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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 May 22, 2017, with the record closing on June 7, 2017, in (city), Texas, with (administrative law judge (ALJ)) presiding as (ALJ).[1] The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) the claimant’s horseplay was not a producing cause of the claimed injury and the respondent (carrier) is not relieved of liability for compensation; (3) the claimed injury was not caused by the claimant’s willful intention and attempt to injure himself and the carrier is not relieved of liability for compensation; (4) the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons not related to the employment and the carrier is not relieved of liability for compensation; and (5) the claimant did not have disability resulting from the claimed injury.

The record reflects that the claimant did not appear at the CCH on May 22, 2017, nor did he respond to the ALJ’s letter dated May 23, 2017, affording him the opportunity to respond within 10 days and request that the hearing be reconvened in order for him to present evidence concerning the disputed issues and to show good cause for his failure to attend the CCH. Having received no response to her 10-day letter, the ALJ issued her decision on June 16, 2017.

The claimant appeals the ALJ’s determinations arguing that his failures to attend the May 22, 2017, CCH and to respond to the ALJ’s 10-day letter dated May 23, 2017, are the result of his failure to receive notices of the CCH or the ALJ’s 10-day letter. The claimant further complains of the ALJ’s determinations that he did not sustain a compensable injury on (date of injury), and that he did not have disability resulting from a compensable injury. The carrier argues that the appeal is untimely and that the ALJ’s determinations are supported by the evidence and should be affirmed.

DECISION

Reversed and remanded.

Section 410.168(f) provides that the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall send a copy of the ALJ’s decision to each party. 28 TEX. ADMIN. CODE § 142.16(d) (Rule 142.16(d)) provides that the Division shall furnish a copy of the ALJ’s decision no later than seven days after the decision is filed with the Division. Section 410.202(a) provides that to appeal the decision of an ALJ, a party shall file a written request for appeal with the Appeals Panel not later than the 15th day after the date on which the decision of the ALJ is received from the Division and shall on the same date serve a copy of the request for appeal on the other party. Section 410.202(d) provides that Saturdays and Sundays and holidays listed in Section 662.003 are not included in the computation of the time in which to file an appeal or a response. Rule 143.3(d), effective December 13, 2009, provides that a request for review shall be presumed to be timely filed if it is: (1) mailed on or before the 15th day after the date of deemed receipt of the ALJ’s decision; and (2) received by the Division not later than the 20th day after the date of deemed receipt of the ALJ’s decision. The Appeals Panel has held that both portions of Rule 143.3(d) must be complied with for an appeal to be timely. Appeals Panel Decision (APD) 042688, decided December 1, 2004.

Records of the Division reflect that the ALJ’s 10-day letter and decision were mailed on May 23, 2017, and June 23, 2017, respectively, to the claimant at (address 1), (city), Texas. Assuming the decision was mailed to the claimant’s correct address, pursuant to Rule 102.5(d), the claimant would be deemed to have received the ALJ’s decision 5 days later on June 28, 2017. With the deemed date of receipt of the ALJ’s decision on June 28, 2017, in accordance with Section 410.202, excluding Saturdays and Sundays and holidays listed in Section 662.003, the claimant’s appeal would have to have been filed or mailed no later than July 20, 2017.

The claimant’s request for review is dated August 7, 2017, and was sent to and received by the Division via facsimile transmission on that date. Therefore, the claimant filed what would appear to be an untimely appeal; however, records of the Division reflect that the ALJ’s 10-day letter and decision were mailed to the claimant at an incorrect address. Attached to the claimant’s appeal is a copy of the claimant’s Employee’s Claim for Compensation for a Work-Related Injury (DWC-41) filed on April 18, 2017, and listing the claimant’s address as (address 2), (city), Texas rather than (address 1), (city), Texas, the address contained in the Division’s records as of June 2017. Because the ALJ’s decision was not mailed to the claimant’s correct last known address, the claimant is not deemed to have received a copy of the decision. We therefore hold, under the facts of this case, that the deadline for filing an appeal prescribed in Section 410.202 was not triggered.

