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 21, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the four disputed issues before him, the hearing officer determined that: (1) the respondent/cross-appellant’s (carrier) defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) that was filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division) on July 3, 2012; (2) the appellant/cross-respondent (claimant) sustained a compensable injury on [date of injury]; (3) the claimant, who was injured in Indiana, is entitled to all the rights and remedies under the 1989 Act; and (4) the claimant did not have disability beginning April 25, 2012, and continuing through the date of the hearing.

The claimant appealed the hearing officer’s determination that he did not have disability beginning April 25, 2012, and continuing through the date of the hearing. The carrier responded to the claimant’s appeal, urging affirmance for the disability determination.

The carrier appealed the hearing officer’s determinations that the carrier’s defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first PLN-1 that was filed with the Division on July 3, 2012; the claimant sustained a compensable injury on [date of injury]; and the claimant, who was injured in Indiana, is entitled to all the rights and remedies under the 1989 Act. The claimant responded to the carrier’s appeal, urging affirmance for the issues on which he prevailed.

DECISION

Affirmed in part and reversed and remanded in part.

COMPENSABLE INJURY, CLAIMANT’S ENTITLEMENT UNDER THE 1989 ACT AND DISABILITY

The hearing officer’s determinations that the claimant sustained a compensable injury on [date of injury]; the claimant, who was injured in Indiana, is entitled to all the rights and remedies under the 1989 Act; and the claimant did not have disability beginning April 25, 2012, and continuing through the date of the hearing are all supported by sufficient evidence and are affirmed. We note that the hearing officer’s determinations were made independent of his determination that the carrier’s defense of compensability is limited to the defense listed on the PLN-1 filed July 3, 2012.

CARRIER’S DEFENSE OF COMPENSABILITY

Section 409.021 provides that for claims based on a compensable injury that occurred on or after September 1, 2003, that no later than the 15th day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall:  (1) begin the payment of benefits as required by the 1989 Act; or (2) notify the Division and the employee in writing of its refusal to pay.  Section 409.021(c) provides that if an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability.

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 refusal and pursuant to Section 409.022(b) the grounds for the 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.

In the Background Information section of his decision the hearing officer noted that the claimant filed his first report of injury on April 17, 2012, and that the carrier did not file a PLN-1 disputing the claim until July 3, 2012. The hearing officer also noted that the carrier’s first PLN-1 filed on July 3, 2012, asserted the defense that an injury did not occur in the course and scope of employment. The hearing officer, in Finding of Fact No. 7, found that the claimant filed a first report of injury on April 17, 2012, and determined that the carrier’s defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first PLN-1 that was filed with the Division on July 3, 2012.

While it may be true that the claimant filed a report of injury on April 17, 2012, the hearing officer made no findings regarding when the carrier received the first written report of injury, which is required under Section 409.021. Pursuant to Section 409.021, the carrier has 60 days from the date on which it is notified of the injury to contest the compensability of an injury. Without a date certain on which the carrier received written notice of the claimant’s injury, it cannot be determined when the 60-day period the carrier had to dispute the claim begins. Further, there was evidence of dates in addition to the April 17, 2012, date found by the hearing officer. Therefore, we remand the issue of whether the carrier’s defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first PLN-1 that was filed with the Division on July 3, 2012, to make a finding of fact regarding when the carrier first received written notice of the injury based on the evidence, and to make further findings of fact, conclusions of law, and a decision on the carrier’s defense of compensability issue consistent with this decision.

SUMMARY

We affirm the hearing officer’s determination that the claimant sustained a compensable injury on [date of injury].

We affirm the hearing officer’s determination that the claimant, who was injured in Indiana, is entitled to all the rights and remedies under the 1989 Act.

We affirm the hearing officer’s determination that the claimant did not have disability beginning April 25, 2012, and continuing through the date of the hearing.

We reverse the hearing officer’s determination that the carrier’s defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first PLN-1 that was filed with the Division on July 3, 2012. We remand this issue to the hearing officer to make a finding of fact regarding when the carrier first received written notice of the injury based on the evidence, and to make further findings of fact, conclusions of law, and a decision on the carrier’s defense of compensability issue consistent with this decision.

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 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 Appeals Panel Decision 060721, decided June 12, 2006.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3232.

