At a contested case hearing held in (city), Texas, on June 3, 1993, the hearing officer, (hearing officer), determined that the appellant (claimant) failed to provide his employer with timely notice of his back injury of (date of injury), as required by the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-5.01 and 5.02 (Vernon Supp. 1993) (1989 Act). Claimant maintains in his timely request for review that he provided notice of his injury to his employer, that his employer had actual knowledge of his work-related injury, and he asks that we reverse and render a decision awarding him benefits under the 1989 Act. The respondent (carrier) urges the sufficiency of the evidence and seeks our affirmance. Claimant filed a supplemental request for review which was not timely filed and which will not be considered. See Article 8308-6.41(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3 (Rule 143.3).
DECISION
The decision of the hearing officer is reversed and a new decision rendered.
Claimant testified that on (date of injury), he was working as a roustabout gang pusher for (employer), an oil field construction company owned by (Mr. WR), and that he and his crew were tearing down a tank farm which involved the lifting of piping and other equipment and items. After picking up a small pump weighing between 40 and 50 pounds, he said his back began to hurt and he thought he had pulled a muscle. He said the pain got worse as the day progressed. He said he told his two crew members including (Mr. S) at the dinner break that day that he thought he had “done something, maybe pulled a muscle,” in his back, and that when he returned from the job site to employer’s yard that evening, he told (Mr. G), the field representative or foreman, that he thought he had pulled a muscle in his back. Claimant said he told his mother and wife that evening about his back and that he went to work the next day and told employer’s owner, Mr. WR, that he thought he had hurt his back the previous day and pulled a muscle. Claimant maintained that his statements to Messrs. G and WR were notice of his injury. Claimant worked through Friday, October 16th, and saw a doctor the following day.
Claimant stated that on Monday, October 19th, he went to employer’s yard and told Mr. WR he had hurt his back and that his chiropractor wanted him off work a few days. Claimant stated that Mr. WR asked him if he had hurt his back at work to which he responded that he had. According to claimant, Mr. WR told him it would save a lot of money and help employer if he would file under the group health insurance policy, that employer would pay him the difference between the amounts of his medical bills and the amounts paid by the health insurer, and that employer would continue his salary as long as employer could do so. According to Mr. WR’s affidavit, claimant had come into his office saying his back had been bothering him and was getting worse and that when Mr. WR asked him if he knew what was wrong claimant responded that it had just been coming on for a long time. Based on this response, Mr. WR stated he assumed claimant was not stating a work-related injury, that when he had back surgery the company continued his salary and paid the medical insurance deductible amounts, and that it was not until sometime in March 1993 that claimant told Mr. WR he injured his back at work.
Claimant testified he underwent spinal disc surgery on November 12, 1992, and has not yet been released by his doctor to return to work. According to an October 29th medical report from Dr. T, claimant gave a history of lifting pipe and oil field equipment for several years, of his lower back starting to hurt on (date of injury), and that he “cannot remember specific trauma to his back” but that his pain has been getting worse since (date of injury).
Claimant said he did file a claim under his group health insurance although he suspected there might be trouble down the road, and that he was surprised the health insurer paid anything in view of the information he put on the form. Claimant introduced a health insurance form he had signed on February 4, 1993, indicating the accident was work related and involved the loading and unloading of pipe and oil field equipment. There were no other signatures on this exhibit. Claimant stated that the employer did pay the health insurance deductible amounts as well as continued his salary for some period of time after his surgery. However, on or about (date), claimant filed a claim for workers’ compensation benefits, apparently sometime after employer had stopped his salary payments. Claimant stated he had worked for employer since May 1970, had had a number of job-related injuries, was aware of the requirement of reporting injuries, and that the employer had previously continued his salary when he was off work recovering from such injuries. He said (Ms. K), employer’s secretary-treasurer, called him, told him she wanted him to advise the group health carrier that he was not hurt on the job, and said it would cost employer a lot of money should he decide to file a workers’ compensation claim. This testimony was denied by Ms. K who testified.
