This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). On April 5, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding as hearing officer. The sole issue at the contested case hearing (CCH) was: Whether or not the claimant is entitled to temporary income benefits (TIBS) from July 16, 1992 to November 16, 1992. The hearing officer determined that the respondent, claimant herein, had disability as a result of her compensable mental trauma injury of (date of injury) from July 16, 1992 to November 16, 1992, with the exception of a three-day period.
Appellant, (County herein), contends that there is insufficient evidence to support the hearing officer’s decision of disability after July 16, 1992, and requests that we reverse the hearing officer’s decision and render a decision in its favor. Claimant responds that the decision is supported by the evidence and requests that we affirm the decision.
DECISION
The decision of the hearing officer is affirmed.
Claimant sustained a compensable mental trauma injury when she was robbed and held at gunpoint while she was working as a toll collector for the County on (date of injury). In a hearing on November 10, 1992, it was determined that claimant sustained a compensable mental trauma injury on (date of injury) and that decision was not appealed. The County paid TIBS through July 15, 1992 and the sole issue is disability, as defined by the 1989 Act, from July 16th to November 16th, when claimant obtained employment with an independent school district as a custodian.
Claimant testified, and the medical records support the contention, that because of the robbery she developed a fear of working at night or working with money in a position where she could be robbed. Claimant testified she had previously worked in a fast food restaurant for nine years before working for the County for four years. After the robbery on April 12th, claimant took a leave of absence and eventually saw (Dr. K) a psychiatrist, who treated her for “post traumatic stress disorder – depression” beginning May 4, 1992. Claimant at some time worked on a temporary basis for three days for a computer company in a day job that did not require handling money. At the conclusion of that job, claimant said she rejected a temporary assignment that required her to work at night. During May claimant continued to look for work in order to support her family and applied for jobs with several bakeries and a check cashing service. She testified, and is supported by at least one medical report, that her efforts to find a job were hampered because she became “so anxious that she fails simple tests.” Claimant testified that Dr. K told her “. . .just forget about anything that was stressful to (her) and to stop looking for a job and just try to get myself back under control and my life back together.”
Dr. K in a June 1, 1992 report stated claimant’s “. . .current disability is a direct result of her trauma of (date of injury). It is also my opinion that she is totally disabled at this time.”
Claimant was seen by (Dr. J), a psychiatrist, in an independent medical exam requested by the County. In a report dated October 20, 1992, after reciting the events of the robbery, Dr. J concluded that in his opinion claimant “. . .is able to work full time at this point. However she can not reasonably be expected to resume working in the same or a similar work site that might expose her to the danger of another robbery. . . . I do not believe (claimant) has actually reached full resolution of her symptoms.”
In an undated Report of Medical Evaluation (TWCC-69), Dr. K indicates maximum medical improvement (MMI) has not been reached and notes “re-evaluate in 6 months.” Dr. K indicates that medication has been discontinued but that claimant “. . .has not fully recovered from her trauma and she needs to continue out patient therapy and continue observation. . . .” The parties at the CCH stipulated that:
5)as of April 5, 1993, no physician has certified that the claimant has reached Maximum Medical Improvement in connection with her injury of (date of injury).
The hearing officer found in pertinent part:
FINDINGS OF FACT
3.It was determined by a Hearing Officer of the Texas Workers’ Compensation Commission on November 10, 1992 that the claimant sustained a compensable mental trauma injury on (date of injury) while in the course and scope of her employment with Harris County, Texas, and such determination has not been appealed.
4.The claimant was unable to obtain and retain wages equivalent to her wages before (date of injury) from July 16, 1992 to November 16, 1992, with the exception of a three-day period, as a result of her (date of injury) injury.
5.As of April 5, 1993, the date of this Contested Case Hearing, no physician has certified that the claimant has reached Maximum Medical Improvement in connection with her injury of (date of injury).
CONCLUSIONS OF LAW
4.The claimant had disability as defined in Art. 8308-1.03(16) of the Texas Workers’ Compensation Act as a result of her compensable mental trauma injury from July 16, 1992 to November 16, 1992, with the exception of a three-day period.