Carisa Space-Beam
Appeals Judge

CONCUR:

Thomas A. Knapp
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 returns following our remand in Appeals Panel Decision (APD) 121650, decided October 24, 2012, to reconstruct the record.  A contested case hearing (CCH) on remand was held on November 19, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer.  In the original CCH held on June 27, 2012, the disputed issues before the hearing officer were:

1. (1)Did the respondent [claimant] sustain a compensable injury on [date of injury]?

2. (2)Did the claimant have disability from August 30 through November 25, 2011, as a result of an injury sustained on [date of injury]?

3. (3)Has the appellant (carrier) waived the right to contest the compensability of the claimed injury by not timely contesting the injury in accordance with Sections 409.021 and 409.022?

4. (4)Did the claimant elect to pursue a remedy and recover compensation under the workers’ compensation laws of another jurisdiction ([State1]), thereby barring recovery under the 1989 Act?

And, at the request of the carrier and added for good cause:

Is the claimant, who was injured in [State2], entitled to all rights and remedies under the 1989 Act?

The hearing officer’s determination in the prior CCH that the claimant did not elect to pursue a remedy and recover compensation under the workers’ compensation laws of another jurisdiction ([State1]), thereby barring recovery under the 1989 Act was not appealed and has became final pursuant to Section 410.169.

In the CCH on remand held November 19, 2012, the hearing officer determined that: (1) the Texas Department of Insurance, Division of Workers’ Compensation (Division), has jurisdiction to hear this case; (2) venue is proper in the [City] field office; (3) the claimant sustained a compensable injury on [date of injury]; (4) the carrier has waived the right to contest the compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021; and (5) the claimant, who was injured in [State2], is entitled to all rights and remedies under the 1989 Act.

The carrier appealed the hearing officer’s determinations that the Division has jurisdiction to hear this case; the claimant sustained a compensable injury on [date of injury]; the carrier has waived the right to contest the compensability of the claimed injury by not timely contesting the injury in accordance with Sections 409.021 and 409.022; and that the claimant had disability from August 30 through November 21, 2011. The claimant responded, urging affirmance of those disputed issues. The hearing officer’s determination that venue is proper in the [City] field office was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

COMPENSABLE INJURY, CARRIER WAIVER, AND CLAIMANT’S ENTITLEMENT UNDER THE 1989 ACT

The hearing officer’s determinations that the claimant sustained a compensable injury on [date of injury]; the carrier has waived the right to contest the compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021; and the claimant, who was injured in [State2], is entitled to all rights and remedies under the 1989 Act are supported by sufficient evidence and therefore, affirmed.

DISABILITY

One of the issues at the June 27, 2012, CCH was whether the claimant had disability from August 30 through November 25, 2011, as a result of an injury sustained on [date of injury]. Following that hearing, the hearing officer determined that the claimant had disability from August 30 through November 21, 2011, but did not have disability from November 22 through November 25, 2011. Both the carrier and the claimant appealed the disability determinations adverse to them. In the CCH on remand held November 19, 2012, the hearing officer did not address the disability issue. Normally, we would reverse the hearing officer’s decision as being incomplete and remand the case for the hearing officer to consider and make findings on those issues. See APD 062446, decided January 18, 2007. However, since the Appeals Panel has previously remanded this case, pursuant to Section 410.203(c), the Appeals Panel is precluded from remanding a case more than once. Therefore, we reverse the hearing officer’s decision as incomplete and we render a new decision on the issue of disability, as discussed below.

The claimant, a truck driver for the employer, testified he was injured on [date of injury], when he fell backwards and bumped his head on the ground while attempting to open the back door on his trailer. The claimant testified that after this incident he experienced neck pain and numbness, and called his daughter to schedule an appointment with a neurologist.

The claimant first obtained medical treatment on August 30, 2011, from [Dr. K]. In a health history questionnaire dated August 30, 2011, the claimant indicated he had numbness in his hand and finger, as well as neck pain, numbness, and tingling. We note that although the claimant indicated in the questionnaire that his symptoms began in July 2011, the claimant testified that he mistakenly indicated this date and his symptoms began in late August 2011, after his injury. The claimant underwent an MRI on September 7, 2011, which revealed multilevel degenerative disc and facet disease with spinal canal and neural foraminal stenosis; a 5 mm left foraminal disc herniation at C6-7 was “the most prominent feature, associated with left neuroforaminal stenosis.” Dr. K diagnosed the claimant with cervical radiculopathy. The claimant testified that Dr. K took him off work during his initial examination on August 30, 2011, and released him to work on November 22, 2011, and he returned to his normal position with the employer after the Thanksgiving holiday. The claimant also testified that while he was off work between August 30 through November 22, 2011, he neither earned any wages nor received any money from another source.

