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 June 2 and June 11, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. She determined that appellant (claimant) was not compensably injured on (date of injury), and did not give notice of injury in a timely manner. Claimant asserts that he did give notice and was injured on the job and asks that the decision be reversed. Respondent (carrier) states that the appeal was not timely and that the decision is sufficiently supported by the evidence.
DECISION
We affirm.
At the hearing the issues were stated to be: (1) was notice given timely, and (2) was the claimant injured in the course and scope of employment on (date of injury).
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 appeal of claimant was timely made;
That there is sufficient evidence to support the hearing officer’s decision that no injury occurred on (date of injury);
That there is sufficient evidence to support the hearing officer’s decision that timely notice was not given, that good cause did not exist for the delay, and that there was no actual knowledge in employer.
I
The decision of the hearing officer was distributed to the parties on June 25, 1993. Tex W. C. Comm’n, 28 TEX. ADMIN. CODE § 102.5(h) (Rule 102.5(h)) provides that the date of receipt is five days after the date mailed. Five days later would be June 30, 1993. Claimant then had 15 days to file the appeal (See Article 8308-6.41 of the 1989 Act) and if mailed within 15 days, Rule 143.3 (c) states that the appeal must be received by the 20th day after the day of receipt. Claimant mailed the appeal on July 13, 1993, which was within 15 days of receipt; he thereby had a total of 20 days for the appeal to be received; it was received on July 19, 1993; the appeal was timely filed.
II
Claimant worked for an apartment complex as a maintenance man. He testified that he and another maintenance man, (DM), were lifting an air conditioning unit to the top of a building on (date of injury). A rope was tied around the unit with only one loop, so that two of the four sides of the unit did not have a rope around them. DM was on the roof and claimant was on a ladder. DM pulled on the rope to raise the unit while claimant pushed the unit from beneath it as he climbed the ladder. Both DM and claimant testified that the unit became unbalanced and shifted, swaying somewhat. DM said that while he did not immediately let the rope go, there was some slippage and he could see claimant brace the unit against his head; at some point the unit fell to the ground. Claimant said that he tried to hold the unit against him; it was very heavy against his chest; he pushed it away; and fell off the ladder – he was on the third or fourth rung. Claimant said that he and DM told his supervisor, (AA), that day that he had hurt himself with the air conditioner slipping. Claimant filled out a work order in regard to this air conditioner which showed that the condenser was defective but showed nothing about the unit falling. DM said also that he and claimant went to see AA about the mishap, but he could not remember exactly what day this occurred. In answer to why claimant never went to the doctor until after his other incidents with ladders in August and September 1992, claimant said that he took over-the-counter pain medicine and that AA would give him some pills that were prescribed for her daughter from time to time for his pain. No medical records were offered in evidence. Claimant also stated that he never received a reprimand while working for employer.
AA testified that she never was told anything about an air conditioner falling or claimant being hurt by it. She said that claimant did not miss work, and the first she heard of the (date of injury), incident was in approximately February 1993 when the carrier contacted employer about the claim received. AA testified that her daughter has lupus and is prescribed steroids and medicine for seizures; she has never given any of her daughter’s medicine to anyone and stated that her daughter’s doctor had cautioned them never to allow anyone else to use them since they would be dangerous for someone else to take. Her daughter is prescribed no pain medication.
AA also testified that she has observed claimant help to raise air conditioning units to the roof of apartments in the complex and the rope around the unit always was wrapped around all four sides, not just two sides. She added that she had helped push from below at times when such units were raised.
AA also stated that in February 1993, she had asked claimant to go for some glass that would be used in one of the apartments. She stated that he told her to have the other maintenance man do it; she added that she told claimant the other maintenance man was on an emergency repair and could not. Claimant then told her to call her boss and have him pick up the glass. The next day, after clearing her proposal with her boss, AA presented claimant with a letter of reprimand. He refused to sign it, left, and has not returned to work.
(HH) testified that he is the property manager and AA’s supervisor. When he learned in March 1993 of a claim for injury in (date), he stated that he called DM and DM told him that on (date of injury), a unit was being taken to a roof with DM holding the rope from above and claimant below the unit on a ladder; a gust of wind made the unit sway somewhat and claimant held it against his head; they then completed the lift of the unit to the roof.
(EA) testified that she began work as the assistant to AA in (date). (AA testified that EA started the first week in (date).) At that time she worked in the office with AA; now she works in the office on weekends. No report of an injury in (date) was made by claimant while she was in the office, and she never heard claimant say anything about such an injury until hearing of the claim in 1993. She stated that she has not heard of any other air conditioning unit being received in a damaged condition. She added that she was present when claimant received the reprimand, that he refused to sign it, and never came back to work after that.
Carrier offered into evidence claimant’s claim made in October 1992 which referred to his alleged injuries of August and September 1992, but did not mention any injury in (date); the claim for injury to the head, neck, chest and back from the (date) incident was not filed until 1993.
Claimant in his appeal asserts that AA admitted that EA was present when claimant reported his injury. The testimony of AA that gives rise to that assertion is as follows:
QOkay. Thank you.
And I am going to ask you again. And you cannot recall any conversation with [claimant] and [DM] present in your office. Is that correct?
A No, ma’am.
QAnd if such a conversation took place, would [EA] be present as well?
AShe is — that is the months (sic) that she started working as assistant manager. She —
QThat is not the question I asked you.
AYes, ma’am, she was present.
The hearing officer is the sole judge of the weight and credibility of the evidence. See Article 8308-6.34 (e) of the 1989 Act. She could believe that claimant received a reprimand based on the testimony of AA and EA even though claimant said he did not. She could believe that AA had observed air conditioning units being raised to the roof of buildings with rope tied around all sides, not just two sides. She could believe claimant when he admitted that he had never seen a doctor until after his alleged injuries in August and September, 1992. The evidence was not in conflict that claimant never missed any work because of the raising of the air conditioner on (date of injury). The hearing officer could believe AA in her testimony that neither claimant or DM ever told her of any injury or fall regarding an air conditioner on (date of injury), and that no notice of an injury was given for approximately one year. See Sifuentes v. TEIA, 754 S.W.2d 784 (Tex. App.-Dallas 1988, no writ). The claimant testified that he gave notice the same day, and he did not assert he gave notice after 30 days because of some good cause for delay. Similarly, there was no evidence that any supervising official or management employee had actual knowledge of the injury. The hearing officer could also believe that claimant was not injured when the air conditioner was lifted on (date of injury), especially when he kept working for approximately one year thereafter and did not seek medical care until approximately six months later, after stating that he was injured in another mishap. See Galvan v. U.S. Fire Ins. Co., 629 S.W.2d 209 (Tex. App.-Amarillo 1982, writ ref’d n.r.e.).
The decision and order of the hearing officer are not against the great weight and preponderance of the evidence and are affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Philip F. O’Neill – Appeals Judge