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 March 31, 2003. The hearing officer determined that the appellant/cross-respondent’s (claimant) ______________, compensable head injury does not extend to or include an injury to the lumbar spine of an L4-5 disc bulge or a break in the pars interarticularis at L5, and that the claimant had disability from March 23 through November 11, 2002. The claimant appeals the extent-of-injury determination and attaches new evidence to his request for review. The respondent/cross-appellant (carrier) appeals the disability determination. Neither party responded to the opposition’s appeal.
DECISION
Affirmed.
In determining whether the hearing officer’s decision is sufficiently supported by the evidence, we will generally not consider evidence that is offered for the first time on appeal. Texas Workers’ Compensation Commission Appeal No. 92255, decided July 27, 1992. To determine whether evidence offered for the first time on appeal requires that case be remanded for further consideration, we consider whether it came to the appellant’s knowledge after the hearing, whether it is cumulative, whether it was through lack of diligence that it was not offered at the hearing, and whether it is so material that it would probably produce a different result. Texas Workers’ Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). We do not find the documents that the claimant attached to his request for review to be so material that they would produce a different result. Accordingly, we decline to consider these documents on appeal.
Regarding the exclusion of Carrier’s Exhibit No. 9 for lack of timely exchange, we have frequently held 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). It has also been held that reversible error is not ordinarily shown in connection with rulings on questions of evidence unless the whole case turns on the particular evidence admitted or excluded. Atlantic Mut. Ins. Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). We find no abuse of discretion in the hearing officer’s application of the exchange of evidence rules. Furthermore, we note that the admission of the exhibit would not have necessitated a different decision in this case given that the hearing officer noted in the Statement of the Evidence that the claimant had officiated as a high school referee, as depicted in the excluded video, but had earned only $1,089.83 over a period of three months.
The disputed issues in this case involved factual questions for the hearing officer to resolve. 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 to the evidence. Section 410.165(a). It is for the hearing officer to resolve the inconsistencies and conflicts in the evidence and to decide what facts the evidence has established. Garza v. Commercial Ins. Co., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). Nothing in our review of the record reveals that the hearing officer’s decision is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is LIBERTY MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATIONS SYSTEMS
350 NORTH ST. PAUL, SUITE 2900
DALLAS, TEXAS 75201.
Chris Cowan
CONCUR:
Gary L. Kilgore – Appeals Judge
Veronica L. Ruberto – Appeals Judge