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 18, 2001. He determined that the respondent (claimant) sustained an occupational disease; that the date of injury was __________; and that she gave timely notice of her injury to her employer. The appellant (carrier) appeals all findings of fact, arguing that the decision is based on mischaracterized facts. There is no response from the claimant.
DECISION
We affirm the hearing officer’s decision.
The claimant was a dental hygienist and had been employed by a dentist who sold his practice to a larger entity (the employer) in October 2000. The claimant worked seven hours a day, three consecutive days a week, and patients were scheduled back-to-back. The claimant described the duties involved in evaluating and treating a patient’s mouth. In addition, she had to input information for each patient into a computer.
The two aspects of her job that changed after acquisition by the employer involved computer-entry work and the gloves she had formerly used. The claimant opined that these changes resulted in increased trauma to her hands. First of all, she said that a new glove was used by the employer, who would not order from the previous supplier of the gloves she had used that fit her well. She said that although she tried a number of gloves, all would “bind” her hand when she used a size that was not long enough. Gloves were worn constantly during the treatment of a patient.
The second aspect of the claimant’s job that changed was that she was required to do data entry while standing at a station. In January 2001, she was asked to reenter information she had entered for the previous three months, which greatly increased her workload. During a regularly scheduled checkup with an OB/GYN specialist in January, she mentioned that she had been experiencing hand pain (which she thought was arthritis) and was told by this doctor to seek further consultation from another doctor if it became worse. She said that they did not discuss whether this pain was related to her work. On __________, she said her pain reached the point where she could not comfortably work and she called a doctor suggested by the nurse at the OB/GYN’s office, but she was unable to get an appointment until April 12. The claimant identified __________, as the day she realized that her hand pain was related to her work. On that date, she was evaluated by the doctor’s nurse, who informed her that it was likely a work-related injury and that she should contact her employer to see how to proceed under workers’ compensation. The claimant said that this doctor would not see her without approval by the compensation carrier, and she could not opt to have the injury treated under regular health insurance.
The claimant called the head of human resources at the employer’s corporate headquarters on April 12 and reported her injury. She stated that this person told her that she did not know how to proceed but would get back to her. She said that this person called her the next day and said that the employer was not responsible for the injury and she should contact her previous employer’s workers’ compensation carrier. No conflicting evidence was offered that this conversation did not occur.
Although somewhat important to the carrier’s theory of defense, the question of when the claimant was laid off by the employer was never asked. The claimant testified that she worked for the employer for six months. She was still employed on March 15 but not still employed by April 12.
The claimant hired her attorney after the employer’s denial of responsibility regarding her injury and he suggested a doctor for her to see. The medical records in evidence show that this doctor initially found positive Phalen’s testing and recommended an EMG. He started the claimant on carpal tunnel syndrome (CTS) care and also noted indications of thoracic outlet syndrome. The claimant was taken off work effective April 23, 2001. EMG findings reported on June 21, 2001, showed evidence of bilateral CTS. This diagnosis has been confirmed by a consulting orthopedic surgeon. In light of many of the technical arguments made by the carrier in its appeal about this EMG report, we would note that no medical evidence was offered to support a contrary interpretation of the measured results.
The carrier argues that the date of reporting is established by the Employer’s First Report of Injury or Illness (TWCC-1), which is filled out by the employer. The TWCC-1 may not be used as substantive evidence against a carrier or employer, Section 409.005(f), and the statute does not provide that an employer or carrier may select some portions, but not other portions, of a TWCC-1 to be used as admissions. Leaving this aside, the hearing officer was free to believe the claimant’s testimony as to when she reported the injury. While the carrier’s argument is based upon different interpretations of the facts, the hearing officer is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given the evidence. Section 410.165. The record supplies sufficient evidence of the repetitive nature of the claimant’s weekly activities during a sustained seven-hour period, three days in a row. The decision of the hearing officer will be set aside only if the evidence supporting the hearing officer’s determinations are so weak or against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Atlantic Mutual Insurance Company v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). We do not agree that this was the case on any of the appealed issues, and affirm the decision and order.
The true corporate name of the insurance carrier is HARTFORD INSURANCE COMPANY OF THE MIDWEST and the name and address of its registered agent for service of process is
BARBARA SACHSE
9020-11 N. CAPITAL OF TEXAS HWY., STE. 555
AUSTIN, TEXAS 78759-7232.
Susan M. Kelley – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Philip F. O’Neill – Appeals Judge