On December 20, 1996, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issue at the CCH was whether the respondent (claimant) is entitled to supplemental income benefits (SIBS) for the 15th quarter. The appellant (carrier) requests review of the hearing officer’s decision that the claimant is entitled to SIBS for the 15th quarter. No response was received from the claimant.
DECISION
Affirmed.
The claimant appeared at the CCH but was not called to testify. In Texas Workers’ Compensation Commission Appeal No. 961686, decided October 10, 1996, the Appeals Panel affirmed the hearing officer’s decision that the claimant was entitled to SIBS for the 13th quarter, and in Texas Workers’ Compensation Commission Appeal No. 962348, decided January 6, 1997 (unpublished), the Appeals Panel affirmed the hearing officer’s decision that the claimant was entitled to SIBS for the 14th quarter. Both of those decisions were based on the claimant’s inability to work due to mental problems that resulted from the claimant’s compensable injury. In Appeal No. 962348, the Appeals Panel noted that the hearing officer’s decision that the claimant was not entitled to lifetime income benefits was not appealed and had become final. The facts relating to the claimant’s workers’ compensation claim are set forth in Appeal No. 961686 and will not be repeated at length in this decision. On (date of injury), the claimant fell from a boxcar at work and sustained injuries. He had brain surgery performed on (date of surgery). He returned to some form of employment in 1992 and, according to medical reports, was terminated in early 1994 for cursing at coworkers.
The claimant has a 23% impairment rating and did not commute impairment income benefits. Dr. BI has treated the claimant since early 1994 and has written since that time that the claimant is unable to perform any type of work. Dr. K wrote in November 1994 that the claimant has severe functional loss due to the severe head injury and subsequent brain surgeries and that the claimant’s prognosis was poor. He noted that a brain MRI showed temporal loss abnormalities representing post-traumatic changes. In addition, Dr. K wrote that at the time of the January 1991 injury, the claimant sustained an occipital head fracture, a fracture of the collarbone, and a fracture of the 8th thoracic vertebra. In September 1995, Dr. BI wrote that the claimant is unable to return to any type of work, noting the claimant’s significant head injury, multiple fractures of the upper torso, and post-traumatic head syndrome that resulted from his work-related injury.
Dr. H, a psychologist, examined the claimant in January 1996 and she wrote that the claimant has a cognitive disorder secondary to his severe head injury and that the claimant had demonstrated the ability to return to work, but that the claimant did not desire to work. Dr. L reviewed Dr. H’s report and indicated his agreement with her conclusion that the claimant could work but desires not to. He also indicated his agreement with Dr. H’s conclusion that the claimant has a preexisting personality disorder. There is evidence that the claimant had several criminal convictions between 1980 and 1989. The claimant’s 15th quarter for SIBS was from October 3, 1996, to January 1, 1997. The filing period for the 15th quarter was from July 4, 1996, to October 2, 1996 (the filing period). On June 6, 1996, which was about a month before the filing period began, Dr. BI wrote that the claimant remained under his medical care and that the claimant remained unable to return to any type of employment due to his “total disability.” In September 1996, Dr. L wrote that he had reviewed the claimant’s records; that the claimant did have a skull fracture as a result of his injury of (date of injury); that the claimant had difficulties with judgment, impulse control, and interpersonal skills before and after the accident; that some of the claimant’s difficulties may be the result of the accident; and that there is evidence of a brain injury, although, according to Dr. H’s report of January 1995, most of the claimant’s cognitive abilities fall within normal limits. Dr. L also wrote that there was no evidence that the claimant has imbecility and that testing did not support the presence of incurable insanity.
On October 10, 1996, which was just after the filing period for the 15th quarter ended, Dr. BI wrote that, as a result of his head injury, the claimant is suffering from a mental condition, imbecility, and intermittent insanity. He also wrote that the claimant has a compression fracture of the thoracic spine; a herniated disc at T11-12, which compresses the spine and causes pain into the legs; and that the claimant is unable to carry out even sedentary work. Dr. BI concluded that the claimant is unable to work.
There is no evidence that the claimant looked for work during the filing period. The claimant, through his attorney, contended that he had no ability to work during the filing period. Section 408.142 sets forth the criteria for SIBS. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.104 provides that an injured employee initially determined by the Texas Workers’ Compensation Commission (Commission) to be entitled to SIBS will continue to be entitled to SIBS for subsequent quarters if the employee, during each filing period: (1) has been unemployed, or underemployed as defined in Rule 130.101, as a direct result of the impairment from the compensable injury; and (2) has made good faith efforts to obtain employment commensurate with the employee’s ability to work. The claimant has the burden to prove his or her entitlement to SIBS. Texas Workers’ Compensation Commission Appeal No. 941490, decided December 19, 1994. 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 held that the burden is on the claimant to prove that he or she had no ability to work due directly to the impairment from the injury, and in Texas Workers’ Compensation Commission Appeal No. 961981, decided November 18, 1996, we stated that a claimant need not establish that his impairment is the only cause of his unemployment or underemployment; rather, a claimant need only establish that his impairment is a cause of the unemployment or underemployment.
The hearing officer found that “during the filing period for the fifteenth compensable quarter, claimant was unable to work at any type of position and was in a no work status,” and that the claimant’s “unemployment during the filing period for the fifteenth compensable quarter is a direct result of his impairment.” The hearing officer concluded that the claimant is entitled to SIBS for the 15th quarter. We cannot agree with the carrier’s contention that Dr. BI’s reports contain only conclusory statements concerning the claimant’s inability to work. In particular, Dr. BI’s reports of September 19, 1995, and October 10, 1996, contain more than mere conclusory statements regarding the claimant’s inability to work. The carrier states that the claimant failed to work with his doctor to find out what his work abilities are; however, Dr. BI clearly states in his October 1996 report that the claimant is unable to do even sedentary work. The carrier further contends that the claimant’s personality disorder preexisted his work-related injury. The claimant may have had some form of personality disorder prior to his injury as reported by Dr. H. However, in determining what facts had been proved from the evidence, the hearing officer was free to consider Dr. BI’s report of September 1995 wherein a diagnosis of post-traumatic head syndrome was made, which Dr. BI said was a direct result of the claimant’s work-related injury and which, according to Dr. BI, includes symptoms of sudden personality changes manifested by severe anxiety and depression, as well as anger and aggression. In addition, Dr. BI wrote in the October 1996 report that the claimant’s mental condition resulted from his head injury and noted the fracture and herniation in the claimant’s thoracic spine. The hearing officer is the judge of the weight and credibility of the evidence. Section 410.165(a). We conclude that sufficient evidence supports the hearing officer’s findings of fact and that his findings are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Judy L. Stephens – Appeals Judge