On May 11, 1999, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issues at the CCH were whether (employer), tendered a bona fide offer of employment to respondent (claimant) and whether claimant sustained disability from November 1, 1998 “to the present.” The hearing officer decided that the employer did not tender a bona fide offer of employment to claimant and that claimant had disability from November 1, 1998, through the date of the CCH. Appellant (carrier) requests that the hearing officer’s decision on the disputed issues be reversed and that a decision on those issues be rendered in its favor. Claimant’s response requests affirmance.
DECISION
Affirmed.
Section 401.011(16) defines “disability” as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 408.103(e) provides that, for purposes of Section 408.103(a), relating to the amount of a temporary income benefit, if an employee is offered a bona fide position of employment that the employee is reasonably capable of performing, given the physical condition of the employee and the geographic accessibility of the position to the employee, the employee’s weekly earnings after the injury are equal to the weekly wage for the position offered to the employee.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 129.5(a) (Rule 129.5(a)) provides that in determining whether an offer of employment is bona fide, the Texas Workers’ Compensation Commission (Commission) shall consider the following: (1) the expected duration of the offered position; (2) the length of time the offer was kept open; (3) the manner in which the offer was communicated to the employee; (4) the physical requirements and accommodations of the position compared to the employee’s physical capabilities; and (5) the distance of the position from the employee’s residence. Rule 129.5(b) provides that a written offer of employment which was delivered to the employee during the period for which benefits are payable shall be presumed to be a bona fide offer if the offer clearly states the position offered, the duties of the position, that the employer is aware of and will abide by the physical limitations under which the employee or his treating physician have authorized the employee to return to work, the maximum physical requirements of the job, the wage, and the location of employment, and that, if the offer of employment was not made in writing, the carrier shall be required to provide clear and convincing evidence that a bona fide offer was made.
Carrier had the burden to prove that it made a bona fide offer of employment. Texas Workers’ Compensation Commission Appeal No. 92293, decided August 17, 1992. Claimant had the burden to prove she has disability as defined by the 1989 Act. Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993. The Appeals Panel has stated that resignation or termination may be considered in determining disability, but does not foreclose the existence of disability. Texas Workers’ Compensation Commission Appeal No. 970089, decided February 28, 1997.
Claimant began working as a food server in employer’s restaurant in February 1998. She said that job required her to take orders, serve food, bus tables, and lift heavy trays. She said some trays weighed 50 pounds. The parties stipulated that on ________, claimant sustained a compensable injury. Claimant said that she injured her left arm at work on ________ when she picked up a bucket of ice, that after working for two months after her injury she could not stand the pain she was having, and that employer sent her to Dr. S on or about June 27th. Dr. S diagnosed claimant as having lateral epicondylitis of the left elbow, prescribed anti-inflammatory medication, and released claimant to return to work on June 30th with restrictions, including a 10- to 15-pound lifting/carrying restriction. Claimant said that she returned to work with her written restrictions and worked for a day and a half at her regular duties, but that she was in pain and returned to Dr. S. Dr. S took claimant off work, prescribed physical therapy, and referred claimant to Dr. WG. Claimant said that she was off work as of July 4th. Dr. GO performed an EMG on claimant’s left arm on July 21st and reported that that study showed evidence of ulnar neuropathy at the left elbow. On August 1st Dr. WG gave a diagnoses of left cubital tunnel syndrome and left lateral epicondylitis and performed surgery on the ulnar nerve and lateral epicondyle of claimant’s left elbow. Claimant said that Dr. WG became her treating doctor.
Claimant said that after surgery she underwent six weeks of therapy, that she talked to the Texas Rehabilitation Commission (TRC) because she knew from her 16 years of experience as a waitress that she would be unable to wait tables again, that the TRC put her in a computer class that began on November 2nd, and that Dr. WG told her it was okay to take that class. Claimant said that her left arm felt better but that it did not have the strength it had before her injury.
On October 28th Dr. WG wrote that claimant may return to light-duty work on October 29th with restrictions of no lifting over 10 pounds with her left upper extremity and he noted that claimant could stand, walk, and sit for six to eight hours and that she could use her hands for repetitive grasping and for lifting, pushing, pulling and fine manipulation. Claimant said that she left Dr. WG’s work release on SM desk. SM is the employer’s personnel administrator. Claimant said that on October 29th, after she had left the work release with SM, she had a telephone conversation with SM and that SM told her that she thought she had a hostess job for her but that SM did not discuss work duties or wages and that SM wanted her to talk to JG, the employer’s assistant general manager.
