On April 14, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding as the hearing officer. The hearing was held under the provisions of the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). The hearing officer determined that the appellant (claimant herein) was injured in the course and scope of his employment with his employer, the (employer), a self-insured political subdivision of this State (employer herein), on (date of injury), when he fell at work and aggravated a preexisting back condition, and the hearing officer ordered the self-insured employer to pay medical benefits. The hearing officer further determined that the claimant has not had disability as a result of his injury. The claimant contends that the hearing officer’s determination that he has not had disability is unsupported by the evidence and that the evidence conclusively shows that he has had disability since the date of his injury. The employer responds that the hearing officer’s decision is supported by the evidence and is not against the great weight and preponderance of the evidence. The employer did not appeal the determination of injury in the course and scope of employment.
DECISION
The decision of the hearing officer is affirmed.
Article 8308-4.23(a) provides that an employee who has disability and who has not attained maximum medical improvement (MMI) is entitled to temporary income benefits (TIBS). Article 8308-1.03(16) defines disability as the inability to obtain and retain employment at wages equivalent to the preinjury wage because of a compensable injury. We have previously stated that a claimant must show a causal connection between diminished wages and the compensable injury. Texas Workers’ Compensation Commission Appeal No. 92158, decided June 5, 1992. We review the evidence in this case to determine whether the hearing officer’s decision that the claimant has not had disability is supported by sufficient evidence and is not against the great weight and preponderance of the evidence.
On (date of injury) the claimant was working as a custodian for the employer. On that day he slipped while mopping a floor and fell on his back. The accident resulted in an aggravation of the claimant’s preexisting degenerative disc disease and spinal stenosis. The claimant was examined by (Dr. M), on April 8 and 29, 1991. Dr. M prescribed pain medication. The claimant said that Dr. M told him he could continue to work, but that he had to be “more careful, what I was doing.” After the accident, the claimant continued to work the same hours at the same wage until June 11, 1991, when he, and a number of other employees, were laid off by the employer. According to the claimant and (Mr. J), the director of the claimant’s department, the layoff was due to a financial crisis of the employer. The claimant applied for and received unemployment compensation benefits for 10 weeks. He has not worked since being laid off.
The claimant testified that during the time he worked for the employer after the accident, he did not work as fast as he had before the accident and had to take occasional breaks and sit down. He also said that coworkers helped him with some of his tasks, such as bringing in water from outside to mop the floors and climbing ladders. He testified to the effect that he didn’t think he would have been able to continue working at his job if he had not been laid off. The claimant’s two daughters testified that they did not believe that the claimant was able to work after his accident. Mr. J was unaware of the claimant having any difficulty performing his job after the accident.
The claimant said that his back pain and leg pain got worse over time and he continued to take pain medication that had been prescribed by Dr. M. However, he did not return to see Dr. M until March 24, 1992, almost 11 months after his last visit. Dr. M’s patient note of March 24th revealed that the claimant told him he had “a little low back pain off and on for the last year without much relief with the Dolobid,” and that he had not had any pain radiating down his legs. The claimant’s next and last visit to Dr. M was on June 1, 1992, when he complained of back and thigh pain. Dr. M’s records do not indicate that he ever recommended that the claimant not work.
Dr. M referred the claimant to (Dr. F), whom the claimant saw on June 16 and 30, 1992. Dr. F stated in his report of June 16, 1992, that “[t]he patient states that he injured his back on 4/5/91, when he slipped backwards and fell on a wet floor. He has not been able to work since that time.” The claimant admitted at the hearing that he had stated to Dr. F that he had not worked since his accident and acknowledged that that statement was not true because he had worked for two months after his accident and was then laid off. Dr. F diagnosed: 1) Atherosclerotic coronary artery disease, status post-op bypass (the claimant had bypass surgery in 1989); 2) Tuberculosis, apparently in remission; 3) Diabetes under treatment; 4) Iodine allergy; and 5) Lumbar stenosis with bilateral symptoms, worse on the left. Dr. F opined that the claimant’s fall at work aggravated his preexisting spinal stenosis. Dr. F stated that a surgical procedure on the claimant’s back was indicated but that the claimant was not a good surgical candidate and that the claimant was not interested in having an operation. In a letter to the claimant’s attorney dated February 15, 1993, Dr. F stated that “[a]ccording to my notes from June 16, 1992, the patient had not been able to work since his injury of 4/5/91. It is my opinion that [the claimant’s] disability started at that time and has continued through the present.”
In July 1992, the claimant had one of his daughters fill out a job application for him in which he applied for a custodian job with the employer. The claimant signed the application and it was submitted to the employer. Mr. J said that the job was not available when the claimant applied. On the application form, the claimant indicated that he did not have any physical limitations that precluded him from performing the work for which he applied. The claimant said that he applied for the custodian job because he thought the employer would give him light duty work. Light duty work is not mentioned on the application.
The hearing officer determined that the claimant suffered no disability as a result of his injury of (date of injury). The hearing officer is the trier of fact in a contested case hearing and is the sole judge of the weight and credibility to be given to the evidence. Articles 8308-6.34(e) and (g). The hearing officer resolves conflicts and inconsistencies in the testimony and in expert medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The opinion evidence of expert medical witnesses is but evidentiary, and is not binding on the trier of fact. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.). The hearing officer may believe all, part, or none of the testimony of any witness. Burelsmith v. Liberty Mutual Insurance Company, 568 S.W.2d 695 (Tex. Civ. App.-Amarillo 1978, no writ). The weight to be given to the February 15, 1993, letter of Dr. F was for the hearing officer to determine. In doing so, he could properly consider the claimant’s acknowledgment that he had given Dr. F incorrect information concerning his work history after the accident. Having reviewed the record, we conclude that the hearing officer’s determination of no disability is supported by sufficient evidence and that it is not against the great weight and preponderance of the evidence. Evidence of a causal connection between the claimant’s diminished wages and his compensable injury was lacking in this case.
The decision of the hearing officer is affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge