This appeal arises pursuant to the Texas Workers’ Compensation Act of 1989, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On August 18, 1999, a hearing was held. The hearing officer determined that appellant (claimant) was not entitled to supplemental income benefits (SIBS) for the fifth, eighth, ninth, 10th, and 11th compensable quarters. Claimant asserts that the hearing officer erred in admitting Carrier’s Exhibit Nos. 1 and 2; states that he was unable to work during the filing periods of the fifth and eighth quarters, adding that there was no evidence that he could work; urges that he could not work during the filing periods of the ninth through 11th quarters, but also that he made a good faith job search during those filing periods; and concludes by saying that he should not permanently lose entitlement to SIBS. Respondent (carrier) replies that the decision should be affirmed.
DECISION
We affirm.
Carrier states the appeal is not timely. The records show that claimant received the hearing officer’s decision on September 3, 1999. Fifteen days are allowed to file an appeal which would be September 18, 1999, a Saturday. Since the due date fell on a weekend, claimant had until the following Monday, September 20, 1999, to file. The appeal is postmarked September 20, 1999, was received September 22, 1999, and is timely. See Section 410.202 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE §§ 102.3 and 143.3.
Claimant worked for (employer) on __________. While not listed as stipulations, the parties on the record stipulated that claimant sustained a compensable injury, that he has an impairment rating (IR) of 15% or more, and that he has commuted no benefits.
(Dr. W) testified at the hearing by telephone. He said that he has treated claimant since the onset of his injury. Although he mentioned that claimant had a “spinal injury” his testimony only described the vertigo which he said claimant has. The dates of the quarters involved were never defined at this hearing, but Dr. W was asked questions in regard to June 30, 1997, to March 28, 1999. He described vertigo as positional dizziness, also stating that there is a loss of coordination and balance, which he said is aggravated by movement. He said that claimant’s restrictions are to avoid sudden movements and he is to avoid ladders. He added, he is “restricted to sedentary activities” needed to attend to “personal responsibilities.” He then said that claimant is “incapacitated” to do any work and “is not capable of working” due to his recurrent vertigo. On cross-examination Dr. W said that he referred claimant to (Dr. C) but that he disagrees with Dr. C’s opinion indicating some ability to work with restrictions. He also said that claimant’s rapid eye movement supports the diagnosis of vertigo, and in the last year and one-half there has been “some improvement” in claimant, saying that he is not as nauseous as before and the vertigo is less intense.
Claimant testified that he has had vertigo since February 1995, which affects his equilibrium and causes his sight to be unfocused. He takes medicine but that makes him drowsy. In regard to his job searches, claimant could not recall how many were made in a quarter but used his applications for SIBS to address his contacts. With his attorney assisting him, the testimony indicated that there was no job search in the filing period for the fifth and eighth quarters. He said he cannot work as a driver anymore. He added though that his vertigo was not as bad and not as frequent during the time of the ninth through 11th quarters as it had been in the fifth and eighth quarters. He said that the functional capacity evaluation (FCE) he underwent in 1998 was a “fair evaluation” but added that he was not really knowledgeable about that kind of thing. In regard to his job contacts, he said that his job searches were done by telephone. At one point he stated that he had vertigo two to four times a day; at another point he said that it occurred two to three times a day.
When the carrier offered its Exhibit Nos. 1, 2, and 3, claimant objected saying there was no exchange. The carrier replied that all were exchanged at the benefit review conference (BRC) or had been sent to claimant by a doctor, adding that they were “made available” numerous times and were “previously exchanged.” Claimant’s counsel said he was at the BRC and that there was no exchange there by carrier and since that time there has been no exchange. The hearing officer correctly denied admission for Carrier’s Exhibit No. 3 which dealt with job leads provided by carrier. He admitted Carrier’s Exhibit Nos. 1 and 2, however, stating that there was good cause “based on age,” citing dates of March 1997 and July 1998, and based on “representations” that they have been “dealt with previously.” The documents included in the two admitted exhibits were limited to an FCE from 1998 and a doctor’s report as to IR from 1997. Admission of these two exhibits was in error. Rule 142.13 addresses discovery, describing the discovery process as obtaining evidence “relating to the disputed issue or issues.” At Rule 142.13(c) the exchange by parties is said to occur “no later than 15 days after the benefit review conference”; then in Rule 142.13(c)(3), the hearing officer determines whether “good cause exists” for a party “not having previously exchanged such information or documents to introduce such evidence at the hearing.” There is no indication that good cause can exist because the same document has been “dealt with previously.”
We also stated that the quarters were not defined by dates. The BRC report lists the fifth quarter as September 28, 1997, to December 27, 1997; the eighth quarter from June 28, 1998, to September 27, 1998; and the 11th quarter extending to June 27, 1999. The FCE admitted as Carrier’s Exhibit No. 2, is dated July 17, 1998, during the ninth quarter. There was no indication at the hearing how this document would have been “dealt with previously.” To find good cause in this set of circumstances was an abuse of discretion. However, as claimant states, the designated doctor’s report (Carrier’s Exhibit No. 2 erroneously admitted) did not address ability to work. The hearing officer in his Statement of Evidence did not go into great detail but he did point out that Dr. W’s “testimony was given little weight” because “other medical evidence including a functional capacity evaluation reflects some ability to work.” (Emphasis added.) This statement clearly shows other medical evidence was considered to be against the testimony of Dr. W, and that consideration of the FCE has not been shown to have caused an improper verdict, so its admission does not amount to reversible error. See Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ).
