This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on November 13, 1995. He determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBS) for the fourth and the fifth compensable quarters because the respondent (self-insured) was relieved of liability for SIBS for the fourth and fifth quarters because the claimant failed to timely file with the self-insured a Statement of Employment Status (TWCC-52) for each of those quarters. In his request for review the claimant stated that the self-insured was permitted to comment concerning SIBS for quarters other than the fourth and fifth quarters and that what was acceptable for the first three quarters should have also been acceptable for the fourth and fifth quarters because he was not told that it was not acceptable. The self-insured responded urging that the hearing officer properly applied the provisions of the 1989 Act and Texas Workers’ Compensation Commission rules, that the evidence is sufficient to support the determinations of the hearing officer, and that the determinations of the hearing officer are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and requesting that the Appeals Panel affirm the decision of the hearing officer.
DECISION
We reform the Decision and Order of the hearing officer and affirm the Decision and Order as reformed.
The claimant and the self-insured entered into 13 Stipulations of Fact. They stipulated that the claimant sustained a compensable injury on ________, and that he reached maximum medical improvement (MMI) on September 13, 1993, with a 16% impairment rating (IR). They also stipulated that the filing period for the fourth compensable quarter was from March 27, 1995, through June 25, 1995; that the fourth compensable quarter was from June 26, 1995, through September 24, 1995; that the filing period for the fifth compensable quarter was from June 26, 1995, through September 24, 1995; and that the fifth compensable quarter was from September 25, 1995, through December 24, 1995.
The claimant’s injury was to his knee. A note dated January 4, 1995, states that the claimant is released to light duty, that he should not lift over 30 pounds, that he should not climb ladders or scaffolds, that he should not squat or crawl, and that he should not sit for longer than 30 minutes. A physical capacities form dated March 17, 1995, states that the claimant is released to full duty; that he can stand and walk six to eight hours a day and can do so for two to four hours at one time, that he can frequently left 20 pounds and occasionally left 40 pounds; that he can frequently bend and reach; that he can occasionally squat, climb, twist, and rotate; but that he should not kneel or crawl.
The claimant testified that he was paid for the first and second compensable quarters of SIBS and that he was paid for part of the third quarter. He said that when he got the last check for the first quarter and second quarter he also received a form to submit for the next quarter. He stated that because of a dispute he did not get the last check for the third quarter, that he did not get the form, and that he called Ms. J (Ms.J) who was handling his claim, that Ms. J said that she would mail him the form, that about two weeks later he called Ms. J and told her that he did not receive the form, and that about five days later he received the form. He testified that he worked for M/A/R/C from March 27, 1995, to June 25, 1995, that he worked seven hours a day five days a week, that the TWCC-52 does not indicate that he sought other employment, but that he is pretty sure he searched for other employment. The claimant said that the work at M/A/R/C was right for his condition but that he could do other types of work within his restrictions. He stated that he signed the TWCC-52 dated July 26, 1995, and that when he received the document from M/A/R/C dated August 12, 1995, that states that for the 13-week period from May 18, 1995, through August 10, 1995, he worked 273.8 hours and earned $1,492.19; he immediately mailed the TWCC-52 and the document from M/A/R/C to the insurance company. He said that on the TWCC-52 he did not list the places where he looked for work, that he marked only the block that indicated that he had earned less than 80% of his preinjury average weekly (AWW) wage as a direct result of the impairment from his compensable injury, and that he did not mark that he had in good faith attempted to obtain employment in line with his ability to work.
The claimant testified that he worked for M/A/R/C from June 26, 1995, through September 24, 1995; that the company handling the claim had Intracorp locate places where he could work; and that he applied for three jobs, but that he did not get the jobs. He said that he completed the TWCC-52 at a benefit review conference, that he thinks that was on October 4, 1995, and that on October 9, 1995, the employer faxed the document dated October 5, 1995, that shows the hours he worked from March 31, 1995, through September 28, 1995.
The TWCC-52s filed by the claimant for the fourth and fifth compensable quarters were admitted. The first TWCC-52 is dated July 26, 1995, and both the TWCC-52 and the attachment from M/A/R/C are stamped as received on September 21, 1995, by the adjusting firm handing the claim; however, it appears that the received date was changed in handwriting to September 22, 1995. On this form the claimant did not list places where he worked or where he sought employment and marked only the block to indicate that he earned less than 80% of his preinjury AWW as a direct result of the impairment from his compensable injury. On the second TWCC-52 dated October 4, 1995, and stamped as received by the Commission on October 10, 1995, the claimant listed three places where he sought employment and in addition to the block marked on the first TWCC-52 also marked the block that states that he in good faith attempted to obtain employment in line with his ability to work. The attachment indicates the hours the claimant worked each week from March 31, 1995, through September 28, 1995, but does not state the hourly wage nor the wages for the filing period. The filing period began on June 26, 1996, and the attachment reflects that from June 23, 1995, through June 29, 1995, the claimant worked 17.2 hours. The filing period ended on September 24, 1995, and the attachment reflects that from September 22, 1995, through September 28, 1995, the claimant worked 23.4 hours. The attachment does not state the hourly wage and does not state the hours worked during the filing period. Even if the carrier divided the wages by the hours in the attachment to the TWCC-52 filed for the fourth quarter to determine the claimant’s hourly wage, it still could not determine the claimant’s wages for the filing period because it does not have the number of hours the claimant worked during the filing period.
