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 7, 2001. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) sustained a compensable occupational disease (repetitive trauma injury) while working for the employer; that the date of injury is ______________; that the claimant reported the injury in a timely manner and thus the appellant (carrier) is not relieved of liability on that basis; that the claimant has had disability from May 2, 2001, through November 7, 2001; and that the claimant is not barred from receiving workers’ compensation benefits due to a claimed election of remedies. The carrier appealed. No response was received from the claimant.
DECISION
The hearing officer’s decision is affirmed.
OCCUPATIONAL DISEASE ISSUE
An occupational disease includes a repetitive trauma injury. Section 401.011(34). The claimant claimed a compensable occupational disease in the form of a repetitive trauma injury from performing her work activities. Section 401.011(36) defines a “repetitive trauma injury” as “damage or harm to the physical structure of the body occurring as the result of repetitious, physically traumatic activities that occur over time and arise out of and in the course and scope of employment.” The claimant had the burden to prove that she was injured during the course and scope of her employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Conflicting evidence was presented on this issue. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what fact have been established. The hearing officer’s determination that the claimant sustained a compensable occupational disease (repetitive trauma injury) is supported by the claimant’s testimony and the opinions of the treating doctor and the required medical examination doctor, and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
DATE OF INJURY ISSUE
Section 408.007 provides that the date of injury for an occupational disease is the date on which the employee knew or should have known that the disease may be related to the employment. The hearing officer resolved the conflicts in the evidence by deciding that the date of injury is ______________. The hearing officer’s determination on this issue is supported by the claimant’s testimony, and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, supra.
TIMELY NOTICE ISSUE
Section 409.001(a) provides that if an injury is an occupational disease, an employee or a person acting on the employee’s behalf shall notify the employer of the employee of an injury not later than the 30th day after the date on which the employee knew or should have known that the injury may be related to the employment. It is undisputed that the claimant notified her employer of her injury on ______________. Given our affirmance of the ______________, date of injury, we conclude that the hearing officer did not err in determining that the claimant reported the injury in a timely manner to her employer.
DISABILITY ISSUE
Section 401.011(16) defines “disability” as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” The hearing officer’s determination that the claimant had disability from May 2, 2001, through November 7, 2001, is supported by the claimant’s testimony and by the reports of the treating doctor, and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, supra.
ELECTION OF REMEDIES ISSUE
The hearing officer did not err in determining that the claimant is not barred from receiving workers’ compensation benefits under the doctrine of election of remedies. The hearing officer found that the claimant did not make an informed election to receive health insurance benefits in lieu of workers’ compensation benefits. See Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980). That finding is supported by the claimant’s testimony, and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In addition, we note that the Court of Appeals for the Fifth District of Texas at Dallas in Valley Forge Insurance Company v. Austin, Tex. App.-Dallas No. 05-00-01915-CV, opinion issued December 20, 2001, held that the common-law election of remedies doctrine is no longer a viable affirmative defense to the pursuit of a workers’ compensation claim. See also Texas Workers’ Compensation Commission Appeal No. 012964, decided January 14, 2001, citing the Austin case.
The hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is PACIFIC EMPLOYERS INSURANCE COMPANY and the name and address of its registered agent for service of process is
MARCUS CHARLES MERRITT
6600 CAMPUS CIRCLE DRIVE EAST, SUITE 200
IRVING, TEXAS 75063.
Robert W. Potts – Appeals Judge
CONCUR:
Chris Cowan – Appeals Judge
Gary L. Kilgore – Appeals Judge