In APD 042634, decided November 29, 2004, the Appeals Panel noted that the purpose of the 10-day letter process is to give the non-appearing party the opportunity to meaningfully participate in the dispute resolution process.  In APD 020273, decided March 29, 2002, a claimant made a number of factual allegations in her appeal regarding good cause for failing to attend the CCH and her attempts to respond to the 10-day letter, and the Appeals Panel remanded the case to the ALJ to take evidence concerning the claimant’s allegations and to permit the claimant to present evidence on the merits of her claim at the CCH on remand.

In this case, the claimant makes factual allegations that if true, could constitute a basis for the claimant’s failure to attend the May 22, 2017, CCH and to respond to the ALJ’s 10-day letter dated May 23, 2017. Accordingly, because the 10-day letter and the ALJ’s Decision and Order were not mailed to the claimant’s correct last known address, we reverse the ALJ’s determinations that the claimant did not sustain a compensable injury on (date of injury); that the claimant’s horseplay was not a producing cause of the claimed injury and the carrier is not relieved of liability for compensation; that the claimed injury was not caused by the claimant’s willful intention and attempt to injure himself and the carrier is not relieved of liability for compensation; that the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons not related to the employment and the carrier is not relieved of liability for compensation; and that the claimant did not have disability resulting from the claimed injury and we remand this case to the ALJ to allow the claimant to present evidence concerning whether he had good cause for his failure to appear at the CCH on May 22, 2017, and to present evidence relevant to the disputed issues.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is SERVICE LLOYDS INSURANCE COMPANY and the name and address of its registered agent for service of process is

JOSEPH KELLY-GRAY, PRESIDENT

6907 CAPITOL OF TEXAS HIGHWAY NORTH

AUSTIN, TEXAS 78755.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. Section 410.152 was amended in House Bill 2111 of the 85th Leg., R.S. (2017), effective September 1, 2017, changing the title of hearing officer to ALJ.

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 2, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. Hearing Officer (hearing officer 1) resigned her position with the Texas Department of Insurance, Division of Workers’ Compensation (Division) prior to writing a decision and order and the case was reassigned to (hearing officer). Hearing Officer (hearing officer 2) resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons and was directed at the claimant as an employee and because of the employment, and the respondent (carrier) is not relieved of liability for compensation; and (3) the claimant did not have disability resulting from the claimed injury.

The claimant appealed the hearing officer’s decision. In his appeal the claimant requested an immediate dismissal of the hearing officer’s decision and contended that the hearing officer’s statement that the parties were informed of the change in hearing officer and waived another hearing is inaccurate. The carrier responded, urging affirmance of the hearing officer’s decision.

DECISION

Affirmed.

The claimant testified at the CCH held on August 2, 2016, that he was injured when he was attacked by his supervisor after a heated argument.

Division records show that prior to her resignation Hearing Officer 1 notified the parties that she did not have sufficient evidence from the August 2, 2016, CCH to determine the issue of disability. The claimant initially indicated a willingness to withdraw the issue of disability so it could be addressed separately at a later CCH; however, the claimant changed his mind and notified Hearing Officer 1 that he was unwilling to withdraw the disability issue. Hearing Officer 1 reopened the record and ordered a designated doctor examination to address disability and notified the parties that upon receipt of the designated doctor’s report and responses from the parties regarding that report she would issue a decision. However, Hearing Officer 1 resigned her position as hearing officer prior to the receipt of the designated doctor’s report, and the case was reassigned to Hearing Officer 2. The appeal records show the record was still open when the case was reassigned to Hearing Officer 2.

Hearing Officer 2 noted in her decision the following:

Hearing Officer 1 was no longer available to complete the decision, and the matter was reassigned to Hearing Officer 2. The parties were informed of the change and waived another hearing.

The claimant contends on appeal that the hearing officer’s statement is untrue, and requests an “Emergency CCH.”

Division records reflect that Hearing Officer 2 sent an email to both parties that stated the following:

Parties on (claimant) matter:

You may be aware, by now, that hearing officer 1 is no longer with the Division. Therefore, I will be writing the decision and order on the above matter.