Claimant said that SM transferred the call to JG; that she made JG aware of Dr. WG’s work restrictions; that JG offered her a hostess job; that she told JG that she had an opportunity to go to school (the TRC class) during days; that JG offered her a p.m. hostess job; that she told JG that she would have to be out of the workplace by 9:00 or 10:00 p.m.; that JG said her shift would end by 9:00 p.m. so that she could have rest to attend classes during the day (claimant’s server job was in the a.m. restaurant); that she told JG that, based on her experience in the restaurant business, she was physically unable to perform a hostess job; that JG told her that “he could see that I wouldn’t have to do more than the doctor said”; that no other position was offered to her; and that she then resigned from her employment with employer. Claimant testified that she understood that employer was offering her a light-duty job but that there was no light-duty work at employer and that she had no choice but to resign.
At one point claimant was asked “but [employer] offered you a job with those doctor’s restrictions, didn’t they?”, to which claimant replied “they did.” However, she also testified that there was no way consistent with her doctor’s restrictions that she could do the ordinary hostess job as she knew it. Claimant said that, based on her observations, a hostess has to stock supplies; lift, carry, and push things; set up tables; and sweep the hostess station. She said that a hostess job was not within her work restrictions. Claimant said that JG did not tell her what her wages would be, how long she could have the hostess job, how long the offer was open, or what the physical requirements of the job would be. Claimant said she assumed the hostess position paid minimum wage.
Claimant said that she went to the TRC computer classes for two and one-half days and that her left arm became inflamed.
In a letter to claimant dated November 3, 1998, SM wrote that on October 28th claimant had brought her the release to light-duty work effective October 29th; that employer offered her the light-duty position of p.m. hostess starting on October 29th; that claimant told JG that she did not wish to return to work for employer; that JG asked claimant to meet with him and SM on October 30th; that claimant did not meet with them; that claimant had three days from receipt of the letter to advise employer of her intentions; that, if employer did not hear from her within that time period, employer would consider her to have voluntarily resigned; and that, if she decided to stay with employer, the light-duty p.m. hostess position would still be available for her.
Claimant said that she received the employer’s November 3rd letter on November 12th and that attached to it was the employer’s Return to Work Evaluation completed and signed by Dr. WG on October 28th at SM’s request and that evaluation reflects essentially the same information that is in Dr. WG’s light-duty release dated October 28th (lift up to 10 pounds, etc.). Claimant said that she called SM the day she received the November 3rd letter and SM told her that the injury was claimant’s fault.
Claimant said that on November 6th she went to Dr. WG’s office and was seen by Dr. VG and that Dr. VG told her to put her arm in a sling and not to do anything. In what was admitted as records of Dr. WG, there is a notation that appears to be dated “1/6/96” (it could be “11/6/96”) but which falls between patient notes on the same page dated “10/28/98” and “11/11/98.” The “1/6/98” notes are in different handwriting then the other patient notes submitted as part of Dr. WG’s records. Although the “1/6/96” date was left unexplained at the CCH, apparently that is an erroneous date for those patient notes and it appears that the “1/6/96” patient notes are actually the November 6, 1998, notes of Dr. VG because of where they appear in relation to the October 28 and November 11, 1998, notes and considering claimant’s testimony of having seen Dr. VG on November 6, 1998. The patient notes which we will consider to be the November 6, 1998, notes of Dr. VG state that claimant was complaining of left elbow pain after typing at rehabilitation for two days, that she is not to use her left upper extremity, that she should stop going to rehabilitation (apparently a reference to the TRC class), and that her arm should be in a sling. Claimant said that she saw Dr. WG a few days after November 6th and Dr. WG told her that she was still on a “five to ten pound work limit.” Dr. WG’s patient note of November 11, 1998, states that claimant complained of left elbow pain after two days of typing and that she was going to quit the computer class.
Dr. WG referred claimant for another EMG and Dr. GO reported that the EMG done on December 8, 1998, when compared with the previous study, showed some improvement but that there is a slowing of the ulnar nerve across the left elbow. Claimant continued to see Dr. WG and he wrote that claimant could return to work on December 11, 1998, with no use of her left hand as a result of the ________, work injury. Dr. WG wrote in January 1999 that the treatment plan was to decrease claimant’s pain using a galvonic nerve stimulator.
Dr. L examined claimant at carrier’s request on February 15, 1999, and he wrote that most of claimant’s problems are coming from scarring to the ulnar nerve in the area of her surgery, that claimant is capable of no more than one-handed work, and that she needs a minimum of four months in a chronic pain program.
