This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On June 23, 1997, a contested case hearing (CCH) was held. The issues involved whether the claimant, who is the respondent, engaged in horseplay which was a producing cause of his injury at work on _____, and whether he had the inability to obtain and retain employment at wages equivalent to the preinjury wage (disability) as a result of a compensable injury.
The hearing officer determined that the carrier, who is the self-insured, failed to prove that horseplay was a producing cause of injury to the claimant, and that he had disability from his injury for the period from March 11 through July 5, 1996.
The self-insured, which is also the employer, has appealed, arguing that the great weight and preponderance of the evidence established that the claimant and a coworker were engaged in a shoving match which led to the fall that caused injury to the claimant’s leg, and that it is therefore not liable for the claim. The carrier argues that the hearing officer erred by failing to shift the burden of proof back to the claimant once it offered evidence of horseplay. The carrier argues that because there was no compensable injury, there can be no disability. There is no response from the claimant.
DECISION
Affirmed.
At the outset, we will point out that the exception to compensability which was invoked as an affirmative defense to the claim is found at Section 406.032(2), and provides that the carrier will not be liable for an injury if:
(2)the employee’s horseplay was a producing cause of the injury.
Thus, more than the occurrence of general horseplay must be shown; it must also be shown that it was claimant’s voluntary participation that was a producing cause of the injury.
It was undisputed that the claimant fell at work, in the breakroom, on _____, breaking his leg in the process, and that he missed time from work for medical treatment of and recovery from this injury. Claimant at that time was a minor, as were his involved coworkers, and worked part time as a sacker at a grocery store operated by the self-insured, while he also went to school. As such, he said that he did not have regular medical insurance coverage through the employer.
The circumstances of claimant’s slip and fall constitute the primary area of dispute. The claimant said it started raining that day, and he headed to the breakroom in order to get his jacket, as he had to accompany shoppers out to their vehicles to assist with groceries. The claimant said the floor had also been waxed and was slick. Claimant said when he came into the breakroom, he bumped into his coworker, Mr. C, another working student, and that this caused him to slip. Claimant said he grabbed at Mr. C to hold himself up but only succeeded in bringing Mr. C down on top of him. His leg was at an awkward angle and broke when Mr. C, whom claimant described as much larger, fell on it. Claimant agreed that wrestling and horseplay were against company policy and this was one of the first instructions given to employees.
Another minor employee, Mr. M, was in the breakroom at the time, and went to get the boss. Both Mr. M and Mr. C gave written statements in the case shortly after the accident, and then later after contacted by the claimant. The second statements differed from the first statements given by these witnesses. The signature in Mr. M’s statements appears different on each document. Mr. C’s signature, however, appears consistent on both documents. Both of the revised statements relate events as merely a bump and a fall.
The first statements, however, are as follows: Mr. M stated that claimant and Mr. C started shoving each other and wrestling around, and then they fell. Mr. C’s first statement, given March 14, 1996, which he appears to have written himself, said that he was cleaning the breakroom. The contact is described in this manner:
“[claimant] was coming in the breakroom when I shoved him on the shoulder then he lost his balance on the floor so he grabbed my shirt to break his fall when I fell directly on his leg. I started to laugh until I seen [sic] that he didn’t get up… .”
(We note that there is another short statement, apparently written in another handwriting and apparently signed by Mr. C, after the accident which stated that “we shoved each other” and then the fall happened.)
Claimant agreed that the boss who came to the room after the accident, Mr. E, commented, “[t]hat’s what you get for wrestling.” Claimant denied that he had been engaged in any wrestling or horseplay at all.
The carrier argued that Mr. C’s March 14th statement is the pivotal evidence in which he admitted, against his own interest, that he was engaged in horseplay. While we agree it is pivotal and important evidence in the case, we do not agree that believing this statement necessarily leads to the result sought by the self-insured. What this statement plainly states is that it was Mr. C who shoved claimant as he came in the breakroom, causing him to lose his balance and fall. The fact that an injured worker was a victim of, as opposed to a voluntary participant in, horseplay does not invoke the exception set forth in Section 406.032(2); Texas Workers’ Compensation Commission Appeal No. 92536, decided November 16, 1992; Texas Workers’ Compensation Commission Appeal No. 93571, decided August 20, 1993. The hearing officer can (and evidently did) construe all the apparent conflicts in this case by believing claimant’s assertion that he was not wrestling, believing Mr. C’s statement that he did the shoving and that claimant subsequently grabbed him to keep his balance, and believing Mr. M’s statement that he saw what appeared to be his coworkers grabbing onto each other, interpreted as wrestling, but which was in fact claimant’s attempt to keep his balance. The hearing officer could believe that the first statement given by Mr. C was the most accurate, and that subsequent statements were given as self-serving or helpful statements, and still reach the decision he did. Consequently, he could believe that an essential element of the horseplay exception, claimant’s voluntary participation, was not established by carrier, thus, the burden of proof never shifted back to claimant to prove that the horseplay exception did not apply. We believe that this is the proper interpretation of Finding of Fact No. 6. See Texas Workers’ Compensation Commission Appeal No. 971538, decided September, 18, 1997 (Unpublished). Regardless of whether the burden of proof shifted, the evidence in this case sufficiently supports the hearing officer’s decision that the horseplay exception did not apply.
The hearing officer is the sole judge of the relevance, the materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). A claimant’s testimony alone may establish that an injury has occurred, and disability has resulted from it. Houston Independent School District v. Harrison, 744 S.W.2d 298, 299 (Tex. App.- Houston [1st Dist.] 1987, no writ). 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); American Motorists Insurance Co. v. Volentine, 867 S.W.2d 170 (Tex. App.-Beaumont 1993, no writ). The period of disability found by the officer is supported by medical evidence and testimony in the record and carrier’s appeal of that finding is based upon its contention that the injury in this case was not compensable. Consequently, we affirm the decision of the hearing officer on all appealed issues.
Susan M. Kelley – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Judy L. Stephens – Appeals Judge