Pursuant to the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act), a contested case hearing was held on January 27, February 11, and March 25, 1993, in (city), Texas, (hearing officer) presiding as hearing officer. She determined that the appellant (claimant) did not show by a preponderance of the evidence that he sustained a compensable injury in the course and scope of his employment. She also determined that the respondent/carrier (carrier) failed to show that the claimant abandoned medical treatment without good cause and that the employer failed to establish that it had made a bona fide offer of light-duty employment. Claimant appeals arguing that the evidence supports his claim and that the decision should be reversed. Employer responds urging that the evidence is sufficient to support the decision of the hearing officer. Carrier appeals the decision of the hearing officer that it failed to establish a bona fide offer of light-duty employment and urges error in the hearing officer’s denial of allowing the issues of maximum medical improvement (MMI) and impairment rating to be heard. We note that the same counsel represented both the carrier and employer and that it is set forth in the record that carrier and employer desired counsel to represent both of them and that they recognized and accepted that there could be a potential conflict of interest.
DECISION
Finding evidence sufficient to support her determination that the claimant failed to establish by a preponderance of the evidence that he sustained a compensable injury and her determination that the carrier failed to show that employer had made a bona fide offer of light duty employment and that her decision is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, we affirm. Although we agree with the hearing officer’s ruling in refusing to hear issues involving MMI and impairment rating under the circumstances of this case, we do not agree with reasoning advanced and will discuss the matter below.
At the outset of the hearing, three issues were agreed upon as set out in the report of the benefit review conference: (1) whether the claimant had a compensable injury on (date of injury); (2) whether claimant was offered a light-duty job following the restrictions given by the doctor; and, (3) whether the claimant had abandoned medical treatment. The parties also agreed to issues of MMI and impairment rating pointing out that the issues had been discussed at the benefit review conference (BRC), that the issues had not been resolved at the BRC, that the parties had agreed that the benefit review officer (BRO) would appoint a designated doctor to determine MMI and an impairment rating in the case, and that the carrier had appropriately responded to the BRC report in accordance with Tex. W. C. Comm’n, 28 TEX. ADMIN. CODE § 142.7 (TWCC Rule 142.7) stating that the issues had been raised but not resolved at the BRC and that they should be included as issues at the hearing. The hearing officer initially included these matters as issues before her but later, over objection by the carrier, ruled that they were not issues and would not be considered because they were not “ripe in front of me.” She reasoned that there had been no prior certification of MMI and impairment rating by a doctor and that the designated doctor provisions could only be invoked if an MMI determination and impairment rating had already been made by a doctor and one of the parties disagreed with same. As indicated, we can understand the hearing officer’s rationale in arriving at her determination on this matter but do not adopt it.
Initially, we find no merit to the carrier’s claim of error concerning the bona fide offer of employment issue. The asserted offer was not written but consisted of the oral statements of the employer’s safety officer. His affidavit and notes were offered into evidence to establish that a bona fide offer was made. In the affidavit and attached notes, the safety officer stated that he called and talked with the doctor who initially treated the
claimant and told the doctor that the employer did have light duty work available and that the claimant would be put back to work based on any restrictions given by the doctor. He stated that the doctor told him to have the claimant make an appointment for five days later. The safety officer advised the claimant about the appointment with the doctor and let the claimant know that the employer would put him back to work based on the doctor’s restrictions. The claimant apparently did not make or keep any appointment with the doctor and denies he ever received a bona fide offer of employment. TWCC Rule 129.5 sets forth requirements for bona fide offers of employment and authorizes that such offers can be made in writing or orally. If the offer is oral, the carrier is required to provide clear and convincing evidence that a bona fide offer was made. In either event, there is a detailing of specific information that is to be considered in determining if a bona fide offer has been made. In essence, there is some degree of formality involved in such an offer and a generalized statement that work is available or employer will abide by the limitations of the treating doctor will not suffice. See Texas Workers’ Compensation Commission Appeal No. 91127, decided February 12, 1992. Given the evidence on this issue before the hearing officer, we agree with her determination that a bona fide offer of light duty employment was not established and find the evidence sufficient to support that determination.
The claimant testified that he was injured on (date of injury), shortly after 7:30 a.m. when he fell some five feet to the ground from a scaffold shortly after he started to string some welding line. The fall was not witnessed and the claimant stated he landed flat on his back, hitting and hurting his head, back and knee. He testified that he was knocked unconscious for a period of time and that when he woke up, he reached back, picked up his hard hat and put it on and tried to get up. After he was about half way up someone came up to him and told him “to lay there.” He states that he was subsequently taken to an emergency room, was released after several hours, and that he had a big bruise on his back for several weeks. He has not worked since (date of injury) and states that he went to chiropractor, (Dr. J), a couple of days after the accident but that he did not follow up with him because he, the claimant, moved and desired to change treating doctors. He testified that he has been in pain ever since the fall.
