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 25, 2001. The hearing officer determined that the respondent (carrier) did not waive the right to dispute compensability of the claimed injury by not contesting the injury in accordance with Section 409.021; that the carrier is relieved from liability under Section 409.002 because of the appellant’s (claimant) failure to timely notify her employer pursuant to Section 409.001; that the claimant did not sustain a compensable injury on or about ___________; and that the claimant did not have disability because she did not have a compensable injury. The claimant appealed, arguing that the hearing officer erred in determining compensability, disability, timeliness of the claimant to report the injury, and timeliness of the carrier to dispute compensability. Also, the claimant argues that the hearing officer erred in denying the claimant’s request for a subpoena duces tecum, excluding Claimant’s Exhibit No. 7, and refusing to leave the record open for receipt of records. The carrier filed a response asserting that the Texas Workers’ Compensation Commission (Commission) Appeals Panel lacks jurisdiction over the appeal because it was not timely filed. The carrier further contends that the decision of the hearing officer should be affirmed in all respects. The claimant responded that the appeal was timely and that Appeals Panel has jurisdiction over the appeal.
DECISION
Affirmed.
Jurisdictional Issue
The jurisdiction of the Appeals Panel has been properly invoked by the claimant’s timely appeal. Section 410.202(a) provides that “to appeal the decision of a hearing officer, a party shall file a written request for appeal with the appeals panel not later than the 15th day after the date on which the decision of the hearing officer is received from the division and shall on the same date serve a copy of the request for appeal on the other party.” Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(c) (Rule 143.3(c)) provides that a request for review shall be presumed to be timely filed if it is: (1) mailed on or before the 15th day after the date of receipt of the hearing officer’s decision; and (2) received by the Commission not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(c) must be complied with for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 010112, decided February 13, 2001.
Records of the Commission reflect that the hearing officer’s decision was distributed to the parties on October 18, 2001, under a cover letter of the same date. The claimant did not state what date she received the hearing officer’s decision and she is deemed (in the absence of the great weight of evidence to the contrary) under Rule 102.5(d) to have received it by the fifth day after mailing, or October 23, 2001. Applying Rule 143.3(c), the last day for the claimant’s appeal to have been timely mailed was November 14, 2001, and the last day for it to have been timely received by the Commission was November 21, 2001. In computing the number of days that a person has to file an appeal, November 6, 2001, the election day holiday, and weekends are not included in the computation of time to file an appeal or response pursuant to Section 410.202(d). The claimant’s certificate of service states that she mailed her appeal to the Commission on November 13, 2001. The envelope containing the appeal bears a postmark reflecting that it was mailed on November 13, 2001, and a date stamp reflecting that it was received at the Commission on November 16, 2001. Accordingly, the appeal was timely filed.
Procedural Issues
Our standard of review regarding the hearing officer’s evidentiary rulings is one of abuse of discretion. Texas Workers’ Compensation Commission Appeal No. 92165, decided June 5, 1992. The hearing officer did not err in denying the claimant’s request for a subpoena duces tecum for information or records of other employees, patients, or persons in the workplace who were positive for tuberculosis. Review of Commission records included with the case file indicate that on September 17, 2001, the hearing officer signed an Order Denying Request For Subpoena Duces Tecum as there appeared no good cause for issuance of the subpoena in that “[t]he request is overly broad and vague and is not pertinent to the issues of this case.” 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. Texas Workers’ Compensation Commission Appeal No. Appeal No. 951943, decided January 2, 1996; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The record does not show that the hearing officer acted without reference to any guiding rules or principles. Accordingly, we find no error in the hearing officer’s determination.
The hearing officer did not err in excluding Claimant’s Exhibit No. 7 and in refusing to hold the record open for receipt of the Data Resolution Information System (DRIS) notes to allow the claimant additional time to obtain evidence in support of her position that she timely notified her employer of her injury. We note that the claimant attached to her appeal DRIS notes to support her argument that the carrier had timely notice of her injury. Section 410.203(a)(1) provides that the Appeals Panel shall consider the record developed at the CCH. See Texas Workers’ Compensation Commission Appeal No. 92400, decided September 18, 1992, and Texas Workers’ Compensation Commission Appeal No. 950331, decided April 18, 1995. The DRIS notes were obviously in existence prior to the CCH. We can fairly conclude that there was a lack of diligence in retrieving the DRIS notes and being fully prepared at the time of the CCH. Additionally it is uncertain, what the records would establish, if anything, or whether the records, once received by the claimant, would be offered into evidence. Consequently, the DRIS notes attached to the appeal but not in evidence will not be considered on appeal. Under the circumstances, we cannot conclude that the hearing officer abused her discretion in excluding Claimant’s Exhibit No. 7 and closing the record following the hearing.
