On January 16, 1992, a contested case hearing was held in (city), Texas, with (hearing officer) presiding as the hearing officer. The hearing officer determined that the claimant, (claimant), respondent herein, sustained a compensable injury to his back on (date of injury); that he gave timely notice of his injury to his employer, (employer); and that his disability began on August 19, 1991. The hearing officer decided that respondent is entitled to benefits under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 et seq. (Vernon Supp. 1992) (1989 Act). Appellant, who is the employer’s workers’ compensation insurance carrier, contends on appeal that the hearing officer erred in admitting into evidence two affidavits offered by respondent which had not been timely exchanged, that the evidence was not sufficient to support the hearing officer’s finding and conclusion that respondent timely reported his injury, and that there was no evidence to support the hearing officer’s findings and conclusions that respondent sustained a compensable injury and suffered disability. Respondent, who represented himself at the hearing, filed a response which summarizes the evidence he believes supports the hearing officer’s decision.
DECISION
Finding that error, if any, in the admission of respondent’s affidavits does not constitute reversible error, and that there is sufficient evidence of probative value to support the hearing officer’s findings, conclusions, and decision, and that her findings, conclusions, and decision are not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust, we affirm her decision awarding workers’ compensation benefits to respondent.
In determining a “no evidence” point we consider only the evidence and inferences which tend to support the finding and disregard all evidence and inferences to the contrary. We should uphold the finding if any evidence of probative force supports it. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-662 (1951). An “insufficient evidence” point requires a review of all the evidence which supports and contradicts the finding. We should uphold the finding unless we conclude that it is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. See In re King’s Estate, supra. In a contested case hearing, the hearing officer is the trier of fact, and is the judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given the evidence. Article 8308-6.34(e) and (g). When presented with conflicting evidence, the trier of fact may believe one witness and disbelieve another, resolve inconsistencies in the testimony of any witness, and may accept lay testimony over that of experts. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The hearing officer also judges the weight to be given expert medical testimony, and resolves conflicts and inconsistencies in the testimony of expert medical witnesses. See Texas Employers’ Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist] 1984, no writ); Atkinson v. United States Fidelity Guaranty Co., 235 S.W.2d 509 (Tex. Civ. App.-San Antonio 1950, writ ref’d n.r.e.). To obtain reversal of a decision based upon error in the admission of evidence, the appellant must first show that the hearing officer’s determination was in fact error, and second, that the error was reasonably calculated to cause and probably did cause the rendition of an improper decision. See Hernandez v. Hernandez, 611 S.W.2d 732, 737 (Tex. Civ. App.-San Antonio 1981, no writ). Reversible error is not ordinarily shown in connection with rulings on questions of evidence unless the whole case turns on the particular evidence admitted or excluded. See Atlantic Mutual Insurance Company v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.).
Respondent, who is 44 years of age, has worked as an aircraft assembler for (employer) for over 12 years. In 1987 he sustained an on-the-job injury for which a lumbar laminectomy and fusion involving the disc at L5-S1 were performed in March 1989. He obtained medical benefits until December 1993 at the direction of Dr. S and a cash settlement for his workers’ compensation claim for his 1987 injury. Respondent said Dr. S restricted the amount of lifting, pushing, and pulling he could do at work after his 1989 surgery. He was off work for about six months after his 1989 surgery, returning to work in September 1990. Respondent had a follow-up visit with Dr. S in November 1990. He said that when he returned to work he complained to his supervisor that the work he was doing was “out of code,” meaning that it did not comply with his doctor’s work restrictions, and that the work was making his back sore, but did not cause him pain.
