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 December 28, 1998. The issues at the CCH were whether the appellant (claimant) is entitled to supplemental income benefits (SIBS) for the 12th, 13th, and 14th compensable quarters and whether or not the respondent (carrier) is relieved of liability because of the claimant’s failure to timely file a Statement of Employment Status (TWCC-52) for the 12th, 13th, and 14th quarters of SIBS. The hearing officer determined that the claimant had some ability to work, did not attempt in good faith to obtain employment commensurate with her ability to work, and is not entitled to SIBS for the 12th, 13th, and 14th quarters. The hearing officer also determined that, if the claimant were entitled to SIBS for the 12th, 13th, and 14th quarters of SIBS the carrier would be relieved of liability for all periods of time prior to September 16, 1998, the date the claimant first filed the TWCC-52s with the carrier. The claimant appeals, contending that the only medical evidence during the entire period in question was that she was totally disabled to work. The claimant asks that the Appeals Panel reverse the decision of the hearing officer and determine that she is entitled to SIBS for the quarters in question. The carrier responds, asserting that the claimant’s appeal is untimely and asking that the Appeals Panel affirm the decision of the hearing officer.
DECISION
We affirm.
Addressing first the question of the timeliness of the claimant’s appeal, we note that the claimant’s attorney first filed a “NOTICE OF APPEAL” stating “Claimant, respectfully gives Notice of Appeal to the Texas Workers’ Compensation Commission [Commission].” This Notice of Appeal was received on January 11, 1999. The decision of the hearing officer was distributed on December 31, 1998, and was deemed received by the claimant on January 5, 1999. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 102.5(h) (Rule 102.5(h)). If this Notice of Appeal was sufficient to constitute a valid appeal, then it was timely. Section 410.202(a); Rule 143.3. However, the Notice of Appeal gives the docket number of the decision being appealed as “________-02-CC [emphasis added]” while the case actually at hand, as clarified in the attorney’s later letter, is ________-03-CC-FW44. Sequence 02 was the CCH held on November 13, 1998, dealing with the 11th quarter of SIBS. Thus, the case at hand involves three separate quarters of SIBS, and the pivotal issue for all the quarters is the same: total inability to work so as to meet the requirement of a good faith search for employment. Had the Notice of Appeal properly identified the decision being appealed, the Notice of Appeal might have met the minimum standards for an appeal. However, it did not identify the decision involving the 12th, 13th and 14th quarters as the one being appealed (but in fact identified another decision). Therefore, the attorney’s Notice of Appeal of January 8, 1999, does not meet the minimum standards to be considered as an appeal of the case at hand. All of this discussion of timeliness is made necessary because the letter from the claimant’s attorney setting out the claimant’s appeal is dated and was mailed on January 20, 1999, the 15th day after the claimant’s deemed receipt of the hearing officer’s decision, and is stamped as received by the Chief Clerk of Proceedings on January 26, 1999, the 21st day after the claimant’s deemed receipt of the decision. Under Rule 143.3(c) an appeal is presumed to be timely filed if it is mailed not later than the 15th day after receipt of the hearing officer’s decision and received by the Commission not later than the 20th day after receipt of the decision. In the case of appeals by certified mail the Commission directly goes to the post office to pick up the certified mail. The 20th day was a Monday, June 25th. In the case at hand, while the appeal is stamped as having been received on the 21st day (Tuesday), the mail was picked up at the post office on that day between 10:30 a.m. and 11:00 a.m. and no afternoon mail pickup occurred. Since the time the mail is picked up is under the control of the Commission and is beyond the control of the claimant and we are unable to hold that the appeal was not in fact received by the U.S. Postal Service and the notice thereof placed in the Commission’s post office box on January 25, 1999, the 20th day, we deem the claimant’s appeal to have been received timely. In reaching this conclusion we are applying a reasonable interpretation in construing the 1989 Act so as to carry out its purpose. Ward v. Charter Oak Fire Ins. Co., 579 S.W.2d 909, 910 (Tex. 1979).
