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 begun on October 4, 2001, and concluded on October 30, 2001. The appellant (claimant) did not appear for the first scheduled CCH. The hearing officer sent a “ten day letter” to the claimant which required him to show good cause why he failed to attend the first CCH and to notify the claimant of the second scheduled CCH on October 30, 2001. The claimant did not appear for the second CCH. The hearing officer determined that the claimant did not have good cause for failure to attend the CCH scheduled on October 4, 2001. The hearing officer also determined that the injury of ____________, does not include or extend to aggravation of degenerative disc disease of the cervical spine or aggravation of degenerative joint disease of the left shoulder, and that the claimant does not have disability after April 12, 2000. The claimant appealed arguing that the hearing officer erred in determining compensability and disability. The respondent (self-insured) filed a response urging affirmance.
DECISION
Affirmed.
The claimant did not appear for the first scheduled CCH on October 4, 2001. The claimant’s attorney informed the court that he contacted the claimant the day before and the day of the scheduled hearing. At the second CCH, the hearing officer stated that the claimant had contacted him on October 4, 2001, after the record opened and closed for the first CCH, and that the claimant explained that his car had broken down on his way to the hearing in (City 1). The records in the file show that on October 5, 2001, the hearing officer sent a “ten day letter” to the claimant to show cause why he failed to attend the CCH and to notify the claimant of the second CCH scheduled for October 30, 2001. The claimant did not appear at the second CCH. The claimant’s attorney informed the court that his secretary contacted the claimant the day before the CCH, and that the attorney contacted the claimant’s family member the day of the CCH to appear at the hearing. The CCH proceeded without the claimant, and evidence offered from both parties were admitted by the hearing officer.
The hearing officer did not err in determining that the injury of ____________, does not include or extend to aggravation of degenerative disc disease of the cervical spine or aggravation of degenerative joint disease of the left shoulder. The hearing officer was persuaded by the medical records in evidence that the claimant’s injury did not extend to the neck, back, or shoulders. The hearing officer did not err in determining that the claimant does not have disability after April 12, 2000. Without the testimony from the claimant, the hearing officer could properly determine that the claimant did not meet his burden of proof that he sustained an extent of injury or disability.
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 of the weight and credibility that is to be given the evidence. A claimant’s testimony alone may establish that an injury has occurred, and disability has resulted from it. Houston Independent School District v. Harrison, 744 S.W.2d 298, 299 (Tex. App.-Houston [1st Dist.] 1987, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we will reverse the decision only if it is so contrary to 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 Co., 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard, we find no grounds to reverse the factual findings of the hearing officer on injury or disability.
On appeal the claimant argues that the he had good cause for failure to attend both CCH’s scheduled for October 4, 2001, and October 30, 2001. We note that the claimant attached to his appeal some document to show cause for his failure to attend the CCH scheduled on October 4, 2001. Also, the claimant requests a change of venue to (City 2) due to financial and transportation hardship. The Appeals Panel will not consider evidence outside the record on appeal, Texas Workers’ Compensation Commission Appeal No. 93943, decided December 2, 1993, or raised for the first time on appeal nor does it have jurisdiction to consider either matter. Texas Workers’ Compensation Commission Appeal No. 951196, decided August 28, 1995, Texas Workers’ Compensation Commission Appeal No. 91100, decided January 22, 1992.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance self-insured is SELF-INSURED and the name and address of its registered agent for service of process is
C.T. CORPORATION SYSTEMS
350 N. ST. PAUL
DALLAS, TEXAS 75201.
Susan M. Kelley – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Chris Cowan – Appeals Judge