Following a contested case hearing held on December 12, 1995, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, ________________, resolved the sole disputed issue by determining that the respondent (claimant) was entitled to supplemental income benefits (SIBS) for the second compensable quarter, namely, September 22 through December 21, 1995. (All dates are in 1995 unless otherwise stated.) The appellant (carrier) asserts on appeal that the evidence is insufficient to establish the statutory requirements that claimant’s unemployment was a direct result of his impairment and that he made a good faith attempt to obtain employment commensurate with his ability to work. The carrier further asserts that there is no evidence to support a finding that claimant was unable to work during the filing period due to his impairment. No response was filed by the claimant.
DECISION
Determining that the decision of the hearing officer is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, we affirm. We note that different inferences might reasonably be drawn from the evidence, but this is not a sufficient basis to reverse a decision where there is some probative evidence. Texas Workers’ Compensation Commission Appeal No. 92308, decided August 20, 1992.
The parties stipulated that on ______________, claimant sustained a compensable injury to his lower back and had resulting disability, that he reached maximum medical improvement on August 12, 1994, and had a 15% impairment rating (IR), that he did not elect to commute any portion of the impairment income benefits (IIBS) he received, that the first compensable quarter for SIBS began on June 23rd and the second quarter on September 22nd, and that during the filing period claimant was not employed and did not earn any wages. Notwithstanding that three findings of fact reference the filing period, the dates of the filing period were, inexplicably, neither stipulated to nor otherwise found. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.101 (Rule 130.101) defines filing period as a period of at least 90 days during which the employee’s wages, if any, are reviewed to determine entitlement to SIBS; Rule 130.102(b) provides that entitlement to SIBS is determined prospectively for each potentially compensable quarter based on criteria met by the employee during the prior filing period. Accordingly, the 90-day period preceding September 22nd, namely, June 24th through September 21st comprises the filing period for the second compensable quarter.
Claimant introduced a Statement of Employment Status (TWCC-52) which he signed on September 5, 1995, which reflected that during the preceding 90 days he applied for “construction” employment with MR, RG, and JR who, apparently, were contractors, and that he was not offered a position. Claimant was the sole witness. He testified through a translator and his testimony was sparse and inconsistent. He said that when injured he was doing construction work involving cement, that his previous jobs had also been in construction and before that he had worked in a nursery, and that during the filing period he was unable to return to construction work because of back pain from the plate in his back and pain and cramping in his leg from the nerve. According to claimant, Dr. G (Dr. G), his treating doctor, told him that he had “fixed” claimant’s back but that the nerve down his leg would not get well. Claimant further testified that when he applied to the businesses listed on the TWCC-52, he was looking for any type of work that he could do, that he did not think he could do the type of work he was doing when injured, and that no light work such as driving or carrying materials was available. He further stated that Dr. G never discussed his job restrictions but did, apparently during his visit on July 12th, advise him he should look for lighter work. Claimant further testified that in addition to the three applications listed on the TWCC-52 he made other (unspecified) applications for lighter work, including a nursery. There was no development of the evidence concerning these other attempts to find employment.
Dr. G wrote on July 6, 1994, that claimant was approximately one year post-fusion at L5-S1 and that he continues to have numbness and slight weakness of the left foot, limited flexion and extension of his back, and a persistent S1 radiculopathy. Dr. G further stated: “Again, I have advised the patient to consider perhaps other lines of work in a lighter duty capacity which I do not believe his present employer has.” Dr. G wrote on July 12th that claimant was two years post-fusion at L5-S1, that he continued to be symptomatic with numbness in the left leg, and that he was “trying to get employment at this time.”
Section 408.142(a) provides that an employee is entitled to SIBS if on the expiration of the IIBS period the employee: (1) has an IR of 15% or more; (2) has not returned to work or has earned less than 80% of the average weekly wage “as a direct result of the employee’s impairment”; (3) has not elected to commute a portion of the IIBS; and (4) “has attempted in good faith to obtain employment commensurate with the employee’s ability to work.” And see Rules 130.101 through 130.110. Section 408.143 provides that after the initial determination of SIBS, an employee must, on a quarterly basis, continue to meet the “direct result” and “good faith” criteria. Whether claimant met these statutory criteria for SIBS for the second quarter were fact questions for the hearing officer’s resolution. These criteria are different. Texas Workers’ Compensation Commission Appeal No. 950849, decided July 7, 1995. The Appeals Panel discussed the meaning of the “good faith” attempt criterion in Texas Workers’ Compensation Commission Appeal No. 93181, decided April 19, 1993. And see Texas Workers’ Compensation Commission Appeal No. 941160, decided October 12, 1994. Regarding the “direct result” criteria, the Appeals Panel has said that an injured employee must show that the unemployment is due to the impairment and not to such things as economic factors. Texas Workers’ Compensation Commission Appeal No. 94335, decided May 6, 1994. The Appeals Panel has also recognized that an injured employee is not required to offer direct evidence that job refusals were due to physical limitations. Texas Workers’ Compensation Commission Appeal No. 93630, decided September 9, 1993. In Texas Workers’ Compensation Commission Appeal No. 93559, decided August 20, 1993, the Appeals Panel indicated that a finding of “direct result” was sufficiently supported by evidence that the employee sustained a serious injury with lasting effects and that during the filing period he could not reasonably perform the type of work he was doing at the time of the injury. And see Texas Workers’ Compensation Commission Appeal No. 94533, decided June 14, 1994; Texas Workers’ Compensation Commission Appeal No. 950376, decided April 26, 1995; Texas Workers’ Compensation Commission Appeal No. 950771, decided June 29, 1995.
The hearing officer found that claimant was “unable to work during the filing period for the second compensable quarter due to his impairment” and that he in good faith attempted to obtain employment commensurate with his ability to work during the filing period. Though it does not advert to the statutory language, we read the first finding as addressing the “direct result” criterion and not as a finding that claimant had no ability to work whatsoever so that, perforce, he had no obligation to look for work. We are satisfied that the evidence, though minimal and not well developed in the claimant’s testimony or in the medical evidence, is sufficient to support the challenged findings. The hearing officer could credit the unrefuted evidence that during the filing period claimant sought any kind of light duty work from three contractors as well as work at a nursery as a good faith attempt to obtain employment commensurate with his ability. The evidence was particularly minimal respecting the “direct result” criterion. Appeal No. 94533, supra. And see Texas Workers’ Compensation Commission Appeal No. 941649, decided January 26, 1995, where the Appeals Panel remanded for further development of the medical evidence concerning the employee’s ability to work. The hearing officer could further consider the unrefuted evidence of claimant’s residual pain, numbness and persistent radiculopathy following his lumbar spine fusion and his inability during the filing period to return to heavy manual labor as directly resulting in his unemployment during the filing period. In considering questions of factual sufficiency, we consider and weigh all the evidence and only set aside factual determinations when they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Texas Workers’ Compensation Commission Appeal No. 91129, decided February 10, 1992; Texas Workers’ Compensation Commission Appeal No. 92046, decided March 23, 1992. See also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). We do not find them to be so in this case.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
CONCUR IN THE RESULTS:
Robert W. Potts – Appeals Judge