On August 26, 1993, a contested case hearing was held in (city), Texas, with (hearing officer), presiding as the hearing officer. The hearing was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act) (formerly V.A.C.S., Article 8308-1.01 et seq.). The disputed issue was, “Was the claimant an employee of (employer)(employer), on (date of injury)?” The hearing officer concluded that the claimant was an employee of (employer), on (date of injury). Appellant, Colonial Casualty Insurance Company (Carrier A), who is the workers’ compensation insurance carrier for (employer), disputes certain findings of fact and the hearing officer’s conclusion, and requests that we reverse the hearing officer’s decision and render a decision that the claimant was not an employee of (employer).
DECISION
The decision of the hearing officer is affirmed.
The claimant’s position at the hearing was that on (date of injury), the date he injured his back, he was an employee of (employer). Carrier A’s position was that on the date of injury the claimant was an employee of (employer).
The claimant testified that since 1987 he has worked off and on as a laborer for ((EMPLOYER)), which he described as a business which provides temporary employees to other businesses. He said that prior to having his claim for workers’ compensation benefits disputed by Carrier A, he had never heard of either (employer). From the evidence presented at the hearing it appears that both (employer) do business under the name of (EMPLOYER).
The claimant said that the (EMPLOYER) operation in (city), Texas, operates out of a hiring hall at (address) Street, that signs at the hall have the name (EMPLOYER) on them, and that a sign on the wall of the hall identifies (GK) as the manager of (EMPLOYER). The claimant testified that on (date of injury), he went to the hall and was assigned to a construction job with ((BUSINESS)). (BUSINESS)) was doing construction work at a school building. The claimant reported to an (BUSINESS)) foreman and was instructed to use a tamping machine to tamp down dirt over pipes. Neither party contended at the hearing or on appeal that the claimant was a borrowed servant of (BUSINESS)). The claimant said he felt sharp pain in his back and left leg and fell to the ground when he lifted and turned the tamping machine. He said he reported his injury to the (BUSINESS)) foreman and then an (EMPLOYER) employee took him back to the hall where he told the dispatcher that he was injured and he filled out an accident report.
The claimant said an (EMPLOYER) employee then took him to the (the clinic) where he was treated by (Dr. T). Dr. T diagnosed a lumbosacral strain and released the claimant to light duty. The claimant said he returned to the (EMPLOYER) hall the next day, (date), and was assigned a job washing dishes for another client company. He said he washed dishes for four hours but was unable to continue to work after that because his left leg gave out. The claimant said he has not worked since (date). Dr. T took the claimant off work when the claimant visited him on October 27th. The claimant said that Dr. T told him that he believes the claimant has a ruptured disc but that further testing is needed. The claimant said he took Dr. T’s reports to the (EMPLOYER) hiring hall and was told that if he wanted any more medical treatment he would have to go to his own doctor. As of November 3, 1992, the claimant stopped seeing Dr. T and began treatment at (the hospital). Dr. T’s records show the claimant’s employer as (EMPLOYER). The claimant said he was not billed for services by Dr. T’s office and that he doesn’t know who paid for Dr. T’s services. A hospital record indicates that the claimant was diagnosed as having L5 nerve root irritation and that an MRI was being obtained to “work-him up for back surgery.”
The claimant said that he was not paid by a company check. (business), he would be given a “pay voucher” by the dispatcher at the hall and he would then take the pay voucher to a local service station where he was given cash for the voucher. The claimant said the voucher would only have his name and social security number and the (EMPLOYER) name on it.
The claimant presented the signed statements of two dispatchers and a secretary each of whom said that they worked for (EMPLOYER) and that the claimant worked for (EMPLOYER). In addition, the claimant presented an (EMPLOYER) identification card with his name and picture on it. The claimant said that in order to get assistance from the Tarrant County Department of Human Services he had to have his employer complete a statement verifying his employment and earnings, so on November 3, 1992, he obtained such a written statement from (MR), whom the claimant said worked as a secretary for (EMPLOYER). The written verification was in evidence. It contains MR’s signature and her title as secretary and identifies the claimant’s employer as (EMPLOYER) with an address of (address) Street, (city)), Texas.
On or about November 3, 1992, the claimant filed a claim for compensation with the Texas Workers’ Compensation Commission identifying (EMPLOYER) as his employer. On or about June 23, 1993, Carrier A disputed the claimant’s claim asserting that the claimant was not an employee of (employer). Carrier A asserted that the claimant was employed by (BUSINESS) dba (EMPLOYER) and that “North American Insurance” (a certificate for workers’ compensation insurance showing the insured as (EMPLOYER), which is discussed later in this decision, contains the name “North American Employer’s Insurance Company” (Carrier B)) was the workers’ compensation insurance carrier for (BUSINESS) dba (EMPLOYER). No issue was raised concerning the timeliness of Carrier A’s dispute of the claim. The claimant indicated that he has not received any workers’ compensation benefits or benefits under any other type of insurance or benefits plan.
The ombudsman who assisted the claimant at the hearing represented to the hearing officer that she had contacted a person at (BUSINESS)) to obtain information regarding the claimant’s employment at the school building construction site. She further represented that the person she contacted at (BUSINESS)) told her that workers’ compensation insurance coverage was required on the school building construction job the claimant worked on since the job involved a government building. The ombudsman also represented that the person she contacted at (BUSINESS)) said she had searched the files and found certain documents which the claimant introduced into evidence as Claimant’s Exhibit No. 10. The exhibit contains a cover sheet indicating that the attached documents were in fact sent from (BUSINESS)) to the ombudsman. At the hearing, Carrier A did not in any way dispute or challenge the ombudsman’s implicit representation that the documents contained in Claimant’s Exhibit No. 10 were documents from (BUSINESS))’s files pertaining to the school construction job where the claimant worked on (date of injury). One of the documents is a work “ticket” for the claimant dated (date of injury), which indicates that (EMPLOYER) is the claimant’s employer and that the work site is the school building.
