This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 7, 1995, in _______, Texas, with Donald E. Woods presiding as hearing officer. With respect to the issues before him, the hearing officer determined that respondent (carrier) timely and adequately contested compensability of the claim; that appellant (claimant) did not sustain a compensable injury on ________; that claimant did not timely report her alleged injury and did not have good cause for her failure to do so; that claimant did not have disability within the meaning of the 1989 Act; and that claimant average weekly wage (AWW) is $671.00. Claimant’s appeal challenges each of the hearing officer’s determinations except for the AWW determination. Carrier’s response urges affirmance.
DECISION
We affirm.
Claimant testified that on ________, while she was cleaning near a conveyor belt, she tripped over a step and fell, landing on her hand and right knee. Claimant testified that she did not tell her supervisor about her injury because she did not think it was serious. Claimant continued to work until May 28th or 29th, when the plant went on voluntary furlough until August 1, 1995.
Claimant testified that on June 13, 1995, she went to Dr. C (Dr. C) to inquire about the bump on her knee that was filled with fluid. She stated that Dr. C drained the fluid out of her knee and asked her to return in two weeks. At the June 28, 1995, appointment, Dr. C again attempted to drain fluid from the claimant’s knee which was painful and swollen. Dr. C referred claimant to Dr. B (Dr. B), an orthopedic surgeon, to determine if surgery was necessary. Claimant stated that, even though she knew Dr. B was a specialist and that surgery was being considered, she still did not consider her injury of sufficient severity that she needed to report it to her employer. On July 12, 1995, claimant had her first appointment with Dr. B, who advised her to have surgery. Dr. B told claimant that she would have to be admitted to the hospital for the surgery and would be off work for two to four weeks thereafter. Claimant testified that it was only at that point that she realized her injury was serious; therefore, after her appointment with Dr. B, she went to her employer’s premises and reported her injury to Ms. B (Ms. B), the company nurse. Ms. B referred claimant to Dr. H (Dr. H), the company doctor, who allegedly agreed that surgery was needed. Claimant acknowledged that she was receiving short-term disability benefits through the date of the hearing and that in applying for those benefits, she indicated that her knee injury was not work related. Claimant asserts that she has not been able to work from August 1, 1995, through the date of the hearing because of her knee injury.
Claimant acknowledged on cross-examination that she had sustained a prior compensable injury on ________. The parties stipulated that the Employer’s First Report of Injury or Illness (TWCC-1) indicates that the employer listed ________, as that date notice of that injury was given, a date more than 30 days after ________. The claimant testified that a timely notice defense was not raised in that case and that she was paid benefits.
Mr. Y (Mr. Y), employer’s fabrication superintendent, testified that he first knew that claimant was alleging a workers’ compensation injury in the first week of ______ when claimant returned from the furlough. Likewise, the employer’s disability case manager, Ms. SB (Ms. SB), testified that she first learned that claimant was alleging a workers’ compensation injury in early __________. However, Mr. Y testified on cross-examination that claimant had reported her injury before he learned that she was alleging a workers’ compensation injury.
Under the 1989 Act, the claimant has the burden of proving that she sustained a compensable injury. Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. Whether a claimant suffered a compensable injury is a fact question to be resolved by the hearing officer. The hearing officer is the sole judge of the weight, credibility, relevance and materiality of the evidence. Section 410.165(a). As the fact finder, the hearing officer is charged with the responsibility for resolving the conflicts in the evidence, including the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). To that end, the hearing officer could believe all, part, or none of the testimony of any witness and could properly decide what weight he would assign to the other evidence before him. Campos, supra. We will not substitute our judgment for that of the hearing officer where his determinations are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
While we have generally noted that an injury may be established by the testimony of the claimant alone, Texas Workers’ Compensation Commission Appeal No. 931002, decided December 13, 1993, it is well established that a hearing officer is not bound to accept claimant’s testimony at face value; rather it only raises an issue of fact for the hearing officer to resolve. Escamilla v. Liberty Mutual Insurance Co., 499 S.W.2d 758 (Tex. Civ. App.-Amarillo 1973, no writ). It was within the hearing officer’s province to reject the claimant’s testimony that she sustained a compensable injury even though her testimony was not specifically controverted by the carrier’s witnesses. Our review of the record does not demonstrate that that determination is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Therefore, there is no basis for reversing the hearing officer’s decision on appeal. Pool and Cain, supra. Because the hearing officer found that claimant did not sustain a compensable injury, he correctly determined that claimant did not suffer disability within the meaning of the 1989 Act, as the existence of a compensable injury is a prerequisite to a finding of disability. See Section 401.011(16).
