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 concluded on October 14, 2008. The hearing officer determined that the appellant (carrier) waived the right to contest compensability of a closed head injury and a cognitive disorder by not contesting compensability pursuant to Section 409.021; that the carrier did not waive the right to contest compensability of a speech disorder by not contesting compensability pursuant to Section 409.021; and that the __________, compensable injury includes a closed head injury and cognitive disorder, but does not include a speech disorder. The hearing officer’s determinations that the carrier did not waive the right to contest compensability of the speech disorder and that the compensable injury does not include a speech disorder have not been appealed and have become final pursuant to Section 410.169.

The carrier appeals the hearing officer’s carrier waiver determination of the closed head injury and cognitive disorder, contending that the carrier waiver issue had improperly been added and that the carrier had not waived those conditions. The carrier also appeals the extent-of-injury determination regarding the closed head injury and cognitive disorder on a sufficiency of the evidence basis. The respondent (claimant) responded, urging affirmance.

DECISION

Affirmed in part, reversed and rendered in part.

The claimant was a milk truck driver and on __________, sustained an injury when she fell from her truck. The parties stipulated that the claimant sustained a compensable injury on __________. Whether the claimant lost consciousness due to the fall is in dispute.

EXTENT OF INJURY

The hearing officer’s determination that the __________, compensable injury includes a closed head injury and cognitive disorder is supported by the evidence, and is affirmed.

ADDING THE CARRIER WAIVER ISSUE

Texas Department of Insurance, Division of Workers’ Compensation (Division) records indicate a CCH was held on February 27, 2008, and a motion for continuance was granted. However, we note that a record of that proceeding was not included in the appeal file. The carrier contends that another hearing officer, at the February 27, 2008, setting of this case, added the issue of carrier waiver at the claimant’s request. After two additional continuances, the case was heard on October 14, 2008, resulting in the decision and order in this appeal.

At the October 14, 2008, setting of this case, the hearing officer allowed the parties an opportunity to argue their positions on adding the carrier wavier issue. The carrier contends that “moments before entering the hearing room” prior to the February 27, 2008, setting, the claimant, then being assisted by an ombudsman, requested to add the issue of carrier waiver. The only issue reported out of the benefit review conference (BRC) was “[d]oes the _________ compensable injury extend to and include a closed head injury, cognitive disorder and speech disorder?” In evidence are the claimant’s answers to interrogatories which in part state:

X 2.If a [BRC] has been held, does the Benefit Review Officer’s report accurately list all issues you are presently disputing? If not, please list those issues you are presently disputing that differ from those listed in the Benefit Review Officer’s report.

ANSWER:Yes

X 3.If a [BRC] has been held, does the Benefit Review Officer’s report accurately describe your position on the disputed issues listed? If not, please explain how your position differs from that described in the Benefit Review Officer’s report.

ANSWER:Yes

The carrier contends it came to the February 27, 2008, CCH with the understanding that there was only the extent-of-injury issue to be litigated and there was no good cause for adding the carrier waiver issue. The carrier further contends that Section 410.151 and 28 TEX. ADMIN. CODE § 142.7 (Rule 142.7) were not followed in adding the issue and the claimant did not avail himself of the opportunity to add the issue prior to the February 27, 2008, setting. The claimant, represented by an attorney at the October 14, 2008, setting contends that any argument the carrier may have had was remedied by the fact the CCH had been continued for eight months and the carrier had ample time to prepare. The claimant also contends that the issues of extent of injury and waiver “are so integrally entwined that they must be tried simultaneously” and that the carrier waiver issue was crucial to the case. The hearing officer ruled that the order adding the issue (of carrier waiver) stands and noted: “At the request of Claimant and for good cause” the issue of carrier waiver was added. (We note that there was no prior written order in evidence). The hearing officer did not specify what evidence showed good cause.