Claimant introduced two claims forms for the payment of credit disability insurance. These claims forms were for the apparent purpose of causing claimant’s credit disability insurance carrier to make his furniture payments while he was off work because of his back problem. The top portion of the second page of the forms (Claimant’s Statement) asked how the accident happened and claimant wrote that it happened while loading and unloading pipe and equipment. Claimant signed and dated these statements. The middle portion (Physician’s Statement) described claimant’s illness or accident as a herniated nucleus pulposus at the L4-L5 level and spondylolysis at the L5-S1 level and was signed by his doctor. At the bottom of the second pages were the employer’s statements identifying employer and stating that claimant had been away from work since October 17th. One of the applications was signed on October 29, 1992, by Ms. K, and the other on November 5, 1992, by (Mr. RR), as office manager. Claimant’s mother and wife testified, respectively, that when they took those forms to employer for signatures, the upper portions were already filled out. This testimony was not refuted and is born out by the dates claimant signed the top portions.
Mr. RR testified that he was Mr. WR’s son and had been employer’s office manager. He said that at the time of claimant’s injury he was the president of a sister corporation, since dissolved, which was apparently a corporation he said was formed to give him some corporate management experience and which wrote claimant’s checks for some period of time. The identity of claimant’s employer was not an issue, however. He testified that claimant never told him he had been injured on the job on (date of injury), and that when he talked to claimant on October 19th, claimant discussed going to a chiropractor and never mentioned having been hurt at work. He said the first time he became aware that claimant contended he hurt his back on the job was when employer’s group health carrier called asking about it on March 10, 1993.
Mr. G testified that in October 1992, claimant said he was having back problems, that he asked claimant if he had been hurt at work and that claimant never told him it was a job-related injury. Mr. G stated that claimant said it was just something that had been coming on over the years, and that the first time Mr. G became aware that claimant was maintaining he had a work-related injury was sometime in March 1993 when a member of claimant’s crew, Mr. S, advised him that claimant had come to his house seeking a statement to the effect that claimant had been hurt on the job.
Mr. S testified that he did not see claimant get hurt on (date of injury) nor did claimant tell him he had hurt his back that day. He said that claimant did complain of his back, that he had complained of it ever since he had worked with claimant, but that he did not know claimant had hurt it at the job site. He said that sometime in April 1993, claimant came to his house and asked him to sign a form that claimant had been hurt on the job but that he refused to do so because he never saw claimant get hurt. He said he figured claimant was trying to get him to lie for him.
Ms. K testified that claimant had had prior job-related injuries while employed with employer, that she had processed his claims, and that sometime around October 16th claimant had been at work and had come to the office saying he had back pain and wanted to see a chiropractor. In response to her question claimant said he did not know when, where, or how he had hurt his back so because of that response employer filed his claim with its health insurance carrier and claimant agreed with that action. She stated she was unaware of claimant’s contention he had sustained a work-related injury until employer was contacted by its health insurance carrier sometime in March 1993. As for the credit life insurance application, Ms. K recalled signing the form but could not recall whether the upper portions were completed at the time.
Claimant’s wife testified that sometime in November 1992 after claimant’s surgery, Mr. WR called claimant and she listened in on the conversation. According to claimant’s wife, Mr. WR asked claimant if he was going to sue to which claimant responded he was not but was going to file a workers’ compensation claim because employer had not paid him his check. She said that Mr. WR then responded that he had a check for claimant if he would call the insurance company and tell them he was not hurt on the job, and that he should have put the claim under workers’ compensation at the outset. Claimant’s wife further testified that Mr. WR told claimant he would pay him as long as he could. She said that to get his last check claimant had to tell the insurance company he was not hurt on the job, that he did not do so, that employer stopped paying him at that point, and that, with the bills mounting up, claimant came to the Texas Workers’ Compensation Commission (Commission) to file a claim on (date). Claimant had testified, however, that he told Mr. WR he was going to file a workers’ compensation claim because he was hurt worse than he had thought and that Mr. WR responded that he should have put it under workers’ compensation in the first place.
