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APD 041761
August 30, 2004

APD 041761

August 30, 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 24, 2004. The hearing officer resolved the disputed issue by deciding that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the fourth quarter, March 5 through June 3, 2004. The claimant appealed, arguing that the hearing officer’s decision is against the great weight and preponderance of the evidence. The respondent (carrier) responded, urging affirmance.



The parties stipulated that the claimant sustained a compensable injury on _____________; that he reached maximum medical improvement on May 23, 2002, with an 18% impairment rating; that he did not commute his impairment income benefits; and that the qualifying period for the fourth quarter ran from November 22, 2003, to February 20, 2004. Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) set out the statutory and administrative rule requirements for SIBs. At issue in this case is whether the claimant met the good faith job search requirement of Section 408.142(a)(4) by showing that he had a total inability to work during the qualifying period for the fourth quarter. 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.

Alternatively, Rule 130.102(d)(5), which was also relied upon by the claimant for SIBs entitlement, provides that the good faith requirement may be satisfied if the claimant “has provided sufficient documentation as described in subsection (e).” Rule 130.102(e) states that “an injured employee who has not returned to work and is able to return to work in any capacity shall look for employment commensurate with his or her ability to work every week of the qualifying period and document his or her job search efforts.” The rule then lists information to be considered in determining whether the injured employee has made a good faith effort, including, among other things, the number of jobs applied for, applications which document the job search, the amount of time spent in attempting to find employment, and any job search plan.

The hearing officer did not err in determining that the claimant did not satisfy the good faith requirement of Rule 130.102(d)(4) by demonstrating that he had no ability to work in the relevant qualifying period. The hearing officer was not persuaded that the evidence presented by the claimant was sufficient to satisfy the requirements of Rule 130.102(d)(4). Specifically, the hearing officer determined that there was not a narrative report that specifically explained how the claimant’s injury caused a total inability to work and that another record showed that the claimant had some ability to work in the qualifying period. The hearing officer found that the claimant did not seek employment during each week of the qualifying period and that the job search he did perform was self-limiting as he only sought employment with one type of employer. Nothing in our review of the record reveals that the hearing officer’s determinations in that regard are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. As such, no sound basis exists for us to disturb the hearing officer’s good faith determination, or the determination that the claimant is not entitled to SIBs for the fourth quarter, on appeal. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is FIREMAN’S FUND INSURANCE COMPANY and the name and address of its registered agent for service of process is




Margaret L. Turner
Appeals Judge


Gary L. Kilgore
Appeals Judge

Edward Vilano
Appeals Judge