Following a contested case hearing (CCH) held in ________, Texas, on November 16, 1995, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, ___________, resolved the disputed issues by determining that the respondent and cross-appellant (carrier) did not waive its right to dispute the appellant and cross-respondent’s (claimant) entitlement to supplemental income benefits (SIBS) for the first compensable quarter, that the carrier is not entitled to a reduction of claimant’s impairment income benefits (IIBS) based on contribution from earlier compensable injuries, and that claimant is entitled to SIBS for the first compensable quarter, June 30 to September 29, 1995. The carrier’s timely appeal challenges the determination of the contribution and SIBS issues on evidentiary sufficiency grounds. Claimant’s timely filed response asserts the sufficiency of the evidence on these issues but also states, untimely, an appeal of the SIBS waiver issue to which the carrier did not respond.
DECISION
Affirmed.
Records of the Texas Workers’ Compensation Commission (Commission) indicate that the decision of the hearing officer was distributed to the parties on December 18, 1995, under a cover letter dated December 14, 1995. Claimant is deemed to have received the decision five days after it was mailed to him by the Commission, that is, on December 23, 1995. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 102.5(h) (Rule 102.5(h)). Section 410.202(a) provides 15 days from the date the hearing officer’s decision is received to file an appeal. Thus, claimant’s appeal deadline was Monday, January 8, 1996, considering that the 15th day was a Sunday. See Rule 102.3(a)(3). Claimant’s appeal was not mailed until January 13, 1996, and was, thus, untimely. See Rule 143.3(c). Since there has not been a timely appeal of the resolution of the SIBS waiver issue, the Findings of Fact and Conclusions of Law and so much of the decision and order as relate to that issue have become final (Section 410.169) and we need not further consider it nor discuss the pertinent evidence.
CONTRIBUTION
Section 408.084(a) provides that the Commission, at the request of the carrier, may order that IIBS and SIBS be reduced “in a proportion equal to the proportion of a documented impairment that results from earlier compensable injuries. [Emphasis supplied.]” No Commission rules implement this section. Section 401.011(23) defines impairment to mean “any anatomic or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent.” Section 401.011(10) defines compensable injury to mean “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.”
Claimant testified that in November 1993, he commenced working for Scott Del Electric, Inc. (employer) performing construction-type work, that prior to that employment he drove 18-wheel trucks for about two years and that prior to that employment he worked as a journeyman electrician. He further stated that on ___________, he injured his back on the job, sought treatment from Dr. M (Dr. M) on January 15, 1994, and underwent spinal surgery in March 1994. Claimant further stated that he sustained prior back injuries in ________, _______ and ________ (apparently misstated from ______ as mentioned below), that he had surgery after each of those injuries, and that despite knowledge that he had workers’ compensation insurance coverage “through the union” to which he belonged, he did not file workers’ compensation claims for those injuries. Claimant said he did not file workers’ compensation claims because, first, he was unsure whether they were actually job related and, second, because, given his perceptions regarding the effects of filing such claims, he did not want to jeopardize future employment. As he reiterated, “I have never actually said that my other three injuries were work related because I don’t know.”
Dr. M’s report of January 18, 1994, states, in part, that claimant related that he had had three previous lower back injuries, “that these were work-related but that he did not claim them as work-related and did not receive any type of settlement for these injuries,” that his previous injuries occurred in ____, ____, and ____, that he had disc surgery after each injury and did well, and that he had had “no recurrent problems prior to this injury.” Claimant specifically denied telling Dr. M that the three injuries were work related, explaining that Dr. M had not recorded all claimant had said. Claimant further stated that the first injury was “possibly” work related, that the second injury occurred when he was at home, and that he could not remember where he was at the time of the third injury. An undated medical history questionnaire in the Garland Orthopedic Clinic (clinic) records, pertaining to a ____ low back injury and to surgery in ____, asked whether claimant had in the past been injured on the job and the answer block contained a check mark and the words, “Pryor [sic] to first surgery.” A group health insurance claim form, signed by claimant on _________, reflected the employer as Diamond G Electric and had checked the response “no” to the question whether the ailment was due to accident. Other clinic records stated the injury date as _________, and reflect group health and disability insurance payments. Apparently, claimant misstated the ____ injury and consequent surgery as having occurred in ____ and that misstatement carried through in the history portions of the later records of Dr. M, Dr. S and others and was not even clarified at the CCH. ____ records from the clinic reflect that claimant, having had two prior surgeries, underwent a decompressive laminectomy and free fragment removal at the L4-5 level, that he thereafter had significant relief from preoperative pain, that he took no pain medications, and that the wound was well healed.
