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 January 4, 2016, in Houston, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) sustained a compensable injury on (date of injury); and (2) the claimant had disability from August 3, 2015, and continuing through the date of the CCH.
The appellant (carrier) appealed the hearing officer’s determinations of compensability and disability, contending that those determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The claimant responded, urging affirmance.
DECISION
Reformed in part, affirmed in part, and reversed and rendered in part.
The claimant, a drill helper for the employer on the date of injury, testified he injured his back on (date of injury), after picking up seven or eight bags of sand weighing 70 to 80 pounds. The claimant also testified that he returned to work on August 11, 2015, and that he worked until August 26, 2015, when he was terminated by the employer due to lack of work.
EVIDENCE PRESENTED
At the CCH Carrier’s Exhibits A through H were admitted into evidence. However the decision incorrectly reflects that Carrier’s Exhibits A through G were admitted. We reform the hearing officer’s decision to show that Carrier’s Exhibits A through H were admitted to reflect the correct exhibits offered by the carrier and admitted into evidence at the CCH.
COMPENSABLE INJURY
The hearing officer’s determination that the claimant sustained a compensable injury on (date of injury), is supported by sufficient evidence and is affirmed.
DISABILITY
Disability means the inability to obtain and retain employment at wages equivalent to the pre-injury wage because of a compensable injury. Section 401.011(16). The claimant has the burden to prove that he had disability as defined by Section 401.011(16). Disability is a question of fact to be determined by the hearing officer. See Appeals Panel Decision (APD) 042097, decided October 18, 2004. Disability can be established by a claimant’s testimony alone, even if contradictory of medical testimony. APD 041116, decided July 2, 2004. The claimant need not prove that the compensable injury was the sole cause of his disability; only that it was a producing cause. APD 042097.
The hearing officer determined that the claimant had disability from August 3, 2015, through the date of the CCH. We note that Conclusion of Law No. 4 mistakenly states that the “[c]laimant had disability from August 3, 2015, and continuing through August 9, 2015, through the date of the [CCH].”
The hearing officer stated in the Discussion portion of the decision that the claimant testified he returned to work on August 10, 2015, and worked until August 26, 2015. However, a review of the record reflects that the claimant actually testified that he returned to work on August 10, 2015, to deliver a return-to-work slip to the employer, and that he began working for the employer on August 11, 2015, not August 10, 2015.
The claimant testified that he normally worked for the employer Monday through Friday and occasional Saturdays from approximately 6:00 am to approximately 4:00 pm or 5:00 pm, with occasional overtime. In evidence are timesheets showing the hours the claimant worked for the employer during August 2015. Those timesheets reflect the claimant worked the following hours:
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As previously mentioned, the claimant testified that he worked August 11 through August 26, 2015, when he was terminated. The claimant did not testify or provide evidence establishing that his work hours after the injury were reduced or that he was earning less than his pre-injury wage. That portion of the hearing officer’s determination that the claimant had disability from August 11 through August 26, 2015, is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse that portion of the hearing officer’s determination that the claimant had disability from August 11 through August 26, 2015, and we render a new decision that the claimant did not have disability from August 11 through August 26, 2015.
That portion of the hearing officer’s determination that the claimant had disability from August 3 through August 10, 2015, and from August 27, 2015, through the date of the CCH is supported by sufficient evidence and is affirmed.
SUMMARY
We reform the hearing officer’s decision to show that Carrier’s Exhibits A through H were admitted to reflect the correct exhibits offered by the carrier and admitted into evidence at the CCH.
We affirm the hearing officer’s determination that the claimant sustained a compensable injury on (date of injury).
We reverse that portion of the hearing officer’s determination that the claimant had disability from August 11 through August 26, 2015, and we render a new decision that the claimant did not have disability from August 11 through August 26, 2015.
We affirm that portion of the hearing officer’s determination that the claimant had disability from August 3 through August 10, 2015, and from August 27, 2015, through the date of the CCH.
The true corporate name of the insurance carrier is LIBERTY INSURANCE CORPORATION and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TX 78701.
Carisa Space-Beam – Appeals Judge
CONCUR:
K. Eugene Kraft – Appeals Judge
Margaret L. Turner – Appeals Judge