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 September 12, 2001. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) did not sustain a compensable injury on ___________; that the claimant did not timely notify his employer of his claimed injury and did not establish good cause for failing to timely report his claimed injury; and that the claimant has not had disability as a result of his claimed injury of ___________. The claimant appealed and the respondent (carrier) responded. The claimant’s original appeal will be considered because it was timely filed with the Texas Workers’ Compensation Commission (Commission) on November 14, 2001. The claimant’s supplemental appeal will not be considered because it was not timely filed with the Commission. The due date for the claimant’s appeal was November 20, 2001, and the supplemental appeal was received by the Commission by facsimile transmission on November 27, 2001. Section 410.202.
DECISION
The hearing officer’s decision is affirmed.
COMPENSABLE INJURY ISSUE
The hearing officer did not err in determining that the claimant did not sustain a compensable injury on ___________. Section 401.011(10) defines a “compensable injury” as “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.” The claimant testified that he injured his lower back lifting heavy boxes at work on ___________. A medical report reflected that the claimant had complaints of lower back pain on June 19, 2000, when he was off work for a knee injury that was not work related. The claimant said that the June 19, 2000, back pain was from physical therapy for his knee injury. The claimant had the burden to prove that he was injured in the course and scope of his employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Conflicting evidence was presented at the CCH. The trier of fact may believe that the claimant has an injury, but disbelieve that the injury occurred as claimed by the claimant. Johnson. The hearing officer considered the conflicting evidence and was not persuaded that the claimant sustained a lower back injury at work on ___________. The hearing officer’s decision is supported by sufficient evidence and is not 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 (Tex. 1986).
DISABILITY ISSUE
The hearing officer did not err in determining that the claimant has not had disability as a result of his claimed back injury of ___________, because, without a compensable injury, the claimant would not have disability as defined by Section 401.011(16).
TIMELY NOTICE ISSUE
The hearing officer did not err in determining that the claimant did not timely notify his employer of his claimed back injury of ___________. Section 409.001(a) requires that notice of injury must be given to the employer not later than the 30th day after the date the injury occurs. The claimant had the burden to prove that he timely notified his employer of his injury. Travelers Insurance Company v. Miller, 390 S.W.2d 284 (Tex. Civ. App.-El Paso 1965, no writ). A claimant who fails to give timely notice of injury to the employer has the burden to show good cause for such failure. Aetna Casualty & Surety Company v. Brown, 463 S.W.2d 473 (Tex. Civ. App.-Fort Worth 1971, writ ref’d n.r.e.). Conflicting evidence was presented on this issue. The hearing officer found that the claimant did not report his claimed back injury to his employer within 30 days of ___________. The hearing officer’s determination is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, supra. The claimant did not claim good cause for failing to timely report his claimed injury. The hearing officer did not err in determining that the claimant did not establish good cause for failing to timely notify his employer of his claimed injury. We note that, even if the claimant had established that he gave timely notice of injury to his employer, his claimed injury would still not be compensable because we are affirming both the hearing officer’s finding that the incident of ___________, did not cause damage or harm to the claimant’s lower back, and the hearing officer’s conclusion that the claimant did not sustain a compensable injury.
OTHER MATTERS
The claimant contends that some unspecified evidence was improperly admitted at the CCH. Because the claimant did not object to any of the evidence offered by the carrier, he has not preserved any complaint on appeal. Evidence which is admitted without objection, cannot be complained of on appeal. Dicker v. Security Insurance Company, 474 S.W.2d 334 (Tex. Civ. App.-Waco 1971, writ ref’d n.r.e.).
The claimant contends that some unspecified evidence was improperly excluded at the CCH. Since all of the evidence the claimant offered into evidence at the CCH was admitted, there is nothing for us to review regarding this contention.
The claimant contends that the ombudsman did not have adequate time to prepare for the CCH. Section 409.041(b)(5) provides that an ombudsman shall meet with an unrepresented claimant privately for a minimum of 15 minutes prior to any informal or formal hearing. The claimant states in his appeal that on September 6, 2001, he talked over the telephone with the ombudsman who assisted him at the CCH. The CCH record reflects that the CCH was to begin at 9:00 A.M. on September 12, 2001, but that the hearing officer postponed the start of the CCH until 9:40 A.M. in order to allow the claimant and the ombudsman additional time to discuss the claimant’s case. When the CCH was convened, the claimant replied affirmatively when the hearing officer asked him whether he had had adequate time to talk with the ombudsman, and also replied affirmatively when the hearing officer asked him whether the ombudsman had answered his questions satisfactorily. The claimant gave no indication during the CCH that he felt that he did not have adequate assistance from the ombudsman. Under these circumstances, we do not find merit in the claimant’s assertion.