Recall that the [c]laimant, attended a designated doctor examination on [October 27, 2016] on the issue of [d]isability. I received [(Dr. J)] report and I have marked the report as Hearing Officer Exhibit 4 for identification purposes. It is attached to this email for your review. Do take some time to go through the report. Please inform me within the next 10 days if you have a legal (emphasis original) objection to the admission of [Hearing Officer] Exhibit 4. If you have an objection, please state clearly the legal basis of your objection, so that I can make a proper ruling. You are also free to make a comment or observation regarding the report. The record will close on March 6, 2017, at which time the Decision and Order will be written. Thank you for your prompt attention to this matter.

The claimant responded to the hearing officer in an email dated February 25, 2017, stating in part that “I request that you rule quickly. . . .”

Although Division records show there was discussion between the parties that the claimant was considering to withdraw the issue of disability to be addressed in a later proceeding, Division records also show that the claimant ultimately declined to withdraw the issue of disability for a later proceeding. The record was still open when the case was reassigned to Hearing Officer 2 and the parties were allowed to submit additional arguments regarding the designated doctor’s report on disability. Based on a review of the record on appeal there is no evidence the claimant was promised a second CCH in this case. As noted above, the claimant requested Hearing Officer 2 to “quickly” resolve the issues and make a decision. We perceive no error on the hearing officer’s part in issuing her decision without holding a second CCH.

The hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), is supported by sufficient evidence and is affirmed.

The hearing officer’s determination that the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons and was directed at the claimant as an employee and because of the employment, and does not relieve the carrier of liability for compensation is supported by sufficient evidence and is affirmed.

The hearing officer’s determination that the claimant did not have disability resulting from the claimed injury is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury).

We affirm the hearing officer’s determination that the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons and was directed at the claimant as an employee and because of the employment, and does not relieve the carrier of liability for compensation.

We affirm the hearing officer’s determination that the claimant did not have disability resulting from the claimed injury.

The true corporate name of the insurance carrier is VALLEY FORGE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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 December 10, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (carrier) is not relieved of liability for compensation because the claimed injury did not arise out of an act of a third person intended to injury the appellant (claimant) because of personal reasons and not directed at the claimant as an employee or because of the employment; and (2) the claimant did have disability beginning on July 19 and continuing through August 19, 2013, and for no other periods. The claimant appealed, disputing the hearing officer’s disability determination contending that the disability determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. The carrier responded, urging affirmance of the disputed disability determination.

The hearing officer’s determination that the carrier is not relieved of liability for compensation because the claimed injury did not arise out of an act of a third person intended to injury the claimant because of personal reasons and not directed at the claimant as an employee or because of the employment was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record at the CCH. The appeal file contains one compact disc (CD). The CD reflects that it is 1 hour, 34 minutes, and 47 seconds long. However, the CD only contains static and no audible arguments or testimony. The file does not contain a transcript or a tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is PROTECTIVE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Tracey T. Guerra
Appeals Judge

Carisa Space-Beam
Appeals Judge

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 April 2, 2004. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (carrier) is not relieved of liability for compensation because the respondent’s (claimant) claimed injury on _______________, was not caused by the claimant’s attempt to unlawfully injure another person; (2) that the claimant’s claimed injury arose out of an act of a third person intended to injure the claimant because of the claimant’s employment with the employer; (3) that the claimant was not participating in horseplay at the time of the claimant’s claimed injury; (4) that the claimant sustained a compensable left hip, left knee, right elbow, head, left eye, face, and left arm injury on _______________; and (5) that the claimant had disability beginning on September 17 and continuing through September 20, 2003, and for no other period. The carrier appealed the determinations and disputed an evidentiary ruling made by the hearing officer. The claimant responded, urging affirmance of the challenged determinations and evidentiary ruling.

DECISION

Affirmed.

The carrier asserts that the hearing officer erred in excluding its exhibit “H,” the claimant’s personnel records, from admission into evidence at the CCH because it was not exchanged with the claimant as required by Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.13(c)(1)(E) (Rule 142.13(c)(1)(E)). Rule 142.13(c)(1)(E) requires in part that no later than 15 days after the benefit review conference, parties shall exchange with one another all photographs or other documents which a party intends to offer into evidence at the hearing. The carrier asserted that although the exhibit was not exchanged timely, it was exchanged as soon as it was obtained. The claimant objected to the exhibit on the grounds that it was not timely exchanged. The hearing officer determined that the exhibit was not timely exchanged and sustained the claimant’s objection.

