On May 23, 1996, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issues at the CCH were whether the appellant (claimant) sustained a compensable injury on ____________, and whether the claimant has had disability. The claimant appeals the hearing officer’s decision that she did not sustain a compensable injury on ____________, and that she has not had disability. The respondent (self-insured employer) requests affirmance.
DECISION
Affirmed.
The claimant, who is a 47-year-old teaching assistant, testified that she sustained lower back injuries at work in 1991 and in 1993. An MRI scan was done following each injury and each showed a herniated disc at L5-S1. The claimant said that following her 1993 injury, she returned to work for a few weeks in July 1994 and then was taken off work by her treating doctor, Dr. B, until March 1995, when she returned to work. Dr. B reported in January 1994 that he had discussed surgery with the claimant. The claimant said that on ____________, she felt lower back pain when she bent over to fix a copy machine at work. She claimed she sustained a compensable back injury on that date. She said she had been taking pain medication from the time of her 1993 injury to September 1995, but that she did not take it every day. Dr. B reported that he saw the claimant on September 8, 1995, and that the claimant told him at that time that walking up and down stairs at work hurt her back. Dr. B reported on September 28, 1995, that an MRI scan done on September 25, 1995, showed a severe progression of the claimant’s herniated disc and he referred the claimant to Dr. P for surgery. In December 1995, Dr. B wrote that, in his opinion, the claimant had reinjured her back at work. The claimant said she had back surgery performed in February 1996. At the carrier’s request, Dr. S reviewed the 1992, 1993, and 1995 MRIs. He reported that, with regard to the L5-S1 level of the claimant’s back, the 1992 MRI showed a 3 mm herniation, the 1993 MRI showed a 4 mm herniation, and that the 1995 MRI showed a 7 mm herniation. He stated that “already by the 1992 MRI the L5-S1 protrusion was a focal herniation and the degenerative facet joint changes were manifest similar to their appearances in 1995” and that “the L5-S1 disc herniation shows a tendency to grow from 1992 through 1995.” He further stated that “it is not necessarily true, or even necessarily likely, that a discrete injury underlies the enlargement or further extrusion of a herniation, as we have seen here.” He also stated that the MRI studies “do not constitute reliable evidence for a particular theory of injury.”
The claimant claimed that on ____________, she suffered a new injury at work or suffered a new injury by way of a compensable aggravation of her previous injuries. The carrier argued that the claimant’s condition is not a new injury or a compensable aggravation of a prior injury, but is a continuation of her prior injuries. The hearing officer found that “on ____________, the claimant did not suffer a new back injury, nor did she suffer an aggravation to her 1993 back injury.” He further found that “on ____________, and the preceding period of time, the claimant experienced a reoccurrence of her back pain and the natural progression of a disc herniation from her 1993 back injury.” He concluded that the claimant did not suffer a compensable back injury on ____________.
The claimant has the burden to prove that she was injured in the course and scope of her employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). The aggravation of a preexisting condition can constitute an injury; however, the claimant has the burden to prove that an aggravation occurred when that is alleged. Texas Workers’ Compensation Commission Appeal No. 94428, decided May 26, 1994. We have stated that “whether a claimant sustained an aggravation which amounts to a new injury or merely suffered a continuation of an original injury is a question of fact for the fact finder.” Texas Workers’ Compensation Commission Appeal No. 93515, decided July 26, 1993. The hearing officer is the judge of the weight and credibility of the evidence. Section 410.165(a). The hearing officer resolves conflicts in the evidence, including the medical evidence, and may believe all, part, or none of the testimony of any witness. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. We conclude that the hearing officer’s decision that the claimant did not suffer a compensable back injury on ____________, is supported by sufficient evidence and that it is not so contrary to the overwhelming weight 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 that the claimant did not have disability as a result of the claimed injury of ____________, is correct in light of our affirmance of his decision that the claimant did not suffer a compensable injury on that date.
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Thomas A. Knapp – Appeals Judge