This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1992) (1989 Act). A contested case hearing was convened Texas, on September 1, 1992 to consider the sole disputed issue, namely, whether appellant (claimant) sustained a compensable injury on ______________. The hearing officer determined the issue against claimant who, in his request for review, asserts error by the hearing officer in considering evidence supporting grounds for the contest of his claim not asserted by respondent (carrier), in the admission of certain evidence, and in the inability of the hearing officer to consider all the evidence due to an inadvertent recording over of some of the testimony of carrier’s witness. Carrier argues against these assertions of error and urges our affirmance.
DECISION
Finding no reversible error and sufficient evidence to support the decision, we affirm.
At the outset of the contested case hearing, the parties agreed that the disputed issue was whether claimant sustained an injury in the course and scope of his employment in __________, but indicated the evidence would conflict as to whether the date of injury was (alleged date of injury), as claimant contended, or _________, as the carrier stated that witnesses would establish. The hearing officer then alluded to five stipulations, the first of which dealt with whether claimant lived within 75 miles of (City), Texas, on the date of his injury. Because of the apparent disagreement on the actual date of the injury, the hearing officer said he would change the date of injury in Stipulation 1 from ______________, to simply “the date of injury,” and that he would do likewise with Stipulations 4 and 5. Although the hearing officer apparently had the five stipulations in writing, as presumably did the parties, he did not make such writing an exhibit, nor did he recite the remaining four stipulations into the record or mention them in his Decision and Order. Thus, the record fails to reflect the content of four of the five stipulations. Since neither party has complained on appeal of this oversight, we need not further address it.
Claimant testified, mostly through a translator, that he had worked for the (employer) for about two months before his injury. While claimant did not specifically testify that (alleged date of injury) was the date he was injured, he introduced his Employee’s Notice of Injury (TWCC-41) which stated the date of injury as (alleged date of injury). He said that on the day he was injured he had been welding when Mr. B called him over to help Mr. B, LG, and another person move a new hot water tank (boiler), which had just been delivered, into employer’s premises for installation. He described in detail how he and his coworkers struggled to push the large, heavy boiler, still in its crate and on a pallet with rollers, through a doorway and into the crowded room where it was to be installed. While they were struggling to get the boiler into its installation position in that room, claimant said he got behind the tank to pull on it while the others pushed it toward him, and that the boiler tipped over on him because it was being pushed at the top. He said he felt a lot of pain, his legs cramped, and he had to stop working. He told his coworkers the tank was crushing him and to move it off him, and said they were aware of the incident. He testified he told Mr. B who responded that they had no insurance; then told employer’s manager, Ms. F, who also said they had no insurance; and then got his check and visited a doctor.
Claimant introduced an absence excusal slip from Dr. C, dated ______________, which stated only that claimant was seen on that date “due to illness.” He said he later returned to see Ms. F who again advised there was no insurance. On December 18th, claimant was seen by and commenced a series of chiropractic treatments with Dr. W. According to Dr. W’s records, claimant gave a history of an “overexertion type of movement” while helping to lift a boiler, and Dr. W’s impressions included “overexertion or strenuous movement.” He took claimant off work and recommended a minimum of 30 to 40 treatments. In February 1992, Dr. W released claimant for light duty with restrictions, and claimant said he was released by Dr. W on or about June 30, 1992.
Ms. F, who had managed employer’s apartments for eight years, testified she hired claimant on October 21, 1991, to perform outdoor labor for one to two weeks. She extended his employment by the week and he worked a total of about one and one-half months. Ms. F stated that the new boiler was delivered and installed on November 15th, not (alleged date of injury), and that there existed a delivery receipt showing that date which she did not have with her because she had not been asked to bring it to the hearing. According to Ms. F, claimant did not miss work between November 15th and _________. On _________, claimant came into the office and told her he was leaving work because he was sick. He said his leg was cramping and that it was an old war injury which acted up every so often. Claimant denied saying this to Ms. F and testified he had never served in the armed forces. According to Ms. F, claimant called her the next day and again about one week later saying he was still sick. She advised him she still had work for him. Sometime in late November or early December, claimant came in for one and one-half days. On the second day, he called a friend to come pick him up explaining that his leg was acting up again. She said claimant never said his leg cramping was job related. About two weeks later, on or about (date) when he came in for his last paycheck, claimant told her he had been hurt moving the boiler, said he had no money for a doctor, and inquired about insurance. She told claimant she would have to look into it. She said she inquired of claimant’s coworkers who said they had observed no injury and that the boiler never tipped over onto claimant. She talked to the owner of employer who indicated claimant was “contract labor” and not covered. Ms. F nevertheless insisted, inconsistently, that claimant never reported to employer that he had sustained an injury on the job and that she did not become aware of such contention until she was contacted by his previous lawyer in March 1992.