According to respondent, he reinjured his back on (date of injury), when a three-step stool or stand he was standing on to drill holes in an aircraft wing teetered or tilted causing him to “twist” or “torque” his back in attempting to maintain his balance. At the time of the incident, he said he had the drilling device, which has two air hoses attached to it making it awkward to handle, about one foot over his head and he was backing the device out of a hole he had just drilled. He said he felt pain in his back at the time this happened, but it was not “agonizing pain.” He also said he continued to work the remaining two hours of his shift but that the drilling work had essentially been completed by that time. He said he did not know of any witnesses to the incident, and that he did not report the incident until the next morning when, he said, he first realized the extent of his injury due to his back hurting so bad that morning. The next day, (date), respondent said he went directly to the plant hospital upon arriving at work at 7:00 a.m. and informed the plant doctor, Dr. J, that he reinjured his back and how he had reinjured it at work. He stated that Dr. J asked him about his prior back surgery and that he told the doctor he had occasional minor soreness in his left hip where part of a bone had been removed for use in his prior back surgery. After seeing the plant doctor, who gave him pain medication, respondent said he went directly to his supervisor, G G, and told him he had just come from the plant hospital, that he had been there because he had reinjured his back the day before, and told him how he had reinjured his back.
Respondent said there were witnesses present when he reported his injury to his supervisor and offered the affidavits of two coworkers. The hearing officer admitted the affidavits over appellant’s objections of surprise, failure to timely exchange the affidavits, and failure to answer interrogatories. The affidavits of J S and W F reflected that they were present on (date), when respondent informed his supervisor that he had been to the plant hospital because he had reinjured his back on (date of injury). The affidavit and written statement of respondent’s supervisor was introduced into evidence by appellant. In these documents, G G stated that respondent “notified me that he sprang or twisted his back but I am unable to recall the exact day or time.” He also explained that his normal procedure is to send employees to the nurses station or plant hospital to report injuries.
Respondent further testified that his back continued to get worse, that he next visited the plant hospital on March 25, 1991, and that on March 27th an appointment was made for him to see Dr. S. He described the pain he experienced as a numbing pain on the right side of his back and right buttocks that went down the inside of his right thigh. He said the pain and stiffness was constant, but that the numbness would go away when he changed positions. He said he believed Dr. S indicated he had a new injury and that he disagreed with Dr. S’s recommendation that he find another line of work so he went to another doctor, Dr. R, in May 1991. Respondent further stated that both Dr. S and Dr. R told him something was wrong with his back at the L5-S1 level; that an MRI scan was done in June 1991; and that Dr. R took him off work for three weeks, from August 19 to September 9, 1991. He explained that the off-work slip from the doctor was in his employer’s records and that he did not have a copy of it.
Respondent also testified that the injury he sustained on (date of injury), was in the same vicinity of his lower back as was his prior back injury, but that it was about an inch higher. He felt it was a reinjury to his back because for about two years prior to the incident of (date of injury), he had not experienced pain or numbness in his back. He reiterated that he had told the plant doctor on (date) that his complaints prior to the (date of injury) incident involved only soreness in his left hip where the bone had been removed for use in his prior back surgery, and that he told the plant doctor he had reinjured his back.
Appellant introduced into evidence medical records and reports which revealed that respondent visited the plant hospital on (date), requesting pain medication. The doctor at the plant hospital stated in his report of that date that respondent had recurrent soreness since May 1989 when a laminectomy and fusion were performed by Dr. S. The plant hospital records also show a visit there by respondent on March 25, 1991, at which time he complained of worsening back problems, and a visit on March 27, 1991. Dr. S’s records revealed that he examined respondent on November 20, 1990, at which time respondent reported only occasional back discomfort and that he felt much improved by his surgery. The doctor recommended that he continue within his work restrictions and have a follow-up visit in six months or earlier if needed. Another report reflected that Dr. S examined respondent on March 27, 1991, for complaints of back pain, that x-rays showed evidence of solid fusion between L4-5 and S1 bilaterally, and that Dr. S’s diagnosis was “As before. That is status post-lumbar laminectomy and fusion. This with evidence of solid fusion.” The doctor recommended that respondent curtail the amount of twisting he did at work. A return-to-work slip showed that Dr. S returned respondent to restricted work on March 27, 1991, with restrictions of no lifting over 30 pounds, and no constant bending, stooping, or twisting. A report of April 29, 1991, reflected that respondent was still complaining of back pain; that Dr. S’s diagnosis remained “As before;” and that he talked to the respondent about the possibility of changing the job he was doing.