(Mr. R), the field foreman, testified that he was called to the incident site and arrived in approximately 15 to 20 minutes. He stated that he observed the claimant lying on the ground with his legs crossed at the ankle, his arms on his chest, and his hard hat on which he thought was peculiar given the fall that had allegedly taken place. He stated that the claimant did not appear to be in much pain. He also stated he observed the welding line and that the job had been completed. He testified that the welding line appeared to be strung down a distance beyond where the claimant indicated he fell which made him question in his mind whether the incident was genuine or staged. The first thing that aroused his suspicion was “the lack of pain, the lack of grimace, the crossed legs, the ease” and he thought the claimant would be back to work the same day.
Medical records from the emergency room indicate that the claimant denied that he had any loss of consciousness, that no abrasions were noted, give a diagnosis of “fell low back sprain strain” and note his condition as “good” at discharge from the hospital at 1150 hours. He was instructed to follow up with the company physician, his own physician or an orthopedist on call within the next one to two days. X-rays taken were essentially negative. Records from Dr. J indicate that he released the claimant to full duty on May 11, 1992, but also show that he released him to light duty status on May 19, 1992. Dr. J’s records do not indicate what restriction he was referring to and also notes that he could not estimate the date of MMI because claimant missed appointments and that he had not been seen since “5-19-92.” The claimant treated for an undetermined time with another doctor and returned to Dr. J in October because, according to the claimant, there was a dispute with the claims adjuster involving who the treating doctor was and whether they would pay.
The hearing officer concluded that the claimant did not sustain a compensable injury while in the course and scope of his employment on (date of injury). Clearly, there was conflict and some inconsistency in and between the testimony and the evidence in this case, and credibility became a very important factor. The hearing officer, the fact finder in the case, resolves such conflicts and inconsistencies. Burelsmith v. Liberty Mutual Insurance Co., 568 S.W.2d 695 (Tex. Civ. App.-Amarillo 1978, no writ). The hearing officer is also in the best position to make the assessment of credibility and is specifically so empowered in Article 8308-6.34(e) of the 1989 Act which provides that the hearing officer is the sole judge of the weight and credibility of the evidence. We recognize the principle followed in the Texas courts that a reviewing court is not authorized to set aside a jury verdict because the jury may have drawn inferences and conclusions different from those the reviewing court deemed perhaps more reasonable even though the record contains evidence of, or even gives equal support to, inconsistent inferences. See Garza v. Commercial Insurance Co. of Newark, N.J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ); Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.). The hearing officer could take into consideration the factors surrounding the incident as described by Mr. R and the fact that the claimant indicated that he had just started the particular task and Mr. R’s testimony that the job was completed and there was no reason for the claimant to be where he claimed he was when he alleges he fell. The hearing officer could also consider that the claimant testified that he was unconscious for some period of time yet according to the emergency room record, he indicated that he had not lost consciousness. The hearing officer might well have inferred from the medical records that the claimant did not sustain an injury on the job and give consideration to the notation that no abrasions were noted even though the claimant stated he had a bruise on his back for several weeks. Although the hearing officer did not find that the claimant abandoned treatment, she could consider the somewhat sporadic course of treatment the claimant apparently followed. In sum, we cannot say that the inferences and conclusions drawn from the evidence by the hearing officer were so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 92232, decided July 20, 1992. Accordingly, the decision holding that the claimant did not sustain a compensable injury in the course and scope of employment on (date of injury), is affirmed.
Regarding the issues of MMI and impairment rating, we do not embrace the reasoning of the hearing officer to the apparent effect that a designated doctor cannot appropriately be appointed by the Commission, upon the agreement of the parties, unless some other doctor has first certified MMI and assessed an impairment rating and one of the parties disputes such certification and rating. While the 1989 Act and implementing rules clearly seem to contemplate that in the normal course the need for a designated doctor would flow from a dispute concerning a previous certification and assessment (Article 8308-4.25 and 4.26; Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.1-130.6 (Rule 130.1-130.6)), it does not follow that parties cannot agree to have the Commission appoint a designated doctor unless and until some other doctor(s), perhaps at unnecessary time and expense, has become involved in the process. There is no reason to unnecessarily encumber or hinder the benefit resolution process. While there was the alternative course available for the Commission to require the claimant to undergo a medical examination under the provision of Article 8308-4.16, we find nothing to preclude the parties from agreeing to have the Commission appoint a designated doctor without having obtained a report or reports from another doctor or doctors. However, this is not to indicate that absent an agreement of the parties, as is present here, that any of the provisions for disputing MMI and impairment rating can be short-circuited. See generally, Texas Workers’ Compensation Commission Appeal No. 93099, decided March 25, 1993. We do agree that the hearing officer did not appear to have anything to resolve regarding the MMI and impairment matter as we do not find any basis to conclude that there was an issue in dispute by either party concerning the rating assessed by the designated doctor appointed by the benefit review officer. Nothing in the record or in the briefs submitted indicate that either party had any quarrel with the certification of MMI or the impairment rating assigned in the designated doctor’s report. Of course, given the affirmance of the hearing officer’s decision on the course and scope issue, any issue of MMI and impairment rating became moot.
The decision of the hearing officer is affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Gary L. Kilgore – Appeals Judge