Section 410.151 pertains to the scope of a CCH and subsection (b) provides that an issue that was not raised at a BRC may not be considered unless the parties consent or the Division determines that good cause existed for not raising the issue at the BRC. Rule 142.7(a) provides in part that a dispute not expressly included in the statement of disputes will not be considered by the hearing officer. Rule 142.7(c) provides in part that a party may submit a response to the disputes identified as unresolved in the BRC report in writing no later than 20 days after receiving the BRC report. Rule 142.7(d) provides in part that the parties may, by unanimous consent, submit for inclusion in the statement of disputes one or more disputes not identified as unresolved in the BRC report. Rule 142.7(e) provides:

Additional disputes by permission of the hearing officer. A party may request the hearing officer to include in the statement of disputes one or more disputes not identified as unresolved in the benefit review officer’s report. The hearing officer will allow such amendment only on a determination of good cause.

* * * *

(2)An unrepresented claimant may request additional disputes to be included in the statement of disputes by contacting the [Division] in any manner no later than 15 days before the hearing.

It is undisputed that there was no response to the BRC report and that the carrier did not consent to the addition of the carrier waiver issue. There is no evidence that the claimant requested an additional dispute be included in the statement of disputes prior to the beginning of the February 27, 2008, setting of the CCH.

We review the hearing officer’s ruling to add an issue on an abuse-of-discretion standard, that is, whether the hearing officer acted without reference to any guiding rules or principles. Appeals Panel Decision (APD) 031719, decided August 11, 2003, Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). Ignorance of the law does not excuse the failure to raise an issue at the BRC. APD 94253, decided April 18, 1994. The Appeals Panel has strictly applied Rule 142.7 unless there is a knowing waiver of its provisions by both parties. APD 93593, decided August 31, 1993.

In this case, the parties stated their respective positions and the hearing officer added the issue of carrier waiver stating there was good cause but she did not specify what evidence showed good cause. Nowhere does the claimant assert that carrier waiver was discussed at the BRC and there was no written response to the benefit review officer’s report in evidence. Additionally, there was not unanimous consent to add the issue. In APD 001987, decided October 4, 2000, the hearing officer added an issue not discussed at the BRC over the objection of the carrier. In that case, a response to the BRC report had been filed (unlike the present case) but the requested issue had been omitted. The Appeals Panel, after reviewing the record concluded: “that no good cause was shown to add the issue. A claimant’s ignorance of the law and the late-perceived ‘need’ to add an issue does not constitute good cause for adding an issue.” The hearing officer’s decision, in this case, finding unspecified good cause for adding the carrier wavier issue is against the great weight and preponderance of the evidence and without reference to any guiding rules or principles.

We reverse the hearing officer’s ruling that there was good cause for adding the issue of carrier waiver and render a new decision that there was no good cause for adding the issue of carrier waiver. Because the carrier waiver issue should not have been added, we also reverse the hearing officer’s determination on the added issue and render a new decision by striking the hearing officer’s determination that the carrier waived the right to contest compensability of the closed head injury and cognitive disorder. Our reversal of that determination does not affect the hearing officer’s determination that the __________, compensable injury includes a closed head injury and cognitive disorder which was determined independently of carrier waiver.

SUMMARY

We affirm the hearing officer’s determination that the __________, compensable injury includes a closed head injury and cognitive disorder. We reverse the hearing officer’s determination that the carrier waived the right to contest compensability of a closed head injury and cognitive disorder because that issue should not have been added. We render a new decision by striking the hearing officer’s determination that the carrier waived the right to dispute compensability of the closed head injury and cognitive disorder.

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

RUSSELL OLIVER, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Thomas A. Knapp

CONCUR:

Veronica L. Ruberto
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 February 3, 2004. The hearing officer resolved the disputed issue by deciding that the respondent (claimant) sustained a compensable injury on _______________. The appellant (employer) appeals, contending that the evidence is insufficient to support the hearing officer’s decision. No response was received from the claimant.

DECISION

Affirmed.

