Following a contested case hearing on July 1, 1997, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer issued on August 28, 1997, a decision which resolved the sole disputed issue by determining that the respondent (claimant) is entitled to supplemental income benefits (SIBS) for the first compensable quarter, December 28, 1996, through March 29, 1997. The appellant (carrier) has appealed asserting the insufficiency of the medical evidence to establish that claimant had no ability to work during the filing period for the first compensable quarter. Notwithstanding the absence of a disputed issue and findings by the hearing officer on the matter, the carrier further asserts that claimant waived his entitlement to SIBS by failing to timely dispute the determination by the Texas Workers’ Compensation Commission (Commission) that he was not entitled to first quarter SIBS. The file does not contain a response from the claimant.
DECISION
Reversed and a new decision rendered that claimant is not entitled to SIBS for the first compensable quarter.
The parties stipulated that on or about ________________, claimant sustained a compensable injury and that he later reached maximum medical improvement with an impairment rating (IR) of 15% or greater. The dates of the filing period were not stipulated to but Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE 130.101 (Rule 130.101) defines the filing period as a period of at least 90 days and Rule 130.102(b) provides that entitlement to SIBS is determined prospectively for each potentially compensable quarter, based on criteria met by the injured employee during the prior filing period. Claimant did not dispute the carrier’s representation that the filing period was from September 29 to December 29, 1996.
Claimant testified that on ________________, while employed as a bill collector, he was injured when he slipped and fell walking into work, that he subsequently underwent spinal surgery, and that he was assigned an IR of 18% by Dr. D, the designated doctor. He said that he did not work nor look for work in the 90 days preceding the commencement of the first compensable quarter because his doctor, Dr. S, has not released him to return to work. Claimant also stated that his legs “go numb” and that he cannot work because he cannot sit, stand, or walk “for very long.” He stated that on a good day, he could go for 30 to 45 minutes without reclining. Claimant further testified that he was a high school graduate and that he took one year of college about two years earlier but quit because he could not sit for long periods. However, he conceded that he drives and that on four or five occasions he has made a three and one-half hour drive to (state). Claimant also said that prior to working as a bill collector, he worked as a car salesman, a telemarketer, and a door-to-door salesman. He said he last saw Dr. S “probably in February, March, 97,” and that he remains under Dr. S’s care and takes several medications. Claimant said that about one year earlier, a friend who manages an auto dealership told him it was not feasible to hire him to sell cars without a doctor’s release and that a bill collection agency also told him at about that time that he would not be hired with his limitations. He conceded that he when he was evaluated by a physical therapist, he could lift light weights. He stated that he had no ability to do any kind of work in the filing period because he had not been released for even light duty by his doctor and when asked why his physical condition would not permit even very light duty, which was described, he responded, “ask my doctor.”
Dr. S’s report of August 16, 1996, stated, among other things. that claimant returns after a discectomy, that he has since gained about 75 pounds, that he still has pain when he lies down, and that he, Dr. S, has asked for a functional capacity evaluation (FCE) “to better delineate what his limitations are, . . .”
An FCE report of December 27, 1996, countersigned by Dr. S, reflected that claimant could stand/walk from “0 – 2” hours per day, could sit for “0-2” hours per day, could drive a car/truck for “1-3” hours at one time, could lift 30 pounds frequently and 40 pounds occasionally, that he had no restrictions against the repetitive use of his hands and feet, that he could not bend, squat, kneel, climb, or crawl but could occasionally reach, twist, and rotate, and that he was not released to return to work.
Dr. S wrote the carrier on December 27, 1996, stating that claimant had back surgery in November 1995 and that he has continued back pain “and has been unable to work since that time.” Dr. S further stated:
He is unable to return to his previous employment as a bill collector because he can’t stand for that length of time and cannot sit for any length of time, but I do think he could be retrained for some other type of work, and I would be open to consideration of potential job openings and would be willing to work with the case worker to see if we can find him a specific job better than what he was doing before and work within his limitations. Once this has been found, I think we could get him back to some type of employment. I will be glad to review parameters that are made available to me concerning a certain job, then we can work out the details.
Dr. S wrote to the carrier on February 21, 1997, stating that he agreed with Dr. D that claimant reached MMI with an IR of 18%. Dr. S further stated that claimant’s present limitations are sitting for one hour at a time, standing for one hour at a time, a lifting of a maximum of 40 pounds at a time, no pushing more than 40 pounds, no climbing, no crawling, and no squatting, and that claimant has no limitations on the use of the upper extremities. Dr. S went on to state that if the carrier would like to ask him about a particular job, he would be glad to answer.
Dr. S wrote a “To Whom It May Concern” letter on April 11, 1997, well beyond the close of the filing period, stating that claimant “was totally disabled prior to December 27, 1996, and is still disabled at this time.” We note that the statutes and Commission rules providing the criteria for SIBS do not use the term “disabled.” Sections 408.142 and 408.143; Rules 130.101 – 130.110. Nor does the Appeals Panel use that term as a substantive word of art in addressing the adequacy of the medical evidence to establish the total lack of the physical capacity to do any work at all, not even sedentary and/or part-time work.
