SIB-Amount of Weekly Earnings Archives

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 April 19, 2004. The hearing officer determined that: (1) the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the seventh quarter; (2) the claimant’s weekly earnings during the seventh quarter qualifying period cannot be determined; and (3) the claimant has permanently lost entitlement to SIBs pursuant to Section 408.146(c), because he was not entitled to SIBs for a period of four consecutive quarters. The claimant appeals these determinations on sufficiency of the evidence grounds. The respondent (carrier) urges affirmance.

DECISION

Affirmed.

SEVENTH QUARTER SIBS

The hearing officer did not err in determining that the claimant is not entitled to seventh quarter SIBs. Section 408.142 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) establish the requirements for entitlement to SIBs. At issue was whether the claimant made a good faith job search commensurate with his ability to work and whether the claimant earned less than 80% of his average weekly wage (AWW) as a direct result of the impairment from the compensable injury. It was for the hearing officer, as the trier of fact, to resolve the conflicts and inconsistencies in the evidence, and to determine what facts had been established. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). While the hearing officer found that the claimant made an appropriate job search each week of the qualifying period, the hearing officer essentially determined that the evidence failed to establish that the claimant earned less than 80% of his AWW as a direct result of the impairment from the compensable injury. In view of the evidence presented, we cannot conclude that the hearing officer’s determination is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

PERMANENT LOSS OF ENTITLEMENT

The evidence shows that the claimant was determined not entitled to fourth quarter SIBs and that determination was affirmed in Texas Workers’ Compensation Commission Appeal No. 031466, decided July 23, 2003. The claimant submitted an Application for [SIBs] (TWCC-52) for the fifth quarter on May 19, 2003. The carrier issued a determination of nonentitlement, pursuant to Rule 130.104(a), and requested a benefit review conference on May 22, 2003. The record reflects that the claimant elected not to pursue the matter further to a CCH. With regard to the sixth quarter, the claimant was determined not entitled to SIBs and that determination was affirmed in Texas Workers’ Compensation Commission Appeal No. 033238, decided February 5, 2004. The hearing officer considered the evidence and stated:

It therefore cannot be said that the claimant did not pursue fifth quarter benefits; the best that can be said is that he did not pursue a dispute of the carrier’s determination of non-entitlement. It might also be noted that the application for the fifth quarter as submitted here does not, on its face, show entitlement, as it contains job search documentation (indicating a concession of some ability to work) but no documentation of such searches for every week of the [fifth] quarter qualifying period.

The hearing officer found that the claimant was not entitled to four consecutive quarters of SIBs, including the fourth, fifth, sixth, and seventh quarters, and permanently lost entitlement to SIBs.

The hearing officer did not err in determining that the claimant has permanently lost entitlement to SIBs. Section 408.146(c) provides that an employee who is not entitled to SIBs for 12 consecutive months ceases to be entitled to any additional income benefits for the compensable injury. Rule 130.106(a) similarly provides than an injured employee who is not entitled to SIBs for a period of four consecutive quarters permanently loses entitlement to such benefits. The evidence is clear that the claimant was not entitled to fourth and sixth quarter SIBs. Additionally, under the facts of this case, the carrier’s determination of nonentitlement to fifth quarter SIBs is sufficient to establish nonentitlement for that quarter for purposes of Section 408.146(c) and Rule 130.106(a). Compare Texas Workers’ Compensation Commission Appeal No. 981429, decided July 30, 1998 and cases cited therein (deciding that the claimant did not permanently lose entitlement to SIBs where he applied and was denied benefits for only two of the four quarters at issue). In view of the evidence and our decision above, we affirm the hearing officer’s determination that the claimant has permanently lost entitlement to SIBs. Cain, supra.

OTHER MATTERS

The claimant contends that the hearing officer spent 15 minutes alone in the hearing room with the carrier’s attorney prior to convening the CCH and that he otherwise demonstrated bias in reaching his decision in this case. In its response, the carrier states:

I sat in the hearing room, by myself, until the claimant, the ombudsman and the hearing officer came into the hearing room and the hearing began. Therefore, the hearing officer and I did not sit in the hearing room for 15 minutes by ourselves and we had no conversation during that time.

We note that the claimant did not raise an objection concerning the alleged ex parte communication at the hearing. Additionally, we find no support in the record for the claimant’s contention that the hearing officer was motivated by or in any way demonstrated bias in favor of the carrier. Accordingly, we find no basis to reverse the hearing officer’s decision.

The decision and order of the hearing officer is affirmed.

