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 August 25, 1999. The issues at the CCH were whether the respondent (claimant) is entitled to supplemental income benefits (SIBS) for the fourth compensable quarter and the claimant’s weekly earnings during the fourth quarter filing period. The hearing officer determined that the claimant is entitled to SIBS for the fourth compensable quarter at the maximum rate of $319.00 per week. The appellant (carrier) appeals, urging that the claimant’s underemployment is not a direct result of his compensable injury, that the claimant did not demonstrate a good faith effort to find employment commensurate with his ability to work, and that the decision of the hearing officer should be reversed. The appeals file contains no response from the claimant.
DECISION
Affirmed.
The parties stipulated that the claimant sustained a compensable injury on ___________, resulting in an impairment rating (IR) of 15% or greater; that the claimant has not commuted any portion of his impairment income benefits (IIBS); that the fourth compensable quarter began on January 9, 1999, and ended on April 9, 1999; and that the filing period for the fourth compensable quarter began on April 10, 1999, and ended on July 9, 1999. The claimant testified that he injured his low back when he picked up a drum and fell while performing his job duties as a sales manager; that his job duties as a sales manager required him to perform heavy manual labor and prolonged driving; that he had approximately 25 years of experience in sales and service in the oil field; that the injury resulted in a 360 fusion with hardware which was performed on March 7, 1995; and that during the filing period he was capable of performing light to medium work.
In August 1998, the claimant began a lawn service and was self-employed during the filing period. The claimant stated that he began his business after reading a newspaper article that indicated that a lot of money can be made in the lawn business and discovering that the work was within his restrictions. According to the claimant, the work does require physical labor, but he hires people to ride lawn mowers, he hires laborers on an as-needed basis, the work can be performed at his own pace, and he can stop and go home to rest, as needed. The claimant testified that during the filing period, he worked approximately seven hours per day at his lawn service, he sought employment through the Internet a couple of hours per day, he sought newspaper job leads every day, and he submitted resumes to eight potential employers. The claimant stated that he made efforts to promote his business during the filing period through signs, referrals, T-shirts, an advertisement in the newspaper, and a display at a business, but the business suffered a loss as a result of purchasing additional equipment, supplies, occasional labor costs, and various other expenses. The claimant presented a profit/loss statement of his business for the filing period. It indicates that the claimant received income of $7,830.57 and had expenses of $11,588.46. Of the expenses, approximately $9,500.00 were attributable to equipment, supplies, repair, and labor. The claimant testified that his business is currently making a profit which he thinks will exceed the amount of past losses.
Sections 408.142(a) and 408.143 provide that an employee is entitled to SIBS when the IIBS period expires if the employee has: (1) an IR of at least 15%; (2) not returned to work or has earned less than 80% of the employee’s average weekly wage as a direct result of the impairment; (3) not elected to commute a portion of the IIBS; and (4) made a good faith effort to obtain employment commensurate with his or her ability to work. Whether the claimant made a good faith effort to seek employment commensurate with his ability to work and his underemployment was a direct result of his impairment during the filing period presented the hearing officer with questions of fact to resolve.
The hearing officer determined that the claimant satisfied the good faith requirement through self-employment. We have previously recognized that self-employment may satisfy the SIBS good faith requirement. Texas Workers’ Compensation Commission Appeal No. 960188, decided March 13, 1996. In doing so, we noted that in self-employment cases, the claimant must establish that he made efforts to solicit business or customers in the filing period in order to sustain his burden of proof. Texas Workers’ Compensation Commission Appeal No. 94918, decided August 26, 1994; Texas Workers’ Compensation Commission Appeal No. 950114, decided March 7, 1995; Texas Workers’ Compensation Commission Appeal No. 950303, decided April 12, 1995. The hearing officer found that the claimant’s efforts in maintaining, promoting, and advancing his yard care business, along with the reported search for employment opportunities and contacts made during the filing period, establish that the claimant attempted in good faith to obtain employment commensurate with his ability to work. We find the evidence sufficient to support the findings of the hearing officer.
The carrier contends that the claimant’s underemployment is not a direct result of his compensable injury, but a direct result of economic factors; that the claimant chose to be self-employed and any losses he suffered are the result of his choice, not his injury; that the claimant is using expenses outside the filing period to document business losses during the filing period, and that the claimant’s bank account statement for the business shows deposits to the business of $8,162.64 more than claimed on his profit/loss statement. The hearing officer determined that the claimant’s underemployment is a direct result of his impairment. The claimant testified that his profit/loss statement for the filing period was an accurate reflection of all of his income and expenses, and that deposits to his bank account included money that was transferred from his personal account. The profit/loss statement separately identified $2,530.02 in losses for 1998. However, not considering the 1998 loss, the claimant still operated at a loss for the filing period. The claimant testified that as a result of his injury, he could no longer perform his previous job. The hearing officer stated that the evidence established that the claimant had significant reasonable expenses which were incurred in maintaining, promoting, and furthering his business and, as a result, had no reportable income during the filing period. The hearing officer’s direct result determination is sufficiently supported by evidence that the claimant sustained a serious injury with lasting effects and that, during the filing period, he could not reasonably perform the type of work being done at the time of the injury. Texas Workers’ Compensation Commission Appeal No. 93559, decided August 20, 1993; Texas Workers’ Compensation Commission Appeal No. 960905, decided June 25, 1996.
The 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. Section 410.165(a). The trier of fact may believe all, part, or none of a witness’ testimony. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). 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 (Tex. Civ. App.-Amarillo 1974, no writ). When reviewing a hearing officer’s decision, we will 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 Company, 715 S.W.2d 629, 635 (Tex. 1986). We find there was sufficient evidence to support the hearing officer’s determination that the claimant made a good faith effort to obtain employment commensurate with his ability to work, that the claimant’s underemployment was a direct result of his impairment, and that the claimant is entitled to SIBS for the fourth compensable quarter at the maximum rate of $319.00 per week.
The decision and order of the hearing officer are affirmed.
Dorian E. Ramirez – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Alan C. Ernst – Appeals Judge