This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1993). On April 13, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. He determined that respondent’s (claimant) injury while at lunch was in the course and scope of employment. Appellant (carrier) asserts that carrier’s counsel did not have notice of the date of the continued hearing and was therefore unable to appropriately defend its client. No assertion is made in the appeal that the decision of the hearing officer is not supported by sufficient evidence, but a remand is requested so that an adequate defense may be provided. Employer also appeals asserting that it did not receive notice of the date of hearing of April 13, 1993, so it was unable to present evidence it felt was relevant. Claimant does not reply.
DECISION
Finding that the decision and order of the hearing officer are sufficiently supported by the evidence, we affirm.
I
The employer in this case does not have standing to appeal. See Texas Workers’ Compensation Commission Appeal Nos. 92137 and 92479, dated May 20, 1992 and October 26, 1992, respectively. The employer only becomes a party when the carrier accepts liability and the employer chooses to contest it. See Article 5.10(4) of the 1989 Act and Appeal No. 92137, supra. There is no information in the record that the carrier accepted liability for this claim and that the employer contested liability and became a party. While the employer is not a party and therefore does not have standing to appeal, (see Texas Workers’ Compensation Commission Appeal No. 93133, dated May 6, 1993), we note also that employer’s assertion that it did not receive notice does not constitute reversible error. The notice of the hearing, scheduled for March 30, 1993, provided with the benefit review officer’s report, was furnished to the employer as specified by Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 141.7 (Rule 141.7). Thereafter, when the hearing officer ruled on a request for continuance by setting the hearing for April 13, 1993, he notified representatives of the parties who agreed to the April 13, 1993 date. There is no assertion that the carrier or the claimant did not know of, and did not have an active part in, the selection of April 13th for hearing the case because of the granting of the continuance. Rule 142.10(d) instructs the hearing officer to “notify all parties” of the ruling on a continuance; it does not contain the language of Rule 141.7 which specifies notice to the employer. In addition, Article 8308-5.10(5) of the 1989 Act indicates that the employer should notify the carrier if it wishes to receive copies of all notices relating to hearings. Appeal No. 93133, supra, was an appeal of a case on remand, but it pointed out that Article 8308-5.10 places responsibility for notification of the employer on the carrier and notes that Rule 142.18(b) relating to notice of remand (like Rule 142.10(d) pertaining to continuances) required notice be given by Texas Workers’ Compensation Commission to the parties, but not to the employer. (The carrier, as a party, would notify the employer, under Article 8308-5.10 if the employer so desired.) No error was committed in the hearing officer not notifying the employer of the date of continuance.
II
Carrier asserts that the case should be remanded since its counsel did not know of the date of the continued hearing. (In this case, while the carrier’s counsel did not, evidently, know of the hearing before April 13, 1993, and a carrier representative was not present at the time the hearing was to begin, the hearing officer did delay the hearing approximately one hour to enable the representative to be present.) In Texas Workers’ Compensation Commission Appeal No. 92123, dated May 11, 1992, the Appeals Panel said that there was no requirement for service of notice of a continued hearing on the attorney for the insurance carrier. That appeal cited Rule 102.5. In addition, any question as to a requirement for notice found in Texas Rules of Civil Procedure does not control since those rules do not apply to the 1989 Act. See Texas Workers’ Compensation Commission Appeal No. 91088, dated January 15, 1992, and Article 8308-6.01(b) of the 1989 Act. The record shows that the carrier’s representative at the hearing on April 13, 1993, when told that the carrier had notice of the hearing and had agreed to the particular date of April 13th, commented to the effect that if the record reflects that fact, he then did not object to proceeding with the hearing.
The hearing officer at the hearing of April 13, 1993, recited on the record that he personally had talked by telephone that day to a representative of the carrier, “V” who acknowledged that carrier knew of the continuance and that the hearing was to be held that day in regard to this claimant. As a result, a basis for remand is not adequately set forth on appeal and remand will not be ordered.
Although the appeal does not appear to attack the decision as unsupported by sufficient evidence, the record was reviewed to see if sufficient evidence existed to affirm. The claimant worked for employer approximately two and one-half years. Employer was in the business of repairing manholes and the walls, etc. of sewer lines. Crews of employer went to the site of trouble. Claimant testified that he reported each day to the employer’s shop, from which he and the other four to five member crews were taken to the first repair point by employer’s truck. The crews went to several sites a day. At approximately 12:00 noon a lunch break would be taken. The crew chief would at times solicit recommendations for a place to eat or would simply state where they would stop to eat. The crew stayed together at lunch because the lunch hour would regularly be cut short by word to proceed to another location where help was needed. Claimant testified that he had been told to stay near the truck at lunch; his supervisor said to stay around the truck. Claimant also stated that if an employee was not nearby and a call came to go to another part of the sewer immediately, that employee would be left behind. Claimant also said that it was common to eat lunch sitting under the truck, to get out of the sun. He added that the field supervisor also got under the truck at times. He characterized as “often” the incidence in which the crew sat under the truck to eat lunch.
The day of the incident the truck had some type of hydraulic problem, and it was driven to a nearby convenience store. A mechanic was called and he was to report to that convenience store to see about the hydraulic problem. Several members of the crew went into the store to purchase food, but claimant had his lunch and sat under the truck to eat. When the mechanic arrived, claimant heard him talking about getting another hose. The engine started and the truck moved quickly rolling over his arm and leg. His right arm was broken in two places and his right knee was fractured; muscle from his leg was torn. He was taken to the hospital where he stayed for four weeks. He now limps and wears a brace on his arm. He states he cannot work. No doctor has released him to return to work.
Texas Workers’ Compensation Commission Appeal No. 91019, dated October 3, 1991, considered a claimant who was also “off the clock” and eating lunch (on the premises, but in a public restaurant where he worked). He was not required to stay on the premises for lunch. In that case the hearing officer found for the claimant, as within the scope of employment, and the Appeals Panel affirmed. The case of TEIA v. Prasek, 569 S.W.2d 545 (Tex. Civ. App.-Corpus Christi 1978, writ ref’d n.r.e.) was cited as stating that the question was one for the “jury.” That case contained an instruction that “an act at the place or area of employment necessary to the health. . .during a lunch period. . .is not a departure from the course of employment.” (emphasis added). In addition, Texas Workers’ Compensation Commission Appeal No. 92009, dated February 21, 1992, also found an injury during the lunch hour to be a question of fact and upheld the hearing officer’s determination of compensability.
In the case on appeal, the claimant testified that the area of employment was fluid throughout the day and depended on what needed addressing next. The employees did not work in or around a shop but used the company truck as a moving work center from which to work at different sites. At the time of the injury, the claimant was not away from his area of employment since he was in the vicinity of the truck, which itself was being repaired at the time. The uncontroverted testimony that any lunch period was subject to being shortened to respond to a new task at a different site shows that the crew was kept together for the benefit of the employer. At the time of the accident, the truck’s malfunction already raised a question that the lunch hour could be cut short depending on the repair process. The accident occurred not while a truck was merely being driven on public streets to take people to a personal lunch hour, but while it, as the work center, was being moved as part of the repair process/evaluation. The claimant was violating no restriction on scope of his work at the time of his accident.
The evidence is sufficient to support the Decision and Order of the hearing officer and they are affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Thomas A. Knapp – Appeals Judge