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 November 5, 2001. With regard to the disputed issues, the hearing officer determined that the appellant (claimant) had not sustained a compensable right shoulder injury on __________ (all dates are 2001 unless otherwise noted), and that the claimant did not have disability.
The claimant appealed the adverse findings, arguing that all of the respondent’s (carrier) documentary evidence had been excluded due to failure to timely exchange, that the hearing officer “grossly misweighed the evidence,” and that the carrier was allowed to improperly use one of the excluded exhibits. The carrier responded, urging affirmance.
DECISION
Affirmed.
The claimant was employed as a cement truck driver and testified how he injured his right shoulder detaching a chute from the cement mixer. The claimant continued to work at his regular job for a few weeks. Whether he told coworkers of his injury and what he may have told his supervisor when he went to the doctor on _______ is in dispute. The doctor’s initial progress notes make no mention of a work-related injury. The employer received notice of the claimed injury on _______ when someone from a hospital emergency room called, inquiring whether the injury was covered under workers’ compensation.
Some of the evidence was conflicting and the claimant initially alleged a repetitive trauma injury. It is the hearing officer who 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 who 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.).
While it is true that all of the carrier’s exhibits were excluded based on a failure to timely exchange, we note that four of the carrier’s six exhibits were duplicates of the claimant’s exhibits. As noted above, Section 410.165(a) makes the hearing officer the sole judge of the weight and credibility of the evidence. Regarding the carrier’s use of a recorded, transcribed statement of the claimant to impeach the claimant on cross-examination, the claimant failed to object to that procedure and, consequently, did not preserve any error for appeal. In fact, we note that the claimant was given the statement and allowed to review it and portions of the statement were actually read into the record without objection.
We conclude that the hearing officer’s decision is supported by sufficient evidence. 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).
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is HIGHLANDS INSURANCE GROUP and the name and address of its registered agent for service of process is
JAMES W. HOOKER
10370 RICHMOND AVENUE
HOUSTON, TEXAS 77042-4123.
Thomas A. Knapp – Appeals Judge
CONCUR:
Robert E. Lang
Appeals Panel
Manager/Judge
Michael B. McShane – Appeals Judge