The hearing officer’s decision recited some of the above medical evidence but did not attempt to explain how it supported her finding by a preponderance of the evidence that during the first quarter filing period, claimant “had no ability to work.” It is clearly this finding that the carrier contends is against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We agree.
The Appeals Panel has said that if an injured employee establishes the inability to work at all during the filing period, then to seek employment in good faith commensurate with such inability to work “would be not to seek work at all.” Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994. Further, we have emphasized that the burden of proving the inability to work is “firmly on the claimant” (Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994); that 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); that “in order to prove an inability to work at all, there must be medical evidence of no ability to work at all . . . with the limited exception where the condition is so obvious as to be irrefutable [Citations omitted.]” (Texas Workers’ Compensation Commission Appeal No. 960182, decided March 12, 1996); and 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 obtain employment (Texas Workers’ Compensation Commission Appeal No. 941382, supra.) In Texas Workers’ Compensation Commission Appeal No. 960106, decided February 29, 1996, the Appeals Panel stated that “the medical evidence should encompass more than conclusory statements and should be buttressed by more detailed information concerning the claimant’s limitations and restrictions.”
We agree with the carrier that the reasonable inference from Dr. S’s requesting the FCE in August 1996 was that he wished to determine claimant’s physical capacity to work and that when the FCE revealed that claimant had certain physical capabilities, Dr. S’s December 27th report indicated that claimant could be retrained for some other type of work and his February 11, 1997, report reiterated claimant’s physical capabilities. As noted, Dr. S’s April 11, 1997, report is a bald, global, conclusory, and retroactive statement of total “disability” which, unlike the FCE and Dr. S’s reports of December 27, 1996, and February 21, 1997, in no way attempts to set forth just what claimant’s physical capabilities actually are. We have said that “bald statements of inability to work are of limited use in assessing whether a claimant can work in the filing period because of the lack of any discussion of the nature of and the reasons for the claimant’s inability to work.” Texas Workers’ Compensation Commission Appeal No. 960354, decided April 8, 1996. And see Texas Workers’ Compensation Commission Appeal No. 961587, decided September 18, 1996, wherein the Appeals Panel stated that it did not believe that “a simple statement that a claimant `cannot work’ provides the needed medical information, standing alone, to absolve a SIBS applicant from the legislatively-imposed job search requirement.”
A finding of no ability to work is a factual determination to be made by the hearing officer who is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and is subject to reversal on appeal only when it is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. We find it so in this case.
We do not find merit in the carrier’s appealed issue concerning claimant’s having waived entitlement to first quarter SIBS by failing to establish that he timely disputed the initial determination of the Commission that he was not entitled to SIBS for the first compensable quarter. There was no issue at the benefit review conference concerning claimant’s having untimely disputed the Commission’s initial determination of nonentitlement and such issue was not added to the statement of disputes nor do we regard it as having been litigated by consent or subsumed in the SIBS issue. Compare Texas Workers’ Compensation Commission Appeal No. 961727, decided October 16, 1996. And see Texas Workers’ Compensation Commission Appeal No. 961587, supra, which explains that a late filing of a Statement of Employment Status (TWCC-52) only changes the accrual date for the SIBS.
We reverse the decision and order of the hearing officer and render a new decision and order that claimant is not entitled to SIBS for the first quarter.
Philip F. O’Neill – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
DISSENTING OPINION:
I respectfully dissent. I believe the hearing officer in this case could find from the evidence that: (1) claimant’s doctor, reasonably and with good reason stated in the medical evidence, decided that claimant should and can retrain but is not yet capable of returning to the workforce, (2) claimant, thus, had no true ability to do even sedentary, light-duty work, and (3) claimant’s lack of a job search did not establish a lack of good faith because, as indicated by his doctor, to seek work “commensurate with his ability” is to not look for work at all.[1]
In December 1996, toward the end of the filing period in this first quarter supplemental income benefits case, Dr. SH said that claimant had a discectomy/laminectomy in November 1995 (about ten months before the filing period), that he has “continued to have low back pain,” and that he has been “unable to work since that time.” The doctor said claimant could not stand or sit for “any length of time.” The doctor also said that he thought he “could get claimant back to some type of employment,” and that claimant could be retrained. Dr. SH then signed a “physical capacities form” in December 1997 on which he checked the box “No,” regarding whether claimant was released to return to work. He also checked a box that stated, “Yes,” regarding whether claimant was “involved with treatment and/or medication that might affect his/her ability to work.” Then, in April 1997, Dr. SH stated that claimant was “totally disabled prior to December 27, 1996” (two days before the filing period ended). Claimant said his surgery was to the L3-4, L4-5, and L5-S1 levels, that he had parts of discs removed, and a “nerve compression.”
