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 January 8, 1999. The issue at the CCH was whether the appellant (claimant) was entitled to supplemental income benefits (SIBS) for the fifth compensable quarter beginning on October 28, 1998, and ending January 26, 1999. The hearing officer concluded that the claimant was not entitled to these benefits because he did not make a good faith effort to obtain employment commensurate with his ability to work during the filing period. The claimant files a request for review challenging certain findings of fact and the hearing officer’s conclusion that the claimant was not entitled to SIBS for the fifth compensable quarter. The claimant also argues that even though the hearing officer did not make findings concerning the claimant’s failure to read and write English the basis of his decision, the hearing officer’s previous decisions regarding the claimant show that this is still the primary reason behind the hearing officer’s decision that the claimant is not entitled to SIBS. The claimant also complains of the hearing officer’s finding in regard to “cold calls” and contends that the hearing officer’s findings regarding his physical limitations and his job search are contradictory. Finally, the claimant argues that testimony from the respondent’s (carrier) witness, who is also the carrier’s employee, that few of his job contacts could be confirmed ignored the evidence that these job contacts were made. The carrier responds, contending that the decision of the hearing officer should be affirmed.
DECISION
Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.
It was undisputed that the claimant suffered a compensable injury on _______. The parties stipulated that the claimant reached maximum medical improvement on November 26, 1996, with a 16% impairment rating (IR); that the fifth compensable quarter began on October 28, 1998, and ended on January 26, 1999; and that the claimant had not returned to work earning at least 80% of his preinjury average weekly wage (AWW) during the filing period for the fifth compensable quarter. The claimant testified through a translator. The claimant described his job search and testified that he would take one of his children with him when searching so they could translate, as his English is not very good. The claimant testified that he sought employment at the 77 places of employment listed on his Statement of Employment Status (TWCC-52). Mr. G, who was employed by the carrier to check on the claimant’s job contacts, testified that he was unable to confirm a number of the employers the claimant listed as contacting and that a number of the employers listed on the claimant’s TWCC-52 were employers that the claimant had listed in previous quarters. Both parties submitted medical evidence concerning the claimant’s medical treatment and physical condition from the compensable injury.
The claimant argues that the following findings of fact and conclusion of law by the hearing officer are not supported by sufficient evidence or are contrary to the great weight and preponderance of the evidence:
FINDINGS OF FACT
2.Claimant does not read or write English and has always worked at manual labor.
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4.Claimant listed seventy-seven (77) job contacts during the filing period for the fifth compensable quarter on his form TWCC-52.
5.The employers listed have medium to heavy manual labor similar to the labor Claimant previously performed.
6.Claimant has lifting restrictions as a result of the compensable injury.
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8.Claimant did not obtain employment during the four previous filing periods using a cold call job search.
9.Only a few of the job contacts were confirmable by Carrier.
10.Claimant listed a job contact with (employer) and a Mr. V when Mr. V has not worked at (employer) for one year.
11.Claimant continues to list the same employers from quarter to quarter but does not broaden his job search despite his failure to find employment.
12.A preponderance of the evidence indicates Claimant did not make all the job contacts listed during the filing period for the fifth compensable quarter.
13.Claimant did not make a good faith effort to obtain employment commensurate with his ability to work during the filing period for the fifth compensable quarter.
CONCLUSION OF LAW
3.Claimant is not entitled to [SIBS] for the fifth compensable quarter starting October 28, 1998 and ending January 26, 1999.
Section 408.142(a) outlines the requirements for SIBS eligibility as follows:
An employee is entitled to [SIBS] if on the expiration of the impairment income benefit period computed under Section 408.121(a)(1) the employee:
(1)has an [IR] of 15 percent or more as determined by this subtitle from the compensable injury;
(2)has not returned to work or has returned to work earning less than 80 percent of the employee’s [AWW] as a direct result of the employee’s impairment;
(3)has not elected to commute a portion of the [IIBS] under Section 408.128; and
(4)has attempted in good faith to obtain employment commensurate with the employee’s ability to work.
The fact that the claimant met the first of these requirements was established by stipulation. The hearing officer found that the claimant met the second requirement and as no party has appealed this finding it has become final pursuant to Section 410.169. It was undisputed that the claimant met the third requirement of Section 408.142(a). This case on appeal revolves around whether the claimant met the fourth requirement. We have previously held that the question of whether the claimant made a good faith job search is a question of fact. Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994; Texas Workers’ Compensation Commission Appeal No. 94533, decided June 14, 1994.
Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment 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). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). This is so even though another fact finder might have drawn other inferences and reached other conclusions. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.).
Applying this standard, we find sufficient evidence to support the challenged findings of the hearing officer. While the claimant argues that the hearing officer made these findings for reasons other than the reasons stated in his decision, we will not presume that this is the case. Nor does the hearing officer anywhere state that he does not consider “cold calls” to be a valid form of job search. It appears from his findings that his decision turned on his belief that the claimant did not conduct as extensive a job search as he claimed and that the job search the hearing officer believed the claimant conducted was insufficient to constitute a good faith effort to find employment commensurate with his ability to work. This involved weighing the evidence and judging the credibility of witnesses. We will not reweigh the evidence. There is no basis to overturn the hearing officer’s decision as a matter of law in light of the standard of review discussed above.
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Elaine M. Chaney – Appeals Judge