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 begun on October 1, 2001, and concluded on October 25, 2001. The hearing officer sent a “ten day letter” after the appellant (claimant) did not appear for the first CCH, and determined that the claimant had good cause for not attending the CCH scheduled for October 1. The hearing officer later determined that the claimant did not have good cause for not attending the CCH scheduled for October 25. The hearing officer also determined that the claimant did not sustain a compensable injury on ___________; that the claimant did not notify the employer of a work-related injury on or before the 30th day after the injury and did not have good cause for his failure to do so; that the claimant did not have disability; and that the respondent (carrier) timely filed its contest of compensability. The claimant appeals, setting forth information which he could have testified about if he had attended the CCH. The carrier replied to the appeal, and urges affirmance.
DECISION
Affirmed.
At the first session of the CCH, the claimant was represented by an attorney who tendered the claimant’s exhibits to the hearing officer. The exhibits were admitted and ultimately considered by the hearing officer. On October 23, 2001, before the second session of the CCH, the attorney sent notice that he was withdrawing from representation of the claimant pursuant to the claimant’s request and “irreconcilable differences.” The claimant’s assertion that he was willing to appear by telephone and “sat by the phone that day to field a call by the court” is contrary to the information provided to the hearing officer that the claimant saw no reason to come to the hearing or even appear by telephone. We do not see any assertion by the claimant that he tried to call the field office to advise anyone that his attorney had left the case and to arrange for his appearance by telephone. Hearing officers are not clairvoyant, nor are they required to track down the whereabouts of an absent claimant. We will construe the claimant’s appeal as an objection that the hearing officer abused his discretion by closing the hearing without affording the claimant the opportunity to be heard. In determining whether there was an abuse of discretion by the hearing officer in making this decision, we look to see if the hearing officer acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). We do not find any abuse of discretion on the part of the hearing officer. He was following well-established procedure for completing cases when the claimant is absent from the CCH.
We note that we will not generally consider evidence not submitted into the record, and raised for the first time on appeal, such as the information referenced by the claimant in his appeal. Texas Workers’ Compensation Commission Appeal No. 92255, decided July 27, 1992. To determine whether evidence offered for the first time on appeal requires that the case be remanded for further consideration, we consider whether it came to appellant’s knowledge after the hearing, whether it is cumulative, whether it was through lack of diligence that it was not offered at the hearing, and whether it is so material that it would probably produce a different result. Texas Workers’ Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). Applying this standard, we do not find, under the facts of this case, that the matters raised in the claimant’s request for review require remand. He certainly had the information before the CCH, and it was due to his own lack of diligence in attending the CCH or arranging to appear by telephone that the information was not provided to the hearing officer. As noted above, the claimant passed up his opportunity to have his day in court when he did not attend the CCH or arrange for appearance by telephone. The hearing officer followed the process outlined for handling cases where parties fail to appear at the hearing. See Texas Workers’ Compensation Commission Appeal No. 990028, decided February 22, 1999, and the decisions cited therein. Although the claimant was determined to have good cause for not attending the first session, we conclude that the hearing officer properly closed the record on October 25, 2001, after the failure of the claimant to appear at the rescheduled hearing.
The claimant had the burden of proof on the compensability, disability, and timely reporting issues. From the conflicting evidence that was presented, and without testimony from the claimant, the hearing officer could properly determine that the claimant did not meet his burden of proof that he sustained a compensable injury or had disability. There was no dispute that the claimant first reported the claimed injury on ___________, more than 30 days after the claimed injury, and the hearing officer had sufficient evidence from which he could conclude that there was no good cause for the untimely report. Section 409.002. Also, the evidence supports the hearing officer’s determination that the carrier contested compensability on March 9, 2000, within 60 days of being notified of the injury. Section 409.021. This case turned on the credibility of the evidence, and the hearing officer was exercising his discretion in evaluating and assigning weight to the evidence. The 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. As an appeals body, we will not substitute our judgment for that of the hearing officer when his determinations are not so against the overwhelming weight of the evidence as to be clearly wrong and unjust, and we do not them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995.
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.
Michael B. McShane – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Robert W. Potts – Appeals Judge