The claimant claimed that he was injured during a robbery of the store he worked at. After the employer’s workers’ compensation insurance carrier accepted liability, the employer contested compensability under Section 409.011(b)(4). The claimant had the burden to prove that he sustained a compensable injury as defined by Section 401.011(10). Conflicting evidence was presented on the disputed issue. 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 determination that the claimant sustained a compensable injury 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 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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RUSSELL R. OLIVER, PRESIDENT

221 W. 6TH STREET

AUSTIN, TEXAS 78701.

Robert W. Potts

CONCUR:

Elaine M. Chaney
Appeals Judge

Veronica L. Ruberto
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 September 15, 2003. The hearing officer determined that the decedent suffered compensable injuries on _____________, that resulted in his death.

The carrier accepted liability and the appellant (employer) contested compensability pursuant to Section 409.011(b)(4). The employer appealed, arguing that the hearing officer’s decision was unsupported by the medical evidence and that the decedent had in fact died as a result of a heart attack prior to the bus leaving the road in the fatal accident. The respondent (claimant beneficiary) responded, urging affirmance.

DECISION

Affirmed.

The decedent was operating a bus for the employer on the night of _____________, when it veered off the road. The evidence indicated that the decedent took no corrective action although the bus crashed into several bushes and trees before it stopped and caught fire. The decedent was pronounced dead on the scene. After his investigation, a state trooper determined that the decedent had fallen asleep at the wheel. The medical examiner’s autopsy report indicated that the cause of death was multiple blunt force injuries of the head. It also noted the presence of severe atherosclerotic coronary artery disease.

In its Contest of Compensability, the employer cites a subsequent report by Dr. B as being new evidence indicating the decedent died of a heart attack. In his report, Dr. B stated that, in his opinion, the precipitating cause for the accident was the decedent’s loss of consciousness that “may have been the onset of a myocardial infarction (heart attack).” He went on to say that the decedent “was at risk for a sudden arrhythmia/heart attack at any time.” He also opined that, “In reasonable medical probability there is no other explanation for this accident sequence.” Dr. B refers only to the autopsy report as a source for information. The employer also cites a July 16, 2003, peer or record review by Dr. K, in which Dr. K concludes “that [the decedent] had died from an arrhythmic death related to his triple-vesseled coronary artery disease prior to veering off the road and more than likely that he did not fall asleep at the wheel.”

The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Conflicting medical evidence was presented, and the hearing officer resolved those conflicts in favor of the claimant beneficiary. With conflicting evidence in support of contradictory views, we cannot say that the hearing officer erred as a matter of law or that his decision is 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).

Accordingly, the hearing officer’s decision and order are affirmed.

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

ROBIN MOUNTAIN

ACE USA/ESES

6600 CAMPUS CIRCLE DRIVE EAST, SUITE 200

IRVING, TEXAS 75063.

Thomas A. Knapp

CONCUR:

Gary L. Kilgore
Appeals Judge

Robert W. Potts
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 August 18, 2003. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury on _____________. The claimant appeals this decision and asserts that that respondent (employer) did not have standing to dispute compensability. The employer urges affirmance of the hearing officer’s decision.

DECISION

Reversed and rendered.

Section 409.011(b)(4) provides that an employer has the right to contest the compensability of an injury if the insurance carrier accepts liability for the payment of benefits. The evidence reflects that the carrier first received written notice of the claimed injury on May 8, 2002, and did not file a dispute within seven days thereafter. In January 2003, the carrier, via a benefit dispute agreement, acknowledged that it “waived it’s right to dispute the compensability of this claimant as set forth in the Down’s [Continental Casualty Company v. Downs, 81 S.W.3d 803 (Tex. 2002)] Decision.” In Texas Workers’ Compensation Commission Appeal 030380-s, decided April 10, 2003, the Appeals Panel, applying the Downs decision, held that Section 409.021(a) requires that a carrier act to initiate benefits or to dispute compensability within seven days of first receiving written notice of an injury or waive its right to dispute compensability. The hearing officer determined that the carrier did not file a dispute within seven days of receiving written notice of the claimed injury and that it entered into an agreement that it waived the right to contest compensability of the claim. Based on these findings of fact, the hearing officer then concluded that the carrier accepted liability for the claimed injury and that the claimant did not sustain a compensable injury on _____________.

