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 October 9, 2001. The hearing officer resolved the disputed issues by determining that the respondent (claimant) sustained a compensable repetitive trauma injury to his low back; that the claimant has disability resulting from the compensable injury beginning on __________, and continuing through the date of the hearing; that the claimant’s date of injury is __________; that the claimant timely notified his employer pursuant to Section 409.001, and therefore the appellant (carrier) is not relieved from liability under Section 409.002; and that the claimant is not barred from pursuing Texas Workers’ Compensation benefits because of an election to receive benefits under a group health insurance policy. The carrier appealed all of the above determinations as being against the great weight of the evidence. The claimant responded, urging affirmance.
DECISION
Affirmed.
The claimant testified that he had been employed as a mechanic at a brake and muffler shop for three years; that the majority of his time was spent working on brakes and exhaust systems; and that his job required a lot of lifting, bending, and twisting in a fast- paced environment. The claimant stated that he experienced aches and pains over the ten years he had been a mechanic but that these symptoms always resolved in a short period of time. The claimant testified that on January 15, 2001, the pain in his back became severe and was radiating down his leg. Because of the severity of the pain, the claimant said that he asked his supervisor to give him a job behind the counter but the request was denied. The claimant testified that he commenced seeking medical treatment for his back on February 6, 2001, but continued to work and did not attribute the problem to his employment until he discussed the results of an MRI with Dr. K on __________. The MRI performed on March 6, 2001, revealed a very large disc extrusion on the left at L5-S1 and a radial tear with a small bulge at L4-5. The claimant stated that after describing his job duties to Dr. K, Dr. K informed him that his back condition could have been caused by his employment and took him off work. He said that he notified his employer of the work-related injury that day.
On appeal, the carrier asserts that the hearing officer’s determinations as to the issues of the repetitive nature of the claimant’s job, injury, disability, date of injury, and timely notice are not supported by the evidence. All of these issues required the hearing officer to make factual determinations. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). There was conflicting evidence presented on all of the disputed issues. However, we will reverse challenged factual determinations of a hearing officer only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). We decline to substitute our opinion of the credibility of the testimony and evidence for that of the hearing officer.
Finally, the hearing officer did not err in determining that the claimant is not barred from receiving workers’ compensation benefits because of an election of remedies to receive benefits under a group health insurance policy. Under Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980) an election of another remedy which would bar a claimant from workers’ compensation benefits must be made as a result of (1) an informed choice (2) between two rights, remedies, or states of fact that (3) are so inconsistent (4) as to constitute manifest injustice. In our view, the evidence presented in this record does not meet the standards set forth in Bocanegra, supra, and thus the hearing officer did not err in determining that no election was made by the claimant.
The hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is ASSOCIATION CASUALTY INSURANCE COMPANY and the name and address of its registered agent for service of process is
HAROLD FISHER, PRESIDENT
3420 EXECUTIVE CENTER DRIVE, SUITE 200
AUSTIN, TEXAS 78731.
Philip F. O’Neill – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Michael B. McShane – Appeals Judge