Dr. G’s (Dr. G) report of February 17, 1994, which provided a second opinion recommending excision of the disc at the L3-4 level, states in reference to claimant’s employment with the employer that claimant “had no physical work limitations or restrictions at the onset of this employment.” Dr. S (Dr. S), the designated doctor whose Report of Medical Evaluation (TWCC-69) of January 23, 1995, reflected an impairment rating (IR) of “18% (not apportioned),” stated that “[t]here has [sic] been three previous surgeries and discectomies of the low back in ____, ____, and ____ and the injury occurring on ___________, eventually resulted in discectomy of the L4-L5 interspace.” Regarding the 18% IR, Dr. S stated that “this [IR] is not apportioned for previous and preexisting conditions which is [sic] greatly contributing to the deficit in range of motion.”
The hearing officer found that claimant’s back injuries prior to _____________, did not arise out of and in the course and scope of employment and concluded that the carrier was not entitled to a reduction of claimant’s IIBS based on contribution from earlier compensable injuries.
The carrier relies exclusively on, and characterizes as “this overwhelming evidence,” the statement in Dr. M’s January 18, 1994, report, repeated in Dr. S’s January 23, 1995, report, that claimant had said that his three earlier back injuries were work related. As the finder of fact and the sole judge of the weight and credibility of the evidence (Section 410.165(a)), it was for the hearing officer to resolve such conflicts and inconsistencies in the evidence. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). As an appellate reviewing body, we will not disturb this bare factual finding (nor its consequent legal conclusion) unless we find it so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We are satisfied the challenged finding and conclusion find sufficient support in the evidence and they are affirmed. We observe that not only was there a paucity of evidence to support the carrier’s burden of establishing that any of claimant’s three earlier back injuries were compensable injuries but there was virtually no evidence to support the statutory requirement for documented impairment from any of these earlier injuries, even had they been shown to have been compensable.
ENTITLEMENT TO SIBS
The parties stipulated that claimant had an IR of 15% or more, that he did not commute any IIBS, and that the filing period for the first compensable quarter was from March 31 through June 29, 1995. Sections 408.142(a)(2) and (4) provide that for entitlement to SIBS an employee must not have returned to work “as a direct result of the employee’s impairment” and that the employee must have “attempted in good faith to obtain employment commensurate with the employee’s ability to work.” And see Rules 130.101, et seq.
Claimant testified that after his fourth back operation in March 1994, he could no longer perform the heavy, strenuous work he had done throughout his working years, that following that operation Dr. M advised him he needed to change career fields or he would be back again, and that he had no training or experience in clerical or other sedentary jobs. Dr. M’s records of April and May 1994 stated that claimant was “unable to return to his pre-injury work.” On June 23, 1994, Dr. M reported that he gave claimant an IR of 18%. He also mentioned that claimant has a work release allowing him to lift up to 100 pounds occasionally and 20 pounds or less on a regular basis consistent with a Functional Capacity Evaluation (FCE). A June 8, 1994, FCE report stated that claimant’s job as an electrician required a maximum lifting of 90 pounds on occasion, classified as a medium-heavy work category; that based on claimant’s floor to knuckle lift of 100 pounds using good body mechanics claimant meets a heavy work category, which exceeds his electrician job requirements; and that he “should be able to return to work at 90 pounds reasonably utilizing good body mechanics” and maintaining correct posture.
Claimant indicated that he sometime thereafter contacted the Texas Rehabilitation Commission (TRC) and through that agency received retraining as an airline flight dispatcher. Section 408.150(a) provides in part that the Commission shall refer an employee to the TRC with a recommendation for appropriate services if the Commission determines that “an employee entitled to [SIBS] could be materially assisted by vocational rehabilitation or training in returning to employment . . . . ” Claimant stated that an airline dispatcher can, at will, sit or stand in front of a computer and do the job, that he went to an airline flight dispatcher school full-time from October 17, 1994, to February 10, 1995, and that he completed the course, took and passed the required examinations, and obtained an FAA aircraft dispatcher’s license on February 7, 1995. He further stated that his instructor, RW (Mr. W), the school owner, who himself was a flight dispatcher for American Airlines, has and continues to actively assist claimant in his efforts to obtain employment as an airline dispatcher and has advised claimant that his prospects for such employment are excellent. Claimant stated that 31 of the 32 members of his class have already been placed. He said that soon after completing his training, he, in conjunction with the school, mailed approximately 20 to 25 resumes to airlines listed on an exhibit as operating in the Dallas area and that in April he mailed some more. He also indicated that some airlines had laid off personnel, that he has expanded his job search from the Dallas area to out-of-state employers such as Kitty Hawk Airlines, and that although the field is “pretty competitive,” he believes he will find a job in that field when it “opens back up.” Mr. W wrote on September 11, 1995, that claimant had been actively completing airline applications during the past several months with the assistance of the school staff, that he was doing all he could to obtain employment in the flight dispatcher’s field, that it is not unusual in that field for several months to pass before an applicant obtains an interview, and that claimant “has been following all the normal methods for securing a job in the airline industry.”
