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 September 6, 2001, with the record closing on October 11, 2001. With regard to the disputed issues before him, the hearing officer determined that the respondent (claimant) sustained a compensable injury on or about __________, and that the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group health insurance policy. The appellant (carrier) appeals, arguing essentially that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The carrier continues to object to Claimant’s Exhibit No. 8, a letter from Dr. C, which the hearing officer admitted after finding good cause for late exchange. The carrier asserts that the claimant failed to use due diligence to obtain the document. The claimant filed a response urging affirmance.
DECISION
Affirmed.
The claimant testified that she was employed as a benefits clerk for the employer, and testified that on __________, she reached into a drawer to pull out a three-ring binder and, at that moment, felt a sharp pop to her neck. She stated that she felt nausea and was light-headed, and that the neck pain radiated down to her left arm and hand. The claimant was taken to the emergency room by her supervisor. The supervisor asked her for her group health insurance card for medical coverage. The claimant testified that she did not make an informed decision about election of benefits. The medical records in evidence indicate that the MRI showed that the claimant had a herniated disc at C6-7. The claimant testified that she had a previous neck injury in 1996, and that she had bladder reconstruction surgery on January 29, 2001. The carrier contends that the claimant’s shoulder injury relates to her ongoing shoulder pain and that her neck injury relates to her complaints of neck pains after her bladder surgery, two months prior to the incident at work. At the CCH, the parties stipulated that the claimant’s average weekly wage is $320.00.
The hearing officer did not err in determining that the claimant sustained a disc injury to her cervical spine on __________, while performing her regular duties. Section 401.011(10) provides that a compensable injury is an injury that arises out of and in the course and scope of employment for which compensation is payable under the 1989 Act. The hearing officer was persuaded by the claimant’s testimony and the medical reports in evidence that the claimant sustained an injury to her cervical spine in the course and scope of employment on __________.
The hearing officer did not err in determining that the claimant did not make a knowing election to receive group health benefits in lieu of workers’ compensation benefits. Under Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980) an election of another remedy which would bar a claimant from workers’ compensation benefits must be made as a result of (1) an informed choice (2) between two rights, remedies, or states of fact that (3) are so inconsistent (4) as to constitute manifest injustice. In our view, the evidence presented in this record does not meet the standards set forth in Bocanegra and, thus, the hearing officer did not err in determining that no election was made by the claimant. The claimant testified that although her job duties consisted of handling employees’ benefits claims and billings, she did not have any knowledge of workers’ compensation claims since these claims were referred to the corporate attorney. The evidence sufficiently supports the hearing officer’s determinations.
It is the hearing officer, as the sole judge of the weight and credibility of the evidence (Section 410.165(a)), who resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). This is equally true of medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The Appeals Panel 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).
As to the carrier’s objection to Claimant’s Exhibit No. 8, the hearing officer found good cause for late exchange. We agree. We do not find the hearing officer’s ruling to be an abuse of discretion, nor can we say that the hearing officer acted without reference to guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is ASSOCIATION CASUALTY INSURANCE COMPANY and the name and address of its registered agent for service of process is
HAROLD FISCHER
3420 EXECUTIVE CENTER DRIVE
SUITE 200
AUSTIN, TEXAS 78766.
Michael B. McShane – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Thomas A. Knapp – Appeals Judge