This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). In the original decision and order in this case, the hearing officer, found that the respondent (claimant) was entitled to third quarter supplemental income benefits (SIBS) based on concurrent findings that he had no ability to work and that, if he had an ability to work, two contacts with potential employers constituted the required good faith job search. In Texas Workers’ Compensation Commission Appeal No. 982462, decided December 3, 1998, the Appeals Panel reversed the determination that the claimant’s two job contacts constituted the required good faith job search and rendered a decision that they did not. The Appeals Panel also reversed the finding of no ability to work and remanded this question “for further consideration of the evidence already submitted” in light of the applicable law. In a decision and order on remand, the hearing officer considered additional evidence, found the claimant had no ability to work, and again awarded third quarter SIBS. The appellant (carrier) appeals this determination, contending that it was contrary to the great weight and preponderance of the evidence. The appeals file contains no response from the claimant.
DECISION
Reversed and a new decision rendered.
The background facts and applicable law were discussed in Appeal No. 982462, supra, and need not be repeated here. We note initially that we directed further consideration on the basis of evidence already admitted. This was done to avoid exactly what happened in this case: the creation of additional evidence that should have been developed for the original CCH and that would be specifically tailored to shore up the noted defects in the existing evidence. The carrier objected to the consideration of the claimant’s new evidence by the hearing officer. The hearing officer, nonetheless, admitted it along with additional evidence from the carrier. The carrier has not appealed this consideration of the claimant’s additional evidence, thereby not preserving any error in these proceedings. For this reason, we assign no error to the hearing officer in the admission or consideration of the additional evidence.
The carrier appealed the finding of the hearing officer that the claimant’s unemployment during the third quarter filing period was a direct result of his impairment from his compensable injury. In her original decision and order, the hearing officer made a similar finding which was not appealed and, for this reason, became final. Section 410.169.
As we pointed out in our prior decision, the only evidence to arguably support the claimant’s position that he had no ability to work during the third quarter filing period came from Dr. G. In a letter of August 20, 1998, Dr. G wrote in pertinent part that the claimant “has not been able to return back to any form of gainful employment.” Dr. G then identified several of “many external stressors” in the claimant’s life and concluded:
In my medical opinion I believe this gentleman will have a difficult time returning back to any form of gainful employment. This is due to a combination of cognitive deficits as well as physical impairment. I also believe that his emotional psychosocial status will interfere with his ability to perform productively in any form of gainful work environment.
The purpose of our remand was to ensure that the term “gainful” employment was properly evaluated in relation to establishing an inability to work at all. We also stressed that to the extent an opinion about returning to gainful employment is premised on non-medical considerations, it is generally not adequate to support a finding of no ability to work. While we do not require the use of “magic words” or formulas to establish no ability to work, but look to the substance of the opinion, it is clear that Dr. G’s use of phrases like “a difficult time returning back” to employment and “will interfere with his ability to perform” should have raised serious questions in the hearing officer’s mind whether the evidence showed the claimant had no ability to work.
These matters having been pointed out in our prior decision in this case, the claimant then approached Dr. G for additional supportive evidence obviously tailored to our concerns. Under these circumstances, the letter he wrote to the claimant’s attorney on February 10, 1999, took on a forensic character. The substantive entirety of the letter for our purposes is as follows:
As you recall, I recently submitted a letter regarding [claimant’s] work status. I would like to clarify my opinion on his work status, which I have based solely on his medical condition. I have weighed both his physical and cognitive disabilities, which would prevent him from working.
The carrier countered this new evidence with an affidavit that the claimant, by his own admission, had, in fact, returned to some work as of October 26, 1998. The hearing officer said she gave little weight to this evidence because it was outside the filing period and found that the claimant had no ability to work and was entitled to third quarter SIBS.
In its appeal of this determination, the carrier points to the other medical evidence to establish an ability to work, commenting that the claimant contradicted the evidence of an inability to work by his conduct during the filing period of actually looking for work; and contending that Dr. G’s opinions are conclusory, uninformed about the actual work activities of the claimant, and contrary to the other evidence. Whether the claimant had some ability to work was a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 941154, decided October 10, 1994. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance 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 Company, 715 S.W.2d 629, 635 (Tex. 1986). The hearing officer was the sole judge of the weight and credibility to be given the evidence in this case. Section 410.165(a). As set out in our prior opinion, the medical evidence, other than the ambiguous August 20, 1998, letter of Dr. G, either did not address the claimant’s ability to work or found some ability. Dr. G’s letter of February 10, 1999, thus, became for the hearing officer determinative of the issue, despite its creation after our decision in Appeal No. 98462, supra, and serious questions raised by the fact that at the same time, Dr. G was writing this letter saying the claimant’s “disabilities . . . would prevent him from working,” the claimant by his own admission had been working since the previous October. The hearing officer was persuaded that the claimant met his burden of proving no ability to work and, in doing so, she glibly dismissed the evidence of the claimant’s actual work history as “outside the filing period.” There is no indication that Dr. G was aware of this work history at the time of his February 10, 1999, letter, but we believe such information was critical in evaluating the weight to be given the letter. Under these circumstances, we conclude that the February 10, 1999, and August 20, 1998, letters of Dr. G provide no more than a scintilla of evidence of an inability to work at all and that the great weight and preponderance of the evidence is contrary to the hearing officer’s finding of no ability to work during the third quarter filing period. Because the claimant failed to make a good faith effort to obtain employment commensurate with this ability to work, he was not entitled to third quarter SIBS.
The decision of the hearing officer that the claimant is entitled to third quarter SIBS is reversed and a new decision rendered that the claimant is not entitled to third quarter SIBS.
Alan C. Ernst – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCURRING OPINION:
I concur in the result only.
Given the totality of the evidence, I concur in the reversal of this case. In his August 20, 1998, letter, Dr. G appeared to stress claimant’s current crises regarding nonmedical factors in considering whether claimant was able to work. Dr. G referred to claimant’s divorce and loss of his home and stated that claimant had many “external stressors.” His medical opinion was ambiguous regarding the reason why he thought claimant would have a “difficult time” returning back to work. Considering this, combined with the other medical evidence and the evidence that claimant did go back to work, I agree that the determination regarding ability to work is against the great weight and preponderance of the evidence. Claimant’s treating doctor had indicated in May 1998, during the filing period, that claimant could return to the workforce. Further, claimant did, indeed, return to work in October 1998, a mere five months after the filing period ended and, apparently, is still working. I further would note that Dr. G’s “clarification” letter dated February 10, 1999, did not clarify what claimant’s work status was during the filing period. It appeared to address the claimant’s current work abilities.
I concur in the result in this appeal on remand.
Judy L. Stephens – Appeals Judge