This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8303-1.01 et seq. (Vernon Supp. 1993) (1989 Act). A contested case hearing was held in (city), Texas, on June 15, 1993, (hearing officer) presiding as hearing officer. She determined that the respondent, claimant herein, suffered a back injury in the course and scope of her employment on (date of injury), and that disability resulting from this injury began on February 19, 1993, entitling the claimant to temporary income benefits (TIBS) beginning on February 19, 1993, and medical benefits effective (date of injury).
The appellant, carrier herein, appeals this decision and urges error in the exclusion of certain testimony and a portion of the claimant’s personnel records regarding instructions on notifying the employer immediately in the event of an injury. The carrier further objects to the statement of evidence by the hearing officer and alternatively contends that the claimant abandoned medical treatment after February 25, 1993, and should therefore be presumed to have reached maximum medical improvement (MMI) on this date.
DECISION
Finding no reversible error in the record and sufficient evidence to support the decision of the hearing officer, we affirm.
On (date of injury), sometime after 1:30 p.m., claimant, an accounts receivable clerk for (employer)., a car dealership, alleges she suffered lower back and leg pain while picking up and moving a cardboard box containing records with which she needed to work. Despite the pain, she remained at work that day, but, on her way out, told two coworkers that she hurt her back. She returned to work the next day, but left shortly after arriving because the pain made it very difficult for her to walk or sit. She asked a coworker to tell her supervisor that she was leaving. On February 17, 1993, she reported her injury to her supervisor who asked her why she had not reported the injury earlier. She said she did not want at first to report it under workers’ compensation. Since the pain was still severe, her supervisor directed her to go to an employer authorized physician, (Dr. J), who prescribed muscle relaxers, pain killers and anti-inflammatory medication. Dr. J said the claimant could return to work the following Monday, February 22, 1993. The claimant declined physical therapy because Dr. J prescribed traction. On February 25, 1993, the claimant’s treating physician, (Dr. F) diagnosed lumbosacral strain and advised her to remain off work for three or four weeks pending the results of medicine and physical therapy. She has not worked since February 18, 1993, and effective March 8, 1993, just prior to the completion of her probationary status, she was terminated for cause described as poor attendance, excessive time away from her desk and a confrontational attitude toward other employees.
The carrier’s defense centered almost exclusively on an attack on the claimant’s credibility about the existence, circumstances, extent and continuation of her injury. In support of this attack, the carrier refers to inconsistencies in statements of the claimant about whether she referred to a coworker as an eye witness to the accident or just someone knowledgeable about the facts and circumstances; argues that the two-day delay in reporting the accident to the supervisor and the fact that no one in the work area saw the incident happen is evidence that it did not happen as alleged; and alleges that the claimant improperly removed from her personnel file a form whereby the employer advises employees to immediately report work-related injuries. The carrier also argues that the hearing officer improperly excluded the testimony of (MG), a coworker, who if permitted would have testified in essence that she witnessed “the Claimant out dancing in approximately April of 1993, performing physical maneuvers that would indicate that she was not hurt and not having back complaints. . . .”
The carrier also specifically objects that the hearing officer’s Statement of Evidence fails to include a statement that there was a person, (DB), present at the time of the alleged incident who did not see the incident made the basis of the claim, and fails to expressly say that the claimant did not report her injury until two days after it happened–issues “critical for the defense of the Carrier in this matter.” He urges us to listen to the tape recording of the hearing for a complete and accurate picture of the proceedings. After our review, we find the Statement of Evidence to be fair, accurate and not misleading.
The hearing officer in pertinent part determined:
FINDINGS OF FACT
4.Claimant experienced pain in her back and leg when she lifted boxes containing employer’s business records on (date of injury).
CONCLUSIONS OF LAW
4.Claimant suffered a back injury that arose out of and in the course and scope of her employment on (date of injury).
5.Claimant had disability resulting from her (date of injury) back injury beginning on February 19, 1993 and continuing thereafter.
The claimant in a workers’ compensation case has the burden to prove by a preponderance of the evidence that she sustained a compensable injury. Johnson v. Employers Reinsurance Corp., 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961 no writ). Article 8308-6.34(e) 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. It was for the hearing officer, as 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, 702 (Tex Civ. App.-Amarillo 1974, no writ). The trier of fact may believe all, part or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). 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, 620 (Tex. App.-El Paso 1991, writ denied). In reviewing the sufficiency of the evidence to support a finding, only if we determine that the evidence is so weak or the finding so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust do we reverse. In Re King’s Estate, 244, S.W.2d 660 (Tex. 1951); Texas Workers’ Compensation Commission Appeal No. 93477, decided July 19, 1993.
