Following a contested case hearing held in ___________, Texas, on June 19, 1996, 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 concluding that the respondent (claimant) was entitled to supplemental income benefits (SIBS) for the first compensable quarter, April 9 to July 8, 1994. The appellant (carrier) appeals this conclusion. The carrier also appeals findings that during the filing period for the first compensable quarter, January 9 to April 8, 1994, claimant was unable to work and did not work as a direct result of her impairment from her ___________, injury and that she acted in good faith in not seeking employment during the filing period since she was unable to work and had not been released to return to work by her treating doctor. The carrier also asserts that the parties “understood” at the hearing that the timeliness of claimant’s filing of her application for SIBS was in issue and that the hearing officer erred in failing to consider that issue and find that claimant’s May 1, 1995, application for SIBS was untimely. Claimant did not file a response.
DECISION
Reversed and a new decision rendered that claimant is not entitled to SIBS for the first compensable quarter.
At the outset of the hearing, the carrier agreed without equivocation to the hearing officer’s statement that the disputed issue was the issue as reflected in the benefit review conference (BRC) report and did not then request the addition of an issue concerning the timeliness of claimant’s application for SIBS or introduce a response to the BRC report. At the conclusion of the evidence below, the carrier moved that the hearing officer consider the timeliness of claimant’s application for the SIBS for the first quarter to be part of the entitlement issue and the hearing officer denied the motion on the basis that the BRC report stated only the issue of claimant’s entitlement to SIBS for the first compensable quarter and made no reference in the statement of the issue, or in the statements of the position of the parties on the entitlement issue, to the timeliness issue. There was no evidence of the carrier’s having filed a response to the BRC report (Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.7(c) (Rule 142.7(c)) or having submitted a written request to the hearing officer to add the issue (Rule 142.7(e)). The carrier urged that “the parties understood” that the timeliness issue was part of the disputed issue pointing to claimant’s mentioning the timing of the application in her opening statement, her introduction of her Statement of Employment Status (TWCC-52) dated May 1, 1995, and to claimant’s testimonial and documentary evidence to the effect that the Texas Workers’ Compensation Commission (Commission), on or about May 18, 1995, made the initial determination that she was not entitled to SIBS for the first quarter. The carrier waived its opening statement, introduced its exhibits, asked the hearing officer to take official notice of the Commission’s file regarding the date the Commission sent written notice to claimant about her potential eligibility for SIBS and moved to include the timeliness issue. The carrier insisted that “the parties understood” all along that the timeliness issue was part of the entitlement issue. However, claimant was asked by the hearing officer and denied having such an understanding at either the BRC or at the hearing, thus indicating that the timeliness issue was not included by unanimous consent. See Rule 142.7(d). The hearing officer made no findings concerning the timeliness of claimant’s application for SIBS nor did she mention the motion and her ruling. However, in view of our disposition of the entitlement issue, the matter of the timeliness of claimant’s application is essentially moot. Further, we observe that although the record was sparsely developed on the timeliness matter, it indicates the Commission may not have timely made its initial determination. In Texas Workers’ Compensation Commission Appeal No. 941263, decided November 3, 1994, the Appeals Panel stated that “[w]e find no provision that would in any way mandate a denial of an initial quarter of SIBS as a result of tardiness in the Commission’s sending notice or the claimant filing his statement. See also Texas Workers’ Compensation Commission Appeal No. 941275, decided November 3, 1994.” And see Texas Workers’ Compensation Commission Appeal No. 941753, decided February 10, 1995, and Texas Workers’ Compensation Commission Appeal No. 950055, decided February 23, 1995. Accordingly, we do not find merit in this assertion of error.
The parties stipulated that claimant sustained a compensable low back injury on ___________. Claimant testified that on the date of her injury she was assisting her supervisor in lifting 55-gallon barrels of trash onto a truck and her low back began to hurt; that she went to work the next day and her back pain was worse; that she saw a doctor who diagnosed a sprained back; that sometime later she went to an emergency room and was referred to (Dr. L), an orthopedist, who became her treating doctor; and that in December 1994, she changed treating doctors to (Dr. D), a chiropractor. Although she did not testify to the date and reason she stopped working for the employer, claimant did testify that in 1992 she became a full-time student at (college) taking prerequisite courses for the study of nursing and that in 1994 she became and is presently a full-time student at (university) where she continues her nursing studies in a four-year program. She also indicated that her studies were under the auspices of a retraining program of the Texas Rehabilitation Commission (TRC). She introduced no documents from the TRC or the schools. Claimant said she had some “incomplete” courses at the university resulting from her inability to sit for long periods of time and that the university was aware of her condition and was cooperating with her in her efforts to make up these courses. Claimant also testified that she was a licensed cosmetologist who operated her own beauty salon about a year and one-half before her injury. She said she closed her business about four months after her injury because she could no longer bend over the sink and perform that kind of work.