The pivotal issue is whether, under the facts of this case, the carrier accepted liability for the injury in question. In Texas Workers’ Compensation Appeal No. 94788, decided August 2, 1994, the carrier argued that its failure to timely contest compensability as required by Section 409.021 should, as a matter of law, be deemed an acceptance of liability for purposes of triggering the employer's right to contest compensability independent of the carrier. The hearing officer disagreed and concluded that a carrier accepts liability for purposes of Section 409.011(b)(4) only by a voluntary, affirmative act, not, as in that case, by default or through inattention to its responsibilities to timely dispute compensability. The Appeals Panel affirmed holding that:

the carrier's failure to timely contest the compensability of the injury as required by Section 409.201(c) [sic, should be Section 409.021(c)], under the particular circumstances of this case, did not in itself constitute acceptance of liability for the payment of benefits under Section 409.011(b)(4) which gives the employer the independent right to contest compensability.

For these reasons, the hearing officer erred in determining that the carrier accepted liability for the claimed injury. Consequently, the employer did not have standing to contest compensability of the injury and it was error for the hearing officer to resolve the compensability issue. Accordingly, the hearing officer’s decision is reversed and a new decision rendered that because the carrier waived the right to contest compensability of the claimed injury, it did not accept liability of the injury as required in Section 409.011(b)(4) and, therefore, the employer does not have standing to contest compensability of the _____________, claimed injury.

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

CT CORPORATION

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Chris Cowan
Appeals Judge

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 May 28, 2003. The hearing officer determined that appellant/cross-respondent (claimant) sustained a compensable injury, but that the injury did not extend to reactive airway disease (pulmonary problems), neurological deficit, and/or headaches. Claimant appealed the determination regarding extent of injury on sufficiency grounds. Respondent/cross-appellant (employer) appealed the determination that claimant sustained a compensable injury. Respondent (carrier) responded that the hearing officer did not err in making the determination regarding extent of injury.

DECISION

We affirm.

Carrier accepted liability in this case, though it disputed the extent of the claimed injury. The employer disputed the compensability of the claimed injury and was a party at the hearing. Employer appeals the hearing officer’s determination that claimant sustained a compensable injury, contending that he claimed an injury only due to hydrogen sulfide exposure and that claimant denied any injury other than breathing problems, headaches, and memory loss due to the incident of ______________. However, the record reflects that claimant claimed an injury due to “some form of chemical.” Although at one point claimant appeared to limit the types of injuries he claimed, he also said in closing argument that he claimed “physical injury” generally and numerous other named conditions.

There was evidence that claimant and a coworker both lost consciousness at work while cleaning out a tank at a refinery. Claimant was taken to the hospital where he complained of chest pain and shortness of breath and his coworker complained of symptoms including skin irritation. There was evidence that a rescue worker had fainted and another rescue worker began vomiting after the EMS call was completed. In written statements, rescue workers reported strong odors or fumes from claimant’s clothing. There was evidence that testing showed that air samples were within acceptable levels and that in tests of claimant’s clothing, no harmful substances were detected. About one week after the incident, claimant complained of burns to his upper extremities and such were noted. In a December 9, 2002, report, Dr. H stated that claimant did not sustain an injury but that he suffered from “temporary complaints” that are more readily explained as physiologic reactions to dehydration or “heat exhaustion” while working in a tank in the hot summer sun. In making her determination that claimant sustained a specific injury, the hearing officer could consider the sequence of events, the prompt onset of symptoms, and the similar physical effects others experienced. See Texas Workers' Compensation Commission Appeal No. 960896, decided June 27, 1996. We have reviewed the complained-of determination and conclude that the issue involved a fact question for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude that the hearing officer's determination is supported by the record and is not 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).