Claimant objected to the admission of the undated transcript of a recorded interview of Mr. B based on the hearsay rule and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.8(1) (TWCC Rule 142.8(1)) which provides for the use of sworn witness statements. He pointed out that Mr. B’s statement was not signed by him but rather by the adjustor who took the statement. It also bore a notary public’s seal and signature, though no jurat or certificate of acknowledgment. In that statement, Mr. B said that claimant did not get injured on (alleged date of injury) since Mr. B was present the entire time that claimant, Mr. B, and two other persons moved the 700 pound boiler; and that claimant did not tell him, either on the day they moved the boiler or later, that he had hurt his back moving the boiler. The hearing officer overruled the objection and admitted the statement. Claimant also objected to the admission of the undated transcript of a recorded interview of Mr. G not only on the hearsay and TWCC Rule 142.8(1) grounds, but also because it was not timely exchanged by carrier. In that statement, Mr. G said that claimant never said that he injured his back, nor did Mr. G hear him tell anyone else he had injured his back. The carrier stated, without contradiction, that Mr. G’s statement had been taken in Spanish; that it had been provided to claimant in carrier’s first exchange of documents, along with Mr. B’s statement; that it had only recently been translated and notarized; and that the exhibit (containing both the Spanish and English statements) was provided to claimant on August 29th. Carrier did not state when the statement was taken nor explain the delay in obtaining the translation. The hearing officer overruled the objection without stating whether he found the exhibit to have been timely exchanged and, if not, whether he nonetheless found good cause for its admission. After admission of these statements, the carrier said it had no further documents and closed its case. Claimant had no rebuttal and closing statements commenced.
During its closing statement, carrier moved for a continuance to review the delivery receipt to which Ms. F had testified. The hearing officer had earlier commented that carrier might want to consider withdrawing its announcement of “ready” for the hearing since the delivery receipt for the boiler was not at hand. Carrier then responded that Ms. F had already testified that the delivery date was November 15th. Claimant strenuously objected to a continuance based on the passage of time since employer became aware of the injury. Claimant also asserted that carrier’s grounds for contesting his claim never alleged a wrong date of injury, but only that the alleged accident never happened. The hearing officer said he would leave the record open for the filing of additional documents regarding the delivery date and claimant again objected noting that carrier had had more than enough time to investigate and prepare its defense. However, the hearing officer continued the hearing to September 30, 1992.
When the hearing reconvened on September 30th, carrier called Ms. F to authenticate the delivery receipt and offered it into evidence. Claimant objected on the grounds that carrier had closed its case, presented argument, and then obtained a continuance to obtain additional evidence; that the delivery receipt, a copy of which he received on September 15th, had not been exchanged 15 days before the first hearing; and that this second evidentiary hearing after the close of the evidence was improper. The hearing officer, citing his duty to develop a full record, admitted the exhibit. The exhibit showed that the boiler was delivered on November 14th. Ms. F said that in her earlier testimony to the November 15th delivery date she actually meant on or about November 15th, and that her check of records confirmed the delivery date of November 14th. She also stated that no other boilers were delivered and installed between November 14th and June 1992. Claimant then testified that he knew nothing of November 14th, as such, but insisted he had been injured on the day the boiler was delivered.
