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 August 9, 2001. With respect to the issues before her, the hearing officer determined that the appellant (claimant) did not sustain a compensable injury on _____________; that he did not have disability; that the respondent (carrier) is relieved from liability for the claimed injury because the claimant did not timely report his alleged injury to his employer; and that the claimant is not barred from pursuing workers’ compensation benefits because of an election to receive benefits under a group health insurance policy. The claimant appeals the injury, disability, and notice determinations on sufficiency grounds. The carrier urges affirmance. The hearing officer’s determination with regard to election of remedies was not appealed and is, therefore, final.
DECISION
Affirmed in part and reversed and rendered in part.
COMPENSABLE INJURY
The hearing officer did not err in determining that the claimant did not sustain a compensable injury on ____________. The claimant had the burden to prove that he sustained damage or harm to the physical structure of his body, arising out of and in the course and scope of his employment. Texas Workers’ Compensation Commission Appeal No. 992486, decided December 29, 1999. There was conflicting evidence presented with regard to this issue. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence including the medical evidence (Texas Employers Ins. Ass’n v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). In view of the evidence presented, the hearing officer could find that the claimant did not sustain damage or harm to the physical structure of his body as a result of the work-related accident of _____________. The hearing officer’s injury determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
DISABILITY
The hearing officer did not err in determining that the claimant did not have disability. The 1989 Act requires the existence of a compensable injury as a prerequisite to a finding of disability. Section 401.011(16). Because the claimant did not sustain a compensable injury, the hearing officer properly concluded that the claimant did not have a disability.
NOTICE OF INJURY
The hearing officer erred in determining that the claimant failed to timely notify his employer of a work-related injury. Section 409.001(a)(1) provides, in relevant part, that an employee or a person acting on the employee’s behalf shall notify the employer of an injury not later than the 30th day after the date on which the injury occurred. The statute requires that notice be given to a person who holds a supervisory or management position, but the person to whom the report is made need not be in the direct supervisory chain of the injured worker. Texas Workers’ Compensation Commission Appeal No. 951457A, decided November 21, 1995 (Unpublished). We have also noted that the sufficiency and scope of what is “notice” of injury under the 1989 Act should be liberally construed. Texas Workers’ Compensation Commission Appeal No. 92661, decided January 28, 1993, citing DeAnda v. Home Ins. Co., 618 S.W.2d 529 (Tex. 1980). Failure to notify an employer as required by Section 409.001(a) relieves the employer and the carrier of liability, unless the employer or carrier has actual knowledge of the injury, good cause exists, or the claim is not contested. Section 409.002.
The evidence shows that the claimant notified Mr. B of a work-related injury on _____________. Mr. B worked as a supervisor for the employer, although he was not the claimant’s direct supervisor. In a recorded statement, Mr. B stated that he heard the claimant fall through the ceiling in an adjacent office, he immediately went around to the site of the accident and saw the claimant standing on a desk looking up at the hole he had made in the ceiling. Mr. B further stated that the claimant told him that his arm was hurting. The claimant also spoke to his direct supervisor, Mr. G, about the incident on the same day. Mr. G stated that the claimant told him, when discussing the incident, that his “arm was hurting.” Approximately one week after the incident, when asked “if he was all right” by the employer, the claimant stated that he was fine. Later, after experiencing pain in his lower back, the claimant indicated that his low back pain was not related to the incident of ___________. In view of the undisputed evidence that the claimant notified Mr. B and Mr. G that his arm was hurting on ___________, in response to inquiries about his fall at work, the hearing officer’s determination that the claimant did not timely notify his employer of a work-related injury is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra. Although the claimant appears to have subsequently indicated that his pain had improved or was not related to the incident of____________, his comments to that effect do not serve to negate the notice of injury given on the date of the incident to both Mr. B and Mr. G.
The decision and order of the hearing officer are affirmed with regard to her injury and disability determinations. The hearing officer’s notice determination is reversed and a new decision rendered that the claimant timely reported his alleged injury to his employer and, as such, the carrier is not relieved from liability for the claimed injury.
The true corporate name of the insurance carrier is LIBERTY INSURANCE CORPORATION and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 N. ST. PAUL STREET, SUITE 2900
DALLAS, TEXAS 75201.
Elaine M. Chaney – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge