On July 11, 1991, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. (hearing officer) determined that the employer, respondent herein, sustained a compensable injury based on repetitive trauma to the back. The appeal asserted that no compensable injury occurred and asked for remand. On September 25, 1991, this panel remanded to reconstruct the record based upon an inaudible tape in the original record and the absence of a “Statement of the Facts” agreed to by the parties. A reconstruction hearing was held on January 30, 1992, to provide a complete record for review of the original appeal. With a complete record before us, we will consider the appeal under the Texas Workers’ Compensation Commission Act of 1989 (1989 Act) TEX. REV. CIV. STAT. ANN. arts 8308-1.01 through 11.10 (Vernon Supp. 1991).
DECISION
Finding that the decision of the hearing officer dated July 26, 1991, is not against the great weight and sufficiency of the evidence, we affirm.
I
In response to a motion for leave to file supplemental appeal, (chief judge), the Chief Judge for Appeals Panel No. 1, on 16 August 1991, granted 10 days from August 13, 1991, to file a supplementary appeal. In the supplementary appeal dated August 23, 1991, appellant took issue with certain tapes copied from the hearing as being inaudible and asked for a “remand for new trial” (sic). This request was in addition to the prayer to reverse the hearing officer’s determination and render that no injury occurred in the course and scope of employment. Only minor changes were made in the appeal filed February 14, 1992, from that filed August 23, 1991, except for noting that the hearing officer issued no new decision after the February 1992 hearing to reconstruct the record.
This case was remanded because of a specific defect in the record with the following instructions:
In remanding this case, we request that the portion of the testimony of witnesses that is now inaudible be reconstructed. The hearing officer may order that witnesses whose testimony is inaudible in part be required to testify again only in regard to matters now inaudible. The hearing officer should provide the appellant and respondent a copy of the tapes we are returning. If a media duplicating or extracting service can reconstruct the inaudible portions of the tapes so that the hearing officer can assure that a complete record of testimony is available, such reconstruction would satisfy this panel’s request.
We reverse for lack of a usable record of the testimony at the hearing and remand to reconstruct the record.
Under Article 8308-6.42 of the 1989 Act, the Appeals Panel may remand for development of evidence. Believing that a complete new hearing was not necessary to protect appellant’s right to review and realizing that to order such could impose a hardship on the parties, our decision of September 25, 1992, called only for a reconstruction of inaudible tapes. See Walters v. Wright, 623 S.W.2d 301 (Tex 1981). This reconstruction hearing is comparable to the hearing on the order in Tenngasco Gas Gathering Co. v. Fischer, 653 S.W.2d 469 (Tex. App.-Corpus Christi 1983, writ ref’d n.r.e.). That order, to prepare a narrative statement, was necessitated by an incomplete statement of facts as a result of a nervous breakdown by the court reporter; a narrative was certified by the trial court with appellee and appellant having the right to assist in reconstruction or “to recall their witnesses to verify . . . .” Our record is now sufficient for review with the addition of a transcript of that portion of the inaudible tapes. In addition, the hearing officer made his notes of the prior testimony available for examination by the attorney for each party. Both stipulated that these notes should be provided to this panel. Accordingly, these notes were examined and found to be consistent with the transcript provided. No new decision of the hearing officer was required.
II
The issue on appeal in both the initial appeal and the one received on February 14, 1991, was that the hearing officer erred in concluding that repetitive trauma in the course of employment caused a compensable injury to respondent.