Next, claimant alleges error in the hearing officer’s determination that she did not have good cause for her failure to give timely notice of her injury to her employer. Good cause is a question of fact for the hearing officer to resolve. Texas Workers’ Compensation Commission Appeal No. 941656, decided January 26, 1995. The test for whether good cause exists is whether the claimant prosecuted her claim with that degree of diligence which an ordinary person would exercise under the same or similar circumstances. Appeal No. 941656. Good cause must continue up to the date notice of injury is given by the claimant to the employer. Texas Workers’ Compensation Commission Appeal No. 95620, decided June 1, 1995; Texas Workers’ Compensation Commission Appeal No. 950396, decided May 1, 1995. In her appeal, claimant maintains that the good cause “standard is not the actions of a mythical prudent person, but rather whether the claimant, with his or her life experience, acted in a reasonably prudent manner,” citing Royal Ins. Co. v. Tharp, 672 S.W.2d 636 (Tex. App.-Fort Worth 1984, writ ref’d n.r.e.). We cannot agree that Tharp changed the good cause standard from an objective ordinary prudent person standard to a subjective standard. Accordingly, we reject claimant’s assertion of error in the hearing officer’s good cause determination as being without merit. The hearing officer’s determination that the claimant did not act as a reasonably prudent person in waiting to report her injury until ________, is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust; therefore it will not be disturbed on appeal.
Claimant’s challenge to the hearing officer’s determination that the carrier timely and adequately contested compensability in this case is unclear. Apparently, claimant is arguing that the carrier is limited to the defenses raised in its initial Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) filed on ________. That document provides in relevant part:
Confirmed with [Ms. B] that the claimant lost no compensable time due to this injury. All reasonable and necessary medical charges will be paid by the carrier accordingly.
On ________, the carrier filed a second TWCC-21 asserting that claimant was not injured in the course and scope of her employment and that she did not timely notify the employer of her alleged injury. Claimant’s argument is without merit. There is nothing to indicate that the carrier was contesting compensability on the first TWCC-21. To the contrary, that document specifically provides that reasonable and necessary medical benefits will be paid. Accordingly, carrier’s having filed that document does not in any way adversely impact its ability to contest compensability within the 60-day period provided for doing so in Section 409.021. The second TWCC-21 was filed within the 60-day period and it specifically asserts a course and scope and timely notice defense; therefore, the hearing officer did not err in finding that the carrier had timely and adequately contested compensability in this case.
Finally, we consider claimant’s assertion of error in the hearing officer’s having limited inquiry into the “relationship between the employer’s representative and various doctors in the claim.” Claimant maintains that the hearing officer committed reversible error because he did not have the opportunity to assess the credibility of the carrier’s witnesses. In order to obtain a reversal based upon an evidentiary ruling, the claimant must demonstrate that the evidence was actually erroneously excluded and that “the error was reasonably calculated to cause and probably did cause rendition of an improper judgment.” Hernandez v. Hernandez, 611 S.W.2d 732, 737 (Tex. App.-San Antonio 1981, no writ). It has also been held that reversible error is not ordinarily shown in connection with rulings on questions of evidence, unless the whole case turns on the particular evidence admitted or excluded. Atlantic Mutual Ins. Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). Any error in limiting inquiry into any association between the designated employer’s representative and the doctors in the case simply does not rise to the level of reversible error. In this instance, the hearing officer did not accept the claimant’s testimony, which was not materially controverted by the witnesses for the carrier. There is no indication of how additional information on the credibility of witnesses for the carrier would have altered the hearing officer’s weight and credibility assessment of the claimant’s testimony and none is apparent to us. Accordingly, the alleged evidentiary error, if any, does not provide a basis for reversing the decision and order on appeal.
The hearing officer’s decision and order are affirmed.
Elaine M. Chaney – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Judy L. Stephens – Appeals Judge