This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). On January 15, 1993, a contested case hearing (CCH) was held in (city), Texas, with (hearing officer) presiding as hearing officer. The issues framed at the CCH were: (1) whether claimant’s (date of injury) leg injury arose out of and in the course and scope of his employment; (2) whether claimant notified employer of a leg injury no later than 30 days after (date of injury); (3) whether claimant was an employee of (employer) on (date of injury); and, (4) if claimant suffered a compensable injury on (date of injury), whether this injury caused disability. The hearing officer determined that the respondent (claimant) sustained an injury in the course and scope of his employment on (date of injury); that claimant gave timely notice of his injury to employer; that claimant was an employee of the employer; and, that claimant had disability beginning August 26, 1992. Appellant (carrier) contends that the hearing officer misapplied the facts and law at the hearing, and requests that we reverse the hearing officer’s decision and render a decision in its favor. Claimant responds that the decision is supported by the evidence and requests that we affirm the decision.
DECISION
The decision of the hearing officer is affirmed.
The basic issues of this case revolve almost entirely around the credibility of the witnesses and the interpretation based on certain evidence. Some of the undisputed evidence is that claimant was hired as a forklift operator/painter by the employer on January 29, 1992, around the time that the employer company was formed. Claimant’s brother-in-law, Mr S (Mr. S), owned a 20% interest in the employer company and was a vice president and its projects manager. Mr. S has helped claimant’s family financially (claimant’s wife is Mr. S’s half sister) from time to time and hired claimant. Claimant has two sons, (H), age 21, and (R), age 17, who were at one time or another also employed by the employer. Virtually all the other testimony is disputed.
Claimant testified that he learned he was a diabetic in 1983 and has apparently been taking medication for his condition. Claimant testified that at about 10:00 o’clock on the morning of March 10, 1992, he began to feel ill and sick in his stomach, and felt his “sugar was going up.” He states he got off the forklift and asked one of employer’s foremen,Mr K later identified as Mr K), to take him to the front gate. Claimant’s testimony was that K took him to the front gate whereupon claimant said, “[w]ell, tell Red, (a supervisor identified as Mr R), I’m going home cause my sugar’s up.” Claimant states he also left instructions to tell his son, H, who was also working for employer that day, and with whom claimant had carpooled, that claimant was taking the car and “that somebody will be back to pick him up at quitting time.” What happened in the intervening week between March 10th and March 16th is not entirely clear; however, claimant suggests it would not have been safe for him to operate a forklift because of his diabetic condition. Both claimant and his son H testified they continued to be employees of the employer and were paid as such. Both claimant and H testified that claimant was asked by Mr. S to pick up some pipe from Mr. S’s yard and to take it to the employer’s yard on March 16th, which they did. Their further testimony was that Mr. S on March 17th asked claimant and H to go to a hunting club, where Mr. S had some deer stands and a trailer, pick up the trailer and the deer stands and bring them to the employer’s yard. Claimant and H went to the hunt club, with written permission dated 3-16-92 from Mr. S “to pick up (S’s) camp trailers and deer stands–on (hunt club) land.” While attempting to load one of the deer stands, claimant was unable to hold the stand, which fell on claimant’s right ankle and both feet. Claimant and H testified that H then drove claimant home where claimant’s daughter drove them to the hospital at Liberty, Texas. Both claimant and H testified that on the way home, H had stopped and called Mr. S and told him of the accident. Mr. S does not deny that call or of going to the hospital and meeting claimant, his daughter and son H. Claimant’s version of the ensuing conversation is that Mr. S told claimant not to use workers’ compensation because it would make his rates go up. Mr. S’s version is that claimant’s daughter brought up the subject of workers’ compensation and suggested claimant get medical care under workers’ compensation. Mr. S testified he replied, “[w]orkers’ comp has nothing to do with this. This is not a job-related incident.” In any event, it is undisputed that workers’ compensation was discussed at that time. Claimant was then taken to Galveston, UTMB, where it was determined claimant’s right ankle had a fracture. Claimant had his right leg in some kind of cast from March 17th until some time in September. Although not entirely clear from the testimony, (there were no medical records regarding the ankle fracture), billing statements from UTMB, Galveston (Hospital), describe medical services including an overnight hospitalization on (date of injury); a fiberglass body cast on March 17th, a short leg cast on April 16th, and removal and reapplication of a short leg or walking cast on May 7th. It is relatively undisputed that claimant was on the employer’s payroll after March 30th until August 26, 1992 when claimant was terminated. Claimant’s position is that he continued to get regular pay checks from January 29th until he was terminated. Claimant testified that during June, July and early August he painted two houses and part of a church at Mr. S’s request. Claimant produced receipts showing that paint and material from those jobs were charged to the employer.