Dr. C reported on January 3, 1995, that claimant returned after a prolonged absence reporting that he had not returned to work and complaining of severe left-sided back and thigh pain, that claimant has a recurrent lumbar disc herniation, that Dr. C recommends further diagnostic evaluation, and that claimant’s prognosis is “fair.” On January 16, 1995, Dr. C reported that claimant stated that he improved after bending over and feeling a “pop” in his back, that an MRI revealed a large soft tissue mass in the L3-4 area, and that claimant’s prognosis was “fair to good.” Claimant was asked about his two heart attacks, the first in March 1995 and the second about two months before the CCH. He maintained they had no adverse effect on his ability to look for employment since the duration of his hospital stays was only three to five days.
Claimant further testified that airlines have to be approached by mailing resumes as they do not accept walk-in applications; that in addition to the more than 25 resumes he sent to airlines, he also sought employment with a railroad; that after his heart attack in March 1995, he looked in the newspaper several times for clerical and secretarial jobs, mailed applications, but could not qualify given his typing rate of 21 words per minute, and that he is learning to type. He further stated that he also sent applications to other businesses such as Payless and Home Depot from whom he received calls about employment. He said the callback from Payless came approximately two days after he was released from the hospital following his first heart attack and that he was then under doctor’s orders to do nothing. The evidence regarding the Home Depot contact was unclear.
The hearing officer’s dispositive factual findings regarding claimant’s entitlement to SIBS, aside from the stipulated statutory requirements (Sections 408.142(a)(1) and (3)), were that claimant “has been unable to return to work or earn 80% of his average weekly wage as a direct result of [his] impairment due to his compensable injury” and that claimant “made a good faith attempt to obtain employment commensurate with his ability to work during the filing period.” Based on these findings, the hearing officer concluded that claimant is entitled to SIBS for the first compensable quarter. On appeal, the carrier asserts error (insufficient evidence) in the “direct result” of impairment and the “good faith attempt” findings. The carrier points to the conclusion in the FCE report of June 8, 1994, that the physical requirements of claimant’s electrician job were within his current physical abilities and weight lifting restrictions as evidence that claimant’s unemployment was not a direct result of his impairment. The carrier further maintains that claimant’s inability to obtain an aircraft dispatcher’s job was also not a direct result of his impairment but rather of a downturn in airline hiring. Finally, the carrier maintains that claimant limited himself to obtaining employment in his new career field and thus did not make a good faith attempt to obtain employment commensurate with his ability.
The hearing officer is required to make both Findings of Fact and Conclusions of Law. Section 410.168(a)(1). Although the Findings of Fact concerning the SIBS elements required by Sections 408.142(a)(2) and (4) are stated in substantially conclusory terms and are devoid of “facts,” the carrier does not challenge them on that basis and we thus need not remand for further findings of fact. We also note that the hearing officer’s “Statement of the Evidence and Discussion” is virtually factless and thus does not provide a factual basis for any implied factual findings.
We are satisfied there is sufficient evidence to support the dispositive Findings and Conclusion on the SIBS issue and they are affirmed. That another fact finder may well have drawn different inferences from the evidence does not provide us with a basis to disturb the findings. Texas Workers’ Compensation Commission Appeal No. 92308, decided August 20, 1992. Regarding claimant’s unemployment being a “direct result” of his impairment, the hearing officer was at liberty to attach such weight to the FCE as he felt it merited given that claimant had undergone four low back operations, that Dr. M and claimant both felt he needed to change to a less strenuous career field, and that claimant’s symptoms reoccurred in January 1995. The Appeals Panel has held that “a finding of `direct result’ is sufficiently supported by evidence that a claimant sustained a serious injury with lasting effects and that he could not reasonably perform the type of work that he was doing at the time of the injury. [Citation omitted.]” Texas Workers’ Compensation Commission Appeal No. 950376, decided April 26, 1995. Regarding the “good faith attempt” element, the hearing officer could consider claimant’s initial efforts to obtain an aircraft dispatcher’s job with an airline in the Dallas area, his expansion of his job search to out-of-state airlines, and to a railroad, and to clerical jobs as sufficient to meet his burden of proof. The Appeals Panel has said that good faith is “a subjective state of mind denoting honesty of purpose, lack of intent to defraud and being faithful to one’s obligations,” and that “the good faith effort necessary for SIBS must be to obtain employment commensurate with the ability to work, not to return to the previous employment or to employment at a certain wage scale.” Texas Workers’ Compensation Commission Appeal No. 93181, decided April 19, 1993; Texas Workers’ Compensation Commission Appeal No. 94882, decided August 18, 1994.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Elaine M. Chaney – Appeals Judge