This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). Following a contested case hearing held on October 9, 2001. The hearing officer determined that the respondent (claimant) sustained a compensable injury on __________; that the claimant had disability beginning on April 24, 2001, and continuing through the date of the hearing; and that the appellant (carrier) complied with Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3). The carrier has appealed the injury and disability determinations on evidentiary sufficiency grounds, pointing to inconsistencies in the claimant’s evidence. The carrier also asserts error in the hearing officer’s refusal to allow the carrier to take testimony from two witnesses by speaker telephone. The claimant contends in response that the evidence is sufficient to support the challenged findings.
DECISION
Affirmed.
The claimant, a long-distance truck driver, testified that on __________, while in (state 1) on a delivery run, he injured his right shoulder and arm stacking wooden pallets; that he reported the injury to his dispatcher on __________; that he was seen in an emergency room on April 14, 2001, and was taken off work for two days; that the pain increased and he had difficulty driving the truck back to Texas; and that his treating doctor, Dr. M, took him off work on April 24, 2001, and feels he needs surgery. The Work Status Report (TWCC-73) forms of Dr. M taking the claimant off work indefinitely reflect the diagnosis as multiple nerve entrapments of the right upper extremity.
The claimant had the burden to prove that he sustained the claimed injury and that he had disability as that term is defined in Section 401.011(16). Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. The Appeals Panel has stated that in workers’ compensation cases, the disputed issues of injury and disability can, generally, be established by the lay testimony of the claimant alone. Texas Workers’ Compensation Commission Appeal No. 91124, decided February 12, 1992. However, the testimony of a claimant, as an interested party, only raises issues of fact for the hearing officer to resolve and is not binding on the hearing officer. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref’d n.r.e.). The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). As an appellate reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
With regard to the assigned error concerning the calling of a witness for rebuttal testimony, the hearing officer had admitted into evidence the written statement of Ms. W as part of the carrier’s case in chief. After the claimant had rested her case, the carrier asked the hearing officer for leave to place a call to Ms. W for testimony, and when the hearing officer asked the carrier’s attorney if he basically wanted “to duplicate what is already in evidence” the attorney responded, “perhaps, yes sir.” The Appeals Panel has repeatedly approved telephone testimony. However, under the narrow circumstances of this case, we do not find that the hearing officer abused his discretion in refusing to permit the carrier to call Ms. W for telephone testimony. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). Even were we to find error, we would not find it reversible given the concession by the carrier that the intended testimony would be largely cumulative. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ).
The decision and order of the hearing officer are affirmed.
The true corporate name of theinsurance carrier is UNITED STATES FIDELITY AND GUARANTY COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TX 78701.
Philip F. O’Neill – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Thomas A. Knapp – Appeals Judge