Dr. R’s Initial Medical Report (TWCC-61) to the Texas Workers’ Compensation Commission (Commission) dated May 20, 1991, reported in the history portion of the report that respondent was working on an airplane wing when he began having pain in his lower back on (date), and noted that respondent did very well from his surgery in 1989 until (date). Dr. R diagnosed: (a) probable L5 radiculitis, right; (b) rule out displaced lumbar disc, and (c) solid L4 to S1 fusion. In his case record for May 20, 1991, Dr. R diagnosed “Probable right L5 radiculitis which is an aggravation of the old injury. Need to rule out any disc problems higher in the lumbar spine.” Dr. R’s case record for August 20, 1991, reflected that he had taken respondent off work “last week” to try and lessen his pain, and that the doctor felt it best to keep respondent off work. His case record of September 10, 1991, reflected that respondent went back to work on September 9, 1991, with a maximum 25 pound lifting limitation. Dr. B stated his impression of respondent’s MRI study done on June 1, 1991, as “Grade I spondylolisthesis at L5 on S1. Solid posterior fusion is seen from L4 through S1 without recurrent or new disc herniation changes seen. There is mild to moderate bony foraminal encroachment changes on the right at L5-S1 secondary to the operative changes and spondylolisthesis. No abnormal signal enhancement is seen following gadolinium administration.”
We first address appellant’s contention concerning error in the admission of Claimant’s Exhibits A and B, which are, respectively, the affidavit of J S, dated December 17, 1991, and the affidavit of W F, dated December 16, 1991. When the hearing officer took up preliminary matters at the hearing on January 16, 1992, appellant’s attorney represented that respondent had just handed her his two affidavits and his answers to interrogatories which, she said, she had not seen before. She said respondent had received appellant’s interrogatories on October 31, 1991. Respondent said he received the interrogatories in November 1991. Appellant objected to the introduction into evidence of the two affidavits on the basis of surprise, failure to timely answer interrogatories, failure to exchange the affidavits prior to the hearing, and no good cause for failure to provide the evidence earlier. Respondent said he had talked to Mr. W, the hearing officer who had been handling the hearing prior to the current hearing officer, and that he had been told by that hearing officer that he could bring the affidavits to the hearing. Respondent also said that the prior hearing officer told him that “these here, if I get a chance to send them to him, I’ll bring them down here.” Respondent said he talked to “her first,” then “they” referred him to Mr. W (the prior hearing officer), and he told me “bring these in, make sure I have them notarized and everything.” He then said that the hearing officer said “bring these to the hearing, unless the witness showed up.” Respondent said he talked to a Ms. G at the Commission (he wasn’t sure of the date of their conversation) and that she advised, as to the answers to interrogatories, to “bring them in or send them, either way.” The hearing officer overruled appellant’s objections to the introduction of respondent’s affidavits and found that there was good cause for not timely exchanging the affidavits. She stated that, based on respondent’s testimony, he had exercised ordinary prudence, the degree of diligence an ordinary prudent person would have exercised under the same or similar circumstances. Later, when respondent actually offered the affidavits into evidence, appellant renewed its objection “on the basis of surprise,” and the hearing officer again overruled appellant’s objection stating that she believed there was good cause for not timely exchanging the affidavits noting respondent’s testimony that he called the Commission seeking guidance from several people and that he exercised reasonable prudence in attempting to gain assistance with the presentation of his case.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.13(d) provides for the use of interrogatories as prescribed by Rule 142.19 to elicit information from claimants and insurance carriers and provides that answers to interrogatories, made under oath, shall be exchanged no later than five days after receipt of the interrogatories. Additional discovery by interrogatory is limited to evidence not exchanged, or not readily derived from evidence exchanged. Rule 142.13(b). No later than 15 days after the benefit review conference (in this case held on October 21, 1991), parties must exchange with one another, among other documents and information, any witness statements. Rule 142.13(c). Thereafter, parties must exchange additional documentary evidence as it becomes available. Rule 142.13(c)(2). A party who fails to disclose information known to that party or documents which are in existence and in the possession, custody, or control of that party at the time when disclosure is required may not introduce such evidence at any subsequent proceeding before the Commission or in court on the claim unless good cause is shown for not having disclosed such information or documents. Article 8308-6.33(e); Rule 142.13(c)(3).
