This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 5, 1994, to decide the following issues: did the claimant sustain an injury in the course and scope of his employment on ___________; did the claimant report the injury to his employer no later than thirty (30) days after ___________, or in the alternative, did the claimant establish good cause for not reporting the injury within thirty days; did the claimant have disability; and what is the claimant’s average weekly wage (AWW). The hearing officer determined as follows: that the claimant did not sustain an injury in the course and scope of his employment on ___________; he did not give his employer timely notice of injury or provide sufficient legal justification (good cause) to excuse his failure to give timely notice; that claimant did not have disability as a result of an alleged work-related injury; and that the claimant’s AWW is $322.97.
The claimant appeals, contending that the evidence clearly shows he was acting in the course and scope of his employment on ___________, the date he contends he suffered an injury, that his supervisor was told of the injury within 30 days, and that he has had disability as a result of the injury.
DECISION
The hearing officer’s determination that the claimant did not timely notify his employer of an injury is reversed. In all other aspects, the hearing officer’s decision and order are affirmed.
The claimant was a salesman for (employer), a distributor of baked goods. It was his testimony and that of his supervisor, (Mr. R), that he was provided with a vehicle which he was also allowed to use during off duty hours; that employer paid for gasoline for the vehicle; and that he did not have any set schedule, but was free to develop his own accounts and to do “cold calling” on customers.
The claimant testified that on ___________, Mr. R had borrowed his vehicle and returned it late in the day (around 6 or 6:30 p.m.) with no gas. Claimant, who said he normally would work until 5 or 6 p.m, said he took the car and proceeded to the gas station where employer had an account and he could charge gas; it was his testimony that after getting gas he was going to stop by one of his accounts, a restaurant where he had received some complaints about the bread he had supplied, although he did not have an appointment. On his way to the gas station the car ran out of gas and claimant got out and started walking back to the office; he stepped in a hole and suffered pain in his leg. After getting assistance from another motorist he went home, stating he was in too much pain to continue working.
The claimant continued working on December 8-10 but did not call on the restaurant account on those days. He said that he reported his injury to Mr. R the following day, but the latter laughed it off. On Saturday, December 11th, he went to see his doctor, (Dr. H), and said he saw Dr. H again approximately two weeks later. While reports from these visits were not in evidence a September 1994 letter from Dr. W explains that he originally saw the claimant after hours on December 11th and the notes from that visit were misfiled. That letter also says the claimant stated that he stepped into a pothole and was suffering from back pain which Dr. H initially diagnosed as a strain. The next time claimant saw a doctor, according to his testimony and to medical records, was when he returned to Dr. H on March 11, 1994. At that visit, Dr. H reported, claimant said his pain had worsened in the past two weeks but denied recent trauma; Dr. H diagnosed possible herniated disk and advised the claimant to get a CT scan. Because Dr. H did not give claimant a referral, claimant went next to (Dr. M), to whom he was referred through his health insurance. (According to the evidence the claimant applied for health insurance in February 1994, stating on the application that he was in good health and that he had no symptoms in a variety of areas, including the back; the claimant stated at the hearing that his back hurt at the time but he did not believe it was serious.) A September 1994 letter from Dr. M states that he had seen claimant several months before for back pain which began after he stepped into a hole; no medical records from Dr. M are in evidence. Dr. M referred claimant to (Dr. O), a neurosurgeon. On May 18, 1994 Dr. O wrote that the claimant was experiencing back and leg pain and that his symptoms had begun in December of 1993 when he stepped into a hole; he recommended that claimant undergo a myelogram and CT scan. The CT scan showed bulges at three levels and the myelogram showed left sided defects at L4-5 and L5-S1. Dr. M also referred claimant to (Dr. C), a physical medicine and rehabilitation specialist. Her initial report dated June 6, 1994, states claimant first noticed back pain in December 1993 after stepping in a hole; however, she also wrote, “Patient reports a past trauma to the right posterior hip approximately a year a [sic] half ago. This occurred after falling through a ceiling. This pain resolved spontaneously.” The medical evidence shows Dr. C treated claimant conservatively, but he said he later returned to Dr. M who told him he was going to have to find a surgeon. His health insurance carrier then referred him to (Dr. GT), who in turn referred claimant to (Dr. GE). Dr. GE stated that claimant had a ruptured disk at L5-S1 and recommended claimant undergo a preoperative evaluation program.
Mr. R acknowledged that claimant told him he had stepped in a hole after running out of gas, but said he did not fill out an employer’s report of injury because he did not believe the accident was work related; he said it was his understanding that the claimant was on his way home at the time. He also remembered claimant telling him he fell off a roof, and heard the same story from other employees; however, he could not remember whether claimant told him first about the hole or about the roof. Two other employees, (Mr. B) and (Mr. H), stated in transcribed telephone interviews that claimant had told them he had fallen from a roof; both remembered his stating this around March 1994, when they believed his back problems to have begun. At the hearing the claimant denied that he had fallen from a roof or through a ceiling; however, the transcription of his telephone conversation with claimant’s adjuster states that he first experienced back pain in March and that he went up on a neighbor’s roof while the neighbor was mounting an antenna but that he did not fall.