Compensability and Disability Issues
The claimant testified that she was employed as a nurse’s assistant for the employer. The claimant stated that she injured her back at work on ___________, when she lifted a patient in her arms and felt a pop to her back. She claims that she reported her injury to her supervisor, but did not fill out an incident report because her back did not hurt. After a few days had passed, she complained of back pain to her supervisor and she alleges that she was informed that an incident report had to be filed within 24 hours after a work-related injury occurred. On June 8, 2000, the claimant was admitted to the emergency room for severe back pain. On June 13, 2000, the claimant had spinal surgery. On June 28, 2000, the claimant was diagnosed with tuberculosis osteomyelitis of the thoracic spine. The claimant testified that she did not know that the employer provided workers’ compensation coverage. The claimant inquired with the Commission about the employer’s workers’ compensation coverage, and filed a claim on September 25, 2000. The claimant stated that she notified the carrier by letter of her workers’ compensation claim.
The hearing officer did not err in determining that the claimant did not sustain an injury to her back on ___________, while in the course and scope of employment. Section 401.011 (10) provides that a “compensable injury” means an injury that arises out of and in the course and scope of employment for which compensation is payable. The hearing officer was not persuaded by the claimant’s testimony that she injured her back in the manner described by the claimant, and the evidence in the record supports another possible cause for a back injury.
The hearing officer likewise did not err in determining that the claimant failed to establish that her tuberculosis osteomyelitis of the thoracic spine was causally related to her employment. The hearing officer could conclude from the claimant’s testimony and the medical records in evidence, especially the record from Dr. V, the peer review doctor, that the claimant’s disease was not contracted while in the course and scope of employment, but was more likely an ordinary disease of life. As such, the claimant failed to satisfy her burden of proof on the issue of whether she sustained a compensable injury.
Since we are affirming the hearing officer’s decision that the claimant did not have a compensable injury, the claimant cannot, by definition in Section 401.011(16), have disability.
Notice of Injury to Employer and Failure to File Notice Issues
The hearing officer did not err in determining that the claimant failed to timely notify her employer of her injury and that the carrier is relieved from liability under Section 409.002. Section 409.001 requires 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 occurs. Failure to do so, absent a showing of good cause or actual knowledge of the injury by the employer, relieves the carrier and employer of liability for the payment of benefits for the injury. Section 409.002. Whether, and, if so, when, notice is given is a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93761, decided October 4, 1993. The hearing officer clearly did not believe the claimant’s testimony that she made an immediate and timely report of her alleged back injury on ___________. Section 408.007 provides that the date of injury for an occupational disease is the date on which the employee knew or should have known that the disease may be related to the employment. As to the tuberculosis osteomyelitis of the thoracic spine, if it was caused by an exposure at work, it could be considered an occupational disease. The hearing officer determined that no later than on or about ___________, the claimant knew or should have known that the tuberculosis osteomyelitis of the thoracic spine may be work-related. We find sufficient evidence in the record to support the hearing officer’s determination that the claimant notified the employer of the alleged injuries and the fact that she believed they were work-related on ___________. This was more than 30 days past the date of either the alleged February back injury or the alleged occupational disease which the claimant knew or should have known to be work related no later than ___________.
The hearing officer found that the carrier filed a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) on October 5, 2000, which is within the 60-day period allowed for the carrier to dispute compensability of a claimed injury. Section 409.021. The hearing officer did not err in following our precedents and the Commission position that the decision in Downs v. Continental Casualty Company, 32 S.W.3d 260 (Tex. App.-San Antonio 2000, pet. filed), will not be enforced until the Texas Supreme Court has rendered its decision. We have been asked to apply the Downs, supra, decision to similar factual situations, and have declined to do so. Our rationale for doing so is stated in Texas Workers’ Compensation Commission Appeal No. 001927, decided ___________:
However, on August 28, 2000, the Commission issued Advisory 2000-07 which states, in part, as follows: “After consultation with the Office of the Attorney General and in light of § 410.205(b) of the Texas Labor Code, the Commission understands 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 related Commission’s rules, such as those found at [Tex. W.C. Comm’n,] 28 TEX. ADMIN. CODE § 124.2, 124.3, and 132.17, remain in effect.”
We continue to decline to follow Downs, supra and we affirm the hearing officer’s decision on this issue.
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 CONNECTICUT INDEMNITY COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701.
Michael B. McShane – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Thomas A. Knapp – Appeals Judge