Our standard of review regarding the hearing officer's evidentiary rulings is one of abuse of discretion. Texas Workers' Compensation Commission Appeal No. 92165, decided June 5, 1992. To obtain reversal of a judgment based upon the hearing officer's abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers' Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles. Texas Workers' Compensation Commission Appeal No. 951943, decided January 2, 1996; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). Given the determination that the exhibit was not timely exchanged, we do not find the hearing officer’s evidentiary ruling to be an abuse of discretion, as he acted with reference to guiding rules and principles. Nor did the carrier establish that the exclusion of this evidence probably caused the rendition of an improper judgment. We perceive no error.

The issues of injury and disability both turned on factual considerations. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given to the evidence. 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 regarding 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.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals-level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer's decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard, we find no error in the hearing officer’s findings of injury and disability.

Section 406.032(1)(B) and (1)(C) provide that an insurance carrier is not liable for compensation if the injury was caused by the employee’s willful attempt to injure himself or to unlawfully injure another person or arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment. Section 406.032(2) provides that an insurance carrier is not liable for compensation if the employee’s horseplay was a producing cause of the injury.

We have observed that whether there was a personal motivation to an assault that causes injury is a question of fact to be decided by the hearing officer. Texas Workers' Compensation Commission Appeal No. 971051, decided July 21, 1997. There was conflicting evidence on this issue. The hearing officer's determinations that the claimant’s claimed injury was not caused by the claimant’s attempt to unlawfully injure another person; that the claimant was not participating in horseplay at the time of the claimed injury; and that the claimant’s claimed injury arose out of an act of a third person intended to injure the claimant because of the claimant’s employment with the employer are not against the great weight and preponderance of the evidence, and we will not disturb them on appeal.

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is FIDELITY AND GUARANTY INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Daniel R. Barry
Appeals Judge

Chris Cowan
Appeals Judge

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 January 30, 2004. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) sustained a compensable injury on ________________; that the appellant (carrier) is not relieved of liability under Section 406.032(1)(B) because the injury was not caused by the claimant’s willful attempt to injure another person; that the carrier is not relieved of liability under Section 406.032(1)(C) because the injury did not arise out of an act of a third person intended to injure the claimant because of a personal reason and not directed at the claimant as an employee or because of the employment; that the carrier did not contest compensability in accordance with Section 409.022 and the carrier’s contest was based on newly discovered evidence that could reasonably have been discovered at an earlier date; and that the claimant had disability from October 2, 2003, through the date of the CCH. The carrier appeals the hearing officer’s determinations on all of the disputed issues, contending that the hearing officer’s determinations are not supported by sufficient evidence and are against the great weight and preponderance of the evidence. The claimant asserts that sufficient evidence supports the hearing officer’s determinations on the disputed issues and requests affirmance.

DECISION

Affirmed as reformed herein.

Conflicting evidence was presented on the disputed issues regarding compensable injury, the application of Sections 406.032(1)(B) and 406.032(1)(C), and disability. The hearing officer found that the claimant was injured in the course and scope of his employment; that the incident in which the claimant was injured arose from how the work was being performed and was not due to a personal reason; that the claimant’s injury did not result from the claimant’s willful attempt to injure another person; and that because of the compensable injury, the claimant was not able to obtain and retain employment at his preinjury wage from October 2, 2003, through the date of the CCH. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. Although there is conflicting evidence in this case, we conclude that the hearing officer’s determinations that the claimant sustained a compensable injury; that the carrier is not relieved of liability under Sections 406.032(1)(B) because the claimant’s injury was not caused by the claimant’s willful attempt to injure another person; that the carrier is not relieved of liability under Section 406.032(1)(C) because the claimant’s injury did not arise out of an act of a third person intended to injure the claimant because of a personal reason and not directed at the claimant as an employee or because of the employment; and that the claimant had disability from October 2, 2003, through the date of the CCH are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

