Following a contested case hearing held on August 7, 2000, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, resolved the disputed issues by determining that the appellant (claimant) did not sustain a compensable injury in the form of an occupational disease on _________; that the respondent (self-insured employer) is relieved from liability under Section 409.002 because the claimant failed to timely notify the self-insured employer of her injury; that the claimant is barred from pursuing Texas worker’s compensation benefits because of an election to receive benefits under a group health insurance policy; and that because the claimant did not sustain a compensable injury, she did not have disability. The claimant has appealed these determinations on evidentiary sufficiency grounds and also complains of the denial of a request for a subpoena of a witness. The self-insured employer contends in its response that the evidence is sufficient to support the hearing officer’s determinations.
DECISION
Affirmed in part; reversed and rendered in part.
The claimant testified that she had worked for the self-insured for 13 years as a grocery store checker and customer service representative; that her work involved a lot of lifting for bar code scanning and keying on a keypad; and that her right wrist had become so painful by _________, and that she was “incapacitated.” She said that she called her supervisor and very close friend, Ms. S, on June 22, 1999, and reported her injury; that within two weeks of the injury date she also reported her injury to Mr. B, the drug department manager; and that she saw Dr. B, an orthopedic surgeon and hand specialist on June 22, 1999, and he told her at that time that she had carpal tunnel syndrome (CTS) and that it was definitely related to her work. She also said that Dr. B took her off work. The claimant further testified that Dr. B referred her to Dr. F for an EMG; that Dr. B recommended carpal tunnel release surgery; and that she was unable to get the proposed surgery scheduled because her group health insurance was canceled. Dr. F’s report of July 20, 1999, states that there is evidence of mild CTS on the right. He also states that the claimant said that approximately five years earlier she underwent some tendon repair and did well until about two and one-half months ago when she started having pain in the lateral aspect of the right wrist.
The claimant further testified that she last saw Dr. B on July 27, 1999, because her health insurance was canceled. She indicated that she still owed Dr. B for his services and that because she could not work and her health insurance was canceled, she had lost her apartment, car, and credit. The claimant also indicated that she had not had further treatment for her right wrist until March 2000 when she responded to a TV ad and commenced chiropractic treatment with Dr G. The claimant said that Dr. G feels she needs surgical treatment. She indicated she has not returned to work since June 22, 1999.
Dr. B wrote on June 6, 2000, that he has treated the claimant since June 22, 1999, for her right hand; that an EMG of July 20, 1999, showed evidence of CTS; that there is no history of specific trauma, and that because of her occupation as a cashier it is his opinion that the repetitive motion has caused the overuse which has resulted in the CTS. Dr. B further stated that it is his opinion that “this should be treated as a work related injury.”
Concerning the election of remedies issue, the claimant testified that before the store where she worked was remodeled, the bulletin board in the employees’ common area had posted information on insurance and workers’ compensation but that after the remodeling, the workers’ compensation information did not reappear on the bulletin board and she “didn’t even know we had workers comp.” She said she had not had a previous workers’ compensation claim. The claimant acknowledged having completed an application for short-term disability benefits on July 27, 1999, and checking “no” to the question whether the accident occurred at work. She explained that she thought “accident” referred to some traumatic event. She also said she knew that the short-term disability benefits were not for persons claiming a work-related injury. The claimant also checked the answer “no” to the question whether she was receiving or had applied for disability benefits from other sources, including workers’ compensation. She acknowledged that Dr. B completed the bottom portion of this application and checked “no” to the question whether the disability was a result of employment. On the patient information sheet she completed and signed on June 22, 1999, the claimant answered “no” to the question whether she had an “on the job injury.” Dr. G wrote on July 3, 2000, that the claimant “did not know that this injury should have been covered under Workers Compensation and subsequently has `lost everything.'”
In evidence is a Request for Subpoena Requiring Testimony signed by the claimant’s representative on July 25, 2000, and requesting that Ms. S be subpoenaed to testify at the hearing on August 7, 1999. The request states, among other things, that according to the claimant, Ms. S “refuses to testify.” However, the claimant testified that she had never asked Ms. S to testify and in fact has not spoken to her since March 2000. She also said she never followed up on the request and never received an order pertaining to it. Since the claimant failed to prove her compliance with Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.12(c) (Rule 142.12(c)), we find no abuse of discretion by the hearing officer.
The claimant had the burden to prove that she sustained the claimed injury and that she had disability as that term is defined in Section 401.011(16). Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. The Appeals Panel has stated that in workers’ compensation cases, the disputed issues of injury and disability can, generally, be established by the lay testimony of the claimant alone. Texas Workers’ Compensation Commission Appeal No. 91124, decided February 12, 1992. This may hold true as well for the issue of timely notice of injury. However, the testimony of a claimant, as an interested party, only raises issues of fact for the hearing officer to resolve and is not binding on the hearing officer. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref’d n.r.e.). The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting 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.). As an appellate reviewing tribunal, 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. 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). We are satisfied that the evidence is sufficient to support the challenged injury and notice determinations. The hearing officer makes clear that he did not find the claimant’s evidence persuasive. As for the disability determination, a compensable injury is a prerequisite for disability.
The self-insured had the burden of proof on the election of remedies issue. While this issue to is one of fact for the hearing officer to determine, we find the hearing officer’s determination to be against the great weight of the evidence. The Texas Supreme Court in Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980), held that the election doctrine may bar relief when one successfully exercises an informed choice between two or more remedies, rights, or states of fact which are so inconsistent as to constitute manifest injustice. In this case, the claimant’s testimony was unrefuted that her group health insurance was canceled and that as a result Dr. B was not paid and did not undertake the proposed surgery. While the evidence clearly establishes that the claimant applied for short-term disability benefits and that in so doing she represented that the “accident” did not occur at work, she explained that she understood the question to be referring some type of traumatic event and not to an occupational disease. See Texas Workers’ Compensation Commission Appeal No. 001321, decided July 26, 2000, where the Appeals Panel similarly reversed a hearing officer’s determination that the employee had elected the remedy of group health insurance benefits.
The decision and order of the hearing officer is affirmed on the injury, notice, and disability determinations and is reversed on the election of remedies issue and a new decision is rendered that the claimant did not elect the remedy of health insurance benefits.
Philip F. O’Neill – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Tommy W. Lueders – Appeals Judge