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 17, 2001. The hearing officer determined that (1) the appellant (claimant) did not sustain a compensable injury; (2) the date of injury was __________; (3) the claimant failed to timely report an injury to his employer without good cause; (4) the claimant did not have disability; and (5) the respondent (carrier) did not waive its right to dispute compensability of the claimed injury, since there was newly discovered evidence developed at the April 30, 2001, benefit review conference (BRC) that could not have reasonably been discovered at an earlier date. The claimant appeals all but the date of injury determination, on sufficiency grounds. The carrier urges affirmance. The hearing officer’s date of injury determination was not appealed and is, therefore, final.
DECISION
Affirmed.
COMPENSABLE INJURY
The claimant had the burden to prove that the claimed left upper extremity injury arose out of and in the course and scope of his 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 (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence, including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). The hearing officer could disbelieve the claimant’s testimony and infer from the evidence that the claimant did not sustain a work-related injury on __________. The hearing officer’s determination is not 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 (Tex. 1986).
NOTICE OF INJURY
Section 409.001(a)(1) provides, in relevant part, that an employee or a person acting on the employee’s behalf shall notify the employer of an injury not later than the 30th day after the date on which the injury occurs. Failure to notify an employer as required by Section 409.001(a) relieves the employer and the carrier of liability, unless the employer or carrier has actual knowledge of the injury, good cause exists, or the claim is not contested. Section 409.002. Whether the claimant timely notified his employer of an injury is a question of fact for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 000150, decided March 10, 2000. The hearing officer could believe the carrier’s witnesses over the claimant’s testimony and conclude that the claimant did not timely notify his employer of the claimed injury. The hearing officer’s determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra. Additionally, we cannot conclude that the hearing officer abused her discretion in determining that the claimant did not have good cause for failing to timely notify his employer of the claimed injury.
DISABILITY
The 1989 Act requires the existence of a compensable injury as a prerequisite to a finding of disability. Section 401.011(16). Because the claimant did not sustain a compensable injury, the hearing officer properly concluded that the claimant did not have disability.
WAIVER ISSUE
The evidence shows that the claimant initially claimed a date of injury of December 22, 2000. The carrier filed a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) disputing compensability of the claim because the claimant failed to give timely notice to his employer of the alleged injury. At a BRC, the claimant changed the claimed date of injury from __________, to __________. The employer’s records show that the claimant did not work on __________. The carrier contested the compensability of the claimed injury at the BRC based upon the last minute change in the date of injury.
Section 409.021(d) provides that a carrier may reopen the issue of the compensability of an injury if it learns of evidence that could not reasonably have been discovered earlier. In this circumstance, the claimant changed the date of the injury at the BRC and, based on the employer’s records that the claimant was not at work on __________, the carrier at that time, disputed the compensability of the injury. The BRC report documents that sequence of events, and such documentation constitutes a timely contest of compensability based on newly discovered evidence. In this case, the new alleged date of injury could not have been reasonably discovered earlier. The hearing officer’s determination that the carrier has not waived its right to dispute compensability of the claimed injury is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. RUSSELL R. OLIVER, PRESIDENT
221 WEST 6TH STREET
AUSTIN, TEXAS 78701.
Thomas A. Knapp – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Susan M. Kelley – Appeals Judge