This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 1.01 through 11.10 (Vernon Supp. 1993). On May 21, 1993, a contested case hearing with (hearing officer) presiding, was held in (city), Texas; the record was left open until June 7, 1993, to allow carrier to present evidence as to disability. She determined that respondent (claimant) was injured in the course and scope of employment on (date of injury), and has had disability since December 14, 1992. Appellant (carrier) asserts that the hearing officer’s findings of fact and conclusions of law that address injury and disability are in error because medical records were admitted without having been exchanged in compliance with Tex W. C. Comm’n, 28 TEX. ADMIN. CODE § 142.13 (Rule 142.13) and without good cause for a late exchange. Claimant replied that he sent the documents in question to the carrier’s lawyer as soon as he got them.
DECISION
We affirm.
At the hearing the issues were stated to be: (1) whether claimant was injured in the course of employment on (date of injury), and (2) whether claimant has disability as a result thereof.
Article 8308-6.42(c) of the 1989 Act states that the Appeals Panel “shall determine each issue on which review was requested.”
The Appeals Panel determines:
That the finding of good cause for the late exchange of a doctor’s report, dated March 5, 1993, was not arbitrary and was a reasonable exercise of the discretionary power of the hearing officer.
That the findings of fact and conclusions of law that support the decision that a compensable injury occurred on (date of injury), and that claimant has had disability thereafter are not against the great weight and preponderance of the evidence.
Claimant worked for (employer) as a carpenter’s helper. He testified that at the time of the alleged injury on (date of injury), he had worked formally for the employer since October, 1992, but had worked for cash for several weeks prior to that time. On (date of injury), claimant testified that he hurt his back lifting a four inch by four inch timber. He stated that he was helping to remove old timbers for replacement. The timbers sat on a concrete pad but were held in place by bolts at the bottom and top of the upright timbers. These bolts at the bottom of the timber were described as going into a metal plate that was also bolted to the concrete pad. Claimant said that the timber in question was swollen because of wetness and was stuck even when the bolts were removed. Claimant stood and grasped the upright timber with both arms and “pulled it out-forced it out;” he said he felt pain in his back when he did this. Claimant agreed he did not tell several other nearby workers of the pain. A diagram claimant drew of how the accident happened (Claimant Exhibit 3) shows that it happened at 3:00 pm on (date of injury). The great weight of the evidence at the hearing was that November 25th was the day before Thanksgiving, and work stopped at noon that day.
The carrier presented evidence through (DR) who worked at the site where claimant asserts he was injured. DR testified that to remove four by fours their tops were usually cut off leaving a timber of six feet, eight feet, or some length less than the ten feet or so of the original timbers. He added that after bolts at the bottom are removed, the cut off timber is simply bent down to approximately a 45 degree angle to break the tension within the metal plate and is then slipped out. These timbers do not weigh 100 pounds; their weight would vary with length and other characteristics. He said that claimant on the Monday after Thanksgiving told him that his back was hurting but said nothing about the work as causing it. He said that claimant did not choose to go tell his supervisor but kept working.
(Mr. C), claimant’s supervisor, testified that claimant told him on December 14, 1992, that he had hurt his back on the job. Mr. C said that this was the next work day after Mr. C had denied claimant his request for a pay raise.
The carrier asserts error in the findings and conclusions that support the decision as to compensability and disability on the ground that the hearing officer erred in allowing documentary evidence that had not been timely exchanged. (The record indicates that the document in question is a two page letter from (Dr. G) to Texas Worker’s Compensation Fund, dated March 5, 1993). While carrier asserts that the hearing officer assumed that since the document was addressed to the carrier, it must have been exchanged, the record shows that the hearing officer found good cause for late exchange based on claimant’s attorney’s statement that he exchanged the documents as soon as he received them; he also represented that he had not asked for this specific document -it was “just sent to us”, acknowledging that he had an ongoing request for doctor’s reports in this case. In addition, the hearing officer commented that there was a strong indication that the records, because they were addressed to the carrier, had been sent from the medical personnel directly to the carrier. The hearing officer then stated that she would hold the record open to allow carrier time to submit evidence contrary to that found in the document.
Texas Workers’ Compensation Commission Appeals No. 91009, decided September 4, 1991, and No. 91117, decided February 3, 1992, have upheld hearing officer’s determinations of good cause for late exchange of documents, and their admission in evidence, when the hearing officer found that the party exchanged the document as soon as it received it. We uphold the action of the hearing officer in this case in finding good cause for delay and admitting the documents.
Carrier also refers to the Texas Rules of Civil Procedure as requiring a document be sent to the party’s lawyer. Carrier acknowledges that such rules may not apply to this hearing and the Appeals Panel has said as much. For example, see Texas Workers’ Compensation Commission Appeal No. 92410, decided September 25, 1992. In addition, this assertion would be discussed in more detail had the hearing officer based her decision on the fact that the medical document was addressed to the carrier; she based her decision for good cause, however, on claimant’s attorney’s assertion that he had transmitted a copy of the medical documents to carrier’s attorney on the same day he received them.
Finally, carrier also states that the documents in question provide the only evidence as to disability. The record shows, however, that claimant stated he was not able to return to work. Texas Workers’ Compensation Commission Appeal No. 92167, decided June 11, 1992, provides that a claimant may testify as to disability and that a determination of disability may be made without medical support. As a result, even if the admission of the March 5th letter was in error, it was not reasonably calculated to cause and probably did not cause an improper decision, so was not reversible. See Hernandez v. Hernandez, 611 S.W. 2d 732 (Tex. App.-San Antonio 1981, no writ).
The Findings of Fact and Conclusions of Law are sufficiently supported by the evidence. The decision and order are affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Thomas A. Knapp – Appeals Judge