Another issue at the CCH was “Did the Carrier contest compensability in accordance with Texas Labor Code Section 409.022 and, if not, is the Carrier’s contest based on newly discovered evidence that could not reasonably have been discovered at an earlier date?” Although there was no disputed issue regarding Section 409.021, we note that because the claimant’s compensable injury occurred on or after September 1, 2003, Section 409.021 as amended effective September 1, 2003, would apply had there been such an issue. The parties stipulated that the carrier timely filed a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21). The TWCC-21 dated October 10, 2003, reflects that the carrier first received written notice of the injury on October 7, 2003. In the TWCC-21, the carrier disputed that the claimant was injured in the course and scope of his employment, stated that the claimant was involved in a personal altercation at the workplace, and asserted that the injury resulted because of a third party’s personal attack on the claimant and not because of the employment. While it is clear that the carrier’s TWCC-21 raised the personal animosity exception found in Section 406.032(1)(C), the TWCC-21 does not assert a defense based on the exception found in Section 406.032(1)(B), which is the employee’s willful attempt to injure himself or to unlawfully injure another person. There is no evidence that the carrier ever filed another TWCC-21.

Section 409.022(a) provides that an insurance carrier’s notice of refusal to pay benefits under Section 409.021 must specify the grounds for the refusal, and Section 409.022(b) provides that the grounds for refusal specified in the notice constitute the only basis for the insurance carrier’s defense on the issue of compensability in a subsequent proceeding, unless the defense is based on newly discovered evidence that could not reasonably have been discovered at an earlier date. The hearing officer found that the carrier “did not properly or timely raise the issue/defense of willful intent to unlawfully injure another” and that “carrier’s evidence regarding this potential defense was not unavailable or unaccessible if they had used reasonable exercise of its duty to investigate the claim.” Conclusion of Law No. 6 states “Carrier did not contest compensability in accordance with Texas Labor Code Section 409.022 and the Carrier’s contest was based on newly discovered evidence that could reasonably have been discovered at an earlier date.”

The carrier contends that the exceptions to liability set forth in Section 406.032 are not compensability issues and thus the hearing officer should not have found that the carrier could not assert its defense of willful intent to injure another person under Section 406.032(1)(B). The Appeals Panel has previously rejected the contention that the exceptions listed in Section 406.032 are not defenses to compensability that do not have to be raised in a TWCC-21. In Texas Workers’ Compensation Commission Appeal No. 990592, decided May 4, 1999, the Appeals Panel stated “We cannot arrive at a reasoned position to conclude that those exceptions to liability set forth in Section 406.032 are other than defenses to the compensability of a claim that need to be timely raised or result in wavier of compensability by the carrier.” See also Texas Workers’ Compensation Commission Appeal No. 030663-s, decided May 1, 2003. In addition, we note that in Walls Regional Hospital v. Bomar, 9 S.W.3d 805 (Tex. 1999), a negligence case, the Texas Supreme Court noted that some injuries are “not compensable” under the 1989 Act, including those that come under the personal animosity exception in Section 406.032(1)(C). We conclude that the hearing officer’s finding that the carrier did not timely or properly raise the defense of willful attempt to unlawfully injure another person is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, supra. We reform Conclusion of Law No. 6 and that portion of the hearing officer’s decision that address the Section 409.022 issue to state that the carrier may not assert a defense under Section 406.032(1)(B) because that defense was not specified in its TWCC-21 and because it is not based on newly discovered evidence that could not reasonably have been discovered at an earlier time.

As reformed herein, we affirm the hearing officer’s decision and order.

The true corporate name of the insurance carrier is ST. PAUL FIRE AND MARINE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

701 BRAZOS, SUITE 1050

AUSTIN, TEXAS 78701.

Robert W. Potts

CONCUR:

Elaine M. Chaney
Appeals Judge

Edward Vilano
Appeals Judge

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 October 8, 2003. The hearing officer determined that: (1) the respondent (claimant) sustained a compensable injury on _______________; (2) the appellant (carrier) is not relieved from liability for compensation, because the injury did not arise out of an act of a third person intended to injure the claimant for personal reasons; and (3) the claimant had disability from February 24 through April 8, 2003. The carrier appeals these determinations on sufficiency of the evidence grounds and asserts that the hearing officer erred in denying its request for subpoena. The claimant urges affirmance.