The carrier’s position, and Mr. S’s testimony, was that claimant walked off the job on March 10th, termination papers were partially completed and claimant was taken off the payroll on March 10th. The employer’s Employer Termination Report documenting claimant’s termination was incomplete and not signed by claimant. A transcribed interview of Mr R, the superintendent, would indicate that claimant “had quit and. . .didn’t want to wait to talk to (Mr. Reynolds). . . .” Some other employees gave similar accounts although there are some contradictions whether claimant walked away or was “carried” to the gate. There is also some testimony from claimant that there were some hard feelings between claimant and the other employees that gave statements. Mr. S further testified that he had given claimant a deer stand and that he had given claimant the written permission (quoted above) to remove a deer stand from the hunting club. As claimant points out, Mr. S’s testimony is inconsistent with the plain language of the permission slip. Mr. S testified that claimant was not an employee and was not involved in any activity in furtherance of the employer’s business when he fractured his ankle on March 17th. Mr. S also testified he reinstated claimant to the employer’s payroll on approximately March 30th because claimant was “family” and that claimant had a large family and needed financial assistance. He stated the employer had not paid claimant for the painting jobs claimant referred to and that claimant had received cash from the owners of the property that he had painted. Mr. S conceded that claimant had also done some truck driving for the employer in the summer of 1992.
Employer’s payroll records identified claimant as an employee from January 29, 1992 to August 26, 1992 and did not report a break in employment from March 10th to March 30th. Claimant’s son R testified he had worked for the employer part-time in the summer of 1992 and that under Mr. S’s direction, after claimant’s injury, he had assisted other workers in moving deer stands from Mr. S’s hunting club to the employer’s yard for repair and that he had assisted in the repair of the deer stands in the employer’s yard. R testified the employer had paid him for time spent in moving and repairing the deer stands. R testified that subsequently, he went to Uvalde to put up the repaired deer stands and clean up a hunting lease Mr. S had there. Claimant states that he has been physically unable to return to work since August 26, 1992 and continued to have pain in his right ankle, both feet and in his back.
Carrier contests the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
2.Claimant worked as a forklift operator for (employer) on March 10, 1992, and did not quit this employment when he left work early nor was he terminated by (employer) on March 10, 1992.
3.On (date of injury), employer’s part-owner and vice president Mr S instructed claimant to temporarily perform service outside the usual course and scope of employer’s business, specifically instructing claimant to load and move deer stands from Mr S hunting club to (employer’s) yard for repair.
4.Claimant suffered a fractured ankle on (date of injury) while loading a deer stand for employer that slipped and fell on his ankles and feet.
5.(Employer) paid claimant from January 29, 1992 until his termination on August 26, 1992 and claimant performed various duties for (employer) after he fractured his ankle on (date of injury) until his termination on August 26, 1992.
6.Claimant had a short leg cast on his right leg until September 1992. Claimant did not have the ability to obtain and retain employment at his preinjury wage beginning August 26, 1992.
7.Claimant’s son notified employer that claimant injured his ankle moving the deer stand shortly after this incident occurred on (date of injury).
CONCLUSIONS OF LAW
3.Claimant was an employee of (employer) on (date of injury).
4.Claimant suffered an injury on (date of injury) for which benefits are payable under the Texas Workers’ Compensation Act.
5.Claimant gave timely notice of his (date of injury) injury to employer as required by Article 8308-5.01.
6.Claimant had disability resulting from his (date of injury) injury beginning August 26, 1992.
Article 8308-1.03(12) provides:
“`Course and scope of employment’ means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes activities conducted on the premises of the employer or at other locations.” (emphasis added)
Article 8308-1.03(18) provides:
“`Employee’ means each person in the service of another under any contract of hire, whether express or implied, or oral or written. The term includes an employee employed in the usual course and scope of the employer’s business who is directed by the employer temporarily to perform services outside the usual course and scope of the employer’s business.”