Claimant said she changed doctors to Dr. R who saw claimant on February 24, 1999, and noted an impression of left arm “RSD,” recurrent left ulnar neuropathy, and neck pain, and recommended a left Stellate ganglion block and physical therapy. Dr. R wrote that claimant is unfit to return to work because she cannot use her left arm for anything productive. Dr. R also wrote on February 24, 1999, that claimant should have been off work since November 7, 1998, and that claimant would be unable to work from February 24, 1999, to April 1, 1999. On March 5, 1999, Dr. R wrote that claimant cannot return to work due to severe left arm sympathetic dystrophy, that she cannot do even sedentary work, and that she will likely require re-exploration of the left ulnar nerve. Claimant said she did not give employer a doctor’s work restrictions other than the work restrictions of Dr. WG of October 28th because she felt she did not have a job there. According to a document in evidence, carrier terminated temporary income benefits as of November 2, 1998, due to what it believed was a bona fide offer of employment. There does not appear to be any dispute that claimant had disability from on or about July 4, 1998, to on or about October 31, 1998. Claimant said that some time after January 1, 1999, she was offered a cashier job by another employer but was unable to take it because it did not meet her doctor’s job restrictions.
SM testified that when she got Dr. WG’s report of October 28th releasing claimant to light-duty work on October 29th, she faxed the employer’s Return to Work Evaluation to Dr. WG and Dr. WG filled it out and faxed it back to her. She said that she talked to claimant, maybe over the telephone, and told claimant that she had a light-duty position available for her as a hostess and that she made it clear to claimant that that job would be within Dr. WG’s restrictions and that claimant would be forbidden to do anything beyond those restrictions. She said she talked to claimant about being an a.m. hostess but claimant had a conflict with that as she was going back to school so she arranged for claimant to be the “hostess/cashier” for the evening restaurant and told claimant that employer had a light-duty p.m. hostess job available for her and offered her that job. She said claimant said that would work out with her schedule. SM said that she did not tell claimant what the wage of the hostess job would be but that employees know that there are different rates of pay for different jobs.
SM said that claimant then talked to JG and told him that she was not coming back to work. SM said JG wanted claimant to meet them but claimant did not come in. SM said that about a week to 10 days after claimant was suppose to come back to work on October 29th, claimant called and told her that she was not going to school and that she could not work. SM said she told claimant she would need something about that from claimant’s doctor but claimant did not provide her with that documentation and that claimant did not try the light-duty position. SM said that a hostess greets and seats customers, runs the cash register, and possibly has to lift more than five or 10 pounds occasionally, but the lifting would be a possibility for an uninjured hostess. SM said that if claimant had come to work as a hostess, all she would have done is greet and seat customers. She said she was not sure if at the time the offer was made to claimant, a hostess did cashiering. An employer’s job summary for a cashier/hostess position states that the cashier/hostess greets and seats guests, operates the cash register, does various paperwork, and performs any other duties as assigned by management.
SM explained that when an employee is put on light duty by a doctor, the employer gets the doctor’s restrictions and the employee, the employee’s supervisor, and SM sign a modified work agreement, with the restrictions attached, wherein it is stated that the employee is on restricted duty, that the employee cannot do anything beyond the restrictions, and that if someone asks the employee to go beyond the restrictions, the employee is to go to her. She said claimant never signed a modified work agreement because claimant did not show up for light-duty work. SM said that claimant told JG that she was resigning and that after SM sent claimant her letter of November 3rd, claimant called and told her that she was resigning. SM said she did not hear back from claimant after that.
JS testified that she worked as a restaurant supervisor for employer from March to October 1998 and left for a better job. JS said that, technically, a hostess just seats people, gives them menus, and takes drink orders, but that a hostess could have to bus tables, which involves lifting and carrying large trays of dishes, stock things, help out as a food server when things are busy, which she said was a common occurence, and fill in for an absent food server. She said that all of the hostesses that she had supervised had been on full, unrestricted duty. She said that she does not know if there is light-duty work at employer’s restaurant.
CW testified that she was a hostess/cashier for employer for over three years and that she quit her job about three weeks before the CCH when she was not given a raise. CW said that when she worked as a hostess for employer, if an employee did not show up for work, she would have to do their job and her own job, that sometimes she would have to do room service (the restaurant is part of a hotel), that sometimes she would have to set up and take down buffets, that she would have to pull tables together for large groups, that when a food server did not show up she would have to fill in as a food server, which meant busing her own tables, and that she was not on restricted duty when working as a hostess.
MC stated in an affidavit that she called employer to inquire about requirements for a hostess position and was told by a manager that the hostess position required seating customers, being the cashier, some lifting, pushing a cart, removing dishes from tables, and cleaning off tables.
JAG stated in an affidavit that she works as a waitress for employer, that she witnesses the duties performed by a hostess, and that some of the duties of a hostess are to seat customers, be the cashier, bus tables, restock the hostess station, push a cart, and various other duties that require lifting. In an affidavit dated April 21, 1999, which CW said she signed before she knew she was not going to get a raise and while she was still working for employer, CW gave the same description of the hostess duties as JAG did. JS also stated those same hostess duties in an affidavit.