DECISION

Affirmed.

As stated above, the carrier asserts that the hearing officer erred in denying its request for subpoena. We note that the carrier did not reurge its request for subpoena or otherwise preserve error in the record of the hearing below. Additionally, Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 142.12(d) (Rule 142.12(d)) provides, in part, that a hearing officer may deny a request for a hearing subpoena upon a determination that the testimony may be adequately obtained by deposition or written affidavit. The carrier’s witness provided a detailed affidavit regarding his knowledge of the incident, which was admitted at the hearing below. Accordingly, we perceive no error.

The hearing officer did not err in making the complained-of determinations. The determinations involved questions of fact for the hearing officer to resolve. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies 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)). In view of the evidence presented, we cannot conclude that the hearing officer's determinations are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Edward Vilano
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Margaret L. Turner
Appeals Judge

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 July 14, 2003. The hearing officer resolved the disputed issues by deciding that the appellant/cross-respondent (claimant) sustained a compensable injury on ______________; that the respondent/cross-appellant (carrier) is not relieved of liability under Section 406.032(1)(C) because the claimed injury arose out of an act of a third person who intended to injure the claimant as an employee or because of the employment, and not because of personal reasons; and that the claimant did not have disability as a result of the injury of ______________. The claimant appeals the hearing officer’s determination that he has not had disability and the finding that he did not sustain a cervical strain or herniation, or a temporomandibular joint injury in the course and scope of his employment on ______________. The carrier appeals the hearing officer’s determinations that the claimant sustained a compensable injury on ______________, and that it is not relieved of liability under Section 406.032(1)(C). The carrier filed a response to the claimant’s appeal. No response to the carrier’s appeal was received from the claimant.

DECISION

Affirmed.

Conflicting evidence was presented on the disputed issues of compensable injury, disability, and whether the injury arose out of an act of a third person intended to injure the claimant because of a personal reason and not directed at the claimant as an employee or because of the employment. Although the extent of the compensable injury was not a disputed issue from the benefit review conference, the parties presented evidence and argument regarding the extent of the injury. In Texas Workers’ Compensation Commission Appeal No. 010322, decided March 22, 2001, we indicated that there may be instances where it becomes necessary to make findings on the extent of the compensable injury in order to resolve other disputed issues.

In the instant case, the claimant claimed he had disability, which was a disputed issue, from February 5 through June 9, 2003. Section 401.011(16) defines “disability” as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” The treating doctor’s records reflect that he kept the claimant off work due to a neck injury. The claimant contended that the compensable injury included his face, jaw, and neck. The carrier contended that if a compensable injury occurred, it was limited to a facial contusion and that the claimant would not have disability from such an injury. In this circumstance, we believe that it was necessary for the hearing officer to determine the extent of the compensable injury in order to resolve the disability issue.

The hearing officer resolved the conflicting evidence by finding that the claimant sustained a facial contusion in the course and scope of his employment, but did not sustain a cervical strain or herniation, or a temporomandibular joint injury in the course and scope of his employment. We do not find that the hearing officer erred in determining the nature of the compensable injury in order to resolve the disability issue. See Texas Workers’ Compensation Commission Appeal No. 031790, decided August 28, 2003. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. Although there is conflicting evidence in this case, we conclude that the hearing officer’s determinations are supported by sufficient evidence and that they are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

We affirm the hearing officer’s decision and order.

The true corporate name of the insurance carrier is SERVICE LLOYDS INSURANCE COMPANY and the name and address of its registered agent for service of process is

JOSEPH KELLY-GRAY, PRESIDENT

6907 CAPITOL OF TEXAS HIGHWAY NORTH

AUSTIN, TEXAS 78755.

