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 August 31, 1998. With respect to the issues before her, the hearing officer determined that on ___________, the respondent (claimant) was an employee of (Company 1) and/or (Company 2), within the meaning of the 1989 Act, and those companies were subscribers to workers’ compensation coverage with the appellant (carrier); that the claimant sustained a compensable left foot injury in the course and scope of his employment; and that the claimant had disability as a result of his compensable injury from August 1 to December 31, 1997. In its appeal, the carrier argues that the evidence does not support the hearing officer’s determination that the claimant was an employee of (Company 1). Rather, the carrier argues that the claimant was the employee of (Company 3), which was not a subscriber to workers’ compensation. In his response, the claimant urges affirmance.
DECISION
Affirmed.
The claimant testified that he began working for Mr. M in 1991. Mr. M founded and owned several companies, including (Company 1), (Company 2), and (Company 3). Eventually, he transferred the ownership of all of the companies, except (Company 3), to his sons; however, he remained active in the decision-making for all of the companies. The claimant testified that he bought and sold equipment for (Company 1) and that his salary was paid by (Company 1) until (Company 1) went out of business after the claimant’s injury in 1996. Payroll checks in evidence confirm that (Company 1) paid the claimant’s salary. The claimant’s 1995 W-2 form lists (Company 1) as the employer and both (Company 1) and (Company 3) are listed as the claimant’s employers on the 1996 W-2 form. The claimant testified that after his injury in 1996, he began working for (Company 3) and that (Company 3) began paying his salary.
(Company 1)’s yard is located in (City 1) and (Company 3)’s yard is located in (City 2). The claimant stated that he was the yard supervisor at the City 2 yard and that he worked at both locations. The claimant introduced an employment application dated February 3, 1995, which identifies (Company 1) as the claimant’s employer. The claimant testified that on ___________, he arrived at work at the (Company 3) yard at about 7:00 a.m. and that he asked two other employees, Mr. J and Mr. C, to unload a trailer before they went to the (Company 1) yard. The claimant stated that the equipment in the trailer had been hauled from City 1 to City 2. He further testified that one of those employees dropped a metal pipe he was attempting to unload and it fell on the claimant’s left foot. The carrier did not dispute that the claimant had been injured; however, it maintained that the claimant was an employee of (Company 3), a nonsubscriber, at the time of his injury. In his written statement, Mr. J stated that on ___________, he was unloading equipment from the (Company 1) yard at the (Company 3) yard, when Mr. C dropped the pipe and it landed on the claimant’s foot. Mr. J stated that he, Mr. C and the claimant worked for (Company 2). On cross-examination, the claimant acknowledged that he had signed a letter on April 27, 1995, where he is identified as the general manager of (Company 3) and that he had written several other memoranda tending to indicate that he was an employee of (Company 3). The claimant denied that he had knowledge that his salary was being charged back to (Company 3) to offset a debt that (Company 1) owed to (Company 3); however, the carrier introduced an August 26, 1997, letter the claimant wrote to the Texas Workforce Commission (TWC) as part of his claim for unemployment benefits. In that letter, the claimant stated that he was an employee of (Company 3) for five years, and that his pay was charged back to (Company 3), although he was on the (Company 1) payroll. On the 1996 W-2 form the claimant submitted to the TWC he wrote that the work he did was for (Company 3) but that he was paid by (Company 1).
Ms. D, Mr. M’s sister, testified that she began working for (Company 3) in 1987. She stated that in June 1992, the claimant was hired by Mr. M to work for (Company 3) as a supervisor and salesman. She stated that the claimant was never an employee of (Company 1). She acknowledged that the claimant was on the (Company 1) payroll; however, she testified that his wages were charged back to (Company 3) to offset a debt (Company 1) owed to (Company 3). She testified that he completed an employment application with (Company 1) in 1995 so that he could be placed on the (Company 1) payroll. Ms. D further testified that the equipment that was being unloaded at the time of the claimant’s injury was not (Company 1) equipment. Rather, she maintained that it was from another yard in City 1, which had also been owned by Mr. M. She insisted that from 1992 on the claimant was an employee of (Company 3) and that he was terminated in July 1997, when (Company 3) could no longer make its payroll.
As noted above, the key question in this case is whether, at the time of his injury, the claimant was an employee of (Company 1) and/or (Company 2), subscribers, or of (Company 3), a nonsubscriber. The hearing officer determined that the claimant was the employee of all three entities at the time of his injury and that his activity at the time of his injury furthered the business interests of each. Thus, she concluded that the claimant’s injury was compensable. In her discussion, the hearing officer noted that “this is a case clouded by different representations of different people or entities at different times about the same subject to suit whatever purposes were at hand.” However, she further noted that Mr. M had founded and owned several companies; that Mr. M hired the claimant to work for him; that Mr. M assigned the claimant to perform work activities at several of his companies, including (Company 1), (Company 2), and (Company 3); and that on the date of his injury the claimant was working under the direction and control of Mr. M for (Company 1), (Company 2), and (Company 3). The claimant testified that the equipment that was being unloaded at the time of his injury was (Company 1) equipment that had been hauled to the (Company 3) yard from the (Company 1) yard. Mr. J’s statement confirms that the equipment was (Company 1) equipment from the (Company 1) yard. Ms. D maintained that the equipment was not (Company 1) equipment but was owned by Mr. M. It was the hearing officer’s responsibility as the sole judge of the weight, credibility, relevance, and materiality of the evidence under Section 410.165(a) to resolve the conflicts and inconsistencies in the testimony and evidence before her and to determine what facts had been established. The hearing officer was acting within her province as the fact finder in resolving the conflicts and inconsistencies in the evidence in favor of a determination that the claimant had coemployers at the time of his injury. Without citing any support for the proposition, the carrier asserts that there can only be one employer for purposes of workers’ compensation, except in circumstances where the (SLSA) is applicable. We are unaware of any such prohibition. In addition, we note that we have previously recognized a coemployer relationship in a case where, as here, the SLSA was inapplicable. Texas Workers’ Compensation Commission Appeal No. 962340, decided January 2, 1997; see also, Texas Workers’ Compensation Commission Appeal No. 970668, decided June 2, 1997. The evidence before the hearing officer was subject to the interpretation that at the time of his injury, the claimant was an employee of both (Company 1) and/or (Company 2) and (Company 3) and that his action of directing the unloading of the (Company 1) equipment at the (Company 3) yard furthered the business interests of each of those employers. Our review of the record does not demonstrate that that determination is so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Therefore, no sound basis exists for us to reverse the hearing officer’s decision on appeal. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The carrier also argues that the disability determination is against the great weight and preponderance of the evidence. The claimant testified that after his injury he worked in a light-duty position with (Company 3) until August 1997, when he was terminated. The hearing officer found that the claimant had disability from the date of his termination until December 31, 1997, the last day he claimed disability. The claimant’s testimony supported this determination. The hearing officer, as the fact finder, was free to credit that evidence and to find disability based thereon. The disability determination is not so against the great weight and preponderance of the evidence as to compel reversal on appeal. Pool; Cain.
The hearing officer’s decision and order are affirmed.
Elaine M. Chaney – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Philip F. O’Neill – Appeals Judge