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 20, 2000. The hearing officer determined that the appellant’s (claimant) average weekly wage (AWW) is $225.00. The claimant appealed; contended that he was hired as a full-time employee, not a part-time employee; stated information favorable to his position; and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision that his AWW is $300.00. The respondent (carrier) replied; referred to Section 408.041 and quoted Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.2(b)(4) (Rule 128.2(b)(4)) and Rule 128.3(f)(1) and (2); and requested that the Appeals Panel reject the claimant’s appeal and render a decision that the claimant’s AWW is $194.48. The claimant contended that the carrier’s response was not timely filed. The carrier responded, setting forth why it thinks that its response was timely filed.
DECISION
We affirm.
We first address the timeliness of the response filed by the carrier. In a letter to the Texas Workers’ Compensation Commission (Commission) dated April 18, 2000, the claimant stated that he sent a copy of his appeal to the store of the employer where he was hired and that the employer could distribute the appeal as it saw fit. The 1989 Act and Commission rules require that a copy of an appeal be sent to the other party, in this case, the carrier. On April 24, 2000, a Commission employee determined that the carrier’s (city) representative, which is also the law firm representing the carrier, had not received a copy of the appeal. On that day, a copy of the appeal was transmitted by facsimile to that office. The carrier’s response was filed on May 8, 2000, no later than the 15th day after April 24, 2000, and was timely filed as a response. The carrier’s (city) representative signed for the hearing officer’s decision on April 3, 2000. The last day for the carrier to file an appeal was April 18, 2000. The carrier’s response was not timely filed to be an appeal.
The claimant’s appeal contains information that is not in the record. In rendering this decision, we did not consider information that is not in the record. Section 410.203(a)(1). If the claimant’s appeal is interpreted to raise constitutional issues, administrative agencies have no power to determine constitutionality of statutes. Texas Workers’ Compensation Commission Appeal No. 92124, decided May 11, 1992.
The claimant contended that he was hired as a full-time employee and the carrier contended that he was hired as a temporary, part-time employee. The claimant and the employee of the employer who hired the claimant testified. The Decision and Order of the hearing officer contains a statement of the evidence. Only a brief summary of the evidence will be included in this decision. It is undisputed that the claimant was hired on October 1, 1999, and was to be paid $7.50 an hour. The next day he attended a three-hour orientation and was injured when he tripped and fell after the orientation. The claimant testified that Mr. T, the person who hired him, told him that he was hired as a full-time employee and that he, the claimant, wrote down that he was scheduled to work 42.2 hours the first week. Mr. T testified that much of the employer’s sales are made from September 1st through January 1st each year. He said that it is the employer’s policy to hire only part-time employees starting September 1st, that they are seasonal employees hired for the Christmas rush, that they do not hire full-time employees then because full-time employees must be provided benefits, that he does not have authority to hire full-time employees after September 1st, that the part-time employees generally work less than 30 hours a week, that the employer does not permit overtime work, and that none of its employees are permitted to work over 40 hours a week.
Section 408.041 provides, in part, that if a claimant had worked for the employer for less than 13 weeks immediately preceding the injury, the claimant’s AWW equals the usual wage that the employer pays a similar employee for similar services; if a similar employee does not exist, the usual wage paid in the vicinity for the same or similar services; and if neither of the two can be used, the Commission may determine the claimant’s AWW by any method the Commission considers fair, just, and reasonable.
The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). While a claimant’s testimony alone may be sufficient to prove a claim, the testimony of a claimant is not conclusive but only raises a factual issue for the trier of fact. Texas Workers’ Compensation Commission Appeal No. 91065, decided December 16, 1991. The trier of fact may believe all, part, or none of any witness’s testimony because the finder of fact judges the credibility of each and every witness, the weight to assign to each witness’s testimony, and resolves conflicts and inconsistencies in the testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. In her Decision and Order, the hearing officer stated that the record contains several Employer’s Wage Statements (TWCC-3); that none of them met the first two requirements in Section 408.041(b); and that she used the fair, just, and reasonable method to determine the claimant’s AWW. She made findings of fact that there were no same or similar employees during the 13 weeks immediately preceding the date the claimant was injured; that the employer’s temporary employees work at or around 30 hours a week; that $7.50 times 30 hours was $225.00; and that by applying the fair, just, and reasonable standard, the claimant’s AWW is $225.00. Those determinations of the hearing officer are not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Since we find the evidence sufficient to support the determinations of the hearing officer, we will not substitute our judgment for hers. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
In his appeal, the claimant made several comments about the employer and its practices. To the extent that those comments may be considered to be complaints, the Commission does not have jurisdiction to consider them. All of the assertions of the claimant were considered. None of them constitutes reversible error.
We affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert W. Potts – Appeals Judge