Because the Appeals Panel cannot remand a second time pursuant to Section 410.203(c), we must render a decision on the issue of compensable disability. While there is no medical evidence that takes the claimant off work after August 30, 2011, due to an injury sustained on [date of injury], the issue of disability may be based on the sole testimony of the claimant. Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394 (Tex. 1989) and APD 051383-s, decided August 9, 2005. We reverse the hearing officer’s decision as incomplete on the issue of disability and we render a new decision that the claimant had disability from August 30 through November 21, 2011, and that the claimant did not have disability from November 22 through November 25, 2011.

SUMMARY

We affirm the hearing officer’s determination that the claimant sustained a compensable injury on [date of injury].

We affirm the hearing officer’s determination that the carrier has waived the right to contest the compensability of the claimed injury by not timely contesting the injury in accordance with Sections 409.021 and 409.022.

We affirm the hearing officer’s determination that the claimant, who was injured in [State2], is entitled to all rights and remedies under the 1989 Act.

We reverse the hearing officer’s decision on remand as being incomplete and render a new decision that the claimant had disability from August 30 through November 21, 2011, but did not have disability from November 22 through November 25, 2011.

The true corporate name of the insurance carrier is GREAT WEST CASUALTY COMPANY and the name and address of its registered agent for service of process is

DAVID L. SARGENT

901 MAIN STREET, SUITE 5200

[CITY], TEXAS 75202.

Carisa Space-Beam
Appeals Judge

CONCUR:

Thomas A. Knapp
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 June 27, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the five issues before him, the hearing officer determined that: (1) the respondent/cross-appellant (claimant) sustained a compensable injury on [date of injury]; (2) the claimant had disability from August 30 through November 21, 2011, but did not have disability from November 22 through November 25, 2011; (3) the appellant/cross-respondent (carrier) has waived the right to contest the compensability of the claimed injury by not timely contesting the injury in accordance with Sections 409.021 and 409.022; (4) the claimant did not elect to pursue a remedy and recover compensation under the workers’ compensation laws of another jurisdiction (Utah), thereby barring recovery under the 1989 Act; and (5) the claimant, who was injured in Georgia, is entitled to all rights and remedies under the 1989 Act.

The carrier appealed the hearing officer’s determinations on compensability, carrier waiver, that portion of disability adverse to the carrier, and jurisdiction under Section 406.071 for an extraterritorial injury. The carrier further contended that the hearing officer erred in failing to make findings of fact regarding the claimant’s significant contacts, if any, with Texas as required for a determination under Section 406.071 and regarding the claimant’s principal location of employment under Sections 406.072 and 406.073. The carrier also contended that it timely filed a dispute after receiving notice that the claimant was pursuing workers’ compensation benefits in Texas and in the alternative, that the notice of the Texas claim was newly discovered evidence under Sections 409.021 and 409.022. The appeal file does not contain a response to the carrier’s appeal.

The claimant cross-appealed that portion of the hearing officer’s disability determination adverse to the claimant, contending that the claimant had disability for the period from November 22 through November 25, 2011. In the disputed issue before the hearing officer, the entire claimed period of disability was from August 30 through November 25, 2011. The carrier responded to the claimant’s cross-appeal, urging affirmance of the claimant’s disputed portion of the disability determination.

The hearing officer’s determination that the claimant did not elect to pursue a remedy and recover compensation under the workers’ compensation laws of another jurisdiction (Utah), thereby barring recovery under the 1989 Act, 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 developed at the CCH.  The appeal file in this case indicates there is only one compact disc (CD) for the CCH and the appeal file does contain one CD (a length of 1 hour 55 minutes and 5 seconds). However, the CD in the appeal file does not contain a complete recording of the CCH. The CD recording was stopped after the claimant’s testimony during the claimant’s case-in-chief when the hearing was recessed for a break.

