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 November 12, 2001. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury in the form of an occupational disease; did not have disability; did not timely report an injury to the employer and did not have good cause for failing to do so; that the respondent (self-insured) is relieved of liability; and the date that the claimant knew or should have known that the disease may be related to her employment was __________. The claimant has appealed these determinations on sufficiency-of-the-evidence grounds. The self-insured replied, urging affirmance.
DECISION
Affirmed.
Each of the complained-of determinations was a factual determination for the hearing officer. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may 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). We will reverse a factual determination of a hearing officer only if that determination is 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, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we decline to substitute our opinion of the credibility of the evidence for that of the hearing officer.
We affirm the decision and order of the hearing officer.
The true corporate name of the insurance carrier is (a certified self-insured) and the name and address of its registered agent for service of process is
C T CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Michael B. McShane – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
CONCURRING OPINION:
While I concur in the result, I do not agree that the date of injury found by the hearing officer is a reasonable inference. Indeed, I believe it is manifestly unjust to assume that a worker knows, within the first day of experiencing some upper arm discomfort, that one has a syndrome or an injury related to employment. The date that the claimant put on her report to her employer was obviously an attempt to think back to the date of her first symptoms. Common experience at least supports the claimant’s statement that she at first assumed she was just tired and did not realize she had an “injury.” “Knew or should have known” does not require clairvoyance, which I believe is what the hearing officer in this case has imposed. However, a finding in favor of the claimant on this issue does not change the outcome of the case.
Susan M. Kelley – Appeals Judge