This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on June 26, 2001. The appellant (claimant) appealed the hearing officer’s determinations that the claimant did not sustain a compensable injury and that the respondent (carrier) did not waive its right to contest compensability. There was no appeal of the hearing officer’s determination that the claimant gave timely notice of injury. In Texas Workers’ Compensation Commission Appeal No. 011799, decided September 18, 2001, the Appeals Panel reversed the hearing officer’s decision and remanded the case to the hearing officer for the purpose of obtaining compliance with HB 2600, which amended Section 410.164 by the addition of subsection (c). The address the carrier provided for its registered agent in its carrier information form was an out-of-state address, and the remand was done so that the carrier could provide a physical address of a registered agent in Texas. On remand, the requested information was provided by the carrier. In his decision on remand, the hearing officer made the same determinations as in his original decision, the claimant appealed, and the carrier responded. There is again no appeal of the hearing officer’s determination that the claimant gave timely notice of injury.
DECISION
The hearing officer’s decision on remand is affirmed.
COMPENSABLE INJURY ISSUE
The hearing officer did not err in determining that the claimant did not sustain a compensable injury. Section 401.011(10) defines “compensable injury” as “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.” The claimant had the burden to prove that he sustained an injury during the course and scope of his employment. Johnson v. Employers ReinsuranceCorporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ).
At the CCH, the claimant testified that he injured his shoulders at work on ___________, while lifting boxes, which was part of his job duties. Much conflicting evidence was presented at the CCH on this issue. The hearing officer found that on or about ___________, the claimant did not sustain an injury to his shoulders that arose out of or in the course and scope of his employment, and concluded that the claimant did not sustain a compensable injury. While it is evident that the hearing officer believed that the claimant does have an injury to his shoulders, because he found that at some unknown time between ___________ and before ___________, the claimant sustained an injury to his shoulders, he did not find that such injury occurred during the course and scope of the claimant’s employment. Evidently, the hearing officer was not persuaded that the claimant sustained his injury as claimed at the CCH. The trier of fact may believe that the claimant has an injury, but disbelieve that the injury occurred as claimed by the claimant. Johnson, supra.
The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the trier of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. The hearing officer’s determination that the claimant did not sustain a compensable injury is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
Although the hearing officer did not find a date of injury, it is clear that he accepted that the claimant was claiming an injury date of ___________, because, based on that claimed date of injury, the hearing officer determined that the claimant gave timely notice of injury to his employer. That determination was not appealed. We do not agree with the claimant’s assertion that the finding of timely notice of injury conflicts with the hearing officer’s finding that the claimant did not sustain a compensable injury. The hearing officer’s finding that the claimant did not sustain a compensable injury is based on the hearing officer’s finding that on or about ___________, the claimant did not sustain an injury to his shoulders that arose out of or in the course and scope of his employment. That finding addressed the claimant’s claim at the CCH of a ___________, injury from lifting boxes at work.
WAIVER ISSUE
The hearing officer did not err in determining that the carrier did not waive its right to contest compensability of the claimed injury because it timely contested it within 60 days as required by Section 409.021, and that the carrier specifically contested compensability of the claimant’s alleged injury pursuant to Section 409.022. Section 409.021(c) provides, in part, that if an insurance carrier does not contest compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability. Section 409.022(a) provides that an insurance carrier’s notice of refusal to pay benefits under Section 409.021 must specify the grounds for the refusal. The hearing officer determined that the carrier received written notice of the injury on December 20, 2000, and that on January 8, 2001, which was within 60 days, the Texas Workers’ Compensation Commission (Commission) received the carrier’s Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21), which specifically contested the compensability of the claimant’s shoulder injury.
The fact that the carrier wrote “unknown” regarding the date of injury in the TWCC-21 is understandable in light of the evidence that in the claimant’s recorded statement the claimant told the adjustor that his injury occurred two years before that statement was taken; an employer’s incident report reflected that the claimant said that his injury occurred two years ago; and the employer provided a date of injury of ___________, in its report. As noted, at the CCH the claimant claimed an injury date of ___________. The TWCC-21 specifically references the nature of the claimed injury as a bilateral shoulder injury and specifically denied that the injury occurred in the course and scope of the claimant’s employment. The TWCC-21 is dated December 22, 2000, and states that the carrier’s first written notice of injury was received on December 20, 2000, which is the date of the Employer’s First Report of Injury or Illness (TWCC-1). A Commission Claim Forms List for the claimant’s claim that was in evidence reflects that the carrier’s TWCC-21 was received by the Commission on January 8, 2001. We conclude that the hearing officer’s determinations on the waiver issue are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, supra.
Lastly, we consider the claimant’s assertion that the hearing officer erred in his determination that the carrier did not waive its right to contest compensability in this case. The claimant contends that, pursuant to Downs v. Continental Cas. Co., 32 S.W.3d 260 (Tex. App.-San Antonio 2000, pet. pending), the carrier has waived its right to contest compensability in this instance because it did not do so within seven days of the date it received written notice of the injury. On August 28, 2000, the Executive Director of the Commission issued Advisory 2000-07 acknowledging the court of appeals decision on rehearing in Downs, supra. However, the advisory states that the “August 16th decision in the Downs case should not be considered as precedent at least until it becomes final upon completion of the judicial process.” In addition, the Director of the Hearings Division has informed the Hearings Division that the Commission’s position is that a carrier has 60 days to contest compensability and that the hearings staff are to follow the Commission’s position statewide pending final resolution of Downs. The Director of Hearings reissued this directive following the issuance of the decision on rehearing in Downs. Based on these directives, the hearing officer did not err in making his determination that the carrier timely contested compensability under Section 409.021(c) because it contested compensability within 60 days after it received written notice of the claimed injury. See Texas Workers’ Compensation Commission Appeal No. 012385, decided November 9, 2001.
The hearing officer’s decision and order on remand are affirmed.
The true corporate name of the insurance carrier is PACIFIC EMPLOYERS INSURANCE COMPANY and the name and address of its registered agent for service of process is
MARCUS CHARLES MERRITT
6600 CAMPUS CIRCLE DRIVE EAST, SUITE 200
IRVING, TEXAS 75063.
Robert W. Potts – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Michael B. McShane – Appeals Judge