The CD recording was not immediately turned back on after the recess or, for whatever reason, did not record immediately after the recess. The hearing officer’s decision indicates that not only did the claimant testify at the CCH, but that also [VB], [EE], and [PS] testified during the carrier’s case-in-chief at the CCH.

The CD recording was turned back on or resumed recording during the middle of the claimant’s closing argument and continued through the carrier’s closing argument and the claimant’s rebuttal argument to the conclusion of the CCH, when the record was closed.

The file indicates that there was no court reporter and the file does not contain a transcript, or tape recording of the complete CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the complete CCH record.  See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

Furthermore, we note from a review of the CD that the carrier did not stipulate that “[v]enue is proper in the [City] Field Office of the Texas Department of Insurance, Division of Workers’ Compensation [(Division)]” as stated in the hearing officer’s decision. On remand the hearing officer is to correctly state the stipulation or make the necessary finding of fact and conclusion of law regarding venue in this case.

Further, we note that Section 406.071 entitled Extraterritorial Coverage provides:

An employee who is injured while working in another jurisdiction . . . is entitled to all rights and remedies under this subtitle if:

the injury would be compensable if it had occurred in this state; and

the employee has significant contacts with this state or the employment is principally located in this state.

An employee has significant contacts with this state if the employee was hired or recruited in the state and the employee:

was injured not later than one year after the date of hire; or

has worked in this state for at least 10 working days during the 12 months preceding the date of injury.

Further, Section 406.072, entitled Principal Location, provides that the principal location of a person’s employment is where:

the employer has a place of business at or from which the employee regularly works; or

the employee resides and spends a substantial part of the employee’s working time.

Section 406.073(a), a portion of the section entitled Agreement on Principal Location; Administrative Violation, provides:

An employee whose work requires regular travel between this state and at least one other jurisdiction may agree in writing with the employer on the principal location of the employment.

On remand, the hearing officer is to make the necessary findings of fact and conclusions of law concerning extraterritorial coverage as required by the 1989 Act. See Sections 406.071(a)(2) and (b)(2).

Furthermore, the carrier contended at the CCH and included in its appeal the argument regarding the filing of a Texas workers’ compensation claim by the claimant subsequent to the filing of a Utah workers’ compensation claim by the employer as newly discovered evidence under Sections 409.021 and 409.022. On remand, the hearing officer is to make the necessary findings of fact and conclusions of law as required under Sections 409.021 and 409.022. See Sections 409.021(d) and 409.022(b).

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 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. APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is GREAT WEST CASUALTY COMPANY and the name and address of its registered agent for service of process is

DAVID L. SARGENT

901 MAIN STREET, SUITE 5200

DALLAS, TEXAS 75202.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
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 August 12, 2003. The hearing officer determined that respondent’s 1 and 2 (claimant beneficiaries) “did not elect to pursue a remedy and recovery under the compensation laws of the State of Florida which would bar recovery under the Texas Workers’ Compensation Act” and that the claimant beneficiaries are “entitled to all rights and remedies under the Texas Workers’ Compensation Act.”

The appellant (carrier) appeals, contending that the Florida Workers’ Compensation Act is the exclusive remedy and that since the claimant beneficiaries have received benefits under the Florida Act they are precluded from obtaining Texas Workers’ Compensation Act benefits. The claimant beneficiaries urge affirmance, citing authority for their position.

DECISION

Affirmed.

The facts are not in dispute. The decedent, a Texas resident, was employed by the employer, a “foreign limited liability corporation” with operations in several states including Texas and Florida, in Texas in November 1999. The decedent worked continuously in Texas until May 2002, when the employer sent him to work in Florida on a temporary assignment. The evidence supports the hearing officer’s comment that “once the work was completed in Florida [the decedent] would return to Texas to work.” In order to obtain the Florida contract the employer was required to carry Florida workers’ compensation insurance. The decedent sustained a compensable fatal injury on _____________. Under the applicable Florida workers’ compensation law the requirement for reporting and initiating a claim is on the employer. The employer reported the death on July 22, 2002, and the Florida carrier commenced payment of death benefits to the statutory beneficiaries on July 29, 2002. On October 24, 2002, the claimant beneficiaries filed a claim for Texas workers’ compensation death benefits.

