This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 23, 2001. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury on __________, or have disability; that the respondent (carrier) is relieved from liability because of the claimant’s failure to timely notify the employer pursuant to Section 409.001; and that the carrier has not waived its right to contest the compensability of the claimed injury by not specifically contesting compensability pursuant to Section 409.002. On appeal, the claimant contends that there is insufficient evidence to support these determinations. The carrier urges affirmance.
DECISION
Affirmed.
The claimant had the burden to prove by a preponderance of the evidence that she sustained a compensable injury on __________, and thereafter had disability and these issues presented the hearing officer with questions of fact to resolve. Similarly, whether the employee gave timely notice of an injury is generally a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93761, decided October 4, 1993. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and it is for the hearing officer to resolve such conflicts and inconsistencies in the evidence as were present in this case (Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)). As an appellate reviewing body, we will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
With regard to whether the carrier waived its right to contest compensability of the claimed injury pursuant to Section 409.002, the Appeals Panel has said that “magic words are not necessary” to contest the compensability of an injury under the statute and rule and that we look to “a fair reading of the reasoning listed” to determine if the notice of refusal or denial is sufficient. Texas Workers’ Compensation Commission Appeal No. 93326, decided June 10, 1993. And, as was stated in Texas Workers’ Compensation Commission Appeal No. 93533, decided August 9, 1993, “[t]he key point to be determined is whether, read as a whole, any of the reasons listed by carrier would be a defense to compensability that could prevail in a subsequent proceeding.” The hearing officer’s view that the language in the Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) adequately disputed the compensability of the claimed injury is not, in our judgment, against the great weight of the evidence.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Michael B. McShane – Appeals Judge