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 September 7, 2001. With respect to the issues before him, the hearing officer determined that the appellant (claimant) did not sustain a compensable injury on ___________; that the claimant did not have disability; and that the respondent (carrier) did not waive the right to contest compensability under Section 409.021. The claimant appeals the injury and disability determinations on sufficiency grounds and appeals the waiver determination on legal grounds. In its response, the carrier urges affirmance.
DECISION
Affirmed.
The hearing officer did not err in determining that the claimant did not sustain a compensable injury on __________. The claimant had the burden to prove that she sustained damage or harm to the physical structure of her body, arising out of and in the course and scope of her employment. Texas Workers’ Compensation Commission Appeal No. 91028, decided October 23, 1991. There was conflicting evidence presented with regard to this issue. The hearing officer is the sole judge of the weight and credibility of the evidence under Section 410.165(a) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence decides what facts the evidence has established. Texas Employers Ins. Ass’n v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). The hearing officer was not persuaded that the claimant injured her knee by hitting it on a rack at work on __________. Nothing in our review of the record reveals that the hearing officer’s determination in that regard is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Therefore, no sound basis exists for us to reverse it on appeal. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
Having affirmed the determination that the claimant did not sustain a compensable injury, we likewise affirm the determination that the claimant did not have disability. By definition, the 1989 Act requires the existence of a compensable injury as a prerequisite to a finding of disability. Section 401.011(16).
Lastly, we consider the claimant’s assertion that the hearing officer erred in his determination that the carrier did not waive its right to contest compensability in this instance. The claimant argues that, pursuant to Downs v. Continental Cas. Co., 32 S.W.3d 260 (Tex. App.-San Antonio, 2000, pet. pending), the carrier has waived its right to contest compensability in this instance because it did not do so within seven days of the date it received written notice of the injury. On August 28, 2000, the Executive Director of the Texas Workers’ Compensation Commission (Commission), issued Advisory 2000-07 acknowledging the Court of Appeals decision on rehearing in Downs. However, the advisory states that the “August 16th decision in the Downs case should not be considered as precedent at least until it becomes final upon completion of the judicial process.” In addition, the Director of the Hearings Division has informed the Hearings Division that the Commission’s position is that a carrier has 60 days to contest compensability and that hearings staff are to follow the Commission’s position statewide pending final resolution of Downs. The Director of Hearings reissued this directive following the issuance of the decision on rehearing in Downs. Based on these directives, the hearing officer did not err in making his determination that the carrier timely contested compensability under Section 409.021(c) because it contested compensability well within 60 days after it received written notice of the claimed injury.
The decision and order of the hearing officer is affirmed.
The true corporate name of the insurance carrier is FEDERATED MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
RUSS LARSEN
860 AIRPORT FREEWAY WEST, SUITE 500
HURST, TEXAS 75054-3286.
Elaine M. Chaney
CONCUR:
Gary L. Kilgore – Appeals Judge
Robert W. Potts – Appeals Judge