We note that claimant, in his response, refers to the “temporary direction” exception in “TEX. REV. CIV. STAT. art. 8309 section 1” which has been repealed and is now included in Article 8308-1.03(18) of the 1989 Act and is quoted above. Generally, under this provision of the old law, if an employee is directed by the employer to perform services outside the usual course and scope of the employer’s business, and was then injured, the injury would be sustained in the course of the employment. See Biggs v. U.S. Fire Insurance Co., 611 S.W.2d 624 (Tex. 1981) cited by claimant. As a general rule, an injury sustained in the course of employment must be of a kind or character originating in or having to do with the employer’s work and it must have occurred in the furtherance of the employer’s business or affairs. “An exception to this general rule is found in Article 8309, sec. 1,” Texas Employers’ Insurance Ass’n v. Ables, 665 S.W.2d 564 (Tex. App.-El Paso, 1984 writ denied), which we noted earlier has been substantially replaced by Article 8308-1.03(18). In Biggs, supra, at page 628, the Supreme Court noted “[u]nder this so-called `temporary direction’ exception, if an employee is directed by his employer and is then injured, his injury is sustained in the course of his employment. In other words, an employer does not forfeit his workers’ compensation coverage while acting in obedience to his employer’s orders.” Consequently, in this case, if claimant was employed by the employer on (date of injury) as he claims, and if Mr. S directed claimant to remove the deer stands as claimant described, under the temporary direction doctrine claimant’s injury would be compensable even if it was outside the employer’s normal business.
As in Biggs, the evidence in the current case was, in the words of the court “sharply disputed.” 611 S.W.2d at 626. The hearing officer is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Article 8308-6.34(e). When presented with conflicting evidence the trier of fact may believe one witness and disbelieve others and may resolve inconsistencies in the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). In this case the hearing officer clearly chose to believe claimant. The claimant’s testimony is supported by his son, H, who was with him when they went to get the deer stands. Carrier maintains, through Mr. S’s testimony, that neither claimant nor H were employed by the employer on March 17th. However, carrier concedes that “. . .the employer’s payroll records identify the claimant as an (employer) employee. . . .” Carrier places great emphasis on the fact that the claimant did not sign in and out after March 10th, when he went home ill, but apparently claimant was not required to sign in and out even after Mr. S “reinstated” claimant to the payroll on March 30th. All of the contradictions and inconsistencies based on the differing versions are within the province of the hearing officer to decide. The hearing officer heard the testimony and observed the demeanor of the witnesses, including claimant and Mr. S. She apparently did not find Mr. S’s testimony entirely credible. From our review of the record, we do not find any basis to disturb the decision of the hearing officer. Only if we were to 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 her decision. In re King’s Estate, 244 S.W.2d 660 (Tex. 1951); Texas Workers’ Compensation Commission Appeal No. 92232, decided July 20, 1992.
Alternatively, the carrier argues that claimant did not show by a preponderance of the evidence that he has any disability entitling him to temporary income benefits. Disability is defined in Article 8308-1.03(16) as the inability to obtain and retain employment at wages equivalent to the preinjury wage because of a compensable injury. Claimant stated, and the hearing officer found, that claimant was physically unable to work and continued to have pain in his right ankle, both feet, and in his back. The hearing officer’s Finding of Fact No. 6 states that claimant did not have the ability to obtain and retain employment at his preinjury wage beginning August 26, 1992. Although claimant testified he did some house painting and Mr. S testified he did some truck driving in the summer of 1992, this does not necessarily equate to the ability to obtain or retain employment at claimant’s preinjury wage. We have held that disability, as defined by the Act, can be established by a claimant’s testimony alone, even though contradicted by medical experts (there was no medical expert opinion in this case that claimant did not have disability). Texas Workers’ Compensation Commission Appeal Nos. 92285, decided August 14, 1992 and 91083, decided January 6, 1992. Houston General Insurance Co., v. Pegues, 514 S.W.2d 492 (Tex. App.-Texarkana 1974, writ ref’d n.r.e.). Even if one were to say that claimant did not have disability during the summer of 1992, because he was painting houses and performing odd jobs, we have held that an injured employee can go back and forth between periods of disability. Texas Workers’ Compensation Commission Appeal No. 92282, decided August 12, 1992. Claimant may not have had disability while working the odd jobs but his uncontradicted testimony was that he was physically unable to work after August 26, 1992.
We will not substitute our judgment for that of the hearing officer, where, as here, the challenged determinations are supported by sufficient evidence and are not against the great weight and preponderance of the evidence. Texas Employers’ Insurance Ass’n, v. Alcantara, 764 S.W.2d 865 (Tex. App.-Texarkana 1989, no writ).
The hearing officer’s decision is affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge