This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 1.01 through 11.10 (Vernon Supp. 1993). On June 4 and June 7, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. He determined that appellant (claimant) was not injured by slipping and falling at work and incurred no disability. Claimant asserts that the great weight of the evidence shows that a fall and injury took place which caused claimant’s inability to obtain and retain work.
DECISION
We affirm.
At the hearing the issues were stated to be: (1) whether claimant was compensably injured on (date of injury); and, (2) has the claimant had disability at any time since (date of injury).
Article 8308-6.42(c) of the 1989 Act states that the Appeals Panel “shall determine each issue on which review was requested.”
The Appeals Panel determines:
That the determination of the hearing officer that claimant was not injured in the scope of employment is not against the great weight and preponderance of the evidence.
That the determination of the hearing officer that claimant has not had disability as a result of an injury at work is not against the great weight and preponderance of the evidence.
Claimant worked for (employer). He testified that he used a probe to sample grain coming into the elevator by truck. He stated that on (date of injury):
“Well, I was taking a hand probe…And I had to do it by hand, so I got up on that stand. And it was a cold day, and as soon as I took that probe out of there, I missed my step, so I just fell back and landed on my butt.”
Claimant also testified that he kept working. He took the probe into the office so the grain could be tested. (BB) was in the office and commented that she saw him slip. He did not tell her he landed on his back or that he was hurt. Later in the day, claimant stated that he talked to (FL) and (JJ) about the fall and JJ said that he saw it. Claimant said he was fired on February 8, a Monday, and first went to the doctor on February 10, where he gave a history of having fallen at work on (date of injury). Claimant stated that while he had helped to wash cars since that time, he has not been able to work, pointing out that the doctor took him off work.
BB testified that she remembered seeing the claimant probing a grain truck when he slipped. She said claimant was on the “probe stand” when she saw him slip, but her view was obstructed so she could not tell whether he fell. Claimant then came in her office with the probe stick for testing and BB testified:
AAll I said to him was, “a little bit more and you would have busted it, wouldn’t you?”
QOkay. But do you know whether or not he fell?
ANo.
QOkay. You’re not sure one way or the other?
ANo.
QOkay. Did he ever tell you that day that he was hurting or anything?
ANo.
BB added that claimant did not appear hindered in his movement, did not complain, never said he hurt himself, and kept probing trucks the rest of the day. She added that the slip she saw could have been in the last two weeks of January; she was sure it was not the first week of February, but she was not sure of the date.
FL testified that he had no conversation about claimant falling on February 3. He recalls that JJ did tell him at some point that he had seen claimant on his knees four days earlier. FL stated that claimant left work early on Thursday, February 4 and did not come to work Saturday morning, February 6, as he was required to do. He said that when he told his boss, (JR) that claimant did not show up on Saturday after leaving early on Thursday, he was told to “get another hand”. On Monday, February 8, FL told claimant he was fired when claimant came to work. Up to that time FL did not observe claimant acting abnormally on the job, and claimant had not said anything about an injury until after FL told him he was fired. FL and claimant are cousins. (Claimant testified that he went to H&R Block on Thursday and Saturday to see about getting a quick refund of his tax; he said that JJ gave him permission to do so.)
JR testified that when he was told of claimant’s leaving work on Thursday, February 4, and not coming to work on Saturday, February 6, he told FL to terminate him. He had not heard of any injury at that time or prior to the time claimant was fired. His inquiry about the incident, after being told by claimant that he slipped and fell, indicated that BB had seen a slip in the time period of January 15 to January 21. JR also said that claimant never appeared to be in pain or limited in any way in his ability to work until the time he was fired.
JJ testified that he was retired now. He remembered seeing claimant fall and testified:
QOn February the 3rd, did you see him slip and fall when he was probing for grain?
AYeah I saw him fall, but I don’t know what day it was. Yeah, I saw him fall.
QOkay, You didn’t see him when he landed, you just saw him when he was getting up on his knees; is that right?
AWell, yeah.
He also testified:
QOkay. And you didn’t see how he landed, but you saw him when he was getting up?