Robert W. Potts
Appeals Judge

CONCUR:

Judy L. S. Barnes
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). This case is back before us after our remand in Texas Workers' Compensation Commission Appeal No. 022466, decided October 31, 2002. We had remanded the case for reconstruction of the record and had asked the hearing officer to reconsider her decision in light of Texas Workers’ Compensation Commission (Commission) Advisory 2002-15, dated September 12, 2002, and our decision in Texas Workers' Compensation Commission Appeal No. 022027-s, decided September 30, 2002. A contested case hearing (CCH) on remand was held on January 14, 2003. The hearing officer determined that the respondent’s (claimant herein) injury arose out of the act of a third person intending to injure the claimant for personal reasons, relieving the appellant (carrier herein) of liability; that the claimant therefore did not sustain a compensable injury on ____________; that the carrier waived its right to contest the compensability of the claimant’s injury because it failed to timely dispute compensability of the claimed injury in accordance with Section 409.021; and that the claimant had disability commencing from May 28 and ending on July 16, 2002. The carrier appeals, contending that it timely disputed the claimant’s injury and the hearing officer erred in refusing to admit evidence permitting it to establish this.

DECISION

Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.

The only issue before us on appeal is the question of carrier waiver, and this is the only issue we shall address. Section 409.021 provides that an insurance carrier shall not later than the seventh day after the date on which the insurance carrier receives written notice of an injury begin the payment of benefits or notify the Commission and the injured employee in writing of its refusal to pay. The Supreme Court of Texas in Continental Casualty Company v. Downs, 81 S.W.3d 803 (Tex. 2002) held that the failure of a carrier to comply with this provision resulted in the carrier waiving its right to contest compensability. In Texas Workers' Compensation Commission Appeal No. 021944-s, decided September 11, 2002, the Appeals Panel held that the Downs decision applied to cases where carrier waiver was in issue and which came to the Appeals Panel after August 30, 2002, the date the Downs decision became final. The Commission issued Advisory 2002-15 on September 12, 2002, providing that the Downs decision had become final and describing how it would be implemented by the Commission. In Appeal No. 022027-s, supra, the Appeals Panel held that, when a carrier loses its right to contest compensability by not complying with the requirements of Section 409.021(a), it loses its right to assert a defense under Section 409.002 based upon the claimant’s failure to give timely notice of injury to the employer.

In the present case, the parties stipulated that the carrier received written notice of the claimant’s injury on May 31, 2002, and that the carrier disputed compensability on June 10, 2002. This stipulation supports the finding of the hearing officer that the carrier did not dispute the claimant’s injury within seven days of receiving written notice and her legal conclusion that the carrier waived its right to contest compensability. On appeal, the carrier argues that it did file a notification of certification of benefits with the Commission within seven days of receiving written notice of injury. The carrier proffered evidence of this notification of certification at the CCH on remand, but the hearing officer refused to admit this evidence as she limited both parties at the CCH on remand to reconstructing the evidence at the original CCH. Clearly, the carrier had possession of this evidence and should have offered this evidence at the first hearing. We do not find that the hearing officer abused her discretion by refusing to admit this evidence. We do note that the evidence offered by the carrier at the second hearing was not a record of the Commission that would have been admitted on remand based on our holdings in Texas Workers' Compensation Commission Appeal No. 941171, decided October 17, 1994, and Texas Workers' Compensation Commission Appeal No. 012101-s, decided October 22, 2001. It was merely a computer record from the carrier and the carrier should have ensured that it was offered at the first hearing.

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RUSSELL R. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Gary L. Kilgore
Appeals Judge

CONCUR:

Judy L. S. Barnes
Appeals Judge

Elaine M. Chaney
Appeals Judge

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 October 28, 2002. The hearing officer determined that appellant (carrier) is not relieved from liability because the claimed injury of respondent (claimant) did not arise out of an act of a third person intended to injure claimant because of personal reasons. Carrier appealed these determinations on sufficiency grounds. The file does not contain a response from claimant.

DECISION

We reverse and render.

The facts of this case are not in dispute. Claimant testified that he was injured when he was assaulted in the parking lot next to his place of employment right after he arrived to go to work. Claimant said a third party pulled him from his car and beat him after stating that claimant had splashed water on him. The hearing officer determined that, pursuant to the access doctrine, claimant was in the course and scope of employment when the assault occurred and carrier was not relieved of liability. The hearing officer found that the assault arose out of “Claimant’s parking his vehicle” and that it did not arise out of any quarrel that existed apart from the incident itself.

