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 started in (city), Texas, on April 23, 1993, with (hearing officer) presiding as hearing officer, and concluded on June 18, 1993, with (hearing officer) presiding as hearing officer, Mr. W no longer being with the Commission. Hearing officer determined that the appellant (claimant) had failed, without good cause, to give timely notice of an injury, and that no one in a supervisory or managerial position had actual knowledge of the injury. Claimant appeals urging that the hearing officer erred in failing to consider an exhibit and certain testimony of the claimant in arriving at his decision. Respondent (carrier) urges that there is sufficient evidence to support the decision of the hearing officer and asks that it be affirmed.
DECISION
Finding the evidence sufficient to support the findings and conclusions of the hearing officer, the decision is affirmed.
The hearing officer fairly and adequately set forth the evidence in this case in his Decision and Order and his rendition is adopted for purposes of this review. Only a brief summary is set out here. The claimant clearly has a very serious back condition and has had to undergo surgery. The issues at the hearing as set forth in the decision were:
1.Whether Claimant’s preexisting condition of spondylolisthesis was aggravated by her work, resulting in a compensable injury on or about (date of injury), while in the employ of (employer);
2.Whether Claimant is unable to work due to the aggravation of her preexisting condition and, if so, is she entitled to temporary income benefits (TIBs);
3.Whether Claimant’s injury was timely reported to employer.
The primary focus of the hearing centered around the question of notice and whether the claimant’s back condition was work related. The hearing officer found that the claimant knew or should have know that her back problems may have been work related by February 3, 1992 (when she saw a (Dr. S) who related the pre-existing back condition and aggravation by trauma), that she did not report the alleged work-related nature of her back problems until May 7, 1992, (initially she had been drawing on the disability program of the employer), that she did not have good cause for the untimely notice of the alleged work-related nature of the back problem, and that no supervisory or managerial personnel had actual knowledge of the alleged work-related nature of her back problems until May 7, 1992.
As indicated, the claimant had a serious back condition that developed over a long period ultimately requiring serious surgery. Her job with the employer involved some lifting and pushing of boxes on a conveyor belt and according to medical evidence could aggravate the pre-existing condition over a period of time. There was also medical evidence that an aggravation of the pre-existing condition may have occurred at some other time than when the claimant was working for her employer. There is also evidence that she had mentioned to coworkers and others over a period of time that she would occasionally experience some leg and back pain. It is not entirely clear and there is conflicting evidence as to whether the claimant experienced the back pain leading to this claim at a specific time when she was moving a pallet or if her current claim involves repetitive trauma occurring over a period of time. In any event, she states she advised the company nurse of the work-related nature of her back condition within hours of being told so by Dr. S, which she indicated occurred in January. (Medical records indicate she first saw Dr. S in February). She also testified that she told others, including a supervisor, that the work caused her back problem. The company nurse testified and denied that she was told or had any knowledge that the claimant had any work-related injury until May 7th when the first notice was filed by the claimant, that the claimant had mentioned some leg pain over a period of time and had been given Tylenol for it when she came to the nurse’s office and that the claimant had filed for disability concerning her current condition. Part B of the Application for Disability dated March 13, 1992, indicates Dr. S is the treating physician and that the back problems are not work related. Another portion of the form dated February 11, 1992 is signed by the claimant and has check marks in both the work-related and non work-related boxes. Other carrier witnesses maintained they were unaware of any work-related injury until May 7, 1992, and that claimant had not indicated her back condition was work related.
There was some degree of inconsistency in the testimony before the hearing officer and considerable conflict in the evidence. The hearing officer as the fact finder in a contested case hearing (Article 8308-6.34(g)), resolves those various conflicts and inconsistencies. Garza v. Commercial Insurance Co. of Newark, N. J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). He is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given the evidence. Article 8308-6.34(e). Where there is sufficient evidence to support his determinations, as there is here, and his findings are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, which is not the case, there is no sound basis to disturb his decision. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 92232, decided July 20, 1992. Although the evidence certainly places in doubt the relationship between the serious pre-existing condition of the claimant’s back and the employment, the hearing officer did not reach that issue as he found that the claim could not be sustained because of lack of timely notice of the work-related nature of the injury, the lack of good cause and the absence of knowledge on the part of any supervisory or managerial personnel. We have repeatedly held that the mere knowledge of or notice of an injury or health related condition is insufficient to satisfy the requirements of Article 8308-5.01. Rather, there needs to be knowledge of or some notice that the injury or health related condition is a result of or related to the work. Texas Workers’ Compensation Commission Appeal No. 91016, decided September 6, 1991; Texas Workers’ Compensation Commission Appeal No. 91066 decided December 4, 1991. The hearing officer, supported by the evidence, determined that there was no notice or knowledge that the claimant’s back condition related to the job.
We do not find merit to the claimant’s assertion that the hearing officer failed to consider certain evidence. Although the Decision and Order do not specifically list a claimant’s exhibit E, it was included in the record of the proceedings, was specifically referred to during the course of the hearing and portions read into the record, and the hearing officer specifically stated he would read the transcript of the proceeding before rendering a decision in the case. And, we have fully considered the interview contained in exhibit E. Under the circumstances, we do not find a basis to conclude there was a failure on the hearing officer’s part to appropriately consider the evidence and testimony of record, including that of the claimant.
The decision of the hearing officer is affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Susan M. Kelley – Appeals Judge