The other medical evidence in the record includes the report of Dr. C and the medical records of Dr. W, offered by claimant. Just before the beginning of the filing period for the fifth quarter, Dr. W on June 23, 1997, said, “[claimant] has an episodic neurologic disturbance. He experiences disabling vertigo with episodic loss of coordination, balance, focus, attention and concentration that prevents safe operation of DART bus.” On March 26, 1999, Dr. W said, “[claimant] has been unable to perform the essential duties of any occupation and in [sic] unemployable by virtue of medically determined vertigo – an episodic neurological disturbanc…..claimant] has impairments in strength, balance, condition, and flexibility. He must avoid the extremes of postural changes and driving.” Then on April 12, 1999, Dr. W said, “[claimant] has been unable to perform the essential duties of any occupation and in [sic] unemployable by virtue of medically determined vertigo – an episodic neurological disturbanc…..claimant] has impairments in strength, balance, condition, and flexibility. He must avoid the extremes of postural changes and driving.” Dr. W said at the conclusion of his April 12, 1999, letter that “a recent neurological evaluation confirms that [claimant] is disabled.”
The recent neurological evaluation referred to is that of Dr. C. Dr. C saw claimant on February 11, 1999, and noted that claimant said he is worse regarding his dizziness, but that his vertigo “is not quite as severe as it once was.” Dr. C then states that claimant reports episodes “as often as three time a week.” (Compare to claimant’s testimony of two to three a day.) He also said that claimant reported that his medicine “knocks me out,” but Dr. C did not make that statement or agree with it. Contrary to Dr. W’s reference to “impairments in strength,” Dr. C noted “good strength in both upper extremities.” Dr. C agreed that claimant has vertigo, and he did say claimant is “permanently disabled” and he (Dr. C) agrees “with the patient remaining off work.” However, his comment about disability was in the context of, “he is permanently disabled with regards [sic] to being able to go back to work for DART as a driver, because the risk is too high.” Dr. C immediately continued, “[h]e also does not need to be working in any area that is high risk, such as operating any motorized equipment or machinery. He also does not need to be doing any kind of work that would involve any work above ground, standing on ladders, etc.” (That concluded Dr. C’s expressions relative to work, disability, return to prior work, etc.)
The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. While a hearing officer may credit the opinion of any medical doctor regardless of the basis he provides for his opinions (see Texas Workers’ Compensation Commission Appeal No. 970834, decided June 23, 1997), he is not required to accept that opinion and may consider all records in evidence from that doctor in determining the amount of weight to give his opinion. Similarly, the hearing officer is not required to only accept the conclusion of Dr. C, which said claimant should remain “off work,” but could consider that statement in the context of Dr. C’s other comments and reasonably infer that Dr. C is saying that claimant should remain off work as a driver, should not return to work as a driver, and should limit his work to areas other than involving machinery, operating equipment, work on ladders, etc. While Dr. W’s April 1999 letter states that Dr. C “confirms” disability, Dr. W’s testimony indicates that he disagrees with the indication by Dr. C that claimant can do some work. While a medical report at the time of the filing period in question is generally preferred, medical reports outside the filing period may still be given weight, particularly when the evidence does not show a significant change in condition. With Dr. C relating that claimant’s condition was “not quite as severe,” the hearing officer could consider that opinion in determining whether claimant could work at all in preceding quarters. As stated, conflicts in the evidence are matters for the hearing officer to resolve.
While the hearing officer made no finding of fact that claimant was able to work during the filing periods in question, his Statement of Evidence shows that he considered claimant to have “some ability to work.” The evidence sufficiently supports that determination. The record shows that claimant did not attempt to find work in the filing periods of the fifth and eighth quarters. Therefore the determinations that claimant did not attempt in good faith to obtain employment relative to the fifth and eighth quarters are sufficiently supported by the evidence.
The record shows that claimant made four contacts by telephone in the filing period for the ninth quarter, 11 contacts by telephone during the filing period for the 10th quarter, and 31 contacts by telephone during the filing period for the 11th quarter. Numbers alone do not control the good faith aspect, especially under the Rules applicable to the quarters in question. The appeals panel has affirmed a finding of no entitlement when a claimant made 40 job contacts. See Texas Workers’ Compensation Commission Appeal No. 950364, decided April 26, 1995. The hearing officer could consider also that the contacts were made by telephone and that the claimant provided little specificity about the contacts. The evidence sufficiently supports the determinations that claimant did not attempt in good faith to obtain employment during the filing periods of the ninth, 10th, and 11th quarters.
Finding that the decision and order are sufficiently supported by the evidence, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Judy L. Stephens – Appeals Judge