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 December 4, 2001. The hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the second compensable quarter. On appeal, the claimant expresses disagreement with this determination. The respondent (carrier) urges affirmance.
DECISION
Affirmed.
In deciding whether the hearing officer’s decision is sufficiently supported by the evidence, we will only consider the evidence admitted at the CCH. We note that we will not generally consider evidence not submitted into the record, and raised for the first time on appeal. Texas Workers’ Compensation Commission Appeal No. 92255, decided July 27, 1992. To determine whether evidence offered for the first time on appeal requires the case be remanded for further consideration, we consider whether it came to appellant’s knowledge after the hearing, whether it is cumulative, whether it was through lack of diligence that it was not offered at the hearing, and whether it is so material that it would probably produce a different result. Texas Workers’ Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). We do not find that to be the case with evidence that the claimant attached to her request for review and, consequently, it will not be considered on appeal.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) provides that an injured employee who has an impairment rating of 15% or greater and who has not commuted any impairment income benefits is entitled to SIBs if, during the qualifying period, the claimant has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment from the compensable injury and has made a good faith effort to obtain employment commensurate with the employee’s ability to work. Rule 130.102(d)(4) states that the “good faith” criterion will be met 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[.]
At issue in this case is whether the hearing officer erred in determining that the claimant is not entitled to second quarter SIBs under a no-ability-to-work theory. We have emphasized that a finding of no ability to work is a factual determination for the hearing officer to resolve. Texas Workers’ Compensation Commission Appeal No. 951204, decided September 6, 1995. Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. Nothing in our review of the record indicates that the hearing officer’s determination that the claimant is not entitled to second quarter SIBs, based on her findings that the claimant had an ability to work during the qualifying period and that the claimant did not make a good faith effort to obtain employment commensurate with her ability to work during the qualifying period, is 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).
The decision and order of the hearing are affirmed.
The true corporate name of the carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is
TIM KELLY
AIG
975 BERING, 3RD FLOOR
HOUSTON, TEXAS 77057.
Chris Cowan – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert W. Potts – Appeals Judge