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 November 15, 2001. The hearing officer determined that the appellant (claimant) did not sustain an injury while in the course and scope of employment on ______________. The claimant appealed arguing that the hearing officer erred in determining compensability. The respondent (employer) filed a response urging affirmance.
DECISION
Affirmed.
The claimant testified that he was employed as lab-pack chemist and his duties included travel to out-of-town facilities in the employer’s trucks to replace and pack up unused chemicals. The claimant testified that on the morning of ______________, in anticipation for five days of work-related travel, he packed his clothes and loaded his luggage into his car at home. As he was lifting his luggage he felt a pop in his back. The claimant testified that he drove to his employer’s facility, about 24 miles away from his home, to meet with his coworkers who were also traveling with him to an out-of-town facility. The claimant stated that he advised his supervisor that his lower back and legs were hurting. The claimant sought medical attention and did not travel out-of-town.
The claimant asserts that loading his luggage in his car was essential to performing his job and living away from his home. The claimant argues that he “was in or about the furtherance of the affairs and/or business of the employer because at the moment of injury he was involved in a task that was directly related to [the] requirement that the claimant travel for several days away from home to conduct business on the employer’s behalf.” We cannot agree that the hearing officer erred by finding the contrary.
The burden is on the claimant to prove, by a preponderance of the evidence, that an injury occurred within the course and scope of employment. Texas Employers Insurance Co. v. Page, 553 S.W.2d 98 (Tex. 1977). Section 401.011(12)(B)(i) and (ii) embody the so-called “dual purpose doctrine.” These subsections provide that the phrase “course and scope of employment” does not include travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless “the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel” and “the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.” Texas Workers’ Compensation Commission Appeal No. 002187, decided October 20, 2000. In order to come within the dual purpose doctrine an employee must satisfy both requirements and the question of whether the two requirements of the dual purpose doctrine are met is a question of fact. St. Paul Fire and Marine Insurance Co. v. Confer, 956 S.W.2d 825 (Tex. App.-San Antonio 1997, pet. denied).
The evidence sufficiently supports the hearing officer’s determination that the claimant did not sustain an injury in the course and scope of employment on ______________. The claimant testified that after he loaded his luggage into his car at home, he drove to his employer’s facility to meet his coworkers to commence travel to the out-of-town facility. The hearing officer determined from the claimant’s testimony that the claimant was not in the course and scope of employment as he had not begun travel to the out-of-town facility, and that the “[c]laimant was injured while at home preparing to go to work.”
It is the hearing officer, as the sole judge of the weight and credibility of the evidence (Section 410.165(a)), who 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.). This is equally true of medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). 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 claimant also argues on appeal that paragraph four of the Statement of the Evidence is incorrect. Review of the record indicates that the claimant testified that while at home, as he lifted his luggage to place it in the back of driver’s seat, he felt his back pop. The evidence sufficiently supports the hearing officer’s statement that the “[c]laimant was injured while at home preparing to go to work.”
Additionally, the claimant argues that the employer filed an Employer’s Contest of Compensability (TWCC-4) untimely. Review of the record indicates that the claimant did not contest timeliness of the TWCC-4. The Appeals Panel does not consider issues raised for the first time on appeal. Texas Workers’ Compensation Commission Appeal No. 951196, decided August 28, 1995; Texas Workers’ Compensation Commission Appeal No. 91100, decided January 22, 1992.
The decision and order of the hearing officer are affirmed.
Susan M. Kelley
CONCUR:
Michael B. McShane – Appeals Judge
Robert W. Potts – Appeals Judge