The carrier contends that the Florida Act is the exclusive remedy, that the employer (and the Florida carrier) acted properly and that the claimant beneficiaries received benefits under the Florida Act. The hearing officer found that the decedent had significant contacts in Texas, specifically that he had been hired in Texas and that he had worked in Texas “more than 10 days prior to the date of death.” The hearing officer further found that the decedent was on a temporary assignment in Florida, that the claimant beneficiaries “did not seek to be paid benefits” under Florida law, and that the claimant beneficiaries had not made a choice to be paid Florida benefits.

Section 406.071 entitled Extraterritorial Coverage, provides that an employee working in another jurisdiction is entitled to Texas workers’ compensation benefits if the injury would have been compensable in Texas, and if the employee has “significant contacts” in Texas or the employment is principally located in Texas. Significant contacts is further defined as meaning the employee was hired or recruited in Texas and had worked in Texas “for at least 10 working days during the 12 months preceding the date of injury.” The hearing officer’s determinations support the conclusion that the claimant beneficiaries are entitled to Texas benefits.

Section 406.075 provides:

(a)An injured employee who elects to pursue the employee's remedy under the workers' compensation laws of another jurisdiction and who recovers benefits under those laws may not recover under this subtitle.

1. (b)The amount of benefits accepted under the laws of the other jurisdiction without an election under Subsection (a) shall be credited against the benefits that the employee would have received had the claim been made under this subtitle.

The hearing officer specifically determined that the claimant beneficiaries did not seek to be paid benefits under Florida Law. It therefore follows that pursuant to Section 406.075(b) that the benefits the claimant beneficiaries received will be credited against the Texas death benefits.

We reject the carrier’s assertion that the Florida law is exclusive (the exclusive remedy) in that neither the decedent nor the claimant beneficiaries were a party to the employer’s contract for Florida workers’ compensation coverage and fairly clearly the decedent was employed and actually worked in Texas and had a reasonable expectation of having Texas coverage. The employment in Florida on a temporary assignment does not abrogate the Texas workers’ compensation rights unless the claimant beneficiaries had elected to pursue their rights under Florida law. Section 406.075(a). As found by the hearing officer, the claimant beneficiaries took no action to obtain workers’ compensation benefits from the Florida carrier and the benefits that were paid were triggered by the employer’s action and consequently this case falls precisely under the provisions of Section 406.075(b).

The hearing officer’s decision is supported by sufficient evidence, is not legally incorrect, and is not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The hearing officer’s decision and order are affirmed.

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

LEO F. MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251-2237.

Thomas A. Knapp

CONCUR:

Elaine M. Chaney
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 24, 2003. The hearing officer decided that appellant (claimant) made a knowing election to pursue a remedy and recover workers’ compensation benefits in another state. Claimant appealed, contending that he did not willingly apply for benefits in another state. Respondent (carrier) asserts that claimant has submitted an untimely appeal and otherwise urges affirmance of the hearing officer’s decision.

DECISION

Claimant’s appeal not having been timely filed, the decision and order of the hearing officer have become final pursuant to Section 410.169.

Records of the Texas Workers’ Compensation Commission (Commission) show that the hearing officer’s decision was mailed to the parties on August 1, 2003. Claimant acknowledged receiving the hearing officer’s decision on August 5, 2003. Pursuant to Section 410.202 and Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 143.3(c) (Rule 143.3(c)), an appeal is presumed to be timely if it is mailed not later than the 15th day after the date of receipt of the hearing officer's decision and received by the Commission not later than the 20th day after the date of receipt of the hearing officer's decision. Section 410.202(d) was amended effective June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal. An appeal submitted by fax is deemed to have been sent on the day it is received. Rule 102.5(f)(1). Under the amended provision, 15 days from the claimant’s actual receipt of the hearing officer’s decision would have been August 26, 2003. Claimant faxed his request for review on August 26, 2003, at 9:30 p.m., and it was faxed again the next day. Claimant’s appeal is file stamped as having been received by the Commission on August 27, 2003. Rule 102.3(e) states that “[u]nless otherwise specified by rule, any written or telephonic communications required to be filed by specified time will be considered timely only if received prior to the end of normal business hours on the last permissible day of filing.” Rule 102.3(d) provides that “[a]ny written or telephonic communications received other than during normal business hours on working days are considered received at the beginning of normal business hours on the next working day.” Finally, Rule 102.3(c) establishes that “[n]ormal business hours in the Texas Workers’ compensation system are 8:00 a.m. to 5:00 p.m. Central Standard Time with the exception of the Commission’s El Paso field office whose normal business hours are 8:00 a.m. to 5:00 p.m. Mountain Standard Time.” Claimant’s appeal was filed on August 27, 2003, one day late and thus was untimely. See Texas Workers' Compensation Commission Appeal No. 022118, decided October 7, 2002.