The true corporate name of the insurance carrier is FEDERATED MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RUSS LARSEN

860 AIRPORT FREEWAY WEST, SUITE 500

HURST, TEXAS 75054-3286.

Edward Vilano

CONCUR:

Elaine M. Chaney
Appeals Judge

Veronica L. Ruberto
Appeals Judge

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 October 23, 2003. The hearing officer determined that the appellant (claimant) is entitled to supplemental income benefits (SIBs) for the fourth quarter from July 12 through October 10, 2003, and that the claimant’s average weekly earnings to be used to determine the monthly SIBs rate for the fourth quarter is $157.65. The appellant (carrier) appealed, arguing that the hearing officer’s determinations are against the great weight and preponderance of the evidence. The appeal file does not contain a response from the claimant.

DECISION

Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.

Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) set out the statutory and administrative rule requirements for SIBs. At issue in this case was whether the claimant’s underemployment was a direct result of his impairment and whether the claimant returned to work in a job relatively equal to his ability to work such that he satisfied the good faith requirement pursuant to Rule 130.102(d)(1). It is undisputed that the claimant sustained a compensable injury on _____________; that the claimant reached maximum medical improvement with an impairment rating of 15% or greater; and that the qualifying period for the fourth quarter was from March 30 through June 28, 2003.

Regarding the "direct result" criterion, the Appeals Panel has consistently stated that an injured employee need not establish that the impairment is the only cause of the unemployment or underemployment but only that it is a cause, and that the direct result requirement is "sufficiently supported by evidence that an injured employee sustained a serious injury with lasting effects and could not reasonably perform the type of work being done at the time of the injury." Texas Workers' Compensation Commission Appeal No. 960028, decided February 15, 1996. In the instant case, the hearing officer was persuaded by the claimant’s testimony and his medical documentation that the claimant had a serious injury with lasting effects and that the impairment from his compensable injury prevented him from returning to his prior job. We find no error in the hearing officer’s finding that the claimant’s underemployment during the qualifying period was a direct result of his impairment from the compensable injury.

Regarding the “good faith” criterion, Rule 130.102(d)(1) provides that an injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee has returned to work in a position which is relatively equal to the injured employee’s ability to work. The Appeals Panel has held that whether a claimant satisfied the good faith requirement for SIBs entitlement is a factual question for the hearing officer to resolve. Texas Workers' Compensation Commission Appeal No. 94150, decided March 22, 1994. It is undisputed that during the qualifying period in dispute the claimant was released to sedentary work with restrictions. The hearing officer determined that the claimant was unable to return to his prior employment as an aircraft mechanic, and that the claimant returned to work in a position that was relatively equal to the claimant’s ability to work as a cab driver. We conclude that the hearing officer’s decision is supported by sufficient evidence and that it is not 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).

The carrier contends that the hearing officer erred in determining the claimant’s average weekly wage. The carrier argues that the claimant under-reported his wages; specifically that the claimant did not report tips he received as a cab driver. The amount of those wages earned during the qualifying period in dispute presented a question of fact for the hearing officer to decide. Clearly, the evidence, both testimonial and documentary, is subject to varying inferences and conclusions about its credibility and another hearing officer may have found that the claimant's evidence was not persuasive on the amount of his wages. Section 410.165(a), however, provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Nothing in our review of the record indicates that the hearing officer’s determination on this issue is so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. Accordingly, no sound basis exists for us to disturb that determination on appeal. Cain, supra.

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Gary L. Kilgore
Appeals Judge

CONCUR:

Judy L. S. Barnes
Appeals Judge

Thomas A. Knapp
Appeals Judge

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 August 20, 2003. The hearing officer determined that the appellant (claimant) is not entitled to supplemental income benefits (SIBs) for the ninth compensable quarter; that the claimant’s weekly earnings to be used to determine the SIBs rate for the qualifying period corresponding to the ninth quarter cannot be determined; and that the SIBs rate for the ninth quarter cannot be determined. The claimant appeals these determinations. The respondent (carrier) urges affirmance of the hearing officer’s decision.

DECISION

Affirmed.

Section 408.142 provides that an employee continues to be entitled to SIBs after the first compensable quarter if the employee: (1) has not returned to work or has earned less than 80% of the employee's average weekly wage as a direct result of the impairment; and (2) has in good faith sought employment commensurate with her ability to work. Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE §130.102(d)(1) (Rule 130.102(d)(1)), applicable in this case, provides that an injured employee has made a good faith effort to obtain employment commensurate with the employee's ability to work if the employee has returned to work in a position which is relatively equal to the injured employee's ability to work. Whether the claimant satisfied the good faith requirement for SIBs entitlement was a question of fact for the hearing officer to resolve. Section 410.165(a) provides that the contested case 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. The hearing officer noted that the claimant was not forthcoming about matters essential to determining the issues in question and issued a decision adverse to the claimant. Nothing in our review of the record indicates that the hearing officer’s decision 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).