The parties also stipulated that claimant reached statutory maximum medical improvement (MMI) on May 28, 1993, that she had a 15% impairment rating (IR) pursuant to the report of the designated doctor, (Dr. M), that she did not commute any portion of her impairment income benefits, and that the filing period for the first compensable quarter was from January 9 to April 8, 1994. Claimant testified that during the filing period, she was restricted from lifting more than 10 pounds, from prolonged sitting or standing, and from bending, sweeping and mopping; that she had not been released by her doctor to return to work but had been referred to the TRC for retraining; that she had bad pain in her back and right leg if she sat or stood too long; and that she did not attempt to look for work because her doctor advised against it out of concern that she might reinjure herself.
The June 16, 1992, report of (Dr. T), who performed an independent medical examination (IME) of claimant on that date for the carrier, stated that he had also reviewed her extensive medical records; that she had been employed as a laborer at the time of her injury on or about ___________, while lifting a heavy trash can onto a truck; that she was seen at a clinic on May 17, 1991, where lumbar spine x-rays were seen as normal; and that she was diagnosed with an acute lumbar strain and released to return to work effective May 24, 1991. According to Dr. T, claimant came under the care of Dr. L on June 3, 1991, complaining of continued back pain; an MRI scan of June 3, 1991, showed a small bulge at L5-S1; a lumbar myelogram of July 31, 1991, was normal; Dr. T read a post-myelogram CT scan showing a small bulge at L5- S1 as normal; an August 29, 1991, EMG was normal and a work hardening program was started at that time. Dr. T also reported that on September 23, 1991, an IME exam was performed by (Dr. G) who recommended injection, home exercise, continued work hardening and weaning off oral narcotic pain medication. Dr. T further reported that due to continued pain complaints, a lumbar myelogram and CT scan were repeated on December 31, 1991, and were reported as normal and that on April 20, 1992, Dr L recommended a weight reduction program. Dr. T’s diagnosis was acute low back strain, by history, resolved; acute myofascial syndrome at the L5 level; and no evidence of disc herniation syndrome or radiculopathy. Dr. T recommended that claimant undergo “myofascially directed physical therapy” for six to eight weeks after which “she will be capable of returning to full time work without restrictions.”
Claimant introduced a March 11, 1993, letter from the carrier’s adjuster to the Commission which stated that Dr. L had submitted a Report of Medical Evaluation (TWCC-69) certifying that claimant had reached MMI on January 25, 1993, with an IR of two percent, which claimant disputed. In his TWCC-69, Dr. L stated that claimant reached MMI on January 25, 1993, with a two percent IR, that she still complained of pain in her back and right leg as well as having spasm, that she should continue to exercise, and that she would benefit from an interview with the TRC for future training in another field.
In Dr. M’s narrative report of December 19, 1994, he stated that claimant has had primarily low back pain which would radiate into the right hip and thigh; that her neck pain subsided after a few months but that she says she continues to have back pain on a daily basis which increases with bending, walking, sweeping and standing for long periods; and that she has headaches about once a week. Dr. M recounted claimant’s conservative treatment and further reported that a myelogram had revealed a disc bulge without herniation at L5-S1, that an MRI revealed the bulge to be minimal, and that in the past she was seen by psychiatrist (Dr. S) and was given Prozac for depression in 1993 but not in 1994. Dr. M’s diagnosis was musculoskeletal spasm of the lumbosacral spine and anxiety and depression secondary to back pain. His 15% IR consisted of five percent impairment for claimant’s specific spinal disorder and 10% impairment for the brain (emotional disturbance). He invalidated her lumbar spine range of motion measurements.
Dr. D wrote on May 8, 1995, that claimant was unable to return to work “due to the structural weakness of her lumbar spine and the inherent pain” and recommended that she begin therapy to manage her pain and strengthen the lumbar musculature. Dr. D wrote on April 19, 1996, that on March 3, 1995, claimant began manipulative and physical therapy “for her lumbosacral spine due to a motor vehicle accident which exacerbated her original complaint,” that she was released on August 28, 1995, and that “during this time, [claimant] was, also, not able to return to any type of employment.” Although this medical evidence was relevant, we note that this period of treatment was well outside the filing period. Dr. D further stated that when she was examined on April 19, 1996, claimant complained of pain which increased during the exam; that after her treatment on that date claimant “denied any lumbar pain”; that Dr. D is not suggesting that one treatment will resolve claimant’s complaints but that consistent treatment would increase her quality of life; and that “considering the stresses of being a full-time student, it is not advised that [claimant], also, engage in a part or full-time position at this time.”
Dr. L wrote on April 15, 1996, that claimant was treated for a back injury in his office from June 3, 1991, until December 12, 1994, when she came under the care of Dr. D, that she received extensive medical care throughout that period, and that she “was not able to return to any type of employment while under my care because of continued treatment for her back injury.”
Claimant responded in the negative when asked if she had any medical records made during the filing period stating she could not then perform any type of work. She also said that she had been unaware of SIBS before speaking with another claimant while at the Commission field office to attend a BRC and that when she inquired of a Commission clerk as to how to qualify, she was given some paperwork and told to “get a doctor’s statement.”
