This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On July 13, 1998, a contested case hearing (CCH) was held. The issue concerned whether the respondent, VB, who is the claimant, was entitled to supplemental income benefits (SIBS) for her first compensable quarter.
The hearing officer found that she was eligible for SIBS. He noted that the full-time course of study, coupled with clinical programs in which she participated, fulfilled the obligation to make a good faith search for employment commensurate with the ability to work.
The appellant (carrier) appeals, arguing that another decision of the Appeals Panel should be applied in this case. The carrier argues that the good faith search requirement is not absolved by cooperating with a full-time course of study under the auspices of the Texas Rehabilitation Commission (TRC).
DECISION
Affirmed.
The claimant injured her neck on ___________; she had surgery for this in late August 1996. An April 1997 functional capacity evaluation (FCE) restricted the claimant to sedentary or light work. When injured, she was an assembly line worker. The FCE report agreed that she could not return to this line of work. It was undisputed that during the filing period, which was January 23 through April 23, 1998, the claimant was studying at (college) toward an LVN degree, and this was being done as a result of referral and support from TRC. The claimant submitted her college transcript and schedule showing that, indeed, the course work was a full-time schedule. Claimant said that she performed clinical duties of patient care three days a week as required by the course of study. In addition, she studied 15-18 hours a week at home. Claimant only did housework once every two weeks, and no yard work. She testified at the CCH that she had five and one-half months to go to fulfill the LVN training (apparently with reference to the date of the CCH).
Claimant had not sought employment during the filing period. She presented some opinions from doctors that she would not be able to work during the filing period. Specifically, her doctor opined that if she were pulled out of retraining and returned to full-time work, she would exacerbate her condition, which would set back recovery. She was taken off work entirely by her doctor on February 20, 1998, pending reevaluation of some facet injections.
The hearing officer reconciled the job search requirement with the TRC statute by finding, under these facts, that her full-time clinical work was tantamount to employment commensurate with the ability to work. He distinguished another case of the Appeals Panel that the carrier had argued, Texas Workers’ Compensation Commission Appeal No. 961476, decided September 11, 1996, on its facts. We note that part of the recited facts of that case included the absence of any proof of a full-time course of study. Under the facts of this case, we believe his analysis was appropriate and affirm his decision.
The operative statute governing analysis of this case is, we believe, Section 408.150, which must be read in conjunction with, and harmonized with, the provisions concerning the entitlement to SIBS. Section 408.150 requires the Texas Workers’ Compensation Commission (Commission) to refer an injured employee to TRC if that employee could be “materially assisted by vocational rehabilitation or training in returning to employment or returning to employment more nearly approximating the employee’s pre-injury employment.”
Subsection (b) of this section states:
An employee who refuses services or refuses to cooperate with services
provided under this section loses entitlement to [SIBS].
It is true that the Appeals Panel has held (usually where the course of study is less than a full-time enterprise) that participation in any TRC retraining is not an automatic stay of the job search requirement. However, given that the statute clearly penalizes the failure to cooperate with TRC, we cannot divine an legislative intent that full cooperation with TRC should carry with it the same penalty as the refusal to cooperate. This would undermine what we believe was the objective of that statute to “nudge” the injured worker toward a planned and concrete return to gainful employment.
In Texas Workers’ Compensation Commission Appeal No. 951580, decided November 1, 1995, we affirmed a hearing officer’s determination that a full-time student who was cooperating with the TRC made a good faith effort to obtain employment commensurate with his ability to work where the evidence showed that the employee made no effort to find work. Rather, the employee testified that he had no time to work in that he was required to attend classes, use the computer lab, perform research, study, do homework, and attend physical therapy for two and one-half to four hours per day, four to five days per week.
We would like to emphasize that given the range of courses of study that could be undertaken through the sponsorship of TRC, and the various hours that could be consumed in such study, these cases must be determined on a case-by-case basis. We caution against elevating a dicta observation in a case, that SIBS was not intended as a “degree program,” into a doctrine which would effectively preclude SIBS from ever being awarded if cooperation with the TRC involves pursuit of a degree. The cases involving injured workers as full-time students in retraining vis a vis a good faith attempt to obtain employment tend to be quite fact specific. The burden of proof is on the claimant to prove by a preponderance of the evidence that he is entitled to SIBS. Texas Workers’ Compensation Commission Appeal No. 93630, decided September 9, 1993. Whether a claimant has made the required good faith effort to obtain employment commensurate with his ability to work is a question of fact. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), including the claimant’s testimony. An appellate level tribunal does not ordinarily pass upon the credibility of witnesses or substitute its judgement for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). Only were we to conclude, which we do not in this case, that the challenged findings were so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust would there be a sound basis to disturb them. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). The hearing officer could consider claimant’s full course load, the amount of time outside the classroom spent on classroom-related activities, and the undertaking of a specific, and time consuming, clinical program in evaluating whether the claimant met the requirements for SIBS. Of import too is the fact that the training program toward the LVN degree is of relatively short duration, and there is no evidence that the claimant in this case is embarking upon a long range degree program with no specific focus or objective employment.
For the reasons stated, we affirm the decision and order of the hearing officer.
Susan M. Kelley
CONCUR:
Robert W. Potts – Appeals Judge
Judy L. Stephens – Appeals Judge