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Chris Cowan
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge

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 April 29, 2003. The hearing officer determined that the respondent/cross-appellant (claimant) is entitled to supplemental income benefits (SIBs) for the 12th quarter, and that his weekly earnings to be used in calculating SIBs are $77.09 for the 12th quarter. The appellant/cross-respondent (carrier) appealed, asserting that the claimant failed to establish his gross earnings; that the hearing officer erred in his determination regarding the claimant’s operating expenses; that the claimant failed to document self-employment efforts during each week of the qualifying period; and that the claimant failed to establish direct result. The claimant filed a response to the carrier’s appeal urging affirmance, subject to his cross-appeal. The claimant cross-appealed the hearing officer’s determination that his weekly earnings for purposes of calculating SIBs for the 12th quarter was $77.09. The claimant asserts his weekly earnings should be $0.00. The file does not contain a response from the carrier.

DECISION

Affirmed.

Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) set out the statutory and administrative rule requirements for SIBs. At issue in this case is whether the claimant is entitled to SIBs for the 12th quarter and what his weekly earnings were during the qualifying period for the 12th quarter.

The parties stipulated that the claimant sustained a compensable injury on ______________, with an impairment rating of 32%, and that he did not commute any of his impairment income benefits. They further stipulated that the qualifying period for the 12th quarter was from August 15 through November 13, 2002; that the quarter ran from November 27, 2002 to February 25, 2003; and that the carrier has used $413.50 as the claimant’s preinjury average weekly wage (AWW) to compute his benefits. The claimant testified that he was self-employed during the qualifying period running a photography business. It is apparent that he was seeking to show that he was entitled to SIBs based on returning to work (self-employment) in a position relatively equal with his ability to work in accordance with Rule 130.102(d)(1).

The carrier contended that the claimant’s underemployment was not a direct result of his impairment, but rather due to his lack of effort and circumstances unrelated to his compensable injury. The claimant testified that his preinjury job required lifting and setting up equipment, as well as driving substantial distances. Medical records in evidence state that the claimant may be able to work on a restricted basis. The claimant testified that he would not be able to perform his preinjury job due to the extensive driving and lifting it required. The Appeals Panel has long held that the direct result requirement may be met by showing a serious injury with long-lasting effects, which precludes a return to the preinjury employment. Texas Workers’ Compensation Commission Appeal No. 011443, decided August 1, 2001. The hearing officer found that the claimant has returned to work earning less than 80% of his AWW as a direct result of his impairment. The hearing officer’s determination on this point is supported by sufficient evidence.

The hearing officer also found that the claimant made a good faith effort to obtain and retain employment commensurate with his ability to work during the qualifying period for the 12th quarter, and that he was self-employed during each and every week of the qualifying period. In this regard, Rule 130.102(d)(1) provides that a good faith effort has been made if the employee "has returned to work in a position which is relatively equal to the injured employee's ability to work." A carrier is not expected to subsidize a business venture and it cannot be used as a subterfuge for a good faith effort to obtain employment. Texas Workers' Compensation Commission Appeal No. 980548, decided May 1, 1998. However, whether a good faith effort is shown is basically a question of fact for the hearing officer, and cases tend to become very fact-specific in self-employment situations. Texas Workers' Compensation Commission Appeal No. 982820, decided January 11, 1999. The hearing officer apparently found the claimant's testimony credible regarding his endeavors to establish and maintain a successful business; that his efforts were commensurate with his ability to work; and that he met the requirements for SIBs with his self-employment efforts. Nothing in our review of the record reveals that the hearing officer’s good faith determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust; thus, no sound basis exists for us to disturb the challenged factual determination. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

The carrier points to Texas Workers’ Compensation Commission Appeal No. 002863, decided January 25, 2001, to support its position that self-employment must be documented each week of the qualifying period. The carrier asserts that since the claimant showed no earnings during two weeks of the qualifying period, he has failed to meet his burden. Appeal No. 002863 does not speak in terms of documenting earnings, it speaks in terms of documenting activity. The records submitted into evidence by the claimant document business expenditures during the complained-of time periods. The hearing officer found as fact that the claimant was self-employed during each and every week of the qualifying period, and that finding is supported by the evidence.

