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 November 6, 2001. The hearing officer determined that the respondent (claimant) sustained a compensable injury to her left knee on __________, and that she had disability from July 7, 2001, through the date of the CCH.
The appellant (carrier) appeals, contending that the hearing officer committed reversible error by admitting two of the claimant’s exhibits (some off work slips and a medical report) over the carrier’s objection and that the claimant had not sustained a compensable injury or had disability. The claimant responds, urging affirmance.
DECISION
Affirmed.
First, addressing the carrier’s contention that two of the claimant’s exhibits should have been excluded because of lack of timely exchange, the benefit review conference (BRC) was scheduled for September 11, 2001. Because of the events of that day, the carrier’s representative attended by cell phone. The claimant had her exhibits at the BRC and “exchanged” them with the Texas Workers’ Compensation Commission. The hearing officer found good cause for not timely exchanging those exhibits. The Appeals Panel has frequently noted that to obtain reversal of a judgment based upon the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers’ Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In this case, while the hearing officer found good cause, more importantly, it is unlikely that the exhibits changed the outcome of the decision in that the issues of injury and disability can be established by the claimant’s testimony alone, if believed (Gee v. Liberty Mutual Fire Insurance Company, 765 S.W.2d 394 (Tex. 1989)), which it obviously was in this case.
The claimant was an airline reservation agent and fell going up some stairs on __________. Subsequently, either while walking for exercise or walking to a grocery store, the claimant’s left knee began to hurt. The evidence was in conflict whether the claimant sustained the left knee injury in the __________, fall or at some subsequent time prior to May 27, 2001, when she saw a doctor. The carrier, at the CCH, correctly remarked “this case is a credibility case.” However, it is the hearing officer, who is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and who determines what facts have been established from the 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 and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is
WILLIAM PARNELL
8144 WALNUT HILL LN., SUITE 1600
DALLAS, TEXAS 75231.
Thomas A. Knapp – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Terri Kay Oliver – Appeals Judge