Texas Workers’ Compensation

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APD 001786
September 13, 2000

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 July 13, 2000. The hearing officer determined that the respondent was entitled to supplemental income benefits (SIBs) for the sixth quarter. The appellant (carrier) appeals this determination, contending that it is against the great weight and preponderance of the evidence. The appeals file does not contain a response from the claimant.

DECISION

Affirmed.

The claimant sustained a compensable neck and right arm injury on _________. She reached maximum medical improvement on March 10, 1998, and was assigned a 16% impairment rating. Sections 408.142 and 408.143 provide 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 (AWW) as a direct result of the impairment and (2) has in good faith sought employment commensurate with his or her ability to work. Pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(b) (Rule 130.102(b)), the quarterly entitlement to SIBs depends on whether the employee meets the criteria during the qualifying period. The sixth SIBs quarter was from May 10 to August 8, 2000, and the qualifying period was from January 26 to April 26, 2000. The claimant has the burden of proving entitlement to SIBs for any quarter claimed.

At some point, the claimant returned to her prior employment working light duty until she left on maternity leave. She then returned to work and voluntarily quit on July 29, 1998. She then obtained employment with another employer and quit that job around October 1999. She had another baby on February 14, 2000, some three weeks into the qualifying period. The claimant did not work during the qualifying period, but admitted to selling some Mary Kay products to friends at or near cost and from which activities she said she made no money.

Rule 130.102(e) provides that an injured employee must look for and document a search for employment commensurate with the ability to work every week of the qualifying period. There follows a nonexclusive list of factors to be considered by the hearing officer in determining whether the good faith effort was made. The claimant completed an Application for SIBs (TWCC-52) in which she listed some 30 employment contacts which covered each week of the filing period. Some were apparently repeat contacts. Others did not list addresses or phone numbers. There were dates scratched out and replaced on some entries and one in particular listed only a “Hotel Amarillo” on February 12, 2000, two days before the delivery of her last child, for a cleaning job. This entry becomes important because it is necessary to establish documentation of a job search every week of the qualifying period. See Texas Workers’ Compensation Commission Appeal No. 992321, decided November 22, 1999. Another entry included a contact with Census 2000 for a job on February 18, 2000, and other evidence that this contact did not occur until March. This date also became important in order to maintain a weekly documented job search. Attached to the TWCC-52 were numerous job applications, at least one of which bore the wrong date (because the application listed the claimant’s youngest child even though according to the date on the application it was filled out before the child was born. The claimant further testified that she looked in the (city 1), Texas, newspaper for jobs and made inquiries of friends of relatives. She testified to prior experience as a cook, waitress, and cleaning person. The jobs she sought generally fell into these categories.

The hearing officer found that the claimant established that she made the required good faith job search. In a lengthy appeal of this determination, the carrier argued essentially that the claimant “did not conduct the necessary one job search per week; she did not document her job searches; the dates in her applications are inaccurate.” In response, we believe it necessary to point out that a job search activity is not necessarily limited only to the completion of a job application or visit to a potential employer. Other activities to prepare oneself to find a job, if documented, may be considered part of the job search. In this case, the entries on the TWCC-52 raised questions of credibility, particularly as regards to the date of the job search and duplication of some entries. The latter point may be of somewhat less significance when considered in terms of potential employers with high employee turnover rates and the need sometimes to return to a potential employer to inquire about the status of a job application. With regard to the dates listed on the TWCC-52, the carrier asserts that the claimant admitted many of these were wrong. Her testimony was that it was “possible” or “probable” a specific date was wrong. The hearing officer could choose to consider this testimony vague and not more persuasive than the actual entries on the TWCC-52. The carrier also complained that locations and correct identities of employers were often not given even though phone numbers usually were and, in particular, that the “Hotel Amarillo” entry gave no ability to confirm the contact. The fact that a job contact cannot be confirmed (either because the employer has no record of the contact or because not enough information was given) does not require a finding that no contact was made. The hearing officer obviously believed the claimant when she said this contact was made. In saying this, we recognize the need for sufficient information to be communicated to the carrier so that an informed review of the TWCC-52 and decision to award or deny SIBs can be made. We are unwilling to conclude that the lack of detailed information on a few of the job search entries on the TWCC-52 so compromised the carrier’s ability to generally verify the information and reach a decision on this quarter of SIBs as to render the entire TWCC-52 invalid or somehow deny the carrier “due process.”

Ultimately, whether the claimant made the required good faith job search was a question of fact for the hearing officer to decide. Section 410.165(a) provides that the hearing officer is the sole judge of the weight and credibility of the evidence. We will reverse a factual determination of a hearing officer only if that determination 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); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we decline to substitute our opinion of the credibility of the evidence for that of the hearing officer.

The carrier appeals the direct result finding essentially on three bases: that the claimant had returned to work after the compensable injury and voluntarily quit on two occasions; that the birth of her child was the overriding cause of her unemployment during the qualifying period; and that the claimant’s failure to report her “Mary Kay” income made it impossible to determined whether the claimant met the threshold SIBs requirement of earning less that 80% of her AWW. With regard to the first two matters, we point out that the claimant need not prove that the impairment is the only cause of the unemployment. See Texas Workers’ Compensation Commission Appeal No. 961981, decided November 18, 1996. With regard to the last matter, we in no way sanction the claimant’s failure to present evidence at the CCH or to cooperate in discovery. She testified that she made no money from her “Mary Kay” activities. The hearing officer could and did believe this. Under our standard of review, we decline to reverse the direct result finding.

For the foregoing reasons, we affirm the decision and order of the hearing officer.

Alan C. Ernst
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge

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At a Glance:

Title:

APD 001786

Decision Type:

Appeals Panel Decision

Date:

September 13, 2000

Status:

Not Marked Significant

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