Finally, both the carrier and the claimant contend that the hearing officer erred in determining that the weekly earnings to be used to determine SIBs rate in this case were $77.09. Section 408.144(b) states that SIBs are to be calculated by "subtracting the weekly wage the employee earned during the reporting period . . . ." Rules 130.101 and 130.102 indicate that SIBs are to be calculated by adding actual and offered wages for each week of the filing period. We have said that, in calculating a self-employed claimant's wages during the filing period, legitimate business expenses may be deducted to arrive at the earnings. Texas Workers' Compensation Commission Appeal No. 990372, decided April 5, 1999. The carrier contends that some of the expenses allowed by the hearing officer were not necessary and not directly related to advancing the claimant’s business. The claimant contends that the hearing officer failed to include wages paid to his wife. It is the hearing officer who is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and who, as the trier of fact, is to resolve the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)). As an appellate-reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain, supra.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is TEXAS PROPERTY AND CASUALTY INSURANCE GUARANTEE ASSOCIATION for Reliance Insurance Company, an impaired carrier and the name and address of its registered agent for service of process is

MARVIN KELLY, EXECUTIVE DIRECTOR

9120 BURNET ROAD

AUSTIN, TEXAS 78758.

Chris Cowan

CONCUR:

Veronica L. Ruberto
Appeals Judge

Robert W. Potts
Appeals Judge

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 April 21, 2003. With respect to the issues before him, the hearing officer determined that the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the fourth quarter; and that the claimant’s weekly earnings, to be used to determine the monthly SIBs rate for the fourth quarter, are $380.09. The appellant (carrier) appeals those determinations and the claimant responds urging affirmance.

DECISION

Affirmed.

Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) set out the statutory and administrative rule requirements for SIBs. At issue in this case is whether the claimant had earned less than 80% of his average weekly wage (AWW) as a direct result of his impairment, as required by Section 408.142(a)(2) and Rule 130.102(b)(1), and whether he had attempted in good faith to obtain employment commensurate with his ability to work, as required by Section 408.142(a)(4) and Rule 130.102(b)(2).

The parties stipulated that the claimant sustained a compensable injury on ______________, with an impairment rating of 15% or greater, and that he did not commute any of his impairment income benefits. They further stipulated that the qualifying period for the fourth quarter was from October 5, 2002, through January 3, 2003; that the quarter ran from January 17 to April, 2003; and that the claimant’s preinjury AWW is $1,205.38. The claimant was self-employed during the qualifying period repairing cell phones. It is apparent that he was seeking to show that he was entitled to SIBs based on returning to work (self-employment) in a position relatively equal with his ability to work in accordance with Rule 130.102(d)(1).

The carrier contended that the claimant’s underemployment was not a direct result of his impairment, but rather his own personal choice to open his own business. The claimant testified that his preinjury job required lifting of up to forty pounds, climbing stairs and ladders, and standing for long periods of time. Medical records in evidence state that the claimant is released with sedentary restrictions. The Appeals Panel has long held that the direct result requirement may be met by showing a serious injury with long-lasting effects, which precludes a return to the preinjury employment. Texas Workers’ Compensation Commission Appeal No. 011443, decided August 1, 2001. The hearing officer found that the claimant has returned to work earning less than 80% of his AWW as a direct result of his impairment. The hearing officer’s determination on this point is supported by sufficient evidence.

The hearing officer also found that the claimant attempted, in good faith, to obtain employment commensurate with his ability to work. In this regard, Rule 130.102(d)(1) provides that a good faith effort has been made if the employee "has returned to work in a position which is relatively equal to the injured employee's ability to work." A carrier is not expected to subsidize a business venture and it cannot be used as a subterfuge for a good faith effort to obtain employment. Texas Workers' Compensation Commission Appeal No. 980548, decided May 1, 1998. However, whether a good faith effort is shown is basically a question of fact for the hearing officer, and cases tend to become very fact specific in self-employment situations. Texas Workers' Compensation Commission Appeal No. 982820, decided January 11, 1999. The hearing officer apparently found the claimant's testimony credible regarding his endeavors to establish a successful business; that his efforts were commensurate with his ability to work; and that he met the requirements for SIBs with his self-employment efforts. Nothing in our review of the record reveals that the hearing officer’s good faith determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust; thus, no sound basis exists for us to disturb the challenged factual determination. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

The carrier also argues that because the claimant worked 12 hours per day prior to the injury, the claimant should be working 12 hours per day after the injury. The hearing officer correctly noted that as long as the claimant is employed in a full-time job, he is not obligated to return to the same shift schedules as he had when he was injured.

