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 January 4, 2000. The hearing officer determined that since the appellant (claimant) did not dispute the first certification of maximum medical improvement (MMI) and impairment rating (IR) within 90 days of receiving written notice of it on October 2, 1998, the first certification became final under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)).
The claimant has appealed and argues that the evidence shows that she timely disputed the first IR. She argues that her letter of dispute could have been misfiled or lost by the Texas Workers’ Compensation Commission (Commission), so the fact that it was not in the claims file is not dispositive. The respondent (carrier) responds that it is equally possible that the letter was created after the fact and predated. The carrier points out that every contended attempt to dispute the IR was not documented and that credible evidence was not presented to support a timely dispute. The carrier asks that the decision be affirmed.
DECISION
We affirm.
The claimant sustained an injury to her arm, wrist, and elbow on __________, while employed by (employer). Medical records indicate this was a claimed repetitive trauma injury. She initially saw the doctor to whom she was sent by the employer, Dr. F. He certified that she reached MMI on September 20, 1998, with a zero percent IR. She said she received this report on October 2, 1998.
She said that she began to type out a letter when she received this report, disagreeing with the zero percent IR, which she sent to the local field office. She said she kept a copy, which was in evidence. She said that her next contact with the Commission, when she received no response, was in February 1999. On cross-examination, she said she believed she called earlier.
The letter in question has a letterhead with claimant’s name and address. It is dated October 31, 1998, a Saturday. This letter contended that claimant had severe pain and that Dr. F had not properly evaluated her injury.
Claimant filed a request for a change of doctor to Dr. C on October 29, 1998. While the reasons assail the ability of Dr. F, the IR is not mentioned.
The claimant had surgery on April 8, 1999, for release of the ulnar nerve. Dr. C wrote on July 6, 1999, that claimant had obviously not been at MMI two months after her injury.
Portions of the claims file were put into evidence which reflected disputes. The Dispute Resolution Information System notes show that on October 19, 1998, the claimant had a long conversation with a Commission employee about her change of doctor request. She resubmitted the request in order to have Dr. F sign it. The change was approved on November 4, 1998, but no further contact with the Commission is reflected until February 16, 1999, when claimant called to say that she had disputed her MMI/IR timely and she was informed there was no record of a dispute in the file. Subsequent notes document her attempt to have a benefit review conference set on the timely dispute issue.
The hearing officer is the sole judge of the relevance, materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). Given the lack of an officially stamped copy by the Commission or record of a phone call within 90 days after October 2, 1998, whether a timely dispute was in fact filed was a matter of fact for the hearing officer to decide, based in part upon her observation of the demeanor of the claimant. We cannot agree that her determination is so against the great weight and preponderance of the evidence as to be manifestly unfair or unjust. See Atlantic Mutual Insurance Company v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). We therefore affirm the hearing officer’s decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Dorian E. Ramirez – Appeals Judge