This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp 1992). On July 20, 1992, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. He held that claimant, appellant herein, did not fall and injure himself on the job on or about (date of injury). Appellant asserts that the decision is against the great weight and preponderance of the evidence.
DECISION
The decision is not against the great weight and preponderance of the evidence and is affirmed.
Appellant had worked for a sandblasting and painting company for two months when he states he was injured. On (date of injury), appellant was sandblasting pipes in a rack by standing on them when he states that they rolled and he fell. Appellant’s job was to direct the nozzle end of a hose that transferred sand under pressure. A helper stood near the compressor to adjust flow based on hand signals from the worker with the nozzle. The compressor was kept approximately 75 feet away to reduce sand entry. On (date of injury), appellant’s supervisor acted as his helper in adjusting flow and in moving the hose.
Appellant stated that the accident occurred at 2:30 p.m., that his supervisor saw it, that the pipes were wired back together after they rolled causing his fall, and that he worked the rest of the day but called his mother to send someone to drive his car and help him get home. The person who drove his car was Mr. R. Appellant worked the next day doing light duty clean-up work in the company yard per his supervisor’s assignment, but left after four hours because of the pain. He worked about four hours on October 24th also and saw a doctor on October 24th. He does not know that he was fired on October 24, 1991. He is still in pain, cannot work and has not reached minimum medical improvement, although his doctor did take him off work on October 24th. He did not drop the nozzle of the sandblasting hose when he fell off the pipes on his back.
The supervisor stated that he did assist the appellant in sandblasting on (date of injury), and never saw him fall or hurt himself that day. He was within sight of him, watching for hand signals as to amount of sand to feed the line. Appellant did not tell him he was injured. He did not put appellant on light duty the next day; there was no sandblasting to do and general clean-up work ended after four hours so appellant was sent home. On October 24th, appellant operated the nozzle of a sandblasting hose on a storage tank and used a day’s supply of sand in two and one-half hours. Supervisor fired him.
Mr. R in a statement described how he picked up appellant and his car at work on (date of injury) and took him home that day.
Mr. GR worked with appellant on October 24th. He acted as the helper and stood at the bottom of the tank on which appellant operated the nozzle of the hose to sandblast the roof. He stated that a day’s supply of sand was used in two and one-half hours and that appellant never came to the side of the roof to give any hand signals as to flow speed of the sand. He observed appellant climb the ladder on the outside of the tank to the top that day without problem and never heard or saw appellant indicate that he was injured. He observed the supervisor fire appellant that day after learning of the sand use.
Medical records record the patient’s history of injury. The first report does not state when the appellant was seen but was prepared on November 11, 1991 and notes “tenderness” in the back. Another report dated January 29, 1992, indicates pain, “decreased range of motion” and spasm. Both state that the prognosis is guarded.
The hearing officer is the sole judge of the weight and credibility of the evidence. See Article 8308-6.34(e), 1989 Act. He did not have to believe the appellant since he was an interested witness and, as trier of fact, he could resolve inconsistencies in the testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex. 1986). The hearing officer could believe the supervisor when he said he would have seen a fall if it had occurred, but he did not. He could believe that appellant left work the next day when the available work was finished and not because he was in pain. He could believe that the appellant worked without indication of pain or injury until fired two days after the claimed accident.
The findings and conclusions of the hearing officer are sufficiently supported by the evidence. The decision is not against the great weight and preponderance of the evidence and is affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Philip F. O’Neill – Appeals Judge