This case returns following our remand in Texas Workers’ Compensation Commission Appeal No. 011783, decided September 21, 2001, where we remanded the case for the required carrier information. That information was placed in the record and forwarded to the respondent/cross-appellant (claimant). The hearing officer then reissued his prior decision and order without substantive modification. With respect to the issues before him, the hearing officer determined that the claimant sustained a compensable injury on __________; that he did not have disability as a result of his compensable injury; and that the appellant/cross-respondent (carrier) was permitted to reopen the issue of compensability because its contest was based upon newly discovered evidence. In its appeal, the carrier argues that the hearing officer’s determination that the claimant sustained a compensable injury is against the great weight of the evidence. In his cross-appeal, the claimant argues that the hearing officer erred in determining that he did not have disability as a result of his compensable injury and in determining that the carrier was permitted to reopen the issue of compensability based upon newly discovered evidence. Neither party responded to the other’s appeal.
DECISION
Affirmed in part and reversed and rendered in part.
The hearing officer did not err in determining that the claimant sustained an injury in the course and scope of his employment on __________. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). There was conflicting evidence on the injury issue. The hearing officer resolved the conflicts and inconsistencies in the evidence in favor of the claimant, and he was acting within his role as fact finder in determining that the claimant met his burden of proving that he sustained a compensable injury. Nothing in our review of the record indicates that the challenged determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Accordingly, no sound basis exists for us to disturb that determination on appeal. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The hearing officer also did not err in determining that the claimant did not have disability as a result of his compensable injury. “Disability” means the “inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). There is evidence to support the hearing officer’s determination that the claimant did not have disability and our review of the record does not reveal that his determination in this regard is so against the great weight of the evidence as to compel its reversal on appeal. Pool; Cain. Although another fact finder may well have drawn different inferences from the evidence concerning disability, which would have supported a different result, that does not provide a basis for us to reverse the disability determination on appeal. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.).
Finally, we consider the hearing officer’s determination that the carrier’s contest of compensability was based on newly discovered evidence which could not have been discovered earlier. Sections 409.021(c) and (d) of the 1989 Act state, in relevant part:
(c) If an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability.
(d) An insurance carrier may reopen the issue of the compensability of an injury if there is a finding of evidence that could not reasonably have been discovered earlier. (Emphasis added).
The carrier argued, and the hearing officer decided, that the report from the carrier’s peer review doctor was “newly discovered” evidence. The claimant countered that the report was “newly created” evidence which was almost entirely based upon information that was available to the carrier within 60 days of its written notice of the claim, which the parties stipulated was December 2, 2000, in this case. Accordingly, the 60th day after written notice was received was January 31, 2001. The record reflects these significant occurrences in the carrier’s processing of the claimant’s claim: on December 29, 2000, the carrier authorized a cervical MRI; on January 2, 2001, the cervical MRI was performed; on February 8, 2001, the carrier received medical records; on February 12, 2001, the carrier took the claimant’s recorded statement and requested a peer review; on February 22, 2001, the peer review doctor received the claimant’s records; on February 23, 2001, the peer review doctor wrote his report; on March 6, 2001, the carrier received the peer review report and filed its Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) disputing compensability, based on the information in the peer review report, with the Texas Workers’ Compensation Commission (Commission).
Thus, it is apparent that the carrier conducted no investigation of the claim until February 12, 2001, 12 days after the 60-day contest period expired, when it took the claimant’s recorded statement. In addition, the bulk of the medical records that the carrier provided to the peer review doctor were available to the carrier within the 60-day period after it received written notice of the claimant’s claim. The carrier failed to dispute the claim until March 6, 2001. As the claimant stated in his appeal, the Appeals Panel has frequently noted the importance of the exercise of due diligence if a party is claiming newly discovered evidence; not only the exercise of due diligence in acting upon the evidence once obtained, but also in seeking the information in the first place. Generally, we have maintained that a lax investigation or none at all does not make evidence found later “newly discovered.” Texas Workers’ Compensation Commission Appeal No. 002246, decided November 8, 2000; Texas Workers’ Compensation Commission Appeal No. 000697, decided May 22, 2000; Texas Workers’ Compensation Commission Appeal No. 992365, decided December 6, 1999. In Appeal No. 000697, supra, the Appeals Panel reversed and rendered in a case strikingly similar to this case. In so doing, Appeal No. 000697 stated:
Because the medical information upon which the peer reviewers based their opinion that claimant’s condition was preexisting was available to the self-insured within the initial 60-day period, we cannot agree that their ultimate report constitutes “newly discovered” evidence. [Emphasis added.]
In this case, only one document forwarded to the carrier’s peer review doctor was created after the 60-day period expired and that document is not referenced by the peer review doctor as being dispositive of his opinion concerning the claimant’s medical condition, which opinion formed the basis of the carrier’s contest of compensability. The carrier disputed the claim as soon as it received the peer review report. However, we cannot agree that the carrier exercised due diligence in either investigating the claim or in procuring the peer review report. Thus, the hearing officer erred in finding that the peer review report constituted newly discovered evidence.
The hearing officer’s determination that the carrier’s contest of compensability was based upon newly discovered evidence is reversed and a new decision is rendered that the carrier waived its right to contest compensability of the claimant’s injury pursuant to Section 409.021(c). The determination that the claimant sustained an injury in the course and scope of his employment on __________, and that he did not have disability are affirmed.
The true corporate name of the insurance carrier is ST. PAUL FIRE & MARINE INSURANCE and the name and address of its registered agent for service of process is
BOB TALLEY
PARAGON CENTER ONE
450 GEARS ROAD, SUITE 400
HOUSTON, TEXAS 77067.
Elaine M. Chaney – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Robert W. Potts – Appeals Judge