This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 20, 1996. With respect to the issues before her, the hearing officer determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBS) for the fourth, fifth and sixth quarters and that the claimant waived his entitlement to fourth quarter SIBS and a portion of fifth quarter SIBS by failing to timely file his Statements of Employment Status (TWCC-52). In his appeal, the claimant argues that the hearing officer’s determination that he is not entitled to fourth, fifth and sixth quarter SIBS is against the great weight and preponderance of the evidence. In addition, the claimant maintains that he timely filed his TWCC-52s, arguing that there was no purpose in his making further TWCC-52 filings unless and until he successfully appealed the denial of SIBS in the first, second and third quarters. In its response, the respondent (carrier) urges affirmance.
DECISION
We affirm in part and reverse and render in part.
It is undisputed that the claimant, who is 66 years old, sustained a compensable injury to his back on_____, in the course and scope of his employment with (employer) for whom the claimant had worked since 1966. The claimant testified that, when he was in the fourth grade, he left school to get a job and assist his family. He stated that, as a result of leaving school at that time, he has limited literacy skills and is not able to complete a job application or read the newspaper. The claimant testified that he had no plans to retire at the time of his injury, noting that he had purchased a new home several months before the injury. He also stated that he attempted to return to work in a light-duty position with the employer after his injury, but he was not able to perform the duties of the position and he left it. The claimant testified that he has subsequently retired from his employer, at the age of 65, and is receiving retirement benefits.
On April 15, 1993, the claimant had back surgery, a decompressive laminectomy from L2 to the sacrum. Dr. G an orthopedic surgeon, performed that surgery. The claimant continued treating with Dr. G until November 2, 1993, at which time Dr. G certified that the claimant reached maximum medical improvement (MMI), as of that date, with a 20% IR. Dr. G also released the claimant from his care, on November 2, 1993, advising the claimant that there was nothing else that could be done for him. The carrier disputed the claimant’s IR and Dr. S was selected as the designated doctor. In Texas Workers’ Compensation Commission Appeal No. 941607, decided January 10, 1995 (unpublished), the Appeals Panel affirmed the hearing officer’s determination giving presumptive weight to the designated doctor’s 10% IR.
The claimant filed suit in the District Court of (County) on the IR issue. On August 11, 1995, the District Judge signed a judgment on the jury’s verdict awarding the claimant a 20% whole body IR as a result of his compensable injury. That judgment was not appealed and has become final. Thereafter, the claimant applied for first, second and third quarter SIBS and the hearing officer determined that the claimant was ineligible to receive those benefits. That decision was appealed and in Texas Workers’ Compensation Commission Appeal No. 960801, decided June 11, 1996, we affirmed that decision in part and reversed and remanded it in part.
On February 6, 1996, the claimant filed his TWCC-52s for the fourth, fifth and sixth quarters of SIBS. The claimant testified that he has not worked since his surgery and that he is not currently able to work. The claimant said that he has severe limitations on his activities since his injury. He stated that he can neither sit nor stand for long periods. In addition, he stated that he can only walk short distances before he develops severe pain in his legs, which is accompanied by numbness. In addition, the claimant stated that if he walks for any distance “his legs go out on him.”
In a report dated February 27, 1996, Dr. G stated, as follows:
[Claimant] has had multiple spinal surgeries in the past. He underwent a total laminectomy from L2 to the sacrum in April of 1993. He has done reasonably well following the surgery, but unfortunately, is unable to perform any gainful employment.
On June 4, 1996, the attorney for the carrier sent a letter to Dr. G listing various occupations and asking Dr. G to opine whether the claimant was physically capable of performing any of the positions. In a letter dated June 11, 1996, Dr. G responded to that letter, as follows:
I last saw [claimant] in my office on April 26, 1996. He is 66 years old and has significant back and bilateral leg pain. I discussed with him at length his functional capabilities. He stated that if he walked six blocks his legs gave way and he fell. He could sit fifteen minutes or could stand fifteen minutes.
On examination he walked with a limp. He could bend over so his fingertips were 18 inches from the floor. It was my feeling this patient was permanently disabled from any gainful employment.
In fairness, I really don’t believe that this gentleman can do any of the jobs that are outlined despite the fact that some of them are considered sedentary.
The only medical evidence offered by the carrier was an August 17, 1992, Initial Medical Report (TWCC-61) from (Dr. W), whose involvement in the claim is unexplained, stating that the claimant could return to limited duty work on that date and that his prognosis was “favorable for returning to regular duty work.” We note that this report also precedes the claimant’s spinal surgery by some eight months.