In this case, the hearing officer determined that although claimant had not yet begun his work for the day, he was in the course and scope of employment through the access doctrine. It is true that the evidence shows that claimant was in the parking lot and on the way to work when the injury occurred. However, the access doctrine does not apply to resolve all of the issues in this case. Even if claimant had actually been working already and this incident occurred, this does not automatically mean carrier would be liable. See, e.g., Texas Workers' Compensation Commission Appeal No. 971538, decided September 18, 1997 (Unpublished). The issue that still must be answered is whether the injury arose out of an act of a third person intended to injure claimant because of a personal reason and not directed at claimant as an employee or because of the employment. Texas Employers' Insurance Association v. Dean, 604 S.W.2d 346 (Tex. Civ. App.-El Paso 1980, no writ). If so, carrier is relieved of liability. Section 406.032(1)(C).

If claimant’s actual work had involved driving, then carrier would not have been relieved of liability in this case because injury would have arisen out of the way claimant performed his work of driving. See Texas Workers' Compensation Commission Appeal No. 982931, decided January 29, 1999 (Unpublished). However, claimant’s work did not involve driving. The assault had to do with claimant’s parking of his vehicle, but claimant does not park vehicles as a part of his work. The assault did not have to do with claimant’s work as a customer service representative just because it occurred in the employer’s parking lot or while claimant was going to work. The fact that it occurred in the parking lot does not mean that, because of the work, the interaction was required or that the injury was connected with the employment. See generally Texas Workers' Compensation Commission Appeal No. 982151, decided October 23, 1998 (Unpublished). We conclude that the hearing officer erred in determining that the claimed injury did not arise out of an act of a third person intended to injure claimant because of personal reasons and not directed at the claimant as an employee or because of the employment. We reverse that determination and render a decision that carrier is relieved of liability.

According to information provided by carrier, the true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Judy L. S. Barnes
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Terri Kay Oliver
Appeals Judge

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 October 22, 2002. With respect to the issues before him, the hearing officer determined that the appellant (claimant) did not sustain a compensable injury on ______________; that she did not have disability because she did not sustain a compensable injury; that the claimed injury did not arise out of an act of a third party intended to injure the claimant because of personal reasons; and that the respondent (carrier) is not relieved of liability under Section 409.002 because the claimant had good cause for not giving notice of her alleged injury within the 30-day period following the date of injury. In her appeal, the claimant argues that the hearing officer’s injury and disability determinations are against the great weight of the evidence. In its response to the claimant’s appeal, the carrier urges affirmance. The carrier did not appeal the hearing officer’s determinations concerning the personal animosity defense or the timely notice defense.

DECISION

Affirmed.

The hearing officer did not err in determining that the claimant did not sustain a compensable injury. The question of whether the claimant sustained a compensable injury was a question of fact for the hearing officer to resolve. The hearing officer could have found injury based on the claimant's testimony alone. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394 (Tex. 1989). However, he was not bound to accept the claimant’s testimony. It only created an issue of fact for the hearing officer to resolve. From the hearing officer’s discussion it is apparent that although he believed that the incident at work took place, he was not persuaded that the incident caused damage or harm to the physical structure of the claimant's body. And, as such, the claimant did not sustain her burden of proving that she sustained an injury within the meaning of that term for purposes of the 1989 Act. The hearing officer is the sole judge of the weight, credibility, relevance, and materiality of the evidence before her. Section 410.165(a). He was acting within his province as the fact finder in finding that the claimant did not sustain a compensable injury, damage or harm to the physical structure of the body, in the altercation with Ms. S. Our review of the record does not reveal that the hearing officer's injury determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Therefore, no sound basis exists for us to reverse that determination on appeal. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

Given our affirmance of the determination that the claimant did not sustain a compensable injury, we likewise affirm the hearing officer's determination that she did not have disability. Disability means the "inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage." Section 401.011(16). Thus, the existence of a compensable injury is a prerequisite to a finding of disability.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

ROBERT PARNELL

8144 WALNUT HILL LANE, SUITE 1600

DALLAS, TEXAS 75231-4813.

Elaine M. Chaney
Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

Edward Vilano
Appeals Judge

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