The appeal being untimely, the jurisdiction of the Appeals Panel was not properly invoked and the decision and order of the hearing officer has become final under Section 410.169.

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 M. MOUNTAIN

6600 CAMPUS CIRCLE DRIVE EAST, SUITE 300

IRVING, TEXAS 75063.

Judy L. S. Barnes

CONCUR:

Margaret L. Turner
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 July 1, 2003. The hearing officer resolved the disputed issues by deciding that the respondent (claimant), who was injured in (state), is entitled to all rights and remedies under the 1989 Act and that he had disability resulting from the compensable injury sustained on ______________, from April 12 through October 6, 2002. The appellant (carrier) appealed, arguing that the hearing officer erred in finding that the claimant is entitled to all rights and remedies under the 1989 Act because the claimant made an election of remedies in favor of (state) workers’ compensation benefits and arguing that the disability determination was against the great weight and preponderance of the evidence. The claimant responded, urging affirmance.

DECISION

A timely appeal not having been filed, the decision and order of the hearing officer have become final pursuant to Section 410.169.

Pursuant to Section 410.202(a), a written request for appeal must be filed within 15 days of the date of receipt of the hearing officer’s decision. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal. Section 410.202(d). Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § Rule 143.3(c) (Rule 143.3(c)) provides that an appeal is presumed to have been timely filed if it is mailed not later than the 15th day after the date of receipt of the hearing officer’s decision and received by the Texas Workers' Compensation Commission (Commission) not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(c) must be satisfied in order for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 002806, decided January 17, 2001.

Records of the Commission show that the hearing officer's decision was signed for by the carrier's (city) representative on July 11, 2003. Using the applicable calculation method and the carrier’s receipt date of July 11, 2003, the carrier’s request for review must have been mailed or filed no later than Friday, August 1, 2003. The carrier’s appeal is dated August 4, 2003, and was filed with the Commission’s central office clerk of proceedings on August 4, 2003. The carrier’s appeal does not recite when it believes the hearing officer’s decision was received nor does it contain a jurisdictional paragraph to assist us in determining why the appeal was untimely. The carrier’s appeal is untimely as not having been mailed or filed on or before August 1, 2003.

The appeal being untimely, the jurisdiction of the Appeals Panel was not properly invoked, and the decision and order of the hearing officer have become final under Section 410.169.

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

RAY WILSON

9602 CABIN CREEK DRIVE

HOUSTON, TEXAS 77064.

Margaret L. Turner

CONCUR:

Elaine M. Chaney
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 was held on May 8, 2003. With respect to the issues before her, the hearing officer determined that the appellant (claimant) was not an employee of (CT) at the time of the claimed injury of ______________; that the claimant was an independent contractor pursuant to Section 406.121 on ______________; that the claimant was not in the course and scope of his employment at the time of his injury of ______________; that the claimant did not have disability because he did not sustain a compensable injury; and that the claimant “would be entitled to all rights and remedies under the [1989] Act if his ______________ injury was compensable.” In his appeal, the claimant asserts error in the determination that he was not an employee of CT at the time of his fall on ______________; that he was not in the course and scope of his employment at the time of his injury; and that he did not have disability. In its response, Liberty Mutual Insurance Company, respondent 1 (carrier 1), who was the workers’ compensation carrier for CT on ______________, urges affirmance of the determination that the claimant was not an employee of CT on ______________, but rather was an independent contractor. Clarendon Insurance Company, respondent 2 (carrier 2), who provided workers’ compensation coverage to the claimant in his work as an independent contractor, likewise urges affirmance of the determinations that the claimant was an independent contractor at the time of the alleged injury, that the claimant was not in the course and scope of his employment at the time of his injury, and that he did not have disability because he did not sustain a compensable injury. There was no appeal of the hearing officer’s extraterritorial jurisdiction determination and that determination has become final pursuant to Section 410.169.

DECISION

Affirmed.