At issue in this case is the claimant’s entitlement to SIBS in the fourth, fifth and sixth compensable quarters. The dates of those quarters are September 27, 1995, to December 26, 1995; December 27, 1995, to March 26, 1996; and March 27 to June 25, 1996, respectively. The claimant maintains on appeal, as he did at the hearing, that he is entitled to SIBS for those quarters despite his not having looked for work because he had no ability to work during the filing periods for those quarters. In Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994, the Appeals Panel stated that if an employee established that he or she has no ability to work at all during the filing period, then seeking employment in good faith commensurate with this inability to work “would be not to seek work at all.” In Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994, we emphasized that the burden of establishing no ability to work is “firmly on the claimant” and in Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994, we noted that an assertion of inability to work must be “judged against employment generally, not just the previous job where the injury occurred.” We have likewise noted that medical evidence affirmatively showing an inability to work is required, if a claimant is relying on such inability to work to replace the requirement of demonstrating a good faith attempt to find employment. Appeal No. 941382, supra; Texas Workers’ Compensation Commission Appeal No. 941275, decided November 3, 1994. Finally, we have emphasized that a finding of no ability to work is a factual determination of the hearing officer which is subject to reversal on appeal only if it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Appeal No. 951204, supra; Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
In this instance, the hearing officer determined that claimant had some ability to work in the filing period. Specifically, she stated:
Although Claimant’s residual capacity for employment clearly is very limited, the Hearing Officer is not persuaded that Claimant’s impairment, rather than unfortunate factors unrelated to Claimant’s injury, would preclude Claimant from being employed in a purely sedentary capacity. Although Dr. [G’s] letter of June 11, 1996 (Claimant’s Exhibit 1) does indicate that Claimant would be unable to perform various sedentary positions described by Carrier’s counsel, Dr. [G] did not explain his opinion in this regard to the Hearing Officer’s satisfaction. See e.g. Appeals Panel Decision #’s 960106 and 941696.
As we have previously noted, an assertion of no ability to work must be supported by medical evidence or be so obvious as to be irrefutable. Texas Workers’ Compensation Commission Appeal No. 950654, decided June 12, 1995. The only medical evidence presented in this case are Dr. G’s records and the TWCC-61 dated some eight months before the claimant’s surgery stating that he could return to light duty. Dr. G’s February 27, 1996, report states that the claimant “is unable to perform any gainful employment.” In his June 11, 1996, letter Dr. G again opines that the claimant is “permanently disabled from any gainful employment.” In addition, Dr. G specifically states that the claimant cannot do any of the occupations suggested by the carrier’s attorney. With the record so developed and particularly given the absence of medical evidence indicating that the claimant could work at any point except eight months prior to his back surgery, we find the hearing officer’s determination that the claimant retained some limited capacity for gainful employment in the filing period to be so contrary to the great weight and preponderance of the evidence, the uncontroverted evidence from Dr. G that the claimant was unable to work, as to be clearly wrong or manifestly unjust. Pool, supra; Cain, supra. Accordingly, the hearing officer’s determination that the claimant is not eligible to receive fourth, fifth and sixth quarter SIBS because he did not make a good faith effort to find employment commensurate with his ability to work likewise does not find sufficient evidentiary support in the record, in that the claimant’s uncontradicted medical evidence established that he had no ability to work in the filing periods for the fourth, fifth and sixth quarters. We reverse the determination that the claimant did not make a good faith job search and find that the claimant was excused from making a job search in this instance because he had no ability to work in the filing periods. Compare Texas Workers’ Compensation Commission Appeal No. 961333, decided August 19, 1996.
Next, we turn to the question of whether the hearing officer erred in determining that the claimant was not entitled to fourth quarter SIBS and a portion of fifth quarter SIBS because he did not timely file his TWCC-52s. The claimant argued that he was not required to file for the subsequent SIBS quarters unless and until he successfully appealed the denial of first, second and third quarter SIBS. The claimant must establish his entitlement to SIBS in each quarter and his eligibility to SIBS in one quarter is not dependent upon his having received benefits in a prior quarter. Consequently, we find no merit in the assertion that the claimant was excused from filing his TWCC-52 for the fourth quarter within the time limits established in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE 130.105 (Rule 130.105) for doing so. Section 408.143(c) provides:
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.
The claimant’s applications for the fourth, fifth and sixth quarters were filed on February 6, 1996, well beyond the end of the fourth quarter, December 26, 1995. The carrier was relieved of liability for fourth quarter SIBS because of that late filing; therefore, we affirm the hearing officer’s legal conclusion that the carrier is not liable for fourth quarter SIBS despite our determination that the factual finding that the claimant did not satisfy the good faith job search eligibility criterion in this case was against the great weight and preponderance of the evidence. In addition, the carrier is also relieved of liability for the portion of the fifth quarter from December 27, 1995, to February 6, 1996, because of the claimant’s late filing of the TWCC-52. We note, however, that “the fact that a carrier may not be liable for one quarter of SIBS because of an untimely filing does not result in that quarter being counted as a quarter of no entitlement for purposes of Section 408.146(c)… . ” Texas Workers’ Compensation Commission Appeal No. 952182, decided February 7, 1996; see also Texas Workers’ Compensation Commission Appeal No. 950723, decided June 23, 1995.
We affirm the hearing officer’s determination that the carrier is not liable for SIBS in the fourth compensable quarter and for the portion of the fifth compensable quarter from December 27, 1995, through February 6, 1996, because of the claimant’s late filing of his TWCC-52s. We reverse the hearing officer’s determination that the claimant is not entitled to SIBS in the balance of the fifth compensable quarter and the sixth quarter and render a new decision that the claimant is entitled to those benefits.
Elaine M. Chaney – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge