This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8303-1.10 et seq. (Vernon Supp. 1993) (1989 Act). A contested case hearing was held in (city), Texas, on April 4, 1993, (hearing officer) presiding. The hearing officer found that the claimant was injured in the course and scope of his employment and that the claimant had good cause for failing to timely report his injury to the employer.
The appellant (carrier herein) appeals asserting that the hearing officer’s findings were not supported by the evidence in that there was no evidence, insufficient evidence, or not substantial evidence to support them. The carrier also contends that the findings of the hearing officer were arbitrary and capricious constituting an abuse of discretion. The respondent (claimant herein) files a response arguing that the findings of the hearing officer were supported by the evidence.
DECISION
Finding no reversible error in the record, and sufficient evidence to support the decision of the hearing officer, we affirm.
The claimant worked for a trucking company (employer) as a driver. His wife was often his relief driver. In January and February of 1992, the claimant and his wife made several hauls between (city), Texas, and RM, transporting air conditioners. During one of these trips, according to the testimony of the claimant, he was unhooking the tractor trailer from his truck when he slipped on ice and fell backwards. The claimant testified that he did not actually fall to the ground as he caught himself with his hands and rolled sideways. His wife did not see him fall, but came back where he had fallen and asked him if he was hurt and he told her that he did not think so. The claimant did not report the fall to his dispatcher, who was his supervisor, but did mention it to CH, the warehouse supervisor in RM, from whom an affidavit to that effect was admitted into evidence at the hearing.
The claimant testified that after his fall, but not immediately after, he developed pain in his right hip. He did not relate this pain to his fall, but attributed it to too much driving. The claimant stated that on the morning of April 22, 1992, he woke up and since he could not move his leg, he went to a local emergency room. The claimant testified that he did not mention either his earlier fall or his persistent hip pain to the emergency room doctor because he was not aware that either of these related to his leg pain. The narrative report from the emergency has a notation stating, “[p]ain [right] hip down leg–unable to work, [n]o known injury, [h]urting x 3 days.” The emergency room diagnosis was “lumbar strain–sciatica,” and the claimant was given a shot and other medications. Claimant also called his dispatcher and reported the physical problems he was having, but did not report it as a work related injury. He was given group insurance information by his dispatcher.
The next day, the claimant went to see (Dr. S), a chiropractor, who treated him until May 2nd, and then, because he was not improving, told him to go and see his regular doctor. A patient information record dated April 23, 1992, from Dr. S’s office was admitted into evidence by the carrier. This record which is signed by the claimant, but according to the claimant’s testimony which was filled out by his wife, indicates under methods of payment both health insurance and workers’ compensation.
On May 5, 1992, the claimant testified that he saw his family doctor of many years, (Dr. E), who ordered a CT scan which was performed on May 7, 1992. The CT scan indicated that the claimant had a herniated disc. The claimant further testified that on May 8, 1992, he spoke to Dr. E concerning the cause of his disc problem and Dr. E reached the conclusion that the fall in Romulus was the cause of the claimant’s herniated disc. Reports from Dr. E were admitted into evidence stating this opinion. The claimant testified that this was the first time he realized that the fall in Romulus had injured him, and on May 8, 1993, he reported the Romulus accident to his employer as an on the job injury. The carrier submitted medical records from Dr. E showing that Dr. E saw the claimant on May 5, 1992, and May 15, 1992, but not showing a May 8, 1992, visit. Also, the claimant stated under cross-examination that he could not be sure about dates.
The claimant underwent an MRI on May 18, 1992, which confirmed the diagnosis of herniated disc. The claimant testified that he has been on an off work status at the direction of his doctors since April 22, 1992.
The carrier contends that there is no evidence to support the findings of the hearing officer that the claimant was hurt in the course and scope of his employment and that he had good cause not to give notice of his injury to the employer in a timely manner. Regarding a no evidence point, a reviewing body should consider only the evidence and reasonable inferences therefrom which support the finder of fact, and reject all evidence and inferences to the contrary. Texas Workers’ Compensation Commission Appeal No. 91002, decided August 7, 1991; See INA of Texas v. Howeth, 755 S.W.2d 534, 537 (Tex. App.-Houston [1st Dist.] 1988, no writ). In determining a no evidence point, we have held that we should uphold the finding if any evidence of probative force supports it. Texas Workers’ Compensation Commission Appeal No. 92640, decided January 14, 1993. In the present case we find that the testimony of the claimant is some evidence of probative force supporting the findings of the hearing officer. See Texas Workers’ Compensation Commission Appeal No. 92107, decided May 4, 1992; Texas Workers’ Compensation Commission Appeal No. 93181, decided April 19, 1993.
The carrier argues that even if there was some evidence to support the findings of the hearing officer, his findings as to injury and good cause are not supported by sufficient evidence. Article 8308-6.34(e) (1989 Act) 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 the weight and credibility that is to be given the evidence. It is well established that the finder of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W. 2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). It was for the hearing officer, as the 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). An appeals level body is not a fact finder, and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629,635 (Tex. 1986).
In the present case the hearing officer may have based his finding that claimant suffered an injury in the course and scope of employment on the testimony of the claimant alone. See Texas Workers’ Compensation Commission Appeal No. 92430, decided October 5, 1992; Gee v. Liberty Mutual Insurance Co., 765 S.W.2d 394 (Tex. 1989). Further, it has been held that testimony that a claimant believed an injury was trivial and not disabling was sufficient to show good cause for failure to give the employer notice of injury within the 30-day period. Aetna Casualty & Surety v. Brown, 463 S.W.2d 473 (Tex. Civ. App.-Fort Worth 1971, writ ref’d n.r.e.); Texas Workers’ Compensation Appeals Panel No. 91030, decided October 30, 1991.
We recognize the doctrine that while the belief that an injury is trivial can constitute good cause for failure to give notice, the good cause must continue up to the date that notice is eventually given. Farmland Mutual Insurance Co. v, Alvarez, 803 S.W.2d 841 (Tex. App.-Corpus Christi 1991, no writ). The carrier argues that in the present case the claimant knew his injury was not trivial once he went to the emergency room on April 22, 1992, for treatment. Certainly, on this date the claimant knew he was having serious symptoms, and consequently informed his employer of these symptoms. There is evidence in the record from the claimant’s own testimony and the medical records to support, as well as evidence to contradict, claimant’s contention that he did not realize that the symptoms he was suffering were related to his fall in Romulus, Michigan, until May 8, 1992. Sorting out these contradictions is the province of the fact finder, and declining to substitute our judgment for his, we find sufficient evidence to support the challenged findings.
Finally, to address the assertion of the carrier that the findings of the hearing officer of injury and good cause are arbitrary and capricious in that they are not supported by substantial evidence, we observe that we do not apply the “arbitrary and capricious” standard set out in the Administrative Procedure and Texas Register Act, TEX. REV. CIV. STAT. ANN. art. 6252-13a, § 19(e) (APTRA), to a decision in a contested case hearing inasmuch as Section 19(e) of APTRA does not apply to contested case hearings or to judicial review of a final decision of the Appeals Panel regarding compensability or eligibility for benefits. Articles 8308-6.01, 8308-6.32, 8308-6.62. See also Texas Workers’ Compensation Commission Appeal No. 92156, decided June 1, 1992; Texas Workers’ Compensation Commission Appeal No. 92435, decided October 5, 1992. Consequently, the hearing officer’s decision is not subject to scrutiny under the “arbitrary and capricious” or “abuse of discretion” standards set forth in APTRA § 19(e).
The decision of the hearing officer is affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge