZOS
AUSTIN, TEXAS 78701.
Gary L. Kilgore – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Chris Cowan – Appeals Judge