Respondent, in (date of injury), had worked about six months for his employer, (employer), as a construction worker. He stated that he had known his immediate supervisor, (supervisor), for a long period prior to working for employer. Respondent said he had done construction work tieing steel, among other things, for approximately 12 years and hurt his back starting in (month). He said he couldn’t work after (date of injury) and prior to that time had missed work during the first and second weeks in (month) because of his back and the weather. He said he initially felt a “catch” in his back the first of (month) and reported the “pop” in his back at the job site to his supervisor at about the same time. On (date of injury) he rode to work with a friend, (SW). At the end of the day he was at SW’s house when supervisor came by and became very upset when he found some of his tools (tools that had been his father’s) in SW’s vehicle. Supervisor fired both SW and respondent at that time. Respondent added that supervisor later offered SW and him their jobs back. He emphasized that he was bedridden and could not take his job back and saw (Dr. Mc) on March 29th under his wife’s health plan, telling him he had problems with his back and knees for a month. He still cannot work in construction and states that his back got worse over a period of time in (date of injury) and sometimes he has no feeling in his legs. He talked to his supervisor on March 29th after seeing Dr. Mc and told him he hurt his back. His lawyer referred him to a chiropractor, (D.C.) whose records show respondent was injured (date of injury) but that the onset of the injury was gradual. Respondent also stated on a medical questionnaire, “pain in lower back from lifting heavy objects at work.” D.C. treated him and referred him to (Dr. H) an orthopedic surgeon in May 1991. Dr. H was said to have ordered tests but his records are not in evidence.
On cross-examination respondent affirmed that he had not worked since (date of injury). He also acknowledged that his description of the injury to D.C. referred to lifting heavy objects on the job on (date of injury).
Respondent’s wife testified that he had been bedridden for periods, appearing to be “paralyzed” but that they could not get respondent to her doctor until March 29th. She said she had to see Dr. Mc under her health plan and that he had limited hours. Her need to use the car to get to work and the inability of any family or friends to take respondent to the doctor caused the delay to March 29th.
Appellant called the supervisor to testify and offered unsworn statements of four co-employees including S.W. S.W.’s statement said respondent had said something to him about hurting his back but had not done so while they were working together at the job site. Another worker said he had heard no complaints from respondent, and two individuals said, “I don’t see nothing” or “I no see nothing.” Supervisor has known respondent for years and said that when doing his job, respondent is a “good man.” He had called him and told him to come back to work after firing him. Supervisor said that after the firing respondent came to the job to get his check once. Respondent’s less than full work days in (month) were said to be “personal problems,” and respondent has never told supervisor he hurt his back but has said he was filing a claim. He said a claim was filed on April 16th and that if respondent had been hurt on the job, he would have known of it. Supervisor was questioned by counsel for respondent about the possibility he could receive a bonus for reducing accidents. He did not receive one. While respondent’s testimony could be viewed by the trier of fact as creating fact issues to resolve, Burrelsmith v. Liberty Mutual Insurance Co., 568 S.W.2d 695 (Tex. App.-Amarillo 1978, no writ), the hearing officer, as trier of fact, may judge credibility of any witness in light of motive or any matter that would tend to be an influence. Frank B. Hall & Co., Inc. v. Buck, 678 S.W.2d 612 (Tex. App.-Houston 14th 1984, writ ref’d n.r.e.) U.S. Crt Den, 105 S.C. 2704. The hearing officer is the sole judge of weight and credibility as specified by Article 8308-6.34(e) of the 1989 Act. He could conclude that respondent failed to report his injury prior to being fired and weigh that fact against other evidence. Similarly he had a duty to weigh the reports respondent made to doctors. He also had to weigh when the allegation that the injury was based on repetitious trauma was made — after the benefit review conference. With no assertion by appellant that the notice of change in theory of injury given at that stage of the claim process provided insufficient information on which to investigate the claim, it simply became a matter for the hearing officer to use in judging credibility. Select Ins. Co. v. Patton, 506 S.W.2d 677 (Tex. App.-Amarillo 1974, writ ref’d n.r.e.). The hearing officer could still choose to believe respondent was injured and that he was injured on the job. Highlands Ins. Co. v. Baugh, 605 S.W.2d 314 (Tex. App.-Eastland 1980, no writ). He could resolve the conflict between respondent and supervisor or any other conflicts between respondent and other evidence in respondent’s favor. Taylor v. Lewis, 553 S.W.2d 153 (Tex. App.-Amarillo 1977, writ ref’d n.r.e.). Finding of Fact three (the determination that a compensable injury occurred, as a result of undefined repetitive trauma, between (date) and (date of injury)) and Conclusion of Law 2 which reflects that finding, are sufficiently supported by the evidence. The Appeal Panel will not substitute its judgment for the hearing officer’s if a challenged finding is supported by some evidence of probative value and it is not against the great weight and preponderance of the evidence.
The decision and order dated July 26, 1991, are affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge