This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 9, 1999, in_____, Texas, with __________presiding as hearing officer. He determined that the appellant (claimant) had some ability to work and that she is not entitled to supplemental income benefits (SIBS) for the 11th quarter. Claimant appealed, contending that she had no ability to work during the filing period in question. Respondent (carrier) responds that the Appeals Panel should affirm the hearing officer’s decision and order.
DECISION
We affirm.
Claimant contends the hearing officer erred in determining that she is not entitled to SIBS. She asserts that she had no ability to work during the applicable filing period and that she met her burden to prove the good faith SIBS criterion. Claimant contends that there is no evidence that claimant had an ability to work, that her doctors said she could not work until she had shoulder surgery, and that her April 1999 functional capacity evaluation (FCE) indicated she could not work until after her shoulder problems were addressed and after work hardening. Claimant asserts that, despite the evidence that she could do some work around her home, that does not show that she could perform at a level that would allow her to be employed.
The parties stipulated that: (1) claimant sustained a compensable injury on ___________; (2) claimant had an impairment rating (IR) of 23%; (3) claimant did not commute any of her impairment income benefits (IIBS); (4) the filing period for the 11th quarter was from March 13, 1999, to June 11, 1999; and (5) claimant did not earn any money during the filing period and did not seek work.
Claimant testified that she injured her right shoulder, hand, left leg, right arm, and neck when she slipped at work on ___________. Claimant said she has undergone neck surgery, surgery for carpal tunnel syndrome (CTS), and surgery for an ulnar nerve condition, and that all were related to her compensable injury. Claimant testified that her hand is numb, that her arm hurts constantly, and that she has been referred for arthroscopic shoulder impingement surgery. She said she does not believe that she can work because her shoulder hurts all the time, her arm “cramps up,” and her hand is numb. Claimant testified that she has not taken classes to get her GED, that she has never done office work, and that she has always done physical labor. Claimant said she cooks, does laundry, and “straightens” her home, but that she cannot use a vacuum cleaner or lift heavy cooking pans. Claimant testified that she drove to the CCH, but that her husband usually does the driving. Claimant said that her knee and neck are better and that her ongoing problems are with her shoulder, arm, and hand. Claimant said she would have difficulty doing a job answering the telephone because, although she could answer the telephone, she would be unable to write anything down because she cannot use her dominant right hand.
In a January 15, 1999, letter, Dr. B (Dr. B), claimant’s treating doctor, stated that claimant is a poor candidate for return to work. In a January 28, 1999, functional capacity evaluation (FCE) report, Mr. N (Mr. N) R.M.T., stated:
[Claimant] demonstrated modified sedentary work capabilities and should be limited to upper extremity use on an occasional basis only. . . . The Ergos Work Simulator indicates that [claimant] is capable of working an 8 hour [day]. However, this time has been adjusted by the evaluator as the client’s work tolerance is not adequate for entry level work, and she demonstrated decreased . . . strength. . . .
Under “recommendations,” the report stated that claimant should participate in work hardening and also said:
Reason For Recommendation. [Claimant] did not demonstrate physical capabilities required of her previous job of kitchen helper . . . .
Expected Outcome of Recommendation. With participation in work hardening, [claimant] will be given the opportunity to improve her strength and body mechanics which may allow for an eventual return to work.
The FCE report also said claimant walks 1/4 mile approximately three times per week. In a March 5, 1999, report, Dr. D (Dr. D), who treated claimant, stated that claimant has ongoing right scapular pain, that it is aggravated with any physical activity, that claimant is “totally disabled from any type of gainful employment because of the symptomology still present,” and that the “inability to return to gainful employment . . . is based on the fact that utilization of her right arm in any manner at all is reported to cause parestheias and neurological symptoms. In addition, . . .she appears [to have] a possible C4 radiculopathy . . . .” In a March 12, 1999, report, Dr. H (Dr. H) stated that claimant describes her shoulder pain as “moderate” in severity and that his impression is stage II impingement syndrome. In an April 1999 report, Dr. B stated that claimant is still having a great deal of pain, that she has declined work hardening due to her shoulder pain, and that he will “hold her off” work at this time. In a June 1999 report, Dr. D stated that claimant’s January1999 FCE mentioned sedentary work, that claimant remains totally disabled specifically referable to her right shoulder symptoms, and that she cannot return to even sedentary work until her right shoulder has been “worked up” and treated. Dr. D said claimant should not undergo work hardening until after the work up and treatment is completed.
The criteria for entitlement to SIBS are set forth in Sections 408.142(a) and 408.143. The law regarding SIBS, good faith, and an assertion that there was no ability to work at all during the filing period is discussed in Texas Workers’ Compensation Commission Appeal No. 94150, decided March 22, 1994; Texas Workers’ Compensation Commission Appeal No. 941382, decided November 28, 1994; Texas Workers’ Compensation Commission Appeal No. 950173, decided March 17, 1995; Texas Workers’ Compensation Commission Appeal No. 941334, decided November 18, 1994; Texas Workers’ Compensation Commission Appeal No. 950582, decided May 25, 1995; and Texas Workers’ Compensation Commission Appeal No. 941439, decided December 9, 1994. The Appeals Panel’s standard of review in this case is discussed in Section 410.165(a); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); and Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995.
We first note that the “new SIBS rules” apply to this case. See Texas Workers’ Compensation Commission Appeal No. 991634, decided September 14, 1999. The claimant bases her entitlement to SIBS for the 11th compensable quarter on the basis of no ability to work. Rule 130.102(d)(3) provides that a good faith effort has been made if the employee:
has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.
Claimant had the burden to prove that she had no ability to work. Appeal No. 950582, supra. The hearing officer was the sole judge of the credibility of the medical evidence and he judged the medical evidence regarding whether claimant had an ability to work during the filing period. The hearing officer specifically found that claimant had some ability to do limited work, noting her ability to do work around the house. There was evidence from claimant’s treating doctor that she was disabled from any type of gainful employment. However, the hearing officer was the sole judge of the credibility of this evidence. The claimant testified regarding her ability to do some work around the house. The hearing officer could interpret the January 1999 FCE report as stating that claimant could do modified sedentary work, that she could not work eight hours per day, and that she cannot return to her former employment without work hardening. The hearing officer made his determinations regarding claimant’s ability to work based on the evidence before him. Because the hearing officer’s determinations in this regard are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, we will not substitute our judgment for his. Cain, supra.
We affirm the hearing officer’s decision and order.
Judy Stephens – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Alan C. Ernst – Appeals Judge