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 5, 2001. The hearing officer determined that the respondent (claimant) sustained a compensable injury on ____________, and that he had disability from ______, through July 9, 2001. The appellant (carrier) appealed these determinations on sufficiency grounds. Carrier also contends that the hearing officer erred in admitting the statement of a coworker, who stated that he heard claimant fall. Claimant responded, urging affirmance.
DECISION
We reverse and remand.
Claimant testified that he sustained a compensable injury on ____________, when he slipped and fell while carrying a bundle of framing studs. Claimant said he has been unable to return to work since that time. Carrier contended that no accident occurred.
In support of claimant’s position, he submitted a statement from the coworker which indicated that on the date of the injury the coworker heard claimant fall and that when he turned around he saw claimant lying on the floor. Carrier objected to the admission of the statement because neither the identity of the witness nor his statement had been exchanged within 15 days of the benefit review conference (BRC), as required by Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.13(c) (Rule 142.13(c)). The BRC was held on September 6, 2001, and carrier argued that the statement was not exchanged until October 8, 2001. Claimant’s attorney stated that she did not know about the witness or receive his statement until October 3, 2001, and that she exchanged the statement with carrier on October 8, 2001, after she had an opportunity to telephonically verify it. The hearing officer overruled the objection without giving further explanation. No finding of good cause was made. When carrier attempted to inquire into when claimant knew about the witness, the hearing officer cut him off stating, “[s]ave it for the Appeals Panel.”
The hearing officer did not make a determination of good cause as required by Rule 142.13(c)(3), nor did he articulate his reasoning for admitting the coworker’s statement. See Texas Workers’ Compensation Commission Appeal No. 012141, decided October 22, 2001. Good cause for the failure to exchange is not apparent from the record. Therefore, with no finding of good cause and none that we can imply, we conclude that the hearing officer erred in admitting the coworker’s statement. The record does not indicate that the admission of the statement was harmless error. To obtain a reversal based on such an error carrier must first show that not only was the admission of the evidence error but that the error was reasonably calculated to cause and probably did cause the rendition of an improper decision. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In his statement of the evidence, the hearing officer wrote that “[c]arrier’s first two contentions were overcome by the [coworker], who was identified later and who observed the Claimant lying on the floor, which proved to be the piece of evidence that gave the Claimant the preponderance of the evidence.” The same evidence was not otherwise admitted without objection. We therefore conclude that the hearing officer’s ruling was reasonably calculated to cause and probably did cause the rendition of an improper decision and thus does constitute reversible error. See Gee v. Liberty Mutual Fire Insurance Company, 765 S.W.2d 394 (Tex. 1989).
We reverse the hearing officer’s decision and order and remand the case to another hearing to further develop the record and make findings of fact regarding: (1) good cause for the failure to exchange the statement, (2) when claimant knew that the alleged fall had been witnessed, and (3) whether claimant exercised diligence in exchanging the coworker’s statement. Because we have reversed and remanded regarding evidentiary error, we must also reverse and remand the injury and disability determinations.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202, which was amended June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in the Texas Government Code in the computation of the 15-day appeal and response periods.
According to information provided by carrier, the true corporate name of the insurance carrier is CONTINENTAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
C. T. CORPORATION SYSTEMS
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Judy L. S. Barnes
CONCUR:
Chris Cowan – Appeals Judge
Thomas A. Knapp – Appeals Judge