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 October 23, 2001. The hearing officer determined that the appellant/cross/respondent (claimant) had not sustained a repetitive trauma injury, that the date of the alleged injury pursuant to Section 408.007 was __________ (all dates are 2001 unless otherwise note), that the claimant did not have disability, and that the respondent/cross-appellant (carrier) is relieved of liability because the claimant failed to timely notify his employer pursuant to Section 409.001. The hearing officer’s determination on the correct date of injury has not been appealed and has become final. Section 401.169.
The claimant appeals the determinations of a noncompensable injury, citing what he believes are inconsistent findings and the notice and disability issues. The carrier appeals the Finding of Fact that the claimant “did sustain a repetitive trauma injury to his hands in the form of bilateral (CTS) while in the course and scope of his employment.” The carrier responds to the claimant’s appeal urging affirmance of those appealed issues.
DECISION
Affirmed on all issues.
The claimant was employed by a staff leasing employer (employer) and was sent to work at a client company (company) as a sheet metal fabricator. The claimant testified in some detail what his duties were but it is disputed how repetitively traumatic those duties of cutting, notching, and bending metal for air conditioning ducts were. The claimant began work with the company on January 15. The claimant testified that a few weeks later in early February he began to have trouble with his hands. The claimant sought medical attention from Dr. S on __________ and was diagnosed with bilateral CTS. In an undisputed determination the hearing officer found __________ to be the date of injury. The claimant testified that he reported a work-related injury to the company’s two co-owners on February 26. One of the co-owners testified and specifically denied any such report. The claimant continued working and was referred to a neurologist. It is undisputed that the claimant saw Dr. O on April16, was told he had severe bilateral CTS and the following day (again) reported a work-related injury to the company. The claimant continued to work until May 31 and had CTS release surgery June 1.
The hearing officer made the following determinations which have led both parties to appeal portions of the decision.
Finding of Fact
2.The claimant did sustain a repetitive trauma injury to his hands n the form of bilateral carpal tunnel syndrome while in the course and scope of employment.
Conclusion of Law
2.The claimant did not sustain a compensable repetitive trauma injury.
The claimant contends Finding of Fact No. 2 and Conclusion of Law 3 are inconsistent and contradictory. The carrier appeals Finding of Fact No. 2 as being insufficiently supported by the evidence. The hearing officer makes clear (at least to us) in her Statement of the Evidence and other determinations that she is finding that the claimant’s bilateral CTS was caused by his repetitive activities at work but that this did not result in a compensable injury because of the claimant’s failure to timely report the injury within 30 days to the employer pursuant to Sections 409.001 and 409.002. Although the claimant testified that he reported the injury to the company’s co-owners on February 26 the hearing officer found that timely notice had not been given and accepted the testimony of the co-owner. The hearing officer is the sole judge the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and could believe all, part or none of the testimony of any witness. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). Similarly, whether the claimant’s work activities were sufficiently repetitively traumatic was a question of fact for the hearing officer to resolve, the carrier’s peer review report notwithstanding.
In that we are affirming the hearing officer’s determination that the claimant had not sustained a compensable repetitive trauma injury, the claimant, by definition in Section 401.001(16) cannot have disability.
The hearing officer is the sole judge of the weight and credibility of 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.)). 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 of the hearing officer are affirmed.
The true corporate name of the insurance carrier is GREAT AMERICAN ALLIANCE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL ST.
DALLAS, TX 75201.
Thomas A. Knapp
CONCUR:
Gary L. Kilgore – Appeals Judge
Philip F. O’Neill – Appeals Judge