Under the provisions of Article 8308-5.01, an employee must “notify the employer” of an injury not later than the 30th day after the date on which the injury occurs. An employee’s failure to so notify relieves the employer or its carrier from liability unless (1) the employer or its representative has actual knowledge of the injury, (2) good cause exists for the failure to notify, or (3) the employer or its carrier does not contest the claim. Article 8308-5.02. The burden is on the claimant to establish the existence of notice of injury. Miller v. Travelers Insurance Company, 390 S.W.2d 284 (Tex. Civ. App.-El Paso 1965, no writ). The purpose of the notice provision is to give the insurer an opportunity to immediately investigate the facts surrounding an injury. To fulfill the purposes of the statutory notice requirements, the employer needs only to know the general nature of the injury and the fact that it is job related since more details will be supplied by the claim. DeAnda v. Home Insurance Co., 618 S.W. 2d 529 (Tex. 1980). In Texas Employers’ Insurance Association v. Mathes, 771 S.W.2d 225 (Tex. Civ. App. El Paso 1989, writ dism’d), the employer had ample notice of the employee’s back condition and treatment but there was no notice within the required 30 days that the condition was work related. Where, as here, the employee testifies that he notified certain of employer’s supervisory or management personnel of the injury (Article 8308-5.01(c)), but those personnel provide evidence to the contrary, a question of fact then exists for the trier of fact to determine. St. Paul Fire and Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.).
The hearing officer’s findings indicate he credited the testimony of Mr. S, Mr. G, and Ms. K over that of claimant. The hearing officer is the sole judge not only of the relevancy and materiality of the evidence but also of its weight and credibility. Article 8308-6.34(e). As the trier of fact, the hearing officer resolves conflicts and inconsistencies in the evidence. Garza v. Commercial Insurance Co. of Newark, N.J. , 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ.) The hearing officer is privileged to believe all or part or none of the testimony of any one witness. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). The hearing officer is not bound to accept the testimony of the claimant at face value. Garza, supra. As an interested party, the claimant’s testimony only raises an issue of fact for determination by the trier of fact. Escamilla v. Liberty Mutual Insurance Company, 499 S.W.2d 758 (Tex. Civ. App.-Amarillo 1973, no writ.) Thus, with respect to the claimant’ contention that he provided oral notice of injury, the hearing officer’s determination to the contrary is supported by the evidence.
Respecting the two disability credit insurance claims forms submitted by claimant to his employer for signature on October 29 and November 6, 1992, however, the hearing officer in Finding of Fact No. 8 found that while employer’s supervisory personnel did sign the forms, which contained the statement that the accident happened while loading and unloading pipe, claimant “did not prove that the supervisors had knowledge of or noticed the statement.” We believe this portion of that finding to be in error and view these documents as having timely provided notice of injury. These documents, both provided to employer within 30 days of claimant’s injury date, would not only be factually sufficient to support a finding of notice but, in our view, conclusively establish timely notice of claimant’s injury as a matter of law. Claimant’s duties working for employer, an oil field construction company, involved, as the evidence showed, the lifting of pipe and equipment, and claimant had done such on the date of his injury. These forms clearly stated that is how the accident happened and employer’s supervisory or management personnel signed and dated the forms within 30 days of claimant’s date of injury. The testimony that the claimant’s and doctor’s portions of the forms were filled out when taken to employer’s management or supervisory personnel for signature was unrefuted. The carrier has cited us to no authority for the proposition that claimant had to prove that Ms. K and Mr. RR read or noted the contents of the forms before employer could be said to have been provided with notice.
The decision of the hearing officer is reversed and a new decision is rendered that claimant provided employer with timely notice of his injury.
Philip F. O’Neill – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Gary L. Kilgore – Appeals Judge