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 19, 2001. The hearing officer resolved the disputed issues by concluding that the appellant (claimant) did not suffer an injury on ______________, and did not suffer disability as a result of the alleged injury. The claimant appeals, arguing that the hearing officer improperly excluded evidence at the CCH. In its response, the respondent (carrier) urges affirmance.
DECISION
Affirmed.
The claimant testified that he was employed as a truck driver for the employer. He stated that the air seat in his truck was broken and when he went over a cattleguard the seat struck the bottom of the cab of the truck causing stabbing pains in his back.
At the CCH, the hearing officer excluded a letter from the claimant’s physician’s assistant dated October 15, 2001, on the basis that it was not timely exchanged pursuant to Section 410.161. The claimant has appealed this evidentiary ruling and contends that there was good cause for the letter to be admitted because the claimant’s attorney “had been assured by the ombudsperson that all discovery had been provided to the carrier in a timely manner” and that if the letter had been admitted into evidence it would have been so material that “it would probably produce a different result had it been admitted and considered.” The claimant acknowledges in his appeal that the letter was not timely exchanged.
To obtain reversal of a judgment based on the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was, in fact, an abuse of discretion and, also, that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers’ Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). It has also been held that reversible error is not ordinarily shown in connection with rulings on questions of evidence unless the whole case turns on the particular evidence admitted or excluded. Atlantic Mut. Ins. Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.).
In the excluded exhibit, the physician’s assistant concludes that “the problem with [the claimant’s] back appears to be work related.” No further explanation is offered as to causation. In this case, we cannot agree that the hearing officer erred in excluding the exhibits based on the claimant’s failure to timely exchange it. However, we note that even if error had been shown in the exclusion of the exhibit, it would not rise to the level of reversible error.
There is sufficient evidence in the record to support the hearing officer’s determination that the claimant did not sustain a compensable injury on ______________. The claimant had the burden to prove that he sustained damage or harm to the physical structure of the body, which arose out of and in the course and scope of his employment. Texas Workers’ Compensation Commission Appeal No. 91028, decided October 23, 1991. There was conflicting evidence presented with regard to this issue. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). We cannot conclude that the hearing officer’s determination was so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). Because we affirm the determination that the claimant did not sustain a compensable injury, we also affirm the determination that he did not have disability in that a compensable injury is a prerequisite for disability. Section 401.011(16).
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is FINANCIAL INSURANCE COMPANY OF AMERICA and the name and address of its registered agent for service of process is
ALBERT SCOTT TAYLOR, PRESIDENT
12225 GREENVILLE AVENUE, SUITE 490
DALLAS, TEXAS 75243.
Gary L. Kilgore – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Edward Vilano – Appeals Judge