This appeal arises under the Texas Workers' Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1991) (1989 Act). On October 13, 1992, a contested case hearing (CCH) was held in (city), Texas, with (hearing officer) presiding as hearing officer. The claimant failed to appear. Claimant subsequently offered an excuse why he did not appear and the case was rescheduled. On November 6, 1992 the hearing was reopened with (hearing officer), presiding, at which time the claimant appeared in person without an attorney or representative. The issue from the benefit review conference (BRC) was:

Whether Claimant had disability as a result of his injury on (date of injury), while working for Employer.

The hearing officer found that claimant did not have disability from (date of injury) through the date of the CCH. The appellant, claimant herein, timely filed an appeal wherein he disagreed with the hearing officer's decision and alleged that he was denied the opportunity to be examined by a doctor of his choice. Respondent, carrier herein, filed a response that the hearing officer's decision be affirmed and stating claimant's appeal was not timely filed.

DECISION

The decision of the hearing officer is affirmed.

Addressing carrier's contention that the appeal was not timely filed, we note that although the decision is dated November 13, 1992 and the cover letter is dated November 25, 1992, the decision was not actually distributed until November 30, 1992. There is no evidence when the decision was received by claimant, however in accordance with Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 102.5(h) (TWCC Rule 102.5(h)), the Commission shall deem the received date to be five days after the date mailed, in this case that date would be December 5th. In accordance with Rule 143.3 the request for review shall be filed not later than 15 days after receipt of the hearing officer's decision. Fifteen days after the deemed date of receipt would have been December 20th, a Sunday. Claimant's appeal is post marked December 15th and was received by the Commission's Austin office on December 21st and was consequently timely filed.

Claimant testified he was a vacuum truck operator for (employer), the employer. Claimant states that on (date of injury), while mounting the truck his foot slipped and he fell against the truck, injuring his left chest and heart. Claimant further testified that he has been in pain since the accident, is unable to work or be active and has been unable to obtain employment due to his injury. During the November 6, 1992 hearing, while giving direct testimony, claimant became upset, began rambling, refused to be cross-examined and left the hearing.

Although there is reference to several BRCs in the transcript of the October 13, 1992 hearing the only BRC in evidence is the BRC report of July 20, 1992 where an interlocutory order was entered determining temporary income benefits (TIBS) are not required to be paid or should be suspended effective 7-20-92. Carrier offered into evidence the medical records of (Dr. T), (Dr. TS), (Dr. K) and (Dr. JS). From those records it appears that claimant saw Dr. T several times beginning on (date of injury). Dr. T took x-rays and diagnosed a contusion of the left chest. Dr. T on 5/7/91 notes, "Pt doesn't want to go to work until he feels better." Claimant was referred to Dr. S who examined claimant and repeated x-rays on 5/10/91. By note of 5-16-91 Dr. S notes all tests are negative and refers claimant to a cardiologist for a CT of the chest. Dr. K is the cardiologist who did heart catherization, coronary angiography, and a CT of the chest. In a two page report dated August 17th, Dr. K found the angiographic evaluation essentially normal, the CT scan of the chest showed no evidence of trauma and claimant was dismissed. Claimant testified he thought Dr. K was "real good" but that carrier had somehow convinced Dr. K to discharge claimant. Claimant then saw Dr. JS who prescribed medication and physical therapy. An order for claimant to be examined by a Commission-appointed designated doctor was apparently entered on May 4, 1992. An appointment was scheduled for claimant to see (Dr. G), the designated doctor, on July 1, 1992 at 9:00 a.m. Claimant failed to keep that appointment and testified that he was confused on the time of the appointment and when he went to the doctor's office at 1:30 p.m. on July 1st, the receptionist, according to claimant, refused to reschedule the appointment for later that afternoon because the carrier had instructed her not to do so.

Based on the evidence summarized above the hearing officer found that claimant's inability to obtain and retain employment at wages equivalent to the preinjury wages from (date of injury), through the date of the hearing on November 6, 1992 ". . . was the result of something other than an injury occurring while claimant was working for the employer." The hearing officer concluded the claimant "did not have disability." Claimant's appeal disagrees with the hearing officer's decision stating the ruling "wasn't right." The claimant's reason for disagreeing with the decision was that he had not been allowed to see a doctor of his choice, that he wanted to see "a sports medicine doctor", his reason for missing the appointment with the designated doctor and that carrier would not agree to allow the designated doctor to reschedule claimant "to the later time that day."

The issue at the CCH was whether claimant had a disability, as defined by the 1989 Act. Claimant testified he was unable to work because of injury to his heart, suffered in the accident on (date of injury). Claimant submitted no medical reports to support his contention and the carrier's medical reports would indicate only a brief time that the doctors recommended claimant not work. Claimant received TIBS from (date of injury) until July 20, 1992. There is no evidence that claimant saw a doctor after December 1991 when he obtained additional pain medication from Dr. JS.

Disability is defined as the inability to obtain and retain employment at wages equivalent to the preinjury wage because of a compensable injury. Article 8308-1.03(16).

Article 8308-6.34(e) provides, as we have repeatedly held, that the hearing officer is the sole judge of the relevance and materiality of the evidence. See Texas Workers' Compensation Commission Appeal No. 92232, decided July 20, 1992. The Appeals Panel has ruled that disability may be addressed by lay witness testimony. See Texas Workers' Compensation Commission Appeal No. 91024, decided October 23, 1991. The Appeals Panel has also ruled that it may consider the testimony of a claimant in regard to the inability to work because of the injury. See Texas Workers' Compensation Commission Appeal No. 92147, decided May 29, 1992. While medical evidence is not essential to a determination of disability, the hearing officer in the instant case did have medical evidence available for his consideration. It was not improper for the hearing officer to give greater weight to the medical evidence than to claimant's testimony. The hearing officer saw and heard the testimony and observed the demeanor of the claimant and had available documentary medical evidence to assess and weigh. Where, as here, there is sufficient evidence to support his determinations, there is no sound basis to disturb his decision.

As to claimant's assertion that he was denied an opportunity to consult a doctor of his choice, we note that claimant saw at least four doctors, one of whom was a cardiologist who did extensive testing. The issue at both the BRC and the CCH was whether claimant had disability. Article 8308-5.31(a) providing for contested case hearings states, in part, that "issues not raised at the benefit review conference may not be considered except by consent of the parties or unless the Commission determines that good cause existed for not raising the issue at the earlier proceeding. . . ." Since the issue of choice of doctors was not raised in the prior proceeding as a stated issue and was not addressed at the CCH it will not be determined for the first time on appeal. See Texas Workers' Compensation Commission Appeal No. 91100, decided January 22, 1992.

The hearing officer's decision was sufficiently supported by the evidence. Only if we determine, which we do not in this case, that the determinations of the hearing officer were so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust would we be warranted in setting aside his decision. In re King's Estate, 244 S.W.2d 660 (Tex. 1951); Texas Workers' Compensation Appeal No. 92232, decided July 20, 1992.

The decision is affirmed.

Thomas A. Knapp
Appeals Judge

CONCUR:

Joe Sebesta
Appeals Judge

Susan M. Kelley
Appeals Judge