On June 17, 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. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). The issues at the hearing were: 1) whether the respondent (claimant) was in the course and scope of his employment when he was injured on (date of injury); 2) whether the claimant has had disability as a result of his injury and, if so, what are the dates of disability; and 3) what is the claimant’s average weekly wage (AWW). The hearing officer determined that the claimant was injured in the course and scope of his employment on (date of injury); that the claimant has had continuing disability based on his compensable injury from (date of injury), through the date of the hearing; and that the claimant’s AWW is $650.00. The hearing officer ordered the appellant (carrier) to provide medical and income benefits to the claimant in accordance with his decision and the provisions of the 1989 Act. The carrier disputes certain findings of fact and conclusions of law and requests that the decision of the hearing officer be reversed. The claimant responds that the decision is supported by the evidence and requests that it be affirmed.
DECISION
The decision of the hearing officer is affirmed.
The parties stipulated that on (date of injury), the claimant was employed by the employer, (employer), and that on that date the employer had workers’ compensation insurance coverage with the carrier.
The claimant testified that on (date of injury), he and his co-driver, (Ms. J), were taking a load of merchandise in a tractor-trailer from an out-of-state location to (city), Texas, when they stopped to eat at about 10:00 p.m. The claimant said that as he was paying the bill, Ms. J ran out of the cafe, jumped into the truck and began driving out of the parking lot onto the highway. The claimant testified that Ms. J had had emotional problems for about two weeks, was under a doctor’s care, had been diagnosed as a “manic-depressive,” was out of her prescription medicine, and had had two truck accidents in the previous week. He said he had reported the two accidents to the employer and had asked the employer to take Ms. J “off the truck,” but the employer had not done so. He also said that Ms. J was an inexperienced driver in that she had not driven a “big truck” before she began working for the employer. As the claimant approached the truck, he said that Ms. J did not attempt to run him over, rather, Ms. J steered the truck “out around him” and the trailer “tracked sideways,” hit him in his right shoulder blade, and he was picked up off the ground and thrown by the impact. The claimant said he injured his right shoulder, bruised his arm, and chipped two teeth in the accident. He also said he has had problems with his neck and left hand.
After the claimant was hit by the trailer he managed to get on the running board of the truck as Ms. J drove down the highway. He said that Ms. J struck his fingers with a coke bottle when he reached through the window. The claimant finally managed to get into the truck and drove it to the scheduled destination point. However, early on the morning of March 8, 1992, the claimant went to a peace officer and made a report about the incident of the previous evening. He said that Ms. J was “taken off the truck.” The claimant said that his motive for filing a police report was that he felt Ms. J was an unsafe driver and he wanted to get her off the road.
In a sworn written statement, Ms. J stated that on (date of injury), she and the claimant were “both working in the scope of our employment when he [the claimant] was accidently injured.” Ms. J added that at the time of the accident she was driving the truck and that when the claimant boarded the truck he reported that he had been injured. She further stated that she had no idea that the accident had “taken place at the time.”
The claimant testified that he and Ms. J had not had an argument or disagreement when they were eating prior to the accident and denied that he and Ms. J had personal problems before the accident. The claimant acknowledged that before he went to work for the employer he had known Ms. J for about seven years and that they had had a personal relationship. The claimant further testified that on (date of injury), he thought Ms. J might be a danger to others when she was driving the truck and that he felt it was his job to protect the truck and the load.
The claimant said that on some unspecified date after the accident of March 7th he went to a “clinic” but he was told he needed to see an orthopedic specialist. The claimant said that he continued to work for the employer as a truck driver until about April 3, 1992, when he was terminated for an unspecified reason.
The March 8, 1992, police investigation report showed that the report concerned an occurrence of “erratic driving,” that the claimant wanted to make a report about an assault with a motor vehicle, and that the peace officer taking the report said that the claimant’s objective was to “get [Ms. J] off the highways” because he felt she is an unsafe driver. In a signed statement given to the peace officer who took the claimant’s report, the claimant indicated that when he ran to the truck and threw up his hands, Ms. J swerved the truck directly at him, he jumped back, and the end of the trailer hit him.
In a recorded statement (Ms. P), who is the owner of the truck which the employer leased and the claimant drove, indicated that the claimant was hired on February 2, 1992 and terminated on (date of injury). Ms. P indicated that she had been told by Ms. J and Ms. J’s son-in-law that the claimant and Ms. J had been fighting on the truck.
