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 26, 2001. The hearing officer determined that the appellant/cross-respondent (claimant) had not sustained a compensable injury on ___________ (all dates are 2001 unless otherwise noted); that the respondent/cross-appellant (self-insured) is relieved from liability due to the claimant’s failure to timely notify the employer of his injury; that the claimant did not have disability; and that the claimant had not made an election of remedies.
The claimant appealed the injury and notice issues on grounds of sufficiency of the evidence, and alleged good cause on the notice issue. He also appealed the disability issue, alleging a compensable injury, and also incorrectly appealed the election-of- remedies issue. The self-insured appealed the election-of-remedies issue and responded to the claimant’s appeal, urging affirmance. There was no response from the claimant to the carrier’s appeal.
DECISION
Affirmed.
At the outset, we note that the evidence is completely conflicting and contradictory. Undisputed is that the claimant, a truck driver, had spinal surgery in 1990 and as recently as January and/or February, saw a doctor for back complaints. Whether those complaints resolved is in dispute. The claimant changed jobs and took a preemployment physical with the self-insured in February and began work on February 27. The claimant alleges an ___________, low back injury which occurred while uncoupling a trailer. The claimant first saw a doctor after that date on May 14. What the claimant told the doctor is in conflict; the doctor’s report does not reference a work-related injury on ___________ but references the claimant’s problems in February. The claimant had an MRI on May 30. There was testimony that the claimant was limping in late May or early June and that the claimant inquired about short-term disability benefits on June 11. The claimant reported a work-related, ___________ injury on June 18. The claimant saw an orthopedic surgeon who diagnosed a “fresh” disc herniation and recommended spinal surgery on July 9. The claimant had spinal surgery paid for by group health insurance on August 7.
Whether the claimant sustained a new injury on ___________ and whether the claimant had good cause for not timely reporting that injury were factual determinations for the hearing officer to resolve. 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.). 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. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
In that we are affirming the hearing officer’s decision that the claimant had not sustained a new low back injury, the claimant, by definition in Section 401.011(16), does not have disability.
Regarding the election-of-remedies issue, we have long stated that we follow the guidance given in Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980). Texas Workers’ Compensation Commission Appeal No. 93662, decided September 13, 1993. Without again listing the elements set forth in that case, we would only note that when the carrier, or self-insured in this case, denies liability for an injury based on the theory that no injury occurred, it is hard to see how there was an informed election between two inconsistent remedies. While the injured employee’s action in receiving group benefits may be inconsistent with a compensable injury, that is a matter of credibility of whether the employee had an injury and does not automatically constitute an election of remedies. In any event, there is no showing of a “manifest injustice” in this case other than the self-insured’s recitation.
Accordingly, the hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is (a certified self-insured) and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL ST.
DALLAS, TEXAS 75201.
Thomas A. Knapp – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Michael B. McShane – Appeals Judge