The hearing officer found that the employer’s letter of November 3rd was received by claimant on November 12th and that it did not comply with the provisions of Rule 129.5(b). While the November 3rd letter does state that a light-duty p.m. hostess job was offered, and the October 28th work restrictions of Dr. WG were attached, which is primarily a restriction of no lifting over 10 pounds with the left arm, the letter does not actually state the duties of the position, the maximum physical requirements of the position, the wage, or that employer will abide by Dr. WG’s restrictions. Thus, although it appears that employer was in good faith following up on its telephone conversations with claimant concerning a light-duty position, we cannot conclude that the hearing officer erred in finding that the November 3rd letter did not comply with the provisions of Rule 129.5 and thus that written offer would not be presumed to be a bona fide offer.
The hearing officer also found that carrier failed to provide clear and convincing evidence that its oral offer of October 29th was a bona fide offer. There is no doubt that on or about October 29th employer offered claimant what it believed to be a light-duty position that complied with Dr. WG’s restrictions of October 28th and that claimant did not attempt to try that job. However, one of the criteria the Commission is to consider in determining whether an offer of employment is bona fide, is the physical requirements and accommodations of the position compared to the employee’s physical capabilities. While SM testified that the light-duty hostess position offered to claimant would only require claimant to greet and seat guests, and perhaps run the cash register, claimant’s witnesses testified and gave affidavits that a hostess does more than that, including substituting for an absent food server or working as a food server when things are busy, which would entail lifting and carrying large trays of dishes. The hearing officer could also consider Dr. VG’s note that claimant was not to use her left arm and was to have it in a sling, Dr. R’s opinion that claimant should have been off work since November 7, 1998, and Dr. L’s report. Carrier contends that when considered together, the oral and written offers comply with Rule 129.5. Whether a bona fide offer was made presented a question of fact for the hearing officer to determine. The hearing officer stated in her decision that, when considering the totality of the evidence, a bona fide offer of employment was not made.
The hearing officer found and concluded that employer did not tender a bona fide offer of employment to claimant. The hearing officer also found that from November 1, 1998, through the date of the CCH, claimant had been unable to obtain and retain employment at her preinjury wages because of a work-related injury and concluded that claimant had disability from November 1, 1998, through the date of the CCH. The 1989 Act makes the hearing officer the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves conflicts in the evidence and may believe all, part, or none of the testimony of any witness. An appellate level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its judgment for that of the trier of fact, even if the evidence would support a different result. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. When reviewing a hearing officer’s decision to determine the factual sufficiency of the evidence, we should set aside the hearing officer’s decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appeal No. 950084. We conclude that the hearing officer’s decision that employer did not tender a bona fide offer of employment to claimant and that claimant had disability from November 1, 1998, through the date of the CCH is supported by sufficient evidence and is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Judy L. Stephens – Appeals Judge
DISSENTING OPINION:
I respectfully dissent. While the author judge has done an admirable job in setting out the complex factual situation in this case and well states his rationale for upholding the hearing officer’s decision, I am compelled to arrive at the opposite conclusion. In my opinion, there is overwhelming evidence of a bona fide offer of employment which the claimant overtly declined because of an opportunity to go to school and that she even rejected the employer’s accommodations for her schooling. The claimant acknowledges that although not specifically in the written offer, the employer told her that the doctor’s job restrictions would apply. This is consistent with the evidence from the employer that the claimant indicated that she did not wish to return to work for the employer, that she refused to meet with the employer, that she was offered a hostess position that would comply with the doctor’s restrictions, and that she would not be allowed to do anything beyond the restrictions. Evidence of the general nature of a hostess position, or what it is thought to be, particularly where it is clear that all the doctor’s restrictions would apply, does not change the fact of the position offered by the employer in this case. We have repeatedly held that in applying Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 129.5(b) (Rule 129.5(b)), information in a written offer can be supplemental to other oral information in determining if a bona fide offer is shown by clear and convincing evidence. Texas Workers’ Compensation Commission Appeal No. 92248, decided July 24, 1992; Texas Workers’ Compensation Commission Appeal No. 91023, decided October 16, 1991. See also Texas Workers’ Compensation Commission Appeal No. 93777, decided October 13, 1993. In my opinion, considering the evidence in the written offer and the evidence showing the oral offer and terms of employment, there is overwhelming evidence that a bona fide offer of employment has been shown to satisfy the regulatory requirements. Accordingly, I would reverse the decision and render a decision that a bona fide offer of employment had been proven.
Stark O. Sanders, Jr. – Chief Appeals Judge