Claimant contends the hearing officer erred in determining that the injury did not extend to reactive airway disease (pulmonary problems), neurological deficit, and/or headaches. Concerning the need for expert testimony to establish the cause of an injury, we have noted that lay testimony may support compensability of immediate short-range effects of exposure to chemicals and fumes, but that expert medical evidence is required to establish linkage to later developing chronic syndromes, such as an alleged brain or neurological injury. See Texas Workers' Compensation Commission Appeal No. 94824, decided August 10, 1994. We conclude that the hearing officer's determination is supported by the record and is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.

We affirm the hearing officer's decision and order.

According to information provided by carrier, 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.

Judy L. S. Barnes
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Veronica L. Ruberto
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 April 14, 2003. The hearing officer resolved the sole disputed issue by deciding that the decedent sustained a compensable injury while in the course and scope of his employment on ______________, that resulted in his death. The appellant (employer) appealed, arguing that the hearing officer erred in determining that the decedent’s work, rather than the natural progression of the decedent’s heart disease, was a substantial contributing factor causing his fatal heart attack. The respondent (claimant beneficiary) responded, urging affirmance.

DECISION

Affirmed.

The claimant beneficiary had the burden to prove that the decedent sustained a compensable injury as a result of a motor vehicle accident (MVA) while in the course and scope of his employment, rather than as a result of a heart attack. Under Section 408.008, a heart attack can be compensable only when it is found to be caused by a specific event in the employment and when the preponderance of the medical evidence indicates that the work, rather than the natural progression of a preexisting heart condition or disease, was a substantial contributing factor of the heart attack. See, e.g., Texas Workers' Compensation Commission Appeal No. 91081, decided December 31, 1991; Texas Workers' Compensation Commission Appeal No. 93948, decided December 3, 1993; Texas Workers' Compensation Commission Appeal No. 94327, decided April 28, 1994; and Texas Workers' Compensation Commission Appeal No. 001817, decided September 12, 2000. We have noted on several occasions that this provision of the statute requires a comparison or weighing between the conditions leading to the heart attack. It is insufficient if the medical evidence indicates that the work was a factor related to the heart attack. The preponderance of the medical evidence must indicate that the work, rather than the natural progression of a preexisting heart condition or disease, was a substantial contributing factor. See Texas Workers' Compensation Commission Appeal No. 93121, decided April 2, 1993, and the cases cited therein. Finally, we note that, "there can be more than one substantial contributing factor, so long as the work is a greater factor than the natural progression of any underlying heart condition or disease." Texas Workers' Compensation Commission Appeal No. 970148, decided March 12, 1997, citing Texas Workers' Compensation Commission Appeal No. 91009, decided September 4, 1991.

The hearing officer did not err in determining that the decedent sustained a compensable injury. The hearing officer applied the appropriate statutory provision of the 1989 Act, Section 408.008, in making the determination on compensability. It is undisputed that the decedent suffered a head injury on (first date of injury), and a MVA on ______________, and the hearing officer could conclude that both incidents happened in the course and scope of his employment. A medical examiner’s report dated January 15, 2002, states that:

given the history of head trauma and the findings of a skull fracture, subdural and subarachnoid hemorrhages, and a contusion of the brain, I believe the head trauma of (first date of injury) contributed to if not caused a confused state resulting in his loss of control of the vehicle. The subsequent stress of the events then exacerbated his underlying heart disease and caused death.