In our opinion the record was not sufficiently developed for the hearing officer to have made a finding of good cause for failure to timely exchange the affidavits. The affidavits are dated a month before the hearing which would indicate that respondent had ample time before the hearing to send them to appellant. However, the record does not disclose when respondent actually obtained the affidavits, nor does it disclose whether he had possession, custody, or control over the affidavits at the times he spoke to Commission representatives about them. Also, the record does not indicate that, if he did have them at those times, whether he made the Commission representatives aware of that fact when they sought to advise him on the matter. However, in our opinion, error, if any, on the part of the hearing officer in finding good cause for failure to timely exchange the affidavits and admitting them into evidence, did not amount to reversible error because the evidence was sufficient to support the hearing officer’s finding and conclusion on timely notice without resort to those affidavits. See Texas Workers’ Compensation Commission Appeal No. 91064 decided December 12, 1991.
Pursuant to Article 8308-5.01(a) an employee or person acting on behalf of the employee must notify the employer of an injury not later than the 30th day after the date on which the injury occurs. Notice may be given to the employer or any employee of the employer who holds a supervisory or management position. Article 8308-5.01(c). Respondent testified that he told his supervisor he reinjured his back the day after the incident after having visited the plant hospital. The plant hospital records confirm that respondent did make the visit on the date indicated by respondent. Moreover, respondent’s supervisor stated in his affidavit that respondent did tell him about twisting his back, but could not recall the date of the report. He also said it was his practice to send employees to the plant hospital to report an injury. Here, respondent testified that he had already reported his injury to the plant hospital before reporting the incident to his supervisor. Consequently, it would be reasonable for the hearing officer to infer that the supervisor did not make a note of the reporting of the incident to him as it had already been reported in accordance with his customary practice. In sum, respondent presented direct evidence through his testimony of timely reporting his injury and appellant’s evidence does not directly controvert respondent’s evidence on that issue. We find that appellant has not shown that error, if any, in the admission of the affidavits of respondent’s witnesses was reasonably calculated to cause and probably did cause rendition of an improper decision. Hernandez, supra. We also find that there was sufficient evidence of probative value, without resort to the complained of affidavits, to support the hearing officer’s finding and conclusion that timely notice of injury was given, and that such finding and conclusion are not against the great weight and preponderance of the evidence. See Associated Employers’ Insurance Company v. Burris, 321 S.W.2d 112 (Tex. Civ. App.-Amarillo 1959, writ ref’d n.r.e.).
We disagree with appellant’s contention that there was no evidence to support the hearing officer’s finding and conclusion that respondent sustained a compensable injury to his back on (date of injury). Respondent’s testimony concerning the occurrence of the work-related incident on that date and the absence of back pain from after his prior surgery to the date of the incident, coupled with Dr. R’s May 20, 1991, diagnosis of a “probable right L5 radiculitis which is an aggravation of the old injury” provide some evidence of probative value to support the hearing officer’s finding and conclusion as against a “no evidence” challenge. It is well settled that the mere existence of a preexisting injury or disease which aggravates or enhances a complained of injury does not defeat a claimant’s right to recover workers’ compensation benefits. Gonzalez v. Texas Employers Insurance Association, 772 S.W.2d 145, 148 (Tex. App.-Corpus Christi 1989, writ dism’d). In order to defeat the claim, the insurance carrier must show that the prior injury or illness is the sole cause of the claimant’s present incapacity. Texas Employers Insurance Association v. Page, 553 S.W.2d 98, 100 (Tex. 1977). An injury that aggravates a preexisting bodily infirmity is compensable provided overexertion or an accident arising out of employment contributed to the incapacity. INA of Texas v. Howeth, 755 S.W.2d 534, 537 (Tex. App.-Houston [1st Dist.] 1988, no writ).
We also disagree with appellant’s contention that there was no evidence to support the hearing officer’s finding that respondent began losing time from work on August 19, 1991, and that his disability began on August 19, 1991. Respondent testified that Dr. R took him off work for three weeks beginning August 19, 1991, and Dr. R’s medical records of August 20 and September 10, 1991, corroborate respondent’s testimony. We hold that there was some evidence of probative value to support the hearing officer’s finding and conclusion complained of on appeal as against a “no evidence” challenge. We also find that the decision of the hearing officer is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust.
The hearing officer’s decision is affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Philip F. O’Neill – Appeals Judge