The Decision and Order of the hearing officer contains an extensive Statement of the Evidence. The hearing officer made 21 Findings of Fact and eight Conclusions of Law. Concerning the fourth compensable quarter, the hearing officer found that the claimant signed a TWCC-52 dated July 26, 1995; that the claimant filed this form with the self-insured on September 22, 1995; that the claimant returned to work earning less than 80% of his preinjury AWW during the filing period for the quarter; that the claimant failed to state the wages he earned when he filed the TWCC-52 dated July 26, 1995; and that the claimant did not in good faith attempt to obtain employment commensurate with his ability to work during the filing period. The hearing officer concluded that the claimant is not entitled to SIBS for the quarter because the self-insured is relieved of liability. Concerning the fifth compensable quarter, the hearing officer found that the claimant signed a TWCC-52 dated October 5, 1995; that the claimant filed this form with the self-insured on October 10, 1995; that the claimant returned to work earning less than 80% of his preinjury AWW during the filing period for the quarter; that the claimant failed to state the wages he earned when he filed the TWCC-52 dated October 4, 1995; and that the claimant did not in good faith attempt to obtain employment commensurate with his ability to work during the filing period. The hearing officer concluded that the claimant is not entitled to SIBS for the quarter because the self-insured is relieved of liability.
We first address the requirement for the claimant to file a statement with the self-insured. Section 408.143 EMPLOYEE STATEMENT provides:
(a)After the commission’s initial determination of [SIBS], the employee must file a statement with the insurance carrier stating:
(1)that the employee has earned less than 80 percent of the employee’s [AWW] as a direct result of the employee’s impairment;
(2)the amount of wages the employee earned in the filing period provided in Subsection (b); and
(3)that the employee has in good faith sought employment commensurate with the employee’s ability to work.
(b)The statement required under this section must be filed quarterly on a form and in the manner provided by the commission. The commission may modify the filing period as appropriate to an individual case.
(c)Failure to file a statement under this section relieves the insurance carrier of liability for [SIBS] for the period during which a statement is not filed.
SIBS are addressed in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.101 through 130.110. Those rules provide that a claimant must file a Statement of Employment Status with the carrier. In Texas Workers’ Compensation Commission Appeal No. 941629, decided January 19, 1995, the Appeals Panel set forth the requirements of Section 408.143 and wrote “claimant’s failure to state the wages she earned during the filing period in question resulted in her having failed to file with the carrier the statement required in Section 408.143, thereby relieving carrier of liability for SIBS for that period.” In Texas Workers’ Compensation Commission Appeal No. 94335, decided May 6, 1994, the claimant erroneously signed a TWCC-52 indicating that she had returned to work and signed another TWCC-52 after both parties discovered the mistake, and the Appeals Panel affirmed a determination that the TWCC-52 was timely filed. In the case before us, there is no amendment or change by the claimant to show all of the wages earned in either the fourth or fifth filing period. In the TWCC-52 for the fourth quarter, the claimant did not mark that he had in good faith attempted to obtain employment in line with his ability to work. Even if the TWCC-52s had been filed timely, neither of them, including the documents attached to them, contained all of the information required by Section 408.143 to be in the statement of employment.
The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). The TWCC-52 for the fourth quarter was filed 89 days late, and the claimant did not list places where he sought employment nor mark that he had in good faith attempted to obtain employment in line with his ability to work. On the TWCC-52 for the fifth quarter, the claimant listed three places where he sought work, and marked that he in good faith attempted to obtain employment in line with his ability to work. The claimant attached to this form a list of the hours he worked each week from March 31, 1995, through September 28, 1995, but since the filing periods do not correspond with the beginning of weeks and the claimant did not work the same number of hours in any two weeks, his wages for the filing period cannot be determined from the TWCC-52 or the attachment. The hearing officer determined that the form filed did not meet the requirements of Section 408.143. The evidence is sufficient to support the determinations of the hearing officer that the claimant did not file Statements of Employment for the fourth and fifth compensable quarters as required by the 1989 Act and that the self-insured is relieved of liability for SIBS for those quarters. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Since we find the evidence sufficient to support those determinations of the hearing officer, we will not substitute our judgment for his. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
We next address the question of whether the claimant is entitled to SIBS for the fourth and fifth compensable quarters. In Texas Workers’ Compensation Commission Appeal No. 950723, decided June 23, 1995, the Appeals Panel stated that whether a claimant met substantive requirements for SIBS and whether a carrier is relieved of liability for SIBS because of late filing are separate issues and the fact that a carrier is relieved of liability for SIBS because of late filing does not impact on entitlement to SIBS.
