On August 11, 1999, a contested case hearing (CCH) was held in_______, Texas, with _______________presiding as the hearing officer. 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: (1) whether respondent (claimant) is entitled to supplemental income benefits (SIBS) for the seventh quarter; and (2) whether appellant (self-insured) timely contested claimant’s entitlement to SIBS for the seventh quarter. The hearing officer held that: (1) claimant is entitled to SIBS for the seventh quarter; and (2) self-insured did not timely contest claimant’s entitlement to SIBS for the seventh quarter. Self-insured 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. No response was received from claimant.
DECISION
Affirmed.
Section 408.142(a) provides that an employee is entitled to SIBS if, on the expiration of the impairment income benefits (IIBS) period, the employee has an impairment rating (IR) of 15% or more, has not returned to work or has returned to work earning less than 80% of the employee’s average weekly wage as a direct result of the employee’s impairment, has not elected to commute a portion of the IIBS, and has attempted in good faith to obtain employment commensurate with the employee’s ability to work. Entitlement to SIBS is determined prospectively for each potentially compensable quarter based on criteria met by claimant during the prior filing period. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b)). Claimant has the burden to prove his entitlement to SIBS. Texas Workers’ Compensation Commission Appeal No. 941490, decided December 19, 1994.
Claimant contended that he had no ability to work during the filing period for the seventh quarter and, in the alternative, contended that if the hearing officer found that he had an ability to work, then he made a good faith job search.
In Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994, the Appeals Panel stated that if an employee established that he had no ability to work at all during the filing period, then seeking employment in good faith commensurate with this inability to work “would be not to seek work at all.” Under these circumstances, a good faith job search is “equivalent to no job search at all.” Texas Workers’ Compensation Commission Appeal No. 950581, decided May 30, 1995. In Texas Workers’ Compensation Commission Appeal No. 960123, decided March 4, 1996, the Appeals Panel stressed the need for medical evidence to affirmatively show an inability to work if that was being relied on by claimant and, in Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994, the Appeals Panel noted that an assertion of inability to work must be “judged against employment generally, not just the previous job where the injury occurred.”
The seventh quarter was from April 10, 1999, to July 9, 1999, and the filing period for that quarter was the preceding 90-day period, January 10, 1999, to April 9, 1999 (the filing period). The parties stipulated that claimant sustained a compensable injury while working for self-insured on ______________; that he reached maximum medical improvement with an IR of 15% or more; and that he did not commute IIBS.
Claimant testified that on ______________, he was working as a utility worker for self-insured when he pulled on a hose that was stuck in a drain line and injured his back, neck, and right shoulder. Claimant said that he was initially treated by Dr. A (Dr. A), who referred him to Dr. R (Dr. R). Claimant said that Dr. R became his treating doctor. Dr. R wrote in January 1995 that claimant could not return to even light-duty work. Claimant underwent lumbar spine surgery in August 1997, which included a fusion. Dr. R wrote in February 1998 that claimant’s injury included his cervical region, right shoulder, “carpal tunnel,” and low back and that claimant is disabled from gainful employment. In May 1998, claimant underwent a cervical discectomy and fusion at C6-7 for a disc herniation at that level. Claimant underwent an MRI of his right shoulder on January 28, 1999, and Dr. R wrote that the MRI confirmed that claimant had a shoulder injury at the time of his original injury and that he was recommending shoulder surgery. On March 25, 1999, which was within the filing period, claimant underwent right shoulder surgery for a rotator cuff tear.
Dr. R wrote on March 31, 1999, that claimant would need six to eight weeks to recover from the shoulder surgery and that claimant “is not able to solicit employment at this time due to his surgery.” Dr. R wrote on April 28, 1999, that it should take claimant three months to recover from his shoulder surgery. Dr. R wrote on May 12, 1999, that claimant is disabled from gainful employment. Dr. R wrote on June 25, 1999, that during the filing period claimant had complaints of significant right shoulder pain. Dr. R also noted that claimant has cervical radicular pain and low back pain and that claimant could not do even sedentary work because of his constant pain.
