This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 25, 1997. The issues at the CCH were: (1) whether appellant (claimant) is entitled to supplemental income benefits (SIBS) for the second and third quarters and (2) whether claimant waived the right to pursue entitlement to SIBS for this (date of first injury), injury because he elected to receive SIBS for a subsequent injury. The hearing officer determined that claimant was not entitled to SIBS but that he did not waive entitlement. On appeal, claimant contends that he was entitled to SIBS and that he met his burden to prove the direct result criterion. Respondent (carrier) responds that sufficient evidence supports the hearing officer’s determinations and requests affirmance. The waiver determination and the determination that claimant had no ability to work during the filing periods in question were not appealed and became final. Section 410.169.
DECISION
We affirm.
Claimant contends the hearing officer erred in determining that he was not entitled to SIBS for the second and third quarters regarding his (date of first injury), injury. Claimant contends that he met his burden to show that his unemployment was a direct result of his impairment for the (date of first injury), injury.
The parties stipulated that: (1) claimant sustained a compensable injury on (date of first injury); (2) claimant reached maximum medical improvement for the (first) injury on October 31, 1995, with an IR of 18%; (3) claimant has not commuted his impairment income benefits (IIBS); (4) the second SIBS quarter regarding the (first) injury was from February 13, 1997, to May 14, 1997, and the third SIBS quarter for that injury was from May 15, 1997, to Ausgut 13, 1997.
Claimant testified that he sustained a compensable injury (date of first injury), at work and that he injured his back and right knee. He said he had surgery for a torn meniscus in May 1995, that he was off work, and that he returned to work on (date of subsequent injury). He said he was reinjured the first day back at work when he his knee gave way and he fell in the parking lot, injuring his right knee, shoulder, and neck. He said he has not returned to work since. Claimant said he is “currently” receiving SIBS regarding the (date of subsequent injury), injury. Claimant said that he has severe pain in his neck, shoulder, elbow and right knee. Claimant said that carrier sought and received contribution regarding these two injuries, that he believes he is not receiving the full amount of SIBS to which he would be entitled, and that he is seeking to “make up that difference.” Claimant said he did not seek work between November 14, 1996, and May 14, 1997 (the filing periods). He said his doctor told him to seek retraining and that he did not know whether he had been released to return to work. When asked whether he would have been able to continue working, if not for his (date of subsequent injury) injury, claimant said he did not know. When asked if his right shoulder and neck injury prevented him from working, claimant said they probably are, but that the main problem is his knee and back. Claimant said he is taking classes, that he has been in school for two semesters, that he takes four classes per semester, and that he attends school three days per week.
Dr. NU treated claimant for both injuries. In a December 13, 1996, report for the (date of first injury) injury, Dr. NU stated that claimant “appears to have most of his disability due to the injury of (date of first injury), exacerbated by the injury of (date of subsequent injury).” He further said that it does not appear that “there is currently any sedentary job which would meet” the restricted work tolerances. Claimant’s restrictions included using a cane, changing position to accommodate any discomfort, and the taking of breaks. In an April 3, 1997, Specific and Subsequent Medical Report (TWCC-64) for the (date of first injury) injury, Dr. NU stated that claimant may return to limited work “after retraining [is] completed” and that he may never return to full-time work. In an April 3, 1997, “work statement,” which did not give a date of injury, Dr. NU stated that claimant “may not resume work.”
Regarding the (date of subsequent injury) subsequent injury, a January 1996 medical report of the designated doctor in that case, Dr. AR, indicates that claimant’s 15% IR for the (date of subsequent injury) subsequent injury included impairment for claimant’s right shoulder (2%), neck (7%), and right knee (6%). Dr. AR also notes that claimant was supposed to have been using a cane and that he was not doing so when he fell at work in (date of subsequent injury). Dr. HA certified that claimant’s IR for the (date of first injury), injury was 18%, which included 9% for the lumbar spine (impairment for specific disorders under Table 49, II-c of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides), plus 2% for loss of range of motion, and 10% right lower extremity (knee) impairment. A hearing officer had previously determined that carrier was entitled to contribution in the amount of 40%, presumably for the overlapping knee impairment from the two injuries.
The hearing officer determined that: (1) the filing period for the second SIBS quarter regarding the (first) injury was from November 16, 1996, to February 12, 1997; (2) the filing period for the third SIBS quarter for that injury was from February 14, 1997, to May 14, 1997; (3) claimant had been released to return to work after the March injury “by (date of subsequent injury)”; (4) on (date of subsequent injury), claimant suffered a second injury to his right knee, right shoulder, and neck; (5) claimant’s IR for the (date of subsequent injury) injury is 15% and claimant is collecting SIBS for that (date of subsequent injury) injury; (6) claimant had no ability to work during the filing periods for the second and third SIBS quarters for the (date of first injury) injury; (7) claimant’s inability to work was due to the (date of subsequent injury) injury and was not due to the (date of first injury) injury; and (8) claimant “failed to meet his burden to prove that his unemployment during the qualifying periods for the second and third compensable quarters was a direct result of his impairment” for the (date of first injury) injury. The hearing officer concluded that claimant was not entitled to SIBS for the second and third SIBS quarters for the (date of first injury) injury, but that he did not waive the right to pursue SIBS entitlement.
Sections 408.142(a) and 408.143 provide that an employee is entitled to SIBS when the IIBS period expires if the employee has: (1) an IR of at least 15%; (2) not returned to work or has earned less than 80% of the average weekly wage as a direct result of the impairment; (3) not elected to commute a portion of the IIBS; and (4) made a good faith effort to obtain employment commensurate with his or her ability to work.
The 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Where there is a conflict in the evidence, the hearing officer resolves the conflicts and determines what facts have been established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not 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); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995.
A claimant may be eligible for SIBS for two separate injuries but he or she would not be entitled for more than one SIBS payment at a time. The Appeals Panel has said that the SIBS provisions do not allow double SIBS payments to the same individual at the same time even if there were two or more injuries or an accumulation of injuries. A carrier is not liable to pay double SIBS, even if a claimant’s two injuries each reach the 15% IR threshold. Texas Workers’ Compensation Commission Appeal No. 93989, decided December 16, 1993.
In this case, the hearing officer determined that claimant did not prove that he was entitled to SIBS for the second and third quarters regarding the (date of first injury), injury. The hearing officer apparently determined that claimant’s unemployment and total inability to work were due to another, later injury (the [date of subsequent injury] compensable injury) and that it was not a direct result of his (date of first injury), compensable injury. The hearing officer was the sole judge of the credibility of the evidence and made his determinations based on that evidence. There was evidence that claimant had severe pain after his second injury. There was evidence that much of claimant’s “disability” was due to the first injury of (date of first injury). However, the hearing officer was entitled to assign whatever weight he deemed appropriate to this evidence. We will not substitute our judgment for his because his determinations are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.
We affirm the hearing officer’s decision and order.
Judy L. Stephens – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Alan C. Ernst – Appeals Judge