The hearing officer did not err in determining that the claimant was an independent contractor at the time of the claimed injury and not an employee of CT. There was conflicting evidence presented on this issue at the hearing. As the fact finder, the hearing officer was required to resolve the conflicts and inconsistencies in the evidence and to determine what facts had been established. The hearing officer simply was not persuaded that the claimant sustained his burden of proving that he was an employee of CT on ______________. Rather, she determined that “the evidence demonstrated that the Claimant was operating as an independent contractor in connection with his work for [CT].” Nothing in our review of the record reveals that the hearing officer’s determination in that regard is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Thus, no sound basis exists for us to reverse that determination on appeal. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). Given our affirmance of the determination that the claimant was not an employee of CT at the time of his alleged injury, the hearing officer properly determined that carrier 1, CT’s workers’ compensation carrier, is not liable for benefits.

Next, we consider the claimant’s assertion that the hearing officer erred in determining that he was not in the course and scope of his employment on ______________, when he slipped and fell getting out of the cab of his truck in (city), (state), injuring his right knee, back, and groin. Again, conflicting evidence was presented on the issue of what the claimant was doing at the time he slipped getting out of the truck. The claimant maintained that he had delivered his load and was waiting to be dispatched for another load and that when he was getting out of the truck, he was on the way to a pay telephone to call CT’s safety department in response to a computer message he received on the computer in his truck about a ticket he had received because the trailer was missing a license plate. However, there was conflicting evidence that, at the time of his fall in the afternoon of ______________, the claimant was simply waiting to be dispatched for another load, after having refused a haul earlier that morning, due to problems with payment for a load to that customer in the past. The hearing officer resolved that conflicting evidence by determining that, at the time of his fall, the claimant was not “engaged in an activity that originated in or had to do with either his or [CT’s] business or that was performed in furtherance of either his or [CT’s] business or affairs.” That determination is supported by sufficient evidence and our review of the record does not reveal that it is so contrary to the great weight and preponderance of the evidence as to compel its reversal on appeal. Cain, supra.

Having affirmed the determination that the claimant did not sustain a compensable injury, we likewise affirm the determination that the claimant did not have disability. By definition, the existence of a compensable injury is a prerequisite to a finding of disability. Section 401.011(16).

The hearing officer’s decision and order are affirmed.

The true corporate name of insurance carrier 1 is LIBERTY MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEMS

350 NORTH ST. PAUL, SUITE 2900

DALLAS, TEXAS 75201.

The true corporate name of insurance carrier 2 is CLARENDON INSURANCE COMPANY and the name and address of its registered agent for service of process is

UNITED STATES CORPORATION COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Elaine M. Chaney

CONCUR:

Chris Cowan
Appeals Judge

Thomas A. Knapp
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 22, 2002. The hearing officer determined that respondent (claimant), who was injured in (state A), is entitled to all rights and remedies under the Texas Workers’ Compensation Act. Appellant (carrier) appealed this determination and contends that claimant was not hired or recruited in Texas. The file does not contain a response from claimant.

DECISION

We affirm.

We have reviewed the complained-of determinations and conclude that the issues involved fact questions for the hearing officer. The hearing officer reviewed the record and decided what facts were established. The hearing officer was entitled to disbelieve any of the testimony before her, including that testimony from claimant. The hearing officer could rely on evidence from the employer regarding where claimant was hired. We conclude that the evidence is minimally sufficient to support the hearing officer's determinations and that they are 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).

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 K. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Judy L. S. Barnes
Appeals Judge

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). Following a contested case hearing held on February 6, 2002, the hearing officer resolved the disputed issues by making certain findings of fact and by concluding that the appellant (claimant) sustained a compensable injury in the form of a lumbar strain/sprain on _____________, notwithstanding that the injury occurred in another state, and that the claimant had disability beginning on April 2, 2001, and continuing through May 28, 2001. The claimant has appealed the disability determination, contending that the evidence establishes her disability from May 29, 2001, through the date of the hearing, and that the hearing officer has misapplied the law in this area. The respondent (carrier) urges in response that the challenged determination is sufficiently supported by the evidence and that the hearing officer’s comments in his Statement of the Evidence do not reflect that he has misapplied the law on the disability issue. The findings and conclusions pertaining to the other disputed issues have not been appealed and have become final.

DECISION

Affirmed.