The claimant said that sometime in April 1992 he began seeing (Dr. Q), D.O, that Dr. Q has recommended shoulder surgery, and that Dr. Q has not released him to return to work. The claimant said that he believes he will never be able to drive a truck again and that he cannot lift. The claimant further testified that he has a degree in civil engineering and had worked as a construction project manager prior to working for the employer. The claimant further testified that he has not been “real active” in looking for employment because he is trying to get his shoulder fixed first. He said he has looked in the newspaper for work but has not been successful in finding work. He said he goes to physical therapy almost on a daily basis and sees Dr. Q once very two or three weeks. Dr. Q’s initial medical report reflected that he examined the claimant on April 28, 1992, diagnosed a “sprain rotator cuff,” recommended physical therapy, and reported that it was “undetermined” when the claimant could return to limited type work, full time work, or achieve maximum medical improvement (MMI). The report recited a history of injury on (date of injury), when the claimant was struck by the tail end of a tractor trailer. Several subsequent medical reports from Dr. Q were in evidence with the most recent report being dated June 3, 1993, wherein Dr. Q again indicated that it was “undetermined” when the claimant would achieve MMI or could return to limited work or full time work. Dr. Q recommended that the claimant continue therapy.
The claimant also testified that he had worked for the employer for about 12 to 16 weeks before his accident and that his AWW was $650.00. No documentary evidence was offered by either party concerning AWW.
It was the claimant’s position at the hearing that he was injured in the course and scope of his employment and that he has had disability. It was the carrier’s position that the claimant was injured because of “personal problems” existing between the claimant and Ms. J which were unrelated to the employment and that the claimant did not have disability. Neither party expressed a position regarding AWW and no wage statements or other documents on AWW were offered. At the outset of the hearing the hearing officer asked the carrier if AWW had been settled to which the carrier replied that it had not because it had not been able to “maintain” any information from the employer regarding the amount paid the claimant. The hearing officer then said, “In other words, I will be determining his average weekly wage simply based on what he says” and the carrier replied “exactly.” During the hearing the hearing officer gave the parties an opportunity to settle on the AWW issue; however, the parties were unable to reach a settlement.
The carrier contends that the overwhelming weight of the evidence is against the following findings of fact and conclusions of law:
FINDINGS OF FACT
4.At the time of his injury the claimant was attempting to stop his co-driver from driving the tractor trailer truck because he correctly considered his co-driver an unsafe driver.
5.As a result of his injuries of March 7, 1993 (sic), the claimant has been unable, from (date of injury), through the date of the benefit contested case hearing, to obtain and retain employment at wages equivalent to his preinjury wage.
7.The claimant’s weekly preinjury earnings from the employer averaged $650.00.
CONCLUSIONS OF LAW
2.The claimant was injured in the course and scope of his employment on (date of injury).
3.The claimant has had disability based on his compensable injury from (date of injury), through the date of his benefit contested case hearing.
4.The claimant’s average weekly wage is $650.00.
The hearing officer is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. Article 8308-6.34(e). As the trier of fact, the hearing officer resolves conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The claimant was an interested witness and his testimony did no more than raise fact issues for the hearing officer’s determination. Nevertheless, the hearing officer had a right to believe the claimant’s testimony concerning what occurred when he was injured on (date of injury), find that the claimant was trying to stop an unsafe driver from driving the employer’s leased truck when he was injured, and conclude that the claimant was injured in the course and scope of his employment. The hearing officer could reasonably conclude from the evidence that the claimant was attempting to prevent harm not only to the employer’s property and a co-worker when he was injured, but was also attempting to prevent harm to the general public from the unsafe operation of the employer’s property. Moreover, the claimant’s testimony and the medical reports sufficiently support the hearing officer’s finding and conclusion concerning the claimant’s disability. We do not substitute our judgment for that of the hearing officer where, as in this case, the challenged findings and conclusions are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See Texas Employers’ Insurance Association v. Alcantara, 764 S.W.2d 865 (Tex. App.-Texarkana 1989, no writ).
In regard to the finding and conclusion on the claimant’s AWW, Article 8308-4.10 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE §§ 128.1 through 128.6 (Rules 128.1-128.6) set forth the methods for computing AWW. In this case, there was evidence that the claimant had worked for the employer at least 13 weeks before his injury and there was also evidence that he had not worked at least 13 weeks. Apparently, no wage statement was filed by the employer under the provisions of Rule 128.2, nor did the employer provide a wage statement for a similar employee providing similar services. At the outset of the hearing the carrier recognized that the hearing officer would be determining AWW based solely on the testimony of the claimant. The carrier did not object to going forward with the AWW issue nor did it ask for a continuance to secure wage information from the employer. Under these circumstances, we will not hear the carrier complain on appeal that the finding of AWW must be supported by more than the claimant’s testimony. The claimant’s testimony concerning his AWW stands unrebutted and supports the hearing officer’s finding and conclusion on AWW.
The decision of the hearing officer is affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Philip F. O’Neill – Appeals Judge