A contested case hearing was held in (city), Texas, on October 1, 1992, (hearing officer) presiding as hearing officer. He determined the respondent (claimant) had disability from May 13, 1992 through October 1, 1992, and that the employer failed to prove there were any bona fide job offers made to the claimant. Accordingly, he awarded temporary income benefits be paid pursuant to the Texas Workers' Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). The appellant (carrier) urges error in several of the hearing officer's findings of fact and conclusions of law and asks for reversal and either a rendering of a new decision or remand for further consideration and development of the evidence. No response has been filed.
Finding the determinations of the hearing officer not to be so against the great weight and preponderance of the evidence as to be clearly wrong or unjust, we affirm.
It is apparent from passages in the record of hearing that this case has been a protracted matter which has eluded a satisfactory conclusion. Be that as it may, we restrict our consideration of the case to only those issues as ultimately defined at the contested case hearing: (1) whether the claimant had disability from May 13, 1992 through October 1, 1992, and (2) whether the employer had tendered any bona fide offer(s) of employment to the respondent. As indicated, the hearing officer found disability and found the employer's written job offers did not clearly state all the requirements so as to create a presumption that they were bona fide and that the job offers exceeded the claimant's physical capabilities.
The claimant sustained an injury to his neck and back on or about (date of injury) when some heavy boxes fell on him. The record indicates that he has been under some degree of medical treatment during the times pertinent to this case. There is evidence that at the time of his accident the claimant had already decided to terminate his employment with the employer because of scheduling conflicts involving his religious observations. In any event, he apparently did perform some light duty with the employer subsequent to the injury so that he could stay on long enough to qualify for a "bonus." The claimant testified in essence that during the time frame of this case he was not physically able to do the work he did before his accident, that he was in pain much of the time and that he had to restrict his activities. He also stated that after he stopped working for the employer he did do some work at other odd jobs and that he started a fledgling mowing business when his church agreed to buy a mower tractor for his use in exchange for mowing services. Although not developed, there is evidence in the record that adjustments were apparently made by the carrier for claimant's various employment endeavors during the period, at least up to May 13, 1992. Nevertheless, according to the employer, a letter containing an offer of light duty employment dated May 15, 1992 was sent to the claimant. In a rather restrictive reading and application of the requirements of a written offer of employment (Tex. W. C. Comm'n, 28 TEX. ADMIN. CODE § 129.5(b) (TWCC Rule 129.5(b)), particularly in view of the past conversations and employment relationships the claimant and the employer had, the hearing officer apparently determined this was not a bona fide offer. In this regard, we have held that in making a determination of a bona fide offer of employment, the surrounding circumstances including conversations and understandings of the parties can be appropriately considered. See generally Texas Workers' Compensation Appeal No. 92293, decided August 17, 1992; Texas Workers' Compensation Commission Appeal No. 92181, decided June 25, 1992; Texas Workers' Compensation Commission Appeal No. 91127, decided February 12, 1992. However, in this case, the claimant adamantly denied he ever received such letter and the hearing officer could well have believed that testimony. Needless to say, the claimant was not in a position to accept such an offer if he was not aware of it. See Texas Workers' Compensation Commission Appeal No. 92526, decided November 25, 1992. Regarding a second letter offering a position as a bicycle assembler, undated but indicating a reporting date of July 13, 1992, the hearing officer, apparently applying the same restrictive reading and application of the requirements, also determined it was not a bona fide offer. However, regarding this offer, the claimant testified he could not perform those duties and had a statement from his doctor indicating that the doctor had personally observed the type of work offered and that the claimant was not capable of performing the duties. The hearing officer did make a specific finding that the physical requirements of the post-injury job offers exceeded the claimant's physical capabilities. From the claimant's testimony and the statement of his doctor, there was sufficient evidence to support this finding regarding the second job offer in question.
One matter of concern to us is the apparent (and erroneous) belief of the claimant here that just because a bona fide light duty job offer is for a wage and/or for hours somewhat less than the job he held at the time of injury, or that he does not desire to work for the employer for some other personal reasons, he does not have to accept the offer and yet be immune from the set off provided in Article 8308-4.23(f). Of course, the acceptance of such a position does not in and of itself end disability. See Texas Workers' Compensation Commission Appeal No 91045, decided November 21, 1991.
As we have stated, and within the parameters set out above, there is sufficient evidence to support the hearing officer's essential determinations that the claimant had disability from May 13, 1992 through October 1, 1992 and that there were no bona fide offers of employment during the time period in issue, and his decision is not so against the great weight and preponderance of evidence as to be clearly wrong or unjust, thereby warranting reversal. Texas Workers' Compensation Commission Appeal No. 92146, decided May 27, 1992; Texas Workers' Compensation Commission Appeal No. 92293, decided August 17, 1992.
The decision is affirmed.
Stark O. Sanders, Jr.
Chief Appeals Judge
Lynda H. Nesenholtz
Thomas A. Knapp