Finally, the carrier contends that the hearing officer erred in determining that the weekly earnings to be used to determine SIBs rate in this case were $380.09. Section 408.144(b) states that SIBs are to be calculated by "subtracting the weekly wage the employee earned during the reporting period . . . ." Rules 130.101 and 130.102 indicate that SIBs are to be calculated by adding actual and offered wages for each week of the filing period. We have said that, in calculating a self-employed claimant's wages during the filing period, legitimate business expenses may be deducted to arrive at the earnings. Texas Workers' Compensation Commission Appeal No. 990372, decided April 5, 1999. The carrier contends that some of the expenses allowed by the hearing officer were not necessary and not directly related to advancing the claimant’s business. It is the hearing officer who is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and who, as the trier of fact, is to resolve the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)). As an appellate-reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain, supra.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is LUMBERMENS MUTUAL CASUALTY COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Elaine M. Chaney

CONCUR:

Chris Cowan
Appeals Judge

Thomas A. Knapp
Appeals Judge

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 February 11, 2003. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) was entitled to supplemental income benefits (SIBs) for the third quarter and that the claimant’s weekly earnings used to determine the monthly SIBs rate, for the qualifying period from July 6 through October 4, 2002, were $483.55. The appellant (carrier) appealed, arguing that the determinations of SIBs entitlement and the amount of the claimant’s weekly earnings used to determine the monthly SIBs rate were against the great weight and degree of credible evidence. The claimant responded, urging affirmance.

DECISION

Affirmed.

Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102) set out the statutory and administrative rule requirements for SIBs. At issue in this case is whether the claimant had earned less than 80% of his average weekly wage (AWW) as a direct result of his impairment, as required by Section 408.142(a)(2) and Rule 130.102(b)(1), and whether he had attempted in good faith to obtain employment commensurate with his ability to work, as required by Section 408.142(a)(4) and Rule 130.102(b)(2).

The parties stipulated that the claimant sustained a compensable injury on _____________, with an impairment rating of 15% or greater; and did not commute any of his impairment income benefits. They further stipulated that the qualifying period for the third quarter was from July 6 through October 4, 2002; that the claimant had no earnings or was underemployed during the qualifying period for the third quarter; and that the claimant’s preinjury AWW was $1,205.38. The claimant was self-employed during the qualifying period repairing cell phones. It is apparent that he was seeking to show that he was entitled to SIBs based on returning to work (self-employment) in a position relatively equal with his ability to work.

The carrier contended that the claimant’s underemployment was not a direct result of his impairment but rather his own personal choice to open his own business. The claimant testified that his preinjury job required lifting of up to forty pounds, climbing stairs and ladders, and standing for long periods of time. In evidence was a medical record, which stated that the claimant was released with permanent restrictions of no climbing ladders, and limitations of walking and stair climbing. The Appeals Panel has long held that the direct result requirement may be met by showing a serious injury with long-lasting effects, which precludes a return to the preinjury employment. Texas Workers’ Compensation Commission Appeal No. 011443, decided August 1, 2001. The hearing officer found that the claimant has returned to work earning less than 80% of his AWW as a direct result of his impairment. The hearing officer’s determination on this point is supported by sufficient evidence.

Whether a good faith effort is shown is basically a question of fact for the hearing officer, and cases tend to become very fact specific in self-employment situations. Texas Workers' Compensation Commission Appeal No. 982820, decided January 11, 1999. The hearing officer apparently found the claimant's testimony credible regarding his endeavors to establish a successful business; that his efforts were commensurate with his ability to work; and that he met the requirements for SIBs with his self-employment efforts. This was a factual determination for the hearing officer to make. Texas Workers' Compensation Commission Appeal No. 970519, decided April 30, 1997.

The carrier contends that the hearing officer erred in determining that the weekly earnings to be used to determine SIBs rate in this case were $483.55. Section 408.144(b) states that SIBs are to be calculated by "subtracting the weekly wage the employee earned during the reporting period . . . ." Rules 130.101 and 130.102 indicate that SIBs are to be calculated by adding actual and offered wages for each week of the filing period. We have said that, in calculating a self-employed claimant's wages during the filing period, business expenses may be deducted to arrive at the earnings. Texas Workers' Compensation Commission Appeal No. 990372, decided April 5, 1999. The carrier contends that some of the expenses allowed by the hearing officer were not necessary and not directly related to advancing the claimant’s business.

It is the hearing officer who is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and who, as the trier of fact, is to resolve the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)). As an appellate-reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is LUMBERMENS MUTUAL CASUALTY COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Gary L. Kilgore
Appeals Judge

Thomas A. Knapp
Appeals Judge