Another document contained in Claimant’s Exhibit No. 10 is a certificate of insurance issued November 16, 1992, for workers’ compensation insurance coverage for the period March 30, 1992 to March 30, 1993, which shows that the insured is (employer) with its location of operation at (address) Street, (city), Texas (the same address as the hiring hall the claimant is assigned jobs out of); that the “certificate holder” is “(business).” at (address)), which is the same address as shown for (BUSINESS)) on the cover letter accompanying the documents from (BUSINESS)); and that the carrier is Carrier A. However, another document in Claimant’s Exhibit No. 10 is a certificate of insurance for workers’ compensation insurance issued July 20, 1992, with an expiration date of July 15, 1993, which shows that (EMPLOYER) is the insured (just (EMPLOYER), not (employer) nor (BUSINESS) dba (EMPLOYER)); that the insured’s address is (address) Street, (city)), Texas (the same address as the hiring hall and the same address as shown on the certificate of insurance for (employer)); that the certificate holder is “(business)).” at (address)), which, again, is the same address as for (BUSINESS)); and that the carrier is Carrier B.
Also in evidence (not part of Claimant’s Exhibit No. 10 from (BUSINESS))) is a copy of an affidavit of GK, whom the claimant said was identified by a sign in the hiring hall as being the manager of (EMPLOYER), in which GK states “[t]his is to certify that [claimant] is not nor has he ever been employed by [(employer)]. GK signed the affidavit as the manager of (BUSINESS).
In addition, a copy of an affidavit of (PT), who identifies himself or herself as the manager for (BUSINESS) dba (EMPLOYER) was in evidence. PT states that the claimant was an employee of (BUSINESS) on (date of injury); that (BUSINESS) provides benefits to its employees under an “ERISA” plan; that the claimant claimed and accepted benefits under that plan; that the claimant was released without restriction to return to work on (date), after treatment for a sprained lumbosacral ligament; that (BUSINESS) provided the claimant with a photo identification card; that MR (the person who signed the verification of employment for the claimant verifying that the claimant worked for (EMPLOYER)) was an employee of (BUSINESS); that (BUSINESS) was providing temporary laborers to (BUSINESS)); and that the ownership, directors, and officers of (BUSINESS) are different than (BUSINESS); and that there is no common ownership between those “separate entities.” As previously noted, the claimant denied receiving benefits under any type of insurance or benefits plan. Also, there is no evidence that (BUSINESS)) had on file a certificate of insurance for workers’ compensation insurance for the school construction job covering (BUSINESS) dba (EMPLOYER).
On appeal, Carrier A disputes the following findings of fact and conclusion of law:
FINDINGS OF FACT
6.On the above date [(date of injury)], the claimant was “leased” by [(EMPLOYER)] and (BUSINESS) to work (sic) (BUSINESS)), a contractor doing construction work at [high school].
7.On the above date [(date of injury)], GK, an employee of (BUSINESS), was the manager of the South Main hiring hall which placed the claimant with (BUSINESS)) on that date.
8.Mandatory insurance certificates issued to (BUSINESS)) for the above work for the period in question showed both (BUSINESS) and [(EMPLOYER)] as insureds for workers’ compensation insurance coverage on that job; (BUSINESS) was not so insured.
9.On the above date [(date of injury)], the claimant was injured while working as a laborer leased by [(EMPLOYER)] and (BUSINESS) to (BUSINESS)).
CONCLUSION OF LAW
2.The claimant was an employee of [(employer)] on (date of injury).
As previously mentioned, no issue has been raised as to whether the claimant was a borrowed servant of (BUSINESS)) when injured, thus we need not discuss the doctrine of borrowed servant. The hearing officer is the judge of the weight and credibility to be given to the evidence. Section 410.165(a). The evidence was certainly conflicting regarding who the claimant’s employer was on the date of injury. However, where there are conflicts and contradictions in the testimony, it is the duty of the finder of fact, in this case the hearing officer, to consider these conflicts and contradictions and determine what facts have been established. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). The hearing officer may believe all, part, or none of the testimony of any witness, and may believe one witness and disbelieve others. Burelsmith v. Liberty Mutual Insurance Company, 568 S.W.2d 695 (Tex. Civ. App.-Amarillo 1978, no writ). In the instant case, there is evidence that: (1) the claimant was assigned his job out of the hiring hall on the date of injury; (2) at the hiring hall GK was identified as the manager of (EMPLOYER); (3) in his affidavit GK identified himself as the manager of (BUSINESS); (4) one of the certificates of insurance in the possession of (BUSINESS)) identified (employer) as the insured; (5) the certificate of insurance shows the hiring hall as the location of operation of (employer); and (6) the claimant worked for (EMPLOYER). Considering that there is evidence that GK was the manger of (EMPLOYER)’s hiring hall and was also the manager of (BUSINESS), whose address is shown to be the hiring hall, and further considering that the claimant was sent to a job at (BUSINESS)) who produced a certificate of insurance covering (employer), we believe that the hearing officer could reasonably infer from the evidence that on the date of injury the claimant was an employee of (employer) whose workers’ compensation carrier is Carrier A. Although different inferences could be drawn from the facts, that is not a sound basis for disturbing the decision of the hearing officer where, as here, the decision is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.
The decision of the hearing officer is affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Thomas A. Knapp – Appeals Judge