An amended medical examiner’s report dated June 20, 2002, states that, “the severity of the injuries cannot be overlooked in this instance and the [decedent’s] death cannot be ruled natural causes solely due to his heart disease.” The hearing officer could conclude from the medical evidence that the decedent suffered damage or harm to the physical structure of the body, including the head, chest, ribs, and stress that arose out of, and while engaged in or about the furtherance of the affairs or business of the employer on ______________, when he was involved in a MVA. The hearing officer could conclude that these injuries, rather than the natural progression of a preexisting heart condition or disease, were substantial contributing factors of the decedent’s death. Concerning the employer's contention, we find that there is no misconstruing or misreading of the evidence in the decision. Conflicting medical evidence was presented, and the hearing officer resolved those conflicts in favor of the claimant beneficiary. 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. The hearing officer's decision on the compensability issue 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 v. Bain, 709 S.W.2d 175 (Tex. 1986).

The hearing officer’s decision and order 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.

Veronica L. Ruberto

CONCUR:

Michael B. McShane

Appeals Panel

Manager/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 February 19, 2003. The hearing officer determined that the respondent’s (claimant) ________________, injury did not occur while the claimant was in a state of intoxication and, therefore, the carrier is not relieved of liability. The appellant (employer) appeals on sufficiency of the evidence grounds. The claimant did not respond.

DECISION

Affirmed.

The hearing officer did not err in determining that the evidence failed to establish that the clamant was intoxicated at the time of the claimed injury. Section 406.032(1)(A) provides that an insurance carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. The definition of intoxication applicable to this case is the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of a controlled substance. Section 401.013(a)(2). While the evidence reflects that the claimant’s drug test revealed positive results for marijuana and cocaine, the hearing officer noted that the drug screen was not performed until two days after the injury in question and no quantitative results were provided. The hearing officer was not persuaded that the evidence established that the claimant lacked the normal use of his mental and physical faculties due to the voluntary introduction of marijuana and cocaine into his body at the time of his ________________, injury. Nothing in our review of the record indicates that the hearing officer’s decision is 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); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The decision and order of the hearing officer is 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.

Chris Cowan
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). A contested case hearing was held on January 9, 2003. With respect to the disputed issues before him, the hearing officer determined that respondent 1 (claimant) sustained a compensable injury on ____________, and that the claimant was an employee, for workers’ compensation purposes, of the appellant (employer) on the date of the injury. The employer appeals the determinations, arguing that the claimant was not an employee of the employer, and thus could not have sustained an injury covered by the employer’s workers’ compensation policy that was written by respondent 2 (carrier). There is not a response in the file on behalf of either respondent.

DECISION

Affirmed.

The hearing officer did not err in determining that the claimant sustained a compensable injury on ____________. The claimant testified to his injury, sustained when he fell from a roof upon which he was working, and the carrier signed a Benefit Dispute Agreement (TWCC-24) dated August 20, 2002, in which it agreed that the claimant did, in fact, sustain a compensable injury. Under the 1989 Act, the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). The hearing officer was acting within his province as the fact finder in resolving the evidence in favor of the claimant and nothing in our review of the record demonstrates that the hearing officer's determination is so against the great weight 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). There was not a genuine dispute whether the claimant was injured, only as to whether the claimant was an employee covered by the employer’s workers’ compensation insurance.

The hearing officer did not err in determining that the claimant, for workers’ compensation purposes, was an employee of the employer on the date of injury. The Appeals Panel has previously addressed, at length, the statutory provisions and other governing law with respect to a contractor with a governmental entity and the contractor’s responsibilities regarding the provision of workers’ compensation coverage for its workers on said contracts. See Texas Workers’ Compensation Commission Appeal No. 990687, decided May 19, 1999; Texas Workers’ Compensation Commission Appeal No. 982047, decided September 28, 1998. Sections 406.096 and 406.124 combine to require that contractors with a governmental entity, as was the case here, are required to supply written proof of workers’ compensation coverage, as are any subcontractors, as there were here. In Appeal Nos. 990687 and 982047, supra, we opined that a contractor could not obviate its duty to provide workers’ compensation coverage for its workers by subcontracting the actual work to another contractor without proof of the others’ workers’ compensation insurance. The hearing officer decided that the employer here attempted to avoid, unlawfully, its responsibilities to both the governmental entity and to the potential injured workers in not providing, or requiring the provision of, the evidence of workers’ compensation insurance. We note that in the TWCC-24, the carrier agreed that the claimant was an employee of the employer for the purposes of workers’ compensation. The record and the governing principles support the hearing officer’s determination that the claimant was an employee of the employer for the purposes of workers’ compensation.