The burden is on the claimant to prove by a preponderance of the evidence that he in good faith sought employment commensurate with his ability to work. The hearing officer could consider the testimony of the claimant that he sought employment that was not listed on the Statements of Employment. Texas Workers’ Compensation Commission Appeal No. 951629, decided November 16, 1995. The fact that an employee has returned to some type of work does not relieve that person from the requirement to seek employment commensurate with his ability to work; however, the claimant is not required to seek to return to his previous employment or to seek employment at a certain wage but only to seek employment commensurate with his ability to work. Texas Workers’ Compensation Commission Appeal No. 951624, decided November 14, 1995. Unlike some claimants, the claimant in the case before us returned to work. The claimant testified that he worked seven hours a day, five days a week and that he sometimes worked double shifts. The attachment to the TWCC-52 for the fifth quarter shows that for the 26-week period covered, the claimant worked 591.84 hours for an average of 22.76 hours per week. The hearing officer determined that during the filing periods for the fourth and fifth compensable quarters the claimant did not in good faith attempt to obtain employment commensurate with his ability to work. The factual determinations of the hearing officer are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. King’s Estate, supra; Pool, supra.
Another requirement for entitlement to SIBS is that the claimant earned less than 80% of preinjury AWW as a direct result of the claimant’s impairment. The hearing officer made findings that the claimant earned less than 80% of his preinjury AWW during the fourth and fifth quarters; however, he did not make findings of fact whether this was a direct result of the claimant’s impairment. The better practice would have been to have made determinations on that question for each quarter. However, since we found the evidence to be sufficient to support the determinations of the hearing officer that during the filing periods for the fourth and fifth compensable quarters the claimant did not in good faith attempt to obtain employment commensurate with his ability to work, the claimant would not be entitled to SIBS for either of the quarters regardless of the determination of the hearing officer on the question of direct result. Therefore, we will not remand for the hearing officer to make determinations on the “direct result” question.
The claimant stated that he receive SIBS after he filed forms for the first three quarters of SIBS, that he was not told that additional information was needed, and that the forms he filed for the fourth and fifth quarters should have been sufficient. The 1989 Act sets forth requirements for entitlement to SIBS and provides that under certain circumstances the insurance carrier is relieved of liability for paying SIBS. The fact that the self-insured paid SIBS for the first and second compensable quarters and part of the third quarter does not relieve the claimant of the requirement to prove by a preponderance of the evidence that he is entitled to SIBS for the fourth and fifth quarters and does not preclude the self-insured from establishing that it should be relieved of liability for paying SIBS for those quarters. Also, the claimant questioned the self-insured’s being able to comment concerning SIBS for quarters other than the fourth and fifth quarters. The claimant testified that he did not get the TWCC-52 for the fourth quarter in a timely manner because he did not receive the final SIBS check for the third quarter and that previously he received the form with the last check for the quarter. The attorney representing the carrier responded to an inquiry about the final payment for SIBS for the third quarter and the sending of forms to the claimant. The information in the response was not necessary to make determinations in this case, the information in the response does not appear in the Decision and Order of the hearing officer, and there is no evidence of reversible error concerning information related to the first three quarters.
The hearing officer made the following Conclusion of Law concerning SIBS for the fourth compensable quarter:
5.As a matter of law, Claimant is not entitled to [SIBS] for the fourth compensable quarter from June 26, 1995, to September 24, 1995, because Carrier is relieved of liability.
In Conclusion of Law No. 8 the hearing officer made a similar conclusion. The Decision of the hearing officer is worded the same as both of those Conclusions of Law. As noted above, whether a claimant is entitled to SIBS and whether a carrier or self-insured is relieved of liability to pay SIBS are separate questions. We reform Conclusions of Law Nos. 5 and 8 and the Decision in the Decision and Order to state that the claimant is not entitled to SIBS for the fourth and fifth compensable quarters and that if the claimant were entitled to SIBS for those quarters the self-insured would be relieved of liability for those quarters.
We affirm the Decision and Order of the hearing officer as reformed.
Tommy W. Lueders – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Robert W. Potts – Appeals Judge