AYeah.
QDid you see him when he was up top about to fall:
AWell, I seen him–I saw him when he was falling. He was getting–he was getting down off the truck.
When asked if claimant had ever said anything about being hurt, about having difficulty doing his work, or about needing to take off work to take care of his taxes, JJ could not remember any of those having happened.
Claimant’s wife testified that claimant came home on February 3, and complained of having hurt his back. She said that his lower back was bruised and added:
And he said, “They’re just probably bruises. It’s–I don’t know if I’m injured or not, but in time I will find out, if I keep hurting.”
She stated that she and claimant went to H&R Block on Thursday and Saturday before claimant was fired, and claimant saw the doctor on February 10, for the first time.
The medical records of (Dr. M) indicate that claimant saw him on February 10 and related that he had fallen at work on February 3. The history reflects that claimant fell five feet backwards and landed on his left hip and leg. The doctor found tenderness and assessed a strain. He noted that claimant should do no heavy work for one week. On March 31, 1993, (Dr. T) wrote to Dr. M that x-ray shows “partial lumbarization of the S1 vertebra.” He found no other abnormalities. (Dorland’s Illustrated Medical Dictionary, Twenty-sixth edition, states that lumbarization means “a condition in which the first segment of the sacrum is not fused with the second, so that there is one additional articulated vertebra and the sacrum consists of only four segments.”)
The findings of fact appear to indicate that the hearing officer found that claimant fell on February 3, but did not injure himself in the fall. There is no finding of fact that claimant fell on a date in mid-January. A slip and fall on February 3 followed by a visit to the doctor on February 10 does not indicate a prolonged sequence of time between the two events. The medical record of February 10, however, indicates no serious injury, no reference to bruising on the lower back, and reflects claimant’s account of what happened.
No one at work indicated that claimant said he had hurt himself or that his work in any way indicated that he was injured. BB saw claimant slip but does not know how he landed and when she commented that he “almost busted it”, claimant did not contest her statement.
The court in Daylin, Inc. v. Juarez, 766 S.W.2d 347 (Tex. App.-El Paso 1989, writ denied), considered a recovery by a man who was on a pile of railroad ties in a store when it collapsed. Therein, the court said that “the lay proof of the sequence of events, his objective symptoms of pain and discomfort fortified by evidence of timely treatment, produced a logical, traceable connection between the accident and the result.” While that court only had to affirm a finding of recovery, it considered objective symptoms of pain and discomfort plus timely treatment as sufficient support therefor. In the case before us on appeal, timely treatment could have been found, but the only evidence of pain and discomfort prior to February 8, when he lost his job, came from claimant and his wife. Compare to Griffin v. TEIA, 450 S.W.2d 59 (Tex. 1969) where the court called injury to the eye “speculation” when the employee did not seek medical care for more than two weeks, did not stop work, and did not tell his co-workers-although neither he nor his wife testified to developing symptoms either.
Galvan v. U.S. Fire Ins. Co., 629 S.W.2d 209 (Tex. App.-Amarillo 1982, writ ref’d n.r.e.) considered it within the province of the fact finder to determine whether an employee was injured when he had been in a motor vehicle accident while on the job and had showed his employer his scratched arm the day after the accident. The court refused to reverse a determination that Galvan had not been injured. Compare to Texas Workers’ Compensation Commission Appeal No. 91085, decided January 3, 1992, in which a decision of no injury was reversed based on witness evidence of a chain hitting claimant.
While the evidence may lend itself to different inferences or conclusions than those drawn by the hearing officer, that is not a sufficient basis to reverse the decision. See Garza v. Comm. Ins. Co. of Newark, N.J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974,
no writ). The appeals panel will only reverse on a factual determination when the decision is against the great weight and preponderance of the evidence. See Traylor v. Goulding, 497 S.W.2d 944 (Tex. 1973).
The determination of the hearing officer that claimant did not sustain a compensable injury is affirmed; without a compensable injury, there is no issue of disability.
Joe Sebesta – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge