This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On April 20, 1998, a hearing was held. The hearing officer determined that appellant (claimant) is not entitled to supplemental income benefits (SIBS) for the fifth compensable quarter. Claimant asserts that he did act in good faith to find employment, and while he does not specifically attack the determination that his unemployment was not a direct result of the impairment, he does assert error in the overall determination of nonentitlement to SIBS. Respondent (carrier) replied that the decision should be affirmed.
DECISION
We reverse and remand.
Claimant testified that he hurt his neck and back in ____. The parties stipulated that there was a compensable injury on ___________, that claimant has a 21% impairment rating, that no benefits have been commuted, and that the filing period for the fifth quarter began on August 29, 1997, and ended on November 26, 1997.
While the hearing officer found that claimant did not attempt in good faith to seek employment, she also showed in her Statement of Evidence that claimant was enrolled as a “full-time student” attending class from 8:00 a.m. to 5:00 p.m., five days a week. She also acknowledged that claimant did obtain part-time employment of six hours a week. The Statement of Evidence also recited that claimant was able to do light work, referred to Texas Workers’ Compensation Commission Appeal No.960999, decided July 10, 1996; and said that underemployment was due to “voluntary student status” and not a direct result of the impairment; that comment was also basically used in a finding of fact that said claimant’s underemployment was “due to claimant’s voluntary student status and not a direct result . . . .”
The medical evidence and claimant’s testimony provide sufficient support for the hearing officer’s comments about an ability to do light work and a finding of fact that claimant was released to return to light duty in 1995–we may imply, based on the evidence, that such release in 1995 is relevant to the filing period in 1997. However, the reliance upon Appeal No. 960999, should be reexamined. We reverse and remand so findings of fact may be made to whether that case controls the outcome of the case under review. In that case, a claimant had a limited-duty job, notwithstanding his impairment, and left that job to pursue a degree program. In this case, while claimant at one time indicated his enrollment would result in a degree, he also answered more specific questions on cross-examination indicating that he would not even obtain an associates degree when finished, but rather that his program was a one year vocational training in computer troubleshooting or problem solving; he also indicated that it was funded through the Texas Rehabilitation Commission (TRC). See Appeal No. 960999, which distinguished itself from those cases in which a claimant seeks assistance through TRC to get back into the labor force. We note that vocational training is consistent with claimant’s description of attending school from 8 a.m. to 5 p.m., five days a week. On remand, the hearing officer should reconsider whether the facts in this case fit within the purview of Appeal No. 960999 or within the purview of those cases it distinguishes in which some program of retraining of limited duration is involved. Upon such reconsideration, she should then determine whether claimant’s underemployment is a direct result of the impairment.
Generally, the hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. In this case, however, she comments in her Statement of Evidence that claimant obtained work. The record reflects fairly clearly that claimant began working six hours a week on October 21, 1997, which meant that he worked for five of the 13 weeks involved in this filing period. The hearing officer commented that his prior contacts with three employers, which only amounted to resumes provided, did not establish good faith; that particular part of the good faith question requires no reconsideration. However, Texas Workers’ Compensation Commission Appeal No. 971349, decided August 25, 1997, stated that acceptance of employment is “prima facie” evidence of good faith. We observe that this case gives few details, such as when employment began, and an opposite result was set forth in Texas Workers’ Compensation Commission Appeal No. 980042, decided February 23, 1998, when a finding of no entitlement to SIBS was affirmed even though that claimant was employed the first nine weeks of the 13-week period prior to losing his job. Another case, Texas Workers’ Compensation Commission Appeal No. 980253, decided March 26, 1998, provides more guidance by stating that the claimant in that case obtained work, and worked at that job, over the last two months of the filing period; Appeal No. 980253 cited Appeal No. 971349, supra, as to its “prima facie” language, and added that when a job search resulted in employment during two-thirds of the filing period, that is “compelling evidence of a good faith search.”
If the hearing officer determines that Appeal No. 960999, supra, which said that when one leaves a job to pursue a degree program SIBS will not be awarded because the unemployment is not a direct result of the impairment, does not control the case under appeal, then she should consider that a claimant in a retraining program may or may not have a duty to also seek some employment. See Texas Workers’ Compensation Commission Appeal No. 961578, decided September 20, 1996, quoting from Texas Workers’ Compensation Commission Appeal No. 931019, decided December 17, 1993. Stated another way, if Appeal No. 960999, supra, does not control, the hearing officer should determine whether this claimant had a duty to seek some employment while in school. If the hearing officer determines that this claimant did have a duty to seek employment, then she should determine whether his employment during the last five weeks of the filing period is evidence of good faith consistent with the guidance provided in Appeal No. 980253, supra, which cited Appeal No. 971349, supra, or whether Appeal No. 980042, supra, should be followed, if applicable.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order
by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Joe Sebesta – Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
Elaine M. Chaney – Appeals Judge