The hearing officer advised the parties that at the first hearing, he had inadvertently tape recorded over Ms. F’s testimony, as well as some of his own examination of the claimant, and that he desired to reconstruct such testimony for the record. The hearing officer offered claimant the opportunity to testify further for this purpose which claimant declined to do. Ms. F then testified further under both direct and cross-examination, essentially repeated her prior testimony, and clarified that the boiler was delivered on November 14th and that it was after she received a letter from claimant’s lawyer that she asked his coworkers about the injury. When the hearing officer then queried the parties as to whether they were satisfied with the reconstruction of the testimony, the carrier indicated it was but claimant remarked, “well, not really judge.” The hearing officer again advised that since the prior witnesses were again present they could testify further if desired. Since the hearing officer heard all of claimant’s testimony, and since Ms. F was reexamined by the parties, and considering the hearing officer’s effort to reconstruct the record of the missing portion of his examination of claimant and claimant’s unwillingness to further testify in that regard, we view as meritless claimant’s appealed issue that the hearing officer’s inadvertent omission of the testimony of “carrier’s chief witness” prevented him from considering all the evidence.
Claimant’s appealed issue that the hearing officer erred in considering carrier’s evidence in support of allegations not contained in carrier’s amended Notice of Refused/Disputed Claim (TWCC-21) is also without merit. Claimant’s position is that carrier’s amended TWCC-21 essentially denied the occurrence of an injury but did not specifically dispute the date of the injury. Thus, carrier’s evidence regarding the boiler delivery date of November 14th vis-a-vis the (alleged date of injury) injury date asserted by claimant was irrelevant. There was no disputed issue at the hearing concerning the nature of carrier’s grounds for contesting the compensability of the claim. See Article 8308-5.21 (1989 Act). Article 8308-6.34(e) provides that the hearing officer is the sole judge of the materiality and relevance of the evidence, as well its weight and credibility. The date of an injury seems obviously relevant to a dispute as to whether such injury actually occurred.
Claimant’s assertion of error concerning the admission of Mr. B’s interview transcript is not well founded. Claimant’s objection was based, in part, on the evidentiary rule against hearsay. We have previously observed that contested case hearings need not conform to the legal rules of evidence pursuant to Article 8308-6.34(e) (1989 Act). See Texas Workers’ Compensation Commission Appeal No. 91124, decided February 12, 1992. We have also recognized, however, the value of the rules of evidence as a guide for hearing officers. Texas Workers’ Compensation Commission Appeal No. 92144, decided May 28, 1992. While the transcript was not signed by Mr. B, it does bear the signature of the adjustor who interviewed him and the signature of a notary public (without a jurat) below the following statement: “I have read the above, and it is a true and accurate rendition of the statement taken from Mr. B.” Article 8308-6.34(a)(5) requires the hearing officer to allow the presentation of evidence by affidavit; Article 8308-6.34(e) authorizes the hearing officer to accept written statements signed by a witness; and Article 8308-6.34(b) authorizes the hearing officer to permit the use of summary procedures including witness statements. TWCC Rule 142.8 authorizes the hearing officer to allow summary procedures which include but are not limited to the use of sworn witness statements, summaries, and similar measures to expedite the proceedings. In Texas Workers’ Compensation Commission Appeal No. 91021, decided September 25, 1991, we considered an assertion of error by the hearing officer in admitting several unsworn, written statements. We there noted that Article 8308-6.34(e) permits the hearing officer to accept written statements signed by a witness. While noting that TWCC Rule 142.8, in providing for summary procedures, authorizes the use of sworn witness statements, we did not find that rule to limit the Article 8308-6.34(e) provision, and said that the hearing officer’s ruling admitting the unsworn statements was within his discretion. In Texas Workers’ Compensation Commission Appeal No. 92319, decided August 26, 1992, while not called upon to decide alleged error in its admission, we nonetheless considered the admission of a telephone interview transcript not signed by either the witness or the person who conducted the interview. We observed that even when using summary procedures a hearing officer is on firm ground in refusing to admit unsigned witness statements. In Texas Workers’ Compensation Commission Appeal No. 92490, decided October 28, 1992, we agreed with the claimant that the hearing officer committed error, albeit not reversible in that case, in admitting over objection an unsigned, unsworn, typewritten transcript of what purported to be a telephone interview. We there noted the absence of any indicia of authenticity or identification, that is, that the document was what it purported to be. No witness testified to the transcript’s authenticity nor was there any other extrinsic evidence of its authenticity. In contrast, Mr. B’s interview transcript, while undated and not signed by him, did contain the interviewer’s signature and her statement as to the accuracy of the transcript, as mentioned above, from which the hearing officer could import authenticity. While we do not find error in the admission of this particular document, we again emphasize our concern over unsigned witness statements and will continue to closely scrutinize them.