Injury may be proven by the testimony of the claimant alone and objective medical evidence is not required to establish that particular conduct resulted in the claimed injury, except in those cases where the subject is so technical in nature that a fact finder lacks the ability from common knowledge to find a causal basis. See Texas Workers’ Compensation Commission Appeal No. 93577, decided August 18, 1993, and Texas Workers’ Compensation Commission Appeal No. 92083, decided on April 16, 1992. In the present case, the claimant provided the only direct evidence that she was injured in the course and scope of her employment on (date of injury). As an interested party, the claimant’s testimony only raises an issue of fact for the hearing officer to resolve. Escamilla v. Liberty Mutual Insurance Company, 499 S.W. 2d 758 (Tex. Civ. App.-Amarillo 1973, no writ). Nevertheless, the hearing officer may believe this testimony. The claimant testified she experienced symptoms of pain and discomfort which she communicated shortly thereafter to coworkers. She sought and received timely medical care. We do not consider a delay of two days in reporting an injury, quibbles about how a potential witness was described by the claimant, suggested contrary inferences about a document missing from the claimant’s personnel records, or lack of any eyewitnesses among coworkers in the same relatively open area bases for overturning the fact finder’s determination that the claimant suffered a compensable injury. Nor can we say that there was insufficient evidence to support the finding of the hearing officer that the claimant was injured in the course and scope of her employment. While the evidence may lend itself to different inferences or conclusions than those drawn by the hearing officer, that is not a sufficient reason to reverse the decision. See Garza v. Comm. Ins. Co. of Newark, N.J., 508 S.W. 2d 701 (Tex. Civ. App.-Amarillo 1974).
Carrier’s argument that the hearing officer improperly excluded the testimony of MG is also unpersuasive. Article 8308-6.31(d) authorizes the Commission to adopt rules governing contested case hearings. Pursuant to this authority, Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.13(c)(1)(D) (Rule 142.13(c)(1)(D)) requires that the identity of witnesses known to have knowledge of the relevant facts be exchanged no later than 15 days after the benefit review conference (BRC). The carrier readily admits that it did not identify this witness within 15 days of the BRC (held on April 16, 1993). Carrier’s attorney asserts good cause for this nondisclosure in that he was not hired by the carrier until either May 30, 1993, or June 4, 1993, and he sent a notice to opposing counsel on June 7, 1993, as soon as he knew he wanted to call MG as a witness. See Appeal No. 93577, supra, for a discussion of what constitutes good cause. He contends that opposing counsel was not prejudiced because he, opposing counsel, unreasonably delayed picking up his mail which contained the supplement witness notification. He further implied that he deserved parity of treatment from the hearing officer who over objection[1] admitted affidavits, not previously exchanged, of witnesses who had been timely identified. The decision of the hearing officer in refusing to permit MG to testify did not amount to an abuse of discretion, which is our standard for review. Texas Workers’ Compensation Commission Appeal No. 92110, decided on May 11, 1992. As she pointed out, the responsibility to comply with the discovery rules is that of the party, not the attorney. The parties are not excused from compliance pending the hiring of, or actual notice to an attorney. This witness was a coworker of the claimant whose identity hardly could be considered a surprise to the carrier. We also note that, according to carrier’s proffer of proof, MG would only testify that she saw the claimant dancing in April. The claimant herself admitted during her testimony that she went to a dance hall and did some slow to medium dancing once in late April or early May. The issue of the size and extent of claimant’s injury intended to be raised by MG’s testimony was thus generally before the hearing officer for consideration. Under these circumstances we find no prejudice to the carrier or reversible error in refusing to allow this testimony. See Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. Civ. App.-San Antonio 1983, writ ref’d n.r.e.) and Texas Workers’ Compensation Commission Appeal No. 92144, decided May 28, 1992.
Finally, the carrier asks the Appeals Panel in the alternative to find MMI based on the claimant’s abandonment of medical treatment. Since the question of MMI was not certified as an issue at the contested case hearing, nor can it be fairly said from a review of the record to have been treated as an issue at the hearing by consent of the parties, we do not address it for the first time on appeal. Texas Workers’ Compensation Commission Appeal No. 91100, decided January 22, 1992.
For the reasons set forth above, the decision of the hearing officer is affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Susan M. Kelley – Appeals Judge
- This adverse ruling was not appealed. ↑