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APD 041646
August 24, 2004

APD 041646

August 24, 2004

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 3, 2004. The hearing officer resolved the disputed issue by determining that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the second quarter. The claimant appeals this determination. The respondent (carrier) urges affirmance of the hearing officer’s decision.


Affirmed, as reformed.

The claimant correctly points out that the parties stipulated that the claimant reached maximum medical improvement (MMI) on June 27, 2002, not August 10, 2001, as reflected in Finding of Fact No. 1C. For this reason, the Finding of Fact No. 1C is reformed to reflect that the claimant reached MMI on June 27, 2002, with a 25% impairment rating.

The claimant contends that the hearing officer should have ordered a continuance in order for a functional capacity evaluation to be performed. The record reflects that the claimant did not request a continuance and, therefore, waived the right to complain about this matter on appeal.

Section 408.142 provides that an employee continues to be entitled to SIBs after the first compensable quarter if the employee: (1) has not returned to work or has earned less than 80% of the employee's average weekly wage as a direct result of the impairment; and (2) has in good faith sought employment commensurate with her ability to work. At issue in this case is whether the claimant satisfied the good faith requirement by complying with the provisions of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102). This issue was a factual question for the hearing officer to resolve. Section 410.165(a) provides that the 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 to the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). Nothing in our review of the record indicates that the hearing officer’s decision 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).

The hearing officer’s decision and order are affirmed, as reformed.

The true corporate name of the insurance carrier is ST. PAUL FIRE & MARINE INSURANCE COMPANY and the name and address of its registered agent for service of process is


701 BRAZOS, SUITE 1050


Chris Cowan
Appeals Judge


Gary L. Kilgore
Appeals Judge

Edward Vilano
Appeals Judge