To be entitled to SIBS claimant had the burden to prove that her unemployment during the filing period was a direct result of her impairment and that she made a good faith attempt to obtain employment commensurate with her ability to work. See Section 408.142(a) and Rule 130.103(a). It was claimant’s contention that she had no ability to work during the filing period and she appeared to rely on the April 1996 letters of Dr. L and Dr. D. The Appeals Panel has said that if an employee established that he or she had no ability to work at all during the filing period, then seeking employment in good faith commensurate with the ability to work “would be not to seek work at all.” Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994. However, the burden to establish the inability to work at all is “firmly on the claimant” (Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994); an assertion of no ability to work must be “judged against employment generally, not just the previous job where the injury occurred” (Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994); the absence of a specific release to work does not conclusively establish entitlement to SIBS (Texas Workers’ Compensation Commission Appeal No. 950582, decided May 25, 1995); and “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” (Texas Workers’ Compensation Commission Appeal No. 960354, decided April 8, 1996).
As an appellate reviewing body, we will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or 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 agree with the carrier that the challenged findings are against the great weight of the evidence. The only medical evidence that claimant had no ability to work at all during the filing period consisted of two conclusory statements obtained in April 1996 from Dr. L and Dr. D and, as noted, Dr. D’s statement addressed a period outside the filing period. We have previously said that “the medical evidence should encompass more than conclusory statements and should be buttressed by more detailed information concerning the claimant’s physical limitations and restrictions.” Texas Workers’ Compensation Commission Appeal No. 960106, decided February 29, 1996. We have also said that such “bald statements” of an inability to work are of limited use in assessing whether a claimant can work during the filing period because of the lack of any discussion of the nature of and the reasons for the claimant’s inability to work. See Texas Workers’ Compensation Commission Appeal No. 960123, decided March 4, 1996, and the cases cited therein. Not only did the April 1996 statements of Dr. L and Dr. D fail to explain how claimant’s lumbar strain of ___________, prevented her from doing any type of work between January 9 and April 9, 1994, but they similarly failed to explain how it was that she could pursue a full-time course of college courses during the filing period and yet have no ability to do any work of any type, not even part-time, sedentary work. In this latter regard, the Appeals Panel has said that being in school under the auspices of the TRC “does not automatically remove the good faith job search requirements [citation omitted] . . .” and that “SIBS is not intended to be a degree program.” Texas Workers’ Compensation Commission Appeal No. 960999, decided July 10, 1996. And see Texas Workers’ Compensation Commission Appeal No. 931019, decided December 17, 1993, concerning cooperation with the TRC, student status, and the requirement of a good faith attempt to obtain employment. Compare Texas Workers’ Compensation Commission Appeal No. 950298, decided April 10, 1995.
The decision and order of the hearing officer are reversed and a new decision is rendered that claimant is not entitled to SIBS for the first compensable quarter.
Philip F. O’Neill – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
DISSENTING OPINION:
I dissent. With all respect to my colleagues in the majority, this case illustrates how, to my mind, we are losing sight of the very purpose of SIBS and continuing to invade the fact-finding function of hearing officer in this area. To me, and I do not believe any of my colleagues would disagree with me on this point, the primary purpose of SIBS is to provide help to particularly injured workers in making the transition back to productive work. However, there will be some workers whose injuries are so severe that they can never make this transition. For these people, who should thankfully be a small minority of those qualifying for SIBS, SIBS can only provide income during a transition on the way to some other form of public and/or private assistance to the permanently and totally disabled. Clearly, there will be another class of individuals who will fall between these two groups. This third group of claimants may have a total inability to work at the time of maximum medical improvement (MMI), but later develop an ability to work. Certainly one factor that could effect such a change is retraining or education.
As the majority states, we have held that being a full-time student, even under the auspices of the TRC, will not automatically remove the good faith job search requirement to qualify for SIBS. The majority, however, seems to turn this doctrine on its head by arguing the full-time attendance of school itself is evidence of an ability to work, which would indicate that the attendance of school, full time, itself automatically triggers the good faith job requirement. I think that the better approach is to recognize that attendance of school, full time, particularly under the auspices of the TRC, may be a factor in determining whether a claimant “has attempted in good faith to obtain employment commensurate with the employee’s ability to work.” See Texas Workers’ Compensation Commission Appeal No. 960457, decided April 22, 1996. In the present case, the hearing officer found that the claimant acted in good faith in seeking employment, even though she did not search for work. The medical evidence which clearly stated that the claimant was unable to work in addition to attending school full time clearly supports the hearing officer’s finding. I do not find this medical report “conclusory” or consisting of “bald statements,” but, in fact, is quite clear.
It simply does not appear incredible to me that a person who has a 15% IR might not be physically able to attend college full time and work at the same time. There was, in fact, medical evidence in the present case that this was the claimant’s situation. Whether to believe it or not and what weight to give it is the province of the hearing officer. I would affirm the hearing officer.
Gary L. Kilgore – Appeals Judge