Claimant, who is right handed, testified that during the filing period he had back, neck, and right shoulder pain and was prescribed pain medication that made him drowsy, that he had no strength in his right arm; that he could not bend; that he had limitations on lifting; that he looked for a job in the newspaper; that he went to two or three places to fill out a job application but that the rest of his job contacts were by telephone; and that he was not offered a job. According to a job contact list attached to claimant’s Statement of Employment Status (TWCC-52) for the seventh quarter, he made approximately 32 job contacts during the filing period.
Dr. R testified that in addition to cervical, lumbar, and shoulder surgery, claimant also underwent a carpal tunnel release on some unspecified date following his September 1994 injury. Dr. R testified that during the filing period claimant was in pain; that claimant would have to change positions frequently because of pain; that claimant was taking a prescribed narcotic medication and other medications for pain; and that the reason claimant was unable to work was his neck, back, and shoulder pain to the point he needed to take narcotic medication for that pain. Dr. R also noted that even before the filing period, claimant was unable to perform work of any kind and that claimant could work light duty if he did not have pain.
The hearing officer found that claimant had no ability to work at all during the filing period; that because claimant had no ability to work during the filing period, he satisfied the good faith requirement to attempt to obtain employment commensurate with his ability to work; and that claimant’s unemployment during the filing period was a direct result of claimant’s impairment. The hearing officer concluded that claimant is entitled to SIBS for the seventh quarter. Self-insured contends that the hearing officer’s findings and conclusion are supported by no evidence and that the evidence shows that claimant is not entitled to SIBS for the seventh quarter. 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 may believe all, part, or none of the testimony of any witness. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. An appellate level body is not a fact finder and does not normally pass upon the credibility of the witnesses or substitute its judgment for that of the finder of fact, even if the evidence would support a different result. Appeal No. 950084. When reviewing a hearing officer’s decision to determine the factual sufficiency of the evidence, we should set aside the 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 findings, conclusion, and decision on the issue of entitlement to seventh quarter SIBS are supported by sufficient evidence and are 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).
Section 408.147(b) provides that, if an insurance carrier fails to make a request for a benefit review conference (BRC) within 10 days after the date of the expiration of the IIBS period or within 10 days after receipt of the employee’s statement, the insurance carrier waives the right to contest entitlement to SIBS and the amount of SIBS for that period of SIBS. Self-insured is an insurance carrier under Section 401.011(27)(C). Claimant testified that he always hand delivers his TWCC-52 to the self-insured and that on April 1, 1999, he hand delivered his TWCC-52, with an attached job contact list, to the self-insured at the offices where the adjustor works. Claimant’s wife testified that on April 1, 1999, claimant asked her to take him to drop off his TWCC-52 at the self-insured and that she did so on that day. Self-insured put into evidence a copy of claimant’s TWCC-52 which is date stamped as having been received by self-insured on April 8, 1999; however, the handwritten job contact list attached to the TWCC-52 is date stamped as having been received by self-insured on April 6, 1999. Self-insured had no explanation for the different date stamps on the same exhibit. It is undisputed that self-insured filed a Request for a BRC (TWCC-45) with the Texas Workers’ Compensation Commission on April 16, 1999, contesting SIBS entitlement. The hearing officer found that claimant filed a TWCC-52 for seventh quarter SIBS with self-insured on April 1, 1999, and that self-insured did not file a TWCC-45 contesting claimant’s entitlement to seventh quarter SIBS within 10 days of its receipt of claimant’s TWCC-52 for the seventh quarter. The hearing officer concluded that self-insured did not timely contest claimant’s entitlement to seventh quarter SIBS.
Self-insured contends that the evidence shows that the TWCC-52 was received by self-insured on April 8, 1999, and thus its April 16, 1999, TWCC-45 contesting SIBS entitlement was timely filed. The hearing officer’s Statement of the Evidence reflects that she questioned the authenticity of the date stamps on the TWCC-52 because of the different date stamps that appear on the TWCC-52 and on the job contact list, which claimant said were filed at the same time on April 1st. With the evidence in this posture, a fact finder might reasonably call into question the accuracy of the April 6th and April 8th date stamps. We conclude that the hearing officer’s decision on the timely contest issue is supported by sufficient evidence and that it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, supra.
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Elaine M. Chaney – Appeals Judge