This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 25, 2001. The appellant (claimant) appeals the hearing officer’s determinations that the claimant’s date of injury was ___________; that the claimant did not timely report an injury to his employer; that the claimant did not sustain a compensable repetitive trauma injury; and that because the claimant did not sustain a compensable injury, he did not have disability. The respondent (carrier) responds, urging affirmance.
DECISION
Affirmed.
DATE OF INJURY
The hearing officer determined that the alleged date of injury is ___________. The claimant testified that he filled in the date of injury on the Employee’s Notice of Injury or Occupational Disease & Claim for Compensation (TWCC-41) as ___________, because that was the date he first felt pain related to the injury. The claimant asserts that ___________, is the proper date of injury because on that day he felt pain radiate from his hand to his elbow. He also testified that on ___________, he knew his work was causing the pain he was having but just thought his hands were tired from operating some equipment with his hands.
The date of injury for an occupational disease is not the date the claimant receives a definitive diagnosis or when the claimant discovers the seriousness of his injury, rather it is the date the claimant “knew or should have known that the injury may be related to the employment.” Section 408.007. The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The hearing officer’s determination that the date of injury is ___________, is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust, and we affirm it. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
TIMELY NOTICE
The hearing officer also determined that the claimant did not timely report an injury to the employer. The evidence on the date of reporting the claimed injury to the employer is conflicting. The employer may have known that the claimant was at a medical clinic on February 12, 2001, but for there to have been notice of an injury, the employer must have known the general nature of the injury and that it was work related. Texas Workers’ Compensation Commission Appeal No. 91016, decided September 6, 1991. The determination that the claimant did not timely report the injury to the employer is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust and is affirmed.
INJURY AND DISABILITY
An employee must prove, by a preponderance of the evidence, the compensability of an occupational disease. Texas Workers’ Compensation Commission Appeal No. 960582, decided May 2, 1996, citing Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980). “[O]ne must not only prove that recurring, physically traumatic activities occurred on the job, but must also prove that a causal link exists between these activities on the job and one’s incapacity; that is, the disease must be inherent in that type of employment as compared to employment generally.” Texas Workers’ Compensation Commission Appeal No. 950868, decided July 13, 1995, citing Davis v. Employers Insurance of Wausau, 694 S.W.2d 105 (Tex. App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.). The hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. Section 410.165(a). The hearing officer determined that the claimant’s work activities did not cause a repetitive trauma injury. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). That a different factual determination could have been made based upon the same evidence is not a sufficient basis to overturn a factual determination of a hearing officer. Texas Workers’ Compensation Commission Appeal No. 94466, decided May 25, 1994. We substitute our judgment for that of the hearing officer only when those determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Applying this standard, we find no grounds to reverse the factual findings of the hearing officer.
Given our affirmance of the hearing officer’s determination that the claimant did not sustain a compensable injury, we likewise affirm her determination that the claimant did not have disability. By definition, the existence of a compensable injury is a prerequisite to a finding of disability. Section 401.011(16).
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is ST. PAUL FIRE & MARINE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701.
Susan M. Kelley – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Thomas A. Knapp – Appeals Judge