Sections 408.142 and 408.143 provide that an employee continues to be entitled to SIBS after the first compensable quarter if the employee: (1) has not returned to work or has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment and (2) has in good faith sought employment commensurate with his or her ability to work. Rule 130.102(b), the quarterly entitlement to SIBS is determined prospectively and depends on whether the employee meets the criteria during the prior quarter or “filing period.” Under Rule 130.101, “filing period” is defined as “[a] period of at least 90 days during which the employee’s actual and offered wages, if any, are reviewed to determine entitlement to, and amount of, [SIBS for any quarter claimed].
The Appeals Panel has held in Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994, that if an employee established that he or she has no ability to work at all, then seeking employment in good faith commensurate with this inability to work “would be not to seek work at all.” Texas Workers’ Compensation Commission Appeal No. 950581, decided May 30, 1995. The burden of establishing no ability to work at all is “firmly on the claimant,” Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994, and a finding of no ability to work must be based on medical evidence or “be so obvious as to be irrefutable.” Texas Workers’ Compensation Commission Appeal No. 950173, decided March 17, 1995. See also Texas Workers’ Compensation Commission Appeal No. 941332, decided November 17, 1994. A claimed inability to work is to 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. The absence of a doctor’s release to return to light duty does not in itself relieve the injured worker of the good faith requirement to look for employment, but may be subject to varying inferences. Appeal No. 941382, supra.
The claimant’s medical condition is summarized in the report of Dr. T, D.O., of December 5, 1998, when he states:
[Claimant] tells me that her problems began from a repetitive motion problem related to her work on _______. She was initially seen by [Dr. B] whose evaluation revealed a disk herniation at C5-6. [Dr. B] performed an anterior inner body diskectomy and fusion at C5-6. Unfortunately, she did not do well postoperatively and eventually she had a repeat surgery on 05-14-93. This second fusion also did not take and she developed retrolisthesis of C5 on C6. She was then seen by [Dr. Be] who performed an anterior cervical fusion with right iliac graft and Synthes plate in January 1994. Unfortunately [claimant] continued to have pain.
A February 14, 1997, report from Dr. B also refers to a single MRI picture showing what appear to be “abnormal discs at C4-5 and C6-7.” A “To whom it may concern” letter of September 26, 1997, states that the claimant is unable to return to work, is awaiting insurance approval for neck surgery, and should remain off work at least another three months. Surgery was not approved. A note of September 3, 1998, from Dr. Ba, M.D., states that the claimant is unable to work due to pain in her neck.
A medical report from December 1996 shows that claimant has the ability to work at the medium physical demand level. Another medical report in February 1997, indicates that any further surgery would be “unwise.” Also, a May 30, 1997, report disagrees with surgical intervention.
The testimony of the claimant indicated that she was able to drive, to go to the store, and to do light housework, although she had to lie down after a few minutes because of pain. She states she could do housework for 45 minutes and then rest. She acknowledged that she did not register with the Texas Workforce Commission or Texas Rehabilitation Commission during the periods in issue and apparently had not been in contact since December 1992. Claimant testified she could not do the type of work she had done before because of her injury to her neck.
The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The trier of fact may believe all, part, or none of any witness’s testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). In a case such as the one before us where both parties presented evidence on the disputed issues, the hearing officer must look at all of the relevant evidence to make factual determinations and the Appeals Panel must consider all of the relevant evidence to determine whether the factual determinations of the hearing officer are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Texas Workers’ Compensation Commission Appeal No. 941291, decided November 8, 1994. An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its own judgement for that of the trier of fact even if the evidence could 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 hearing officer’s determinations were so against the great weight and preponderance of the evidence as to be manifestly unjust would there be a sound basis to disturb those determinations. In re King’s Estate, 150 Tex. 662, 224 S.W.2d 660 (1951); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Since we find the evidence sufficient to support the determinations of the hearing officer, we will not substitute our judgement for his. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Thomas A. Knapp – Appeals Judge