The claimant testified that on _____________, while working as a truck driver, she injured her low back moving and locking a lever on the truck she was driving for the employer in another state; that she was treated by Dr. F until July 18, 2001, the date she was to start physical therapy (PT), when the carrier filed a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) raising the jurisdictional defense and stopped the payment of her temporary income benefits (TIBs) and medical benefits; that Dr. F told her on her first visit to avoid heavy lifting, strenuous work, and driving; and that she could not afford further treatment until she changed treating doctors to Dr. S, who agreed to provide her with chiropractic care without immediate payment. The claimant further stated that she has not worked since _____________, because of the injury; that she resigned on March 30, 2001, because the employer told her she "could not go to a doctor and to continue with another load"; that "the doctors have told [her] to be off work"; and that Dr. F had told her she “would be out of work at least 12 months” and would need "extensive [PT]." The claimant’s medical records reflect that she underwent lumbar spine fusion surgery, L4-S1, in 1999; however, she acknowledged having checked “no” to “head or spinal injuries” on the employer’s health history portion of the physical examination form she signed on December 29, 2000. A Texas Workers’ Compensation Work Status Report (TWCC-73), signed by Dr. S on "11/29/2001," states that the claimant’s medical condition from the compensable injury has prevented and still prevents her from returning to work as of "11/29/2001" and is expected to last until at least "11/12/2001 [sic]."

The claimant had the burden to prove that she had disability as that term is defined in Section 401.011(16). The Appeals Panel has stated that in workers’ compensation cases, the disputed issues of injury and disability can, generally, be established by the lay testimony of the claimant alone. Texas Workers’ Compensation Commission Appeal No. 91124, decided February 12, 1992. However, the testimony of a claimant, as an interested party, only raises issues of fact for the hearing officer to resolve and is not binding on the hearing officer. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref’d n.r.e.). The hearing officer could conclude from the evidence that by May 29, 2001, when the carrier stopped paying TIBs, the claimant’s low back strain had resolved and was not a producing cause of her not working after that date. We do not view the hearing officer’s comments in his Statement of the Evidence as compelling the conclusion that he misapplied the law on disability and required the claimant to prove her claimed disability with medical evidence. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). As an appellate reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); 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 TRAVELERS INDEMNITY COMPANY OF CONNECTICUT and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75701.

Philip F. O’Neill
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Thomas A. Knapp
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 6, 2001, with the record closing on August 8, 2001. With respect to the issues before her, the hearing officer determined that the appellant (claimant) sustained a compensable repetitive trauma injury with a date of injury of ___________; that the claimant, whose injury occurred out of state, is entitled to all rights and remedies under the 1989 Act; and that the claimant did not have disability as a result of his compensable injury. In his appeal, the claimant contends that the hearing officer’s determination that he did not have disability is against the great weight of the evidence. In its response to the claimant’s appeal, the respondent (self-insured) urges affirmance. The self-insured did not appeal the extraterritorial jurisdiction and injury determinations, and they have, therefore, become final. Section 410.169.

DECISION

Affirmed.

The hearing officer did not err in determining that the claimant did not have disability from April 23, 2001, through the date of the hearing, as a result of his ___________, compensable injury. That issue presented a question of fact for the hearing officer. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a); Texas Employers Ins. Ass'n v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). There was conflicting evidence on the disability issue. It was for the hearing officer, as the trier of fact, to resolve the conflicts and inconsistencies in the evidence and to determine what facts had been established. Garza v. Commercial Ins. Co., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The hearing officer was not persuaded that the claimant sustained his burden of proving that he was unable to obtain and retain employment at his preinjury wage because of his compensable injury. In noting that the claimant did not meet his burden of proving disability, the hearing officer emphasized that the claimant was working in a light-duty position with the employer, that the claimant’s employment was terminated after he refused to take a drug test, and that the claimant testified that he would have been able to continue in the light-duty position had he not been fired. The hearing officer could rely on those factors in determining that the claimant did not have disability even though the claimant’s current treating doctor has taken the claimant off work. Nothing in our review of the record reveals that the hearing officer’s determination that the claimant did not have disability is so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. As such, no sound basis exists for us to reverse that determination on appeal. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The hearing officer’s decision and order are affirmed.

The true corporate name of the self-insured is TYSON FOODS, INC. and the name and address of its registered agent for service of process is

CT CORPORATION

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Elaine M. Chaney
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Robert W. Potts
Appeals Judge