We find no merit in claimant’s appealed issue concerning the admission of the transcript of Mr. G’s interview transcript based on carrier’s untimely exchange. The time requirements for the exchange of documents between the parties are found in Article 8308-6.33 (1989 Act) and in the implementing rule, TWCC Rule 142.13. We have previously emphasized the importance of the discovery requirements and procedures. Texas Workers’ Compensation Commission Appeal No. 91058, decided December 6, 1991. This transcript did not indicate the date the interview was accomplished nor the date it was transcribed. Incidentally, Mr. B’s interview transcript shared these defects. Carrier asserted, without contradiction, that the Spanish language transcript had been earlier exchanged, apparently on August 19th, but that carrier had only obtained the English translation and notarization a few days before the September 1st hearing, and that claimant received a copy on August 29th. Claimant’s objection was to the untimely exchange of the exhibit with the translation, not to the document earlier exchanged. Though failing to articulate that he found good cause for the admission of this exhibit, the hearing officer, in admitting the document, apparently determined that such had been shown. In Texas Workers’ Compensation Commission Appeal No. 91009, decided September 4, 1991, we stated that the appropriate test for the existence of good cause is that of ordinary prudence, that is, that degree of diligence as an ordinarily prudent person would have exercised under the same or similar circumstances. We also observed that such decision is best left to the discretion of the hearing officer. Such decisions are reviewed for abuse of discretion and we find none here. As in Appeal No 91009, while the showing of good cause appears minimal at best, we do not find it so lacking as to conclude that the hearing officer abused his discretion in admitting the document.
We do find merit to claimant’s objection to the admission of this document based on its not being signed. See Appeal No. 92490, supra. Unlike the transcript of Mr. B’s interview, the transcript of Mr. G’s interview was not only not signed by him but was not signed by the interviewer, nor did it contain the interviewer’s averment of the accuracy of the transcript. While it did contain the signature and seal of a notary public, there was no jurat, certificate of acknowledgment or other indication of the purpose for the notary public’s signature and seal. The erroneous admission of this transcript was harmless in this case, however, because it was cumulative of the testimony of Mr. B and probably did not cause the rendition of an improper decision. See Gee v. Liberty Mutual Fire Insurance Company, 765 S.W.2d 394 (Tex. 1989).
We find the hearing officer abused his discretion in both continuing the hearing to permit the carrier to obtain the delivery receipt, and in admitting same into evidence. TWCC Rule 142.10(c)(3) authorizes the granting of a continuance during a hearing upon a showing of both good cause and an absence of prejudice to the rights of the other parties. After first planting the seed in carrier’s counsel’s mind that the obtaining of the delivery receipt might be a good idea, and after hearing carrier’s reaction that the delivery date on the receipt had already been testified to by Ms. F, albeit erroneously by one day, and after further hearing the carrier announce the closing of its case and its commencement of argument, the hearing officer nevertheless granted carrier’s requested continuance, apparently because he felt the receipt should be obtained and introduced in the interest of fully developing the record. The hearing officer is obliged by Article 8308-6.34(b) to ensure both the preservation of the rights of the parties as well as the full development of the facts required for the determinations to be made. Here, however, the carrier never even attempted to establish good cause for either its failure to timely exchange the document with claimant or its need for a continuance to obtain the document, ostensibly in employer’s possession since November 14, 1991. Indeed, Ms. F testified she was not asked to bring it to the hearing. The hearing officer summarily overruled claimant’s objections to the continuance and failure to exchange with no findings as to good cause. Under these circumstances, we are hard-pressed to view these rulings as anything less than an abuse of discretion in light of the test of ordinary prudence. However, we also find such abuse of discretion harmless error because it did not probably result in the rendition of an improper decision. The delivery date on the receipt was essentially cumulative of Ms. F’ testimony. 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 Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. Civ. App.-San Antonio 1983, writ ref’d n.r.e.); Gee, supra.
Finding no reversible error and the evidence sufficient to support the findings and conclusions of the hearing officer, the decision is affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge