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 August 4, 2003. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury in the form of an occupational disease; that the date of the claimed injury is _____________; that the claimant failed to timely notify his employer of the claimed work-related injury pursuant to Section 409.001 and that the respondent (carrier) is relieved of liability for this claim in accordance with Section 409.002; and that the claimant does not have disability. The claimant appealed on sufficiency of the evidence grounds and the carrier responded, urging affirmance.
DECISION
Affirmed.
INJURY
The question of whether an injury occurred is one of fact. Texas Workers’ Compensation Commission Appeal No. 93854, decided November 9, 1993; Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given to the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals-level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In light of the conflicting evidence concerning injury in the record, and applying this standard, we cannot say that the hearing officer erred as a matter of law in finding no repetitive trauma injury.
DATE OF INJURY
Under Section 401.011(34), an occupational disease includes repetitive trauma injuries, which is what the claimant is alleging here. The date of an occupational disease is a question of fact. Texas Workers’ Compensation Commission Appeal No. 94415, decided May 23, 1994. We stated in Texas Workers’ Compensation Commission Appeal No. 992783, decided January 26, 2000, “[t]he date is somewhat of a ‘moving target,’ but need not be as early as the first symptoms nor as late as a definitive diagnosis.” Applying our standard of review set out above, we find sufficient evidence to support the hearing officer’s factual determination concerning the date of injury. This is so even though another fact finder might have drawn other inferences and reached other conclusions. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.).
TIMELY REPORT OF INJURY
The 1989 Act generally requires that an injured employee or person acting on the employee’s behalf notify the employer of the injury not later than 30 days after the injury occurred. Section 409.001. The 1989 Act provides that a determination by the Texas Workers’ Compensation Commission that good cause exists for failure to provide notice of injury to an employer in a timely manner or actual knowledge of the injury by the employer can relieve the claimant of the requirement to timely report the injury. Section 409.002. The burden is on the claimant to prove the existence of notice of injury. Travelers Insurance Company v. Miller, 390 S.W.2d 284 (Tex. Civ. App.-El Paso 1965, no writ).
In the present case, the issue of timely notice really turns on the issue of the date of the injury. The claimant contends that his date of injury was the date he was told his diagnosis and that his injury was work related by a specialist – March 6, 2003. However, the hearing officer found that the date of the alleged injury was _____________, a date more than 30 days prior to the date the claimant alleged he reported an injury. Having affirmed the hearing officer’s date of injury determination, we likewise affirm the hearing officer’s determination that the claimant failed to timely report his injury.
DISABILITY
Finally, with no compensable injury found, there is no loss upon which to find disability. By definition disability depends upon a compensable injury. See Section 401.011 (16).
We affirm the decision and order of the hearing officer.
The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS, SUITE 750, COMMODORE 1
AUSTIN, TEXAS 78701.
Gary L. Kilgore
CONCUR:
Thomas A. Knapp – Appeals Judge
Michael B. McShane
Appeals Panel
Manager/Judge