It is reasonable for the hearing officer to interpret this evidence to say that, during the filing period, claimant had no ability to work at all and that he had only some limited physical ability so that he could withstand retraining, but not work. In my view, there is no medical evidence to the contrary so that the hearing officer’s finding of “no ability to work” can be “against the great weight and preponderance of the evidence.” No doctor said that claimant can return to even light-duty, sedentary work. Therefore, the majority must be interpreting single portions of the medical evidence to indicate that claimant is able return to work. Technically, under our standard of review, the Appeals Panel must determine whether the hearing officer could make the findings that she did based on the evidence. The Appeals Panel has also recognized that the hearing officer was free to accept or reject any part of the evidence. Texas Workers’ Compensation Commission Appeal No. 951038, decided August 4, 1995. In the decision, the majority emphasized some portions of the evidence that it contends support the inferences that the majority would have made. In most cases, such would indicate a misapplication of our standard of review. However, I agree with the majority that there are some “no ability to work” cases where the Appeals Panel may properly conclude, as a matter of law, that a claimant does have some ability to work despite the fact that a hearing officer found that there was no ability to work based on the medical evidence presented. I also agree that it should be much more rare and unusual for a hearing officer to find that a claimant has “no ability” to do even light-duty, sedentary work. Texas Workers’ Compensation Commission Appeal No. 960714, decided May 20, 1996. In many cases where a hearing officer has determined there is no ability to work, I believe it would be more appropriate for the hearing officer to seek an explanation from the doctor regarding whether the claimant can return to any part-time, sedentary work and, if not, why not.[2] I believe that, in deciding a “no ability to work” case, hearing officers should consider such factors as the length of the recuperation period after the injury or after surgery, the seriousness of the injury, the effect of medications on the ability to work, and whether the claimant’s condition logically would indicate that he or she cannot perform even part-time, light-duty, sedentary work. I would be reluctant to affirm a “no ability to work” finding based on an unexplained medical conclusion that a claimant cannot work at all if, for instance, that claimant had an injury only to one knee, which had not been very recently surgically treated. In such a case, I would be more likely to agree that, as a matter of law, such a case does not present facts showing that that claimant cannot perform even part-time, sedentary work. However, in my view, this case does not present such clear-cut facts that it mandates that the Appeals Panel render a decision that the claimant was not in good faith because he had not initiated a job search.
The majority apparently would conclude that nothing short of evidence establishing total physical incapacity can reasonably result in a “no ability to work” determination. However, almost every injured person has a theoretical ability to do some work, for example, to do sedentary telemarketing one hour per day beginning a few weeks after surgery. I would not conclude that, as a matter of law, a claimant has an ability to return to work just because that claimant is not totally incapacitated, especially if the treating doctor says he or she cannot or should not work. If a doctor states that a patient should not work for a period of time because of impairment from the injury (i.e., the patient needs time for recuperation or work hardening, or is currently on medications that affect the ability to work), and the condition is such that it would logically affect the ability to return to the workforce, then, in my view, cases exist where the hearing officer could properly find that the patient has “no ability to work” for at least some period of time. I believe that, generally, the Appeals Panel should give more consideration to doctors’ opinions regarding whether a claimant should work, in deciding the ability-to-work issue.
In its decision, the majority states that the Labor Code and Texas Workers’ Compensation Commission rules do not use the term “disabled,” a term used by Dr. SH. The majority implies that this term has no meaning because it is not in the code or rules. However, we have never required doctors to use precise legal terminology to explain what they mean. I believe the hearing officer could consider the plain meaning of the words “totally disabled.” The Appeals Panel has both actually used the words “totally disabled,” unquoted, in an Appeals Panel decision when summarizing an argument and has also credited evidence that a claimant was “totally disabled” in affirming a determination of no ability to work in another case. See Texas Workers’ Compensation Commission Appeal No. 962461, decided January 8, 1997; and Texas Workers’ Compensation Commission Appeal No. 961333, decided August 19, 1996. I disagree that the term has no plain meaning.
The majority faults the hearing officer for not “explaining” why the claimant has no ability to work. Claimant’s doctor said claimant had spinal surgery about ten months before the filing period began and that he has been disabled “since that time,” noting claimant’s continuing pain. There was also medical evidence that claimant was taking medications that “affect[ed]” his ability to work. I would conclude that the hearing officer relied on the medical evidence in the record which, in my view, did explain the medical opinion regarding claimant’s ability to work.
The majority noted that one medical report contains “bald” and “conclusory” statements regarding the ability to work. I believe that if a doctor said, without explanation, that a claimant with a compensable knee injury could not do even light-duty, sedentary work, then the Appeals Panel would have concern with the “conclusory” and unexplained nature of such a medical opinion given the claimant’s medical condition. However, in this case, the doctor did explain that claimant has been unable to work since his spinal surgery, noting his continued pain and inability to sit or stand for “any length of time.”
Considering the medical evidence and claimant’s condition in this particular case, I believe the hearing officer could interpret the words “totally disabled,” “No” (regarding whether claimant has been released to return to work), and “unable to work,” to mean that claimant was unable to work during the filing period. I also would conclude that the evidence of surgery 10 months before the filing period and the evidence regarding claimant’s pain and medications which affect his ability to work is evidence supporting the hearing officer’s good faith determination. I would affirm.
Judy L. Stephens – Appeals Judge