5.The claimant has not reached Maximum Medical Improvement within the meaning of Art. 8308-1.03(32) of the Texas Workers’ Compensation Act.
6.The claimant is entitled to Temporary Income Benefits for the period of July 16, 1992 to November 16, 1992, with the exception of a three-day period, pursuant to Art 8308-4.23 of the Texas Workers’ Compensation Act.
The County argues:
1.)That there is no objective evidence, or, in the alternative, that there is insufficient evidence, to support the Hearing Officer’s decision, that Claimant was disabled from July 16, 1992 to Nov. 16, 1992, and that she has not reached Maximum Medical Improvement (“MMI”).
2.)Claimant is therefore not entitled to any Temporary Income Benefits from July 16, 1992 to November 16, 1992.
The County stated “an Appeal Brief will be presented in the near future.” No appeal brief was submitted with the request for review, which was quoted above.
The gist of the County’s case at the hearing was that claimant had no “physical problems” and that since claimant had applied for a number of positions in bakeries and elsewhere “. . .there is just a world of other job opportunities. . . that don’t place her in that type of job situation. . . .” and therefore claimant did not have disability after July 15, 1992. County also disputes the hearing officer’s finding and conclusion that claimant has not reached MMI. We note, as does claimant in her response, that the County stipulated that “as of April 5, 1993, no physician has certified that the claimant has reached MMI. . . .” The County is in no position to now dispute the hearing officer’s finding and conclusion that MMI has not been reached based upon a stipulation of the parties.
Article 8308-1.03(16) defines disability as “the inability to obtain and retain employment at wages equivalent to the preinjury wage because of a compensable injury.” The issue in this case is whether claimant had a disability, as defined, between July 15th and November 15th. Medical, as well as non-medical, evidence may be considered by the hearing officer to determine whether claimant had disability. In Texas Workers’ Compensation Commission Appeal No. 92299, decided August 10, 1992, we held that disability can be established by a claimant’s testimony, even if contradicted by medical testimony. We also held that an unconditional medical release does not, in and of itself, equate to an ending of disability, although it may be evidence that disability had ended, citing Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991. Nor are objective medical findings a prerequisite to a determination of disability. Appeal No. 92299, supra, and Texas Workers’ Compensation Commission Appeal No. 92083, decided April 16, 1992. In this case, claimant sought work and applied for positions, but when she made her fears known she was not offered the positions. In one instance, claimant was able to obtain temporary employment for three days in a day position that did not involve handling money. We have on a number of occasions held that disability is not necessarily a continuing status only and that an employee may have intermittent periods of disability. See Texas Workers’ Compensation Commission Appeal No. 91122, decided February 6, 1992; Texas Workers’ Compensation Commission Appeal No. 91053, decided December 5, 1991; Texas Workers’ Compensation Commission Appeal No. 92641, decided January 4, 1993. In this case claimant was advised by her treating doctor, Dr. K, to stay off work and not look for jobs because the job search was aggravating her condition. Claimant also testified she was unable to work at jobs which involved handling money where she was exposed to a risk of robbery and night jobs. Although the County theorizes that “there is just a world of other job opportunities. . . that don’t place her in that type of job situation” the fact was that claimant applied for jobs, told prospective employers of her job limitations and apparently “found herself so anxious that she fails simple tests” and thereby was not offered work. Even Dr. J, County’s examining doctor, although saying claimant is “able to work full time” indicates claimant cannot resume working in the same or similar conditions which might expose her to the danger of a robbery and that claimant has not “reached full resolution of her symptoms.” We would again note that an “ability to work full time” does not necessarily equate to an end of disability, particularly where, as here, there are injury related conditions placed on the return to work.
We find the hearing officer’s determinations to be supported by sufficient evidence. On an appeal based on insufficiency of the evidence, only if we were to determine, which we do not in this case, that the decision of the hearing officer was so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust would we be warranted in setting aside his decision. In re King’s Estate, 244 S.W.2d 660 (Tex. 1951); Texas Workers’ Compensation Commission Appeal No. 92232, decided July 20, 1992.
The decision is affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge