This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. LAB. CODE ANN. § 401.001 et seq. (formerly TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1993)). On April 15, 1993, and July 19, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding, to determine the issue of whether the claimant, Mr. E, the appellant, sustained an injury in the course and scope of his employment with (employer) on (date of injury). The hearing officer determined that claimant did not prove that he sustained a compensable injury to his back by a preponderance of the evidence.
The claimant has appealed this decision, arguing that the accident occurred as he and his witnesses described, and he argues that the hearing officer has considered unsworn (but signed) statements submitted by the carrier over his sworn statements and live testimony of his wife and nephew who was a coworker. The claimant, in a supplement to his appeal, sent in various other notarized statements from persons stating that they observed bruises or contusions on the claimant. The carrier responds that the hearing officer’s determination should be upheld, and that the additional evidence presented should not be considered.
DECISION
Not being able to find reversible error, we affirm the decision of the hearing officer.
The claimant, who worked for 22 years in the oil field industry, stated that he went to work for Pool Company on December 1, 1992. He had worked two times before for this employer. Claimant stated that on the afternoon of (date of injury), a Thursday, he was working at a pump with (Mr. W), who was also his nephew, (Mr. H), (Mr. P), and (Mr. G). The claimant said that he was sitting on the third rail of a “sucker rod” fence that was placed around the pump. Pictures in evidence indicate that the rods are very thin and do not appear sturdy. The claimant said that Mr. P came up and pulled the fence section behind him, causing that part of the fence to fall, and the portion on which claimant was seated to move. Claimant said he fell to the ground on his back and tailbone area.
The claimant stated that he was helped up by Mr. G and Mr. P. He stated that he assumed that everyone saw him fall but that this later turned out not to be the case. Claimant stated that when they got back in the crew truck after working another hour, he scolded Mr. P for the incident.
Claimant agreed that he signed “rig field reports” for December 1-4. These reports indicate the number of hours worked that day for each person. (There were reports in evidence for December 7-9, which have claimant’s name but which he denied he signed). Directly above the signature area of these forms is printed the statement “I was not injured today.” The form further notes that if this is not signed, an accident report must be attached. The claimant stated his understanding was that the main purpose of the form was to report hours worked, and that if a worker didn’t sign, he didn’t get paid.
The claimant said that he worked a full day the next day. On Saturday morning, he came to work but shortly left, and reported to Mr. H that he didn’t feel well. He stated that he did not report to him then that his back hurt.
Claimant worked the next three days. Claimant said that on Thursday the 10th, he could not get out of bed and reported his injury at that time to the employer.
Claimant’s explanation for not notifying his employer sooner, and for signing the forms, was that he believed his condition would clear up, and that if he indicated he hurt his back he would not be put out on the rig, and would not be put to work as many hours.
The record indicated that the carrier disputed the claim on December 28, 1992, within seven days of receiving written notice of injury from the employer, on the basis that an injury did not occur within the course and scope of employment. Claimant first saw a doctor, (Dr. G), on February 17, 1993. Dr. G diagnosed osteoarthritis and lumbosacral strain. X-rays taken on March 4, 1993 of the cervical, thoracic, and lumbar spine were adjudged normal, with no disc narrowing or spondylolysis observed. Mild osteoarthritis was detected in the thoracic spine. Emergency room records dated March 4, 1993 indicate a diagnosis of “Arthritis-Myalgia of unknown etiology.” It appeared that claimant stated to the hospital generally that he hurt his back in December. The claimant said that he was not the sort of person to go running to a doctor, and that he was not able to afford a doctor until February when he got money back from his tax refund.
The claimant’s wife testified that her husband came home sore and hurt on (date of injury), and told her about the fence incident. Mr. W testified that he observed his uncle fall. He indicated that although he could not entirely see him from his vantage point at the work site, he could see him from the chest up, and that claimant suddenly disappeared. Mr. W testified that he assisted in helping put the fallen part of the fence back up. Mr. W stated that when he signed the rig field reports, he understood that he was stating that he had not been injured that day. Mr. W worked for the employer from December 1 through December 8, 1992, and then quit.
Various signed statements or signed transcripts of telephone interviews were put into evidence by both parties. The claimant objected to the transcript interviews tendered by the carrier on the basis that he should be allowed to cross-examine those parties, but was overruled.
Mr. P’s statement denied seeing the claimant “hurt in an accident,” or that he was ever told by claimant that he hurt his back. However, Mr. P was not directly asked any questions by the adjuster who conducted the interview about the alleged events of (date of injury). A statement from Mr. H stated that he did not observe claimant involved in an accident, nor did claimant report an accident until he stopped coming to work. Mr. H stated that he saw nothing wrong with claimant up to the last day he worked for him.
A transcript of an interview with Mr. G, taken December 24, 1992, indicated that he did not see claimant involved in an accident nor did claimant mention to him that he was hurt. Mr. G stated that claimant continued to work until around the middle of the month, to his recollection. As part of his case, the claimant presented a notarized signed statement from Mr. G dated June 23, 1993, which stated that Mr. G saw Mr. P pull the fence, which caused claimant to fall, and that Mr. P helped the claimant back up.
A transcript from (Mr. E), a supervisor, stated that claimant came in on December 14, 1992 to file an accident report and was at that time bent over. Mr. E indicated that when claimant first missed a couple of days of work, he called and was told by claimant’s wife that claimant was in bed sick and would get back to him, and that claimant called him in the next few days and said he had hurt his back on the job and needed to fill out an accident report.
We will not consider evidence submitted by the claimant with his supplementary appeal, as we may only consider the record of evidence developed at the hearing. Section 410.203.
The hearing officer, after closing the hearing on April 15, 1993, notified the parties on April 19, 1993, that he would reopen the hearing. The hearing was reconvened on July 19, 1993, and more evidence was accepted at that time. At both hearings, the claimant declined the assistance of the ombudsman.
The hearing officer is the sole judge of the relevance, the materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision of the hearing officer will be set aside only if the evidence supporting the hearing officer’s determination is so weak or against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.).
The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Co. of Newark, N.J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The burden is on the claimant to prove, by a preponderance of the evidence, that an injury occurred within the course and scope of employment. Texas Employers’ Insurance Co. v. Page, 553 S.W.2d 98 (Tex. 1977). A trier of fact is not required to accept a claimant’s testimony at face value, even if not specifically contradicted by other evidence. Bullard v. Universal Underwriters’ Insurance Co., 609 S.W.2d 621 (Tex. Civ. App.-Amarillo 1980, no writ). There are definitely conflicting pieces of evidence in this record, some favorable to the claimant and some not favorable. It was the responsibility of the hearing officer to judge and weigh this evidence, considering the demeanor of the witnesses and the record as a whole, and his impression of the accuracy of the witnesses’ recollections. The hearing officer could believe that claimant fell, but then believe that his pain and injury did not result from that fall, but from an arthritic condition.
We can appreciate the claimant’s point that he should have been permitted to cross-examine witnesses against him. However, the 1989 Act does allow the hearing officer to accept signed statement from witnesses. Section 410.165(b). The hearing officer indicated on the record and in the decision that evidence other than the witness statements weighed against claimant as to whether he sustained an injury.
After review of the record, we affirm the hearing officer’s decision.
Susan M. Kelley – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Gary L. Kilgore – Appeals Judge