The hearing officer made the following findings and conclusions to which the claimant objects on appeal:
FINDINGS OF FACT
5.The claimant did not sustain any damage or harm to the physical structure of his body on ___________, while working for the employer.
6.The claimant was not furthering the affairs or business of his employer on ___________, at the time of the alleged injury.
7.The statements, if any, made to the employer within 30 days of ___________, were insufficient to apprise the employer of the alleged work related injury.
8.The claimant’s inability, after July 1, 1994, to obtain or retain employment earning his pre-injury wage is not because of the alleged work related injury on ___________.
CONCLUSIONS OF LAW
2.The claimant failed to establish, by a preponderance of the evidence, that he sustained an injury in the course and scope of his employment on ___________.
3.The claimant did not give his employer timely notice of injury or provide sufficient legal justification (good cause) to excuse his failure to give timely notice.
4.The claimant failed to establish “disability” as a result of the alleged work related injury on ___________.
In his appeal, the claimant contends that the medical and other evidence shows he sustained an injury from stepping in the hole. However, the hearing officer made clear that he was not persuaded that the claimant’s back injury was a result of this incident. Upon our examination of the evidence, we find many inconsistencies, including (as the hearing officer notes) claimant’s own statement to carrier’s adjuster that his problems began in March, as well as the recollection of coworkers and Mr. R that claimant had said he had fallen from a roof about that time; while claimant denied that this incident occurred, Dr. C’s medical records note an incident involving falling through a ceiling. The claimant has the burden of proof in a workers’ compensation case to establish, by a preponderance of the evidence, that he sustained a compensable injury in the course and scope of his employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). While a claimant’s testimony alone can establish that a compensable injury occurred, a hearing officer is not compelled to accept in its entirety the testimony of a claimant, an interested witness. Lopez v. Associated Employers’ Insurance Co., 330 S.W.2d 522 (Tex. Civ. App.-San Antonio 1960, writ ref’d). Furthermore, the hearing officer as sole fact finder may believe all, part, or none of any witness’ testimony and is entitled to reconcile conflicts and inconsistencies in the evidence. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). After reviewing the evidence in this record, we do not find the hearing officer’s determination that the claimant failed to prove that he sustained a compensable injury on ___________, to be so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The claimant further contends that he was in the course and scope of his employment at the time he stepped in the hole based on Section 401.011(12) which states, in pertinent part, that the term “course and scope of employment” does not include transportation to and from the place of employment unless the transportation is furnished as a part of the contract of employment or is paid for by the employer. Texas courts have held, however, that a finding that a claimant’s transportation was paid for by the employer does not dispose of the inquiry because the claimant must still prove that his injury occurred while he was engaged in or about the affairs of his employer and was of a kind that originated in and had to do with the work of the employer. Texas Employers Insurance Association v. Goad, 622 S.W.2d 477 (Tex. App.-Tyler 1981, writ ref’d n.r.e.). The evidence in this case was conflicting as to whether claimant was merely on his way home at the time or whether, as he contended, he was on his way to pay a call on a client. However, the hearing officer as fact finder was entitled to disbelieve the latter account and could have inferred, based upon the fact that claimant left his office past his usual quitting time and upon claimant’s failure to visit that client in subsequent days, that claimant’s testimony was not credible. We thus find no error in the hearing officer’s determination that the claimant was not in the course and scope of his employment at the time of the incident on ___________.
We also find no error in the hearing officer’s determination that the claimant had no disability, as the 1989 Act provides that the existence of a compensable injury is a prerequisite to a finding of disability. Section 401.011(16). However, we do not agree with the hearing officer that claimant did not timely notify his employer of an alleged injury. While Mr. R did not recall the exact dates, he remembered the incident in which he borrowed claimant’s car and returned it without gas, and that the claimant thereafter told him that he had stepped in a hole and injured himself while on his way to the gas station. Mr. R did not testify that claimant did not notify him of an alleged injury within 30 days, but rather that he himself did not believe it was work related because claimant did not ask him to file a workers’ compensation claim and because it was his understanding that claimant was on his way home at the time; for these reasons, he said, he also did not fill out an employer’s first report of injury. It has been held that to fulfill the purposes of the statutory notice requirement the employer need only have known the general nature of the injury and the fact that it was job related. DeAnda v. Home Insurance Co., 618 S.W.2d 529 (Tex. 1980). Further, the employee is not required at that time to make a specific claim for medical services, nor a request therefor. Highlands Underwriters Ins. Co. v. Carabajal, 503 S.W.2d 336 (Tex. Civ. App.-Corpus Christi 1973, no writ). Issues of compensability are thereafter a matter for the insurance carrier to determine, based upon its investigation; what is otherwise timely notice of an injury does not cease to exist because an employer or carrier believed that the injury itself was not compensable. We believe the evidence in this case demonstrates that the claimant timely told his supervisor about an alleged injury, pursuant to Section 409.001, and we therefore reverse the hearing officer’s finding of fact and conclusion of law regarding notice. However, this does not affect the ultimate outcome of the decision, as we have found the evidence sufficient to support the hearing officer’s determination that claimant sustained no injury in the course and scope of his employment.
Based upon the foregoing, we find the hearing officer’s decision to be supported by sufficient evidence, and his decision and order are accordingly affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Gary L. Kilgore – Appeals Judge