This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 25, 1999, in. The issues involved whether the appellant, who is the claimant, sustained an injury on ____________, and had disability from such injury.
The hearing officer held that the claimant failed to prove that he sustained an injury from the incident described and that, although he had the inability to obtain and retain employment for a period from _________through_______, because there was no compensable injury, he did not have disability.
The claimant has appealed, arguing first that the hearing officer erred in admitting the respondent’s (carrier) documents which had not been exchanged within the time prescribed by the rules of the Texas Workers’ Compensation Commission (Commission). The claimant argues that the evidence of the carrier, even if admitted, is incompetent and insufficient to support the hearing officer’s decision. The carrier responds that there was good cause for a late exchange of the documents and that the hearing officer correctly concluded that there was no compensable injury.
DECISION
Affirmed.
At the beginning of the CCH, the claimant objected to admission of all three of carrier’s exhibits. The first was a statement from (Mr. R), the claimant’s coworker, which was disclosed and used by the parties at the benefit review conference (BRC).
The second was a report from (Dr. D), who examined the claimant as a result of a first session of the BRC. The carrier made a mistake in transmitting the date and time of the exam, with the result that Dr. D did not actually examine the claimant until six days before the second scheduled BRC. Dr. D transmitted his report to the carrier; his report shows that copies were mailed to the employer and to the carrier, but not the claimant. Notwithstanding this, the benefit review officer (BRO) made her decision. The claimant’s attorney said that he made several phone calls to the carrier, which were not returned, and then wrote a letter, not in evidence. However, the gist of the language of the letter, recited during argument over the exhibit, was that the claimant’s attorney expressed concern that the Commission had not been given a copy of Dr. D’s report prior to the BRO’s report. The letter did not indicate that the claimant did not have a copy of the report and the adjuster concluded that he did have one. Apparently, in response to finally making contact with the claimant’s attorney, the carrier sent the claimant a copy of Dr. D’s report on August 13th by facsimile transmission.
The third exhibit at issue was a summary of a transcribed interview with the driver of a Mazda, a vehicle hit by the truck in which the claimant was resting. It is dated_________. The claimant objected that it was double or triple hearsay. The claimant also contended that he did not timely receive the document (although it was apparently sent on ___________as part of another carrier exchange). However, the argument thereafter focused entirely on Dr. D’s report, at the end of which there was a ruling by the hearing officer to admit all three documents for good cause.
The claimant worked as a truck driver for CNF Service Company (employer). He drove in tandem with another driver. A sleeper bunk was provided in the cab of the truck and a heavy net, with straps, secured the sleeping driver in the berth.
The claimant said that on ____________, in___________, Tennessee, he was sleeping in the berth when a motor vehicle accident (MVA) occurred and he was thrown back against the strap, injuring his back. The claimant was resting with his face toward the back of the berth and his back toward the straps and netting. The driver of the truck was Mr. R. The claimant contended that Mr. R said virtually nothing at the time of, or after, the collision, but got out and exchanged information with the driver of the car he hit. The police were not called to the scene. The claimant said he complained of his injury to Mr. R and urged that when the truck stopped for rest, Mr. R should call in the MVA and his injury. The claimant agreed that they did not use an onboard computer for this purpose. He said that he found out later that Mr. R did not report his injury when he telephoned the office to report the MVA.
The carrier’s evidence (admitted under objection) indicated that the traffic was stop-and-go. The claimant was awake and said that there was stop-and-go traffic at this time of day which was rush hour. He said he then felt Mr. R “surge” the truck in second gear (maximum speed 13 mph) as if he were accelerating and then stop abruptly. The disputed evidence indicated that there was a slight rear-end collision with a Mazda in front of the truck, with no significant damage.
Mr. R’s statement was that after a car pulled in front of him, he stopped abruptly and touched the bumper of the car in front of him. He said that when he looked around, the claimant was sitting up in the berth with his feet on the floor and complained that stop-and-go traffic was giving him a headache.
The evidence submitted by the claimant consisted of numerous photographs of the berth and medical records from the claimant’s treating doctor, Dr. B (Dr. B), D.C. On the first visit on March 17, 1999, Dr. B diagnosed bilateral cervical compression, degenerative changes, and scoliosis. The claimant was taken off work effective March 15th. Dr. B wrote in May that the claimant was treated by him for multiple areas of injury from neck to left knee and that none of these injuries were preexisting. He was released back to work on______. Dr. B certified that the claimant had a 21% impairment rating (IR), with maximum medical improvement (MMI) reached on May 17th.
Dr. D’s opinion was that the claimant’s mechanical low back pain had a questionable relationship to the reported injury. He certified the same date of MMI as Dr. B, but with a zero percent IR. His understanding of the speed of the truck at the time of the collision was that it was going one to 13 miles per hour. There was also evidence indicating that the claimant was treated for back problems in 1996.
First of all, we agree that the hearing officer properly admitted the statement from Mr. R, (which appears to have been timely exchanged at the BRC and need not have been re-exchanged) and Dr. D’s report. Under the circumstances recited surrounding the reason for Dr. D’s examination, ambiguity created by the claimant’s attorney’s communication, and the fact it was exchanged well before the CCH are all matters that the hearing officer could consider in evaluating good cause.
However, we cannot agree that the basis for finding good cause for the transcription summary exists–none was articulated. No showing was made that it was timely exchanged. We would also observe (although not the basis for finding error here) that “evidence” of this sort does, as the claimant argued, strain the boundaries of even the relaxed evidentiary rules at CCHs and should not be given much weight even when admitted. Exclusion of this improperly admitted evidence would not, as a matter of law or the great weight of the evidence, change the decision, and was thus harmless error. See Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ).
The burden to prove an injury arising from the course and scope of employment belonged to the claimant. Texas Employers Insurance Association v. Page, 553 S.W.2d 98 (Tex. 1977). It is not the burden of the carrier to disprove an injury. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.- Amarillo 1974, no writ). This is equally true of medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). Without a finding of a compensable injury, there can be no finding of disability as that term is defined in Section 401.011(16).
In this case, not considering the transcription summary, we find sufficient support for the hearing officer’s decision. Mr. R’s statement indicated that the claimant was, in fact, sitting up in the berth. The hearing officer could also review the pictures and conclude that the extensive injuries rated by Dr. B at 21% IR could not have occurred from touching the bumper of a car in front of the truck in which the claimant was resting.
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 Company v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). We cannot agree that this is the case here, and we affirm the decision and order of the hearing officer.
Susan M. Kelley – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Tommy W. Lueders – Appeals Judge