The hearing officer’s decision and order is affirmed.

The true corporate name of the employer is BRADFORD HOLDING COMPANY, INCORPORATED the name and address of its registered agent for service or process is

GARRY BRADFORD

4545 CORONA, SUITE 105

CORPUS CHRISTI, TEXAS 78411.

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.

Terri Kay Oliver
Appeals Judge

CONCUR:

Judy L. S. Barnes
Appeals Judge

Robert W. Potts
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 November 7, 2002. The hearing officer determined that the appellant (claimant herein) did not sustain a compensable injury on ____________, and that the claimant did not have disability. The claimant appeals, arguing that these determinations are contrary to the evidence. There is no response in the appeal file from the respondent (self-insured herein) to the claimant's request for review.

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 question of whether an injury occurred is one of fact. Texas Workers' Compensation Commission Appeal No. 93854, decided November 9, 1993; Texas Workers' Compensation Commission Appeal No. 93449, decided July 21, 1993. Section 410.165(a) provides that the contested case 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 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).

A finding of injury may be based upon the testimony of the claimant alone. Gee v. Liberty Mutual Fire Insurance Co., 765 S.W.2d 394 (Tex. 1989). However, as an interested party, the claimant's testimony only raises an issue of fact for the hearing officer to resolve. Escamilla v. Liberty Mutual Insurance Company, 499 S.W.2d 758 (Tex. Civ. App.-Amarillo 1973, no writ). In the present case the hearing officer found no injury, contrary to the testimony of the claimant and medical evidence supporting injury. The claimant had the burden to prove that she was injured in the course and scope of her employment. Reed v. Aetna Casualty & Surety Co., 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref'd n.r.e.). We cannot say that the hearing officer was incorrect as a matter of law in finding that the claimant failed to meet this burden. This is so even though another fact finder might have drawn other inferences and reached other conclusions. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref'd n.r.e.).

Finally, with no compensable injury found, there is no loss upon which to find disability. By definition disability depends upon a compensable injury. See Section 401.011 (16).

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is HARTFORD UNDERWRITERS 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.

Gary L. Kilgore
Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

Michael B. McShane

Appeals Panel

Manager/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 October 21, 2002. The hearing officer resolved the disputed issues by deciding that on ____________, the respondent (claimant) sustained a compensable injury, including compensable neck and lower back injuries, and that the appellant (employer) did not waive its right to dispute the compensability of the claimed injury. The employer appealed the hearing officer’s determination that on ____________, the claimant sustained a compensable injury, including compensable neck and lower back injuries. The claimant responded. There is no appeal of the hearing officer’s determination that the employer did not waive its right to contest the compensability of the claimed injury.

DECISION

The hearing officer’s decision is affirmed.

The parties stipulated that the employer’s workers’ compensation insurance carrier accepted the claimant’s claimed injury. The employer disputed the compensability of the claimed injury. The claimant had the burden to prove that he sustained a compensable injury as defined by Section 401.011(10). Conflicting evidence was presented at the CCH on the appealed issue of whether the claimant sustained a compensable injury. 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. The hearing officer determined that the claimant was credible in the presentation of his claim. Although there is conflicting evidence in this case, we conclude that the appealed findings and determination of the hearing officer are supported by the claimant’s testimony and by the reports of the claimant’s doctors. The hearing officer’s decision 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 v. Bain, 709 S.W.2d 175 (Tex. 1986).

The hearing officer’s decision and order are affirmed.

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

MR. RUSSELL R. OLIVER

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Robert W. Potts
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Roy L. Warren
Appeals Judge