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 October 9, 2001. With regard to the issues before him, he determined that the respondent (claimant) sustained a compensable injury on __________; that the claimant sustained an injury to her back in addition to an injury to her right hand on __________; and that the claimant has had disability beginning on March 30, 2001, and ending on October 9, 2001. The appellant (carrier) appeals, arguing that the hearing officer erred in ruling that a prior recorded statement was not timely exchanged; in excluding the testimony of a witness; in allowing the witness to be cross-examined during the carrier’s offer of proof; and in determining that the claimant’s injuries were compensable and that the claimant had disability. Also, the carrier requests that if the case is remanded, the hearing officer be recused from the case because the hearing officer is biased. The claimant did not file a response.
DECISION
Affirmed.
The claimant testified that she was recently employed as a housekeeper for the employer. On __________, the claimant was inside a bathtub cleaning the walls when she slipped and fell to a sitting position, injuring her back and right hand. She stated that she climbed out of the bathtub and told her supervisor that she was hurt, but did not inform her that she slipped and fell in the bathtub. The claimant did not return to work the next day and asked her sister-in-law to inquire as to whether she still had a job. The claimant reported her injury to the employer on April 16, 2001, within 30 days after the incident occurred. The claimant testified that she did not seek medical attention for her back and hand until April 24, 2001, because she did not have medical coverage. The medical records in evidence indicate that Dr. D diagnosed the claimant with a post-traumatic strain/sprain to the lumbar, cervical, and thoracic areas. At the CCH, during the carrier’s case in chief, the claimant objected to testimony from the carrier’s witness, on the basis that the witness would be testifying on documentary evidence that was not timely exchanged. The carrier argued that it was not in possession of the prior recorded statement taken by an investigator and, therefore, was not able to exchange that information. The hearing officer ruled that the witness’ testimony was inadmissible since the carrier’s adjuster had possession of the prior recorded statement, and it had not been provided to the claimant. The hearing officer allowed the carrier to make an offer of proof of the witness’ testimony to preserve error on appeal.
The Appeals Panel has held that to obtain reversal of a judgment based upon the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was, in fact, an abuse of discretion and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers’ Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).
We first address the carrier’s contention on appeal that the hearing officer erred in determining that the carrier did not timely exchange information with the claimant. The claimant objected to the failure to exchange the prior recorded statement of the carrier’s witness. The carrier argued that it was not in possession of a transcript, as the witness’ prior recorded statement was taken by an investigator. The claimant contended that the carrier’s adjuster was in possession of audiotapes of the witness’ recorded statement taken by the investigator, as evidenced by a letter dated August 10, 2001, and that the carrier did not timely exchange that information or lack of information. The hearing officer excluded the testimony of the carrier’s witness and explained, in the Evidence Presented section of the Decision and Order, “that neither the [audiotapes] nor a transcription were ever exchanged with Claimant” pursuant to Section 410.161.
The carrier argues that the hearing officer erred in excluding the testimony of the carrier’s witness, instead of excluding the evidence in the statement. While the parties acknowledged that the witness’ name was exchanged, the claimant took the position that testimony from that witness needed to be excluded because the prior recorded statement from that witness was not timely exchanged. The carrier argued that they did not need to exchange information if the witness was called for rebuttal purposes, that the witness may be cross-examined by the claimant, and that they were not in possession of the prior recorded statement of the witness since it was not transcribed. The hearing officer ruled that the
Carrier has failed to disclose information or documents that are in the party’s possession, custody, or control, that the tapes were sent-or in the possession of the adjuster at the time the disclosure was required, and because of that the party, the Carrier, should not be permitted to introduce the evidence, that is, the testimony of the adjuster-strike that-the testimony of [the witness] or the tape at the [CCH]. [Transcript, page 83]
The carrier argues that exclusion of the witness’ testimony constitutes harmful error. Assuming, without deciding, that it was error to exclude the testimony of the witness, we conclude that any error was harmless. The hearing officer allowed the carrier to make an offer of proof, and the witness testified under oath and was cross-examined by the claimant. The hearing officer made a finding that “[i]f the testimony of [the witness] is admitted, it should be given no weight because [the witness] appears to have difficulty distinguishing Claimant from a coworker, also named [M], who also has a workers’ compensation claim.” The hearing officer has indicated that the testimony of the witness is not credible. Therefore, even if the witness did contradict some of the claimant’s testimony, the hearing officer has indicated that he would not have believed the witness’ testimony even if he had admitted it. Accordingly, the carrier has not established reversible error in this case.
As to the carrier’s argument that the hearing officer erred in allowing the claimant to cross-examine the carrier’s witness during an offer of proof, since we see no problem with the witness testifying, there can be no error in affording the claimant the opportunity to cross-examine the witness.
The carrier argues that the hearing officer erred in determining the compensability and extent-of-injury issues. Both of these issues are factual questions for the hearing officer to resolve. The hearing officer was persuaded by the claimant’s testimony and medical reports in evidence that the claimant sustained a compensable injury to her right hand on __________, and that the injury extended to her back. The evidence sufficiently supports the hearing officer’s determinations.
Lastly, the carrier argues that the hearing officer erred in determining disability. The claimant testified that she was has been unable to work since the date of her injury. The hearing officer determined that “[d]ue to her __________ injury, Claimant has been unable to obtain and retain employment at her preinjury wage beginning on March 30, 2001 and ending on October 9, 2001.” We note that the CCH was held on October 9, 2001; since the hearing officer does not determine future disability, it was appropriate that he use the date of the CCH as the end date of disability. The evidence sufficiently supports the hearing officer’s determination that the claimant had disability and the dates thereof.
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).
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is ZURICH NORTH AMERICA and the name and address of its registered agent for service of process is
GARY SUDOL
ZURICH NORTH AMERICA
9330 LBJ FREEWAY
SUITE 1200
DALLAS, TEXAS 75243.
Michael B. McShane – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Thomas A. Knapp – Appeals Judge