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APD 041962
September 22, 2004

APD 041962

September 22, 2004

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 July 8, 2004. The hearing officer determined that the appellant’s (claimant herein) compensable injury does not include an injury to the lumbar spine. The hearing officer also found that the claimant had disability from January 17 through May 5, 2004, but not from May 6 through July 8, 2004. The claimant appeals, contending that these determinations are contrary to the evidence. The claimant also complains that the hearing officer admitted evidence that was not timely exchanged. The respondent (carrier herein) replies that the hearing officer’s decision should be affirmed.


Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.

We first address the claimant’s evidentiary point. The claimant objected to the admission of a videotape and a medical report offered by the carrier on the grounds that these exhibits had not been timely exchanged prior to the hearing. The carrier responded that both the videotape and the medical report had been exchanged with the claimant timely prior to the claimant being represented by counsel with the medical report being provided to the claimant at the benefit review conference (BRC). The claimant stated that he believed the medical report had been given to him at the BRC. The hearing officer obviously believed that the two exhibits had been timely exchanged and we would defer to her factual determination. Under these circumstances, we find no legal error in the admission of the exhibits.

Extent of injury and disability are questions of fact. 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 (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 (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 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Company 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 Company, 715 S.W.2d 629, 635 (Tex. 1986).

In the present case, there was simply conflicting evidence on the issues of extent of injury and disability, and it was the province of the hearing officer to resolve these conflicts. Applying the above standard of review, we find that the hearing officer’s decision was sufficiently supported by the evidence in the record.

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is AMERISURE MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is




Gary L. Kilgore
Appeals Judge


Judy L. S. Barnes
Appeals Judge

Veronica L. Ruberto
Appeals Judge