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 February 23, 2004. The hearing officer determined that the respondent (claimant) was employed by a nonclaim employer entitling him to increased income benefits pursuant to Section 408.042 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 128.1(h) (Rule 128.1(h)). The appellant (self-insured) appealed the hearing officer’s determination asserting legal and factual error. The appeal file does not contain a response from the claimant.
DECISION
Affirmed.
It is undisputed that the claimant sustained a compensable injury on _______________. The evidence reflects that the claimant was a volunteer firefighter for a political subdivision and that he sustained a compensable injury while in the course and scope of his volunteer firefighting in which capacity he had worked for over 13 weeks; and that the claimant was also employed by a nonclaim employer for which he had worked for over 13 weeks. The sole issue before the hearing officer was whether the claimant was employed by a nonclaim employer entitling him to increased income benefits pursuant to Section 408.042 and Rule 128.1(h). The self-insured argued at the CCH, and on appeal, that Section 504.012 applies to the facts of this case, rather than Section 408.042, and that, therefore, the claimant was entitled to the minimum compensation payment under the law. Additionally, the self-insured argues that Section 408.042 is inconsistent with the provisions of Section 504.012.
In Texas Workers’ Compensation Commission Appeal No. 030735-s, decided May 12, 2003, a volunteer firefighter sustained an injury in the course and scope of his volunteering as a firefighter for a political subdivision for whom optional coverage was provided and the self-insured argued that Section 408.042 did not apply to volunteer firefighters. In that case, the Appeals Panel specifically stated that “[p]ursuant to Section 504.002, Section 408.042 applies” and that “[w]e do not read Section 504.012(a) to be inconsistent with the provision of Section 408.042.” The Appeals Panel explained that Section 504.001(2)(B) defined employee as a person for whom optional coverage is provided under Section 504.012 (which specifically provides for optional coverage for volunteer firefighters for political subdivisions as defined in Section 504.001(3)); therefore, a volunteer firefighter for a political subdivision for whom optional coverage was provided who is injured on the volunteer job and who is also employed by another employer at the time of the injury is entitled to the average weekly wage computed under Section 408.042(c), which applies to injured workers with multiple employment. Section 408.042(g) provides that an insurance carrier is entitled to apply for and receive reimbursement at least annually from the subsequent injury fund for the amount of income benefits paid to a worker under Section 408.042 that are based on employment other than the employment during which the compensable injury occurred.
The hearing officer did not err in determining that the claimant was employed by a nonclaim employer entitling him to increased income benefits pursuant to Section 408.042 and Rule 128.1(h). The hearing officer is the sole judge of the weight and credibility to be given to the evidence. Section 410.165(a). 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). Applying the standard above, we find no legal error in the hearing officer’s finding that the claimant is entitled to increased income benefits pursuant to Section 408.042 and Rule 128.1(h).
We affirm the hearing officer’s decision and order.
The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is
DM
(ADDRESS)
(CITY), TEXAS (ZIP CODE).
Veronica L. Ruberto
CONCUR:
Chris Cowan – Appeals Judge
CONCUR IN THE RESULT:
Edward Vilano – Appeals Judge