The claimant contends that just prior to the CCH, he, with the assistance of the ombudsman, entered into an agreement with the carrier’s representative whereby the carrier accepted liability for the claimant’s claimed back injury. Sections 410.029 and 410.030, as well as Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 147.1-147.9 (Rules 147.1-147.9) contain provisions regarding agreements. A review of the audiotapes of the CCH reflects that there was no mention on the record during the CCH of any agreement, written or oral, between the parties regarding the carrier’s acceptance of the claimed back injury. In addition, there is no written agreement in evidence regarding the claimant’s claim of a work-related back injury, nor was any such written agreement offered into evidence. Furthermore, there is no written agreement regarding the claimant’s claim of a work-related back injury in the appeals file nor is there one attached to the claimant’s appeal. Attached to the claimant’s appeal is the claimant’s own note wherein he states that prior to the CCH the carrier’s representative “tried” to make an agreement with him regarding his back. The carrier states in its response that, although there was some discussion of a possible agreement between the parties before the CCH, the Commission did not approve any proposed agreement; therefore, there was no binding agreement. Since there is no signed, written agreement in evidence (the applicable rules require signing by the parties and the presiding hearing officer), and there is no oral agreement reached during the CCH that was preserved in the record, we are unable to grant any relief based on the claimant’s contention that an agreement was reached between the parties.
The claimant’s assertion that an ombudsman told him that the hearing officer said that he could not have any witnesses at the CCH is unfounded in light of the claimant’s acknowledgment that the hearing officer granted his request for hearing subpoenas for witnesses.
The claimant contends that he did not have sufficient time to have the hearing subpoenas served. At the claimant’s request, hearing subpoenas were issued by the hearing officer. The claimant acknowledges that he received the hearing subpoenas on August 11, 2001, which was a month before the CCH. There is no indication in the CCH record that the claimant requested that the Commission arrange for service of the subpoenas. The claimant said at the CCH that he paid to have the subpoenas served, but he did not indicate who he paid. The claimant indicated that none of the subpoenas were served. The claimant did not ask for a continuance to have the subpoenas served. The claimant said that one person told him that he was dodging the subpoena because there was a warrant out for his arrest. With regard to the subpoena for RY, a person the claimant said was his supervisor and the person the claimant complains the most about in his appeal for not showing up at the CCH, the claimant stated at the CCH that he did not have the subpoena served on RY because he did not want RY to come to the CCH and lie (the claimant stated that RY had lied in RY’s recorded statement which was offered into evidence by the carrier without objection). In addition, at the end of the CCH, the hearing officer offered to continue the CCH if the claimant wanted to secure a written statement from RY or if the claimant wanted the hearing officer to reissue a subpoena for RY. The hearing officer asked the ombudsman to confer with the claimant on that matter, and after the ombudsman conferred with the claimant, the ombudsman told the hearing officer that the claimant wanted to have the record closed. Given these circumstances, the claimant’s contention regarding the subpoenas is not a basis for reversal of the hearing officer’s decision.
The Commission does not have jurisdiction over the claimant’s asserted “discrimination wrongful termination issue.”
The claimant attached to his appeal numerous documents, some of which were offered and admitted into evidence at the CCH and others that were not offered into evidence at the CCH. Those documents that were offered and admitted at the CCH were considered, as they were part of the CCH record. However, since the Appeals Panel considers the record developed at the CCH (Section 410.203(a)(1)), we do not consider the documents attached to the claimant’s appeal that were not made a part of the CCH record. In addition, the claimant has not shown that the documents attached to his appeal that are not a part of the CCH record constitute newly discovered evidence. See Jackson v. Van Winkle, 660 S.W.2d 807 (Tex. 1983); Texas Workers’ Compensation Commission Appeal No. 93311, decided June 7, 1993. Specifically, with regard to the purported November 5, 2001, written statement from RY attached to the claimant’s appeal, we note that the hearing officer offered to continue the CCH in order for the claimant to obtain a written statement from RY, and the claimant declined that offer.
The hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is UTICA NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
RICHARD A. MAYER
11910 GREENVILLE AVENUE, SUITE 600
DALLAS, TEXAS 75243-9332.
Robert W. Potts – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Philip F. O’Neill – Appeals Judge