This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). On June 2, 1993, a contested case hearing (CCH) was held in (city), Texas, with (hearing officer) presiding. The issues to be determined at the CCH were: Is the Claimant’s current disability a result of the injury on (date of injury); has Claimant reached maximum medical improvement (MMI); and, what is Claimant’s impairment rating? The hearing officer determined that claimant sustained a compensable injury on (date of injury), that claimant’s disability began on May 21, 1992, and ended on June 11, 1992, and then recurred on December 21, 1992, and continued through the date of the CCH, June 2, 1993, and that claimant has not reached MMI.
Both parties, claimant and carrier, filed timely appeals. Carrier contends that claimant’s disability was due solely to a pre-existing condition, that claimant does not have a disability as defined by the 1989 act due to a (date of injury), injury, and that in the alternative, if the claimant did sustain a compensable injury on (date of injury), that claimant did not timely dispute (Dr. E) MMI certification of June 4, 1992, with zero percent impairment. Claimant also appealed, contending that he had disability beginning May 21, 1992, to the present, including the period of June 11, 1992, to December 21, 1992. Carrier filed a response as part of its appeal. Claimant did not file a response.
DECISION
The decision of the hearing officer is affirmed.
Claimant was the only witness to testify at the hearing. He stated he had sustained a compensable workers’ compensation injury to his back in Arizona in 1989. Claimant stated he had held one or more jobs before coming to Jordan Paving Corporation (employer). In 1991, while unemployed, claimant was hospitalized on November 10th for “muscle spasms” in his back. Subsequently, on November 27, 1991, claimant had a CAT scan of his lumbar spine for, as claimant testified, “a pre-employment physical.” Eventually, claimant was hired by the employer on or about May 10, 1992. On (date of injury) claimant states he was alone when he reinjured his back while lifting an auto part for the employer. A coworker, (EG), who claimant testified was “not very bright,” states he was helping claimant with the auto part when claimant injured his back. Claimant testified he did not report the injury the day it happened because he “thought it was a pulled muscle” and that it would get better. The following day, when the injury did not get better, claimant reported it to his supervisor, (AZ). The employer sent claimant to the company’s doctor, Dr. E. Claimant saw Dr. E two or three times and then claimant stated he asked to be seen by another doctor. According to claimant, this made Dr. E “upset” and Dr. E released claimant to go back to work. Subsequently, on June 11, 1992, claimant tried to go back to work and was fired for lying on his pre-employment physical. Initially the carrier accepted liability and the employer contested compensability of the injury under the provisions of Article 8308-5.10(4); however, at the CCH the employer withdrew its contest of compensability and agreed that claimant sustained an injury on (date of injury). The carrier then defended in this action.
After being terminated by the employer, claimant worked for (employer) in November 1992, but was fired after a few days because he lacked diesel mechanic skills. Claimant testified his back pain increased in December 1992, and he eventually saw (Dr. P). Claimant, on January 6, 1993, required emergency surgery by Dr. P for a herniated disc. Claimant contends he has not been released to return to work and that Dr. P has recommended a work hardening program, which apparently has not been approved by carrier. Dr. P, in an undated Report of Medical Evaluation (TWCC-69), certified claimant had reached MMI on “4-7-93” with a 10% whole body impairment. Claimant testified he asked Dr. P to certify MMI because claimant thought it was needed to settle his case at the benefit review conference (BRC). Dr. P subsequently explained his April 7, 1993, MMI certification in a May 12, 1993, report.
The medical evidence consists of a CAT of the lumbar spine dated December 28, 1989, showing “mild bulging at L4-5 of doubtful clinical significance, otherwise unremarkable. . . .” A November 27, 1991, previously referred to, CAT scan of the lumbar spine shows: “1. Mild midline disc bulging at L4-5 and L5-S1. 2. Otherwise unremarkable. . . .” As previously mentioned, Dr. E saw claimant on May 21, 1992, and, on an Initial Medical Report (TWCC-61), diagnosed “back strain” with an “undetermined” diagnosis. On an undated TWCC-69 Dr. E notes “[p]atient desires no further care from me” and certified MMI on June 4, 1992, with zero percent impairment. Claimant apparently saw (Dr. H), a chiropractor, for back pain on May 23, 1992, but Dr. H did not take claimant off work. Claimant was seen in a hospital emergency room (ER) for lower back pain on May 26, 1992, with a diagnosis of sciatica. At a BRC on November 12, 1992, the parties agreed that claimant would be seen by (Dr. O) but Dr. O was not agreed upon nor appointed as a designated doctor. Dr. O on a TWCC-69 dated November 25,1992, and accompanying narrative reports stated MMI had not been reached and that claimant’s back injury “may be an exacerbation of his previous injury in 1989 but certainly it appears that he has a new injury at least as far as exacerbation at this time.” In response to various correspondence with carrier’s adjustors, Dr. O stated by report dated March 1, 1993, “[i]n my opinion this man’s injury of (date of injury), did result in the disc injury and the necessity of the subsequent surgery.”
Dr. P became the primary physician in latter 1992. On a TWCC-61 dated December 21, 1992, he ordered an MRI. The December 29, 1992, lumbar MRI revealed: “1. Degenerating intervertebral discs at L4-5 and L5-S1. 2. Disc protrusion at L5-S1 centrally and to the right. 3. Mild disc protrusion at L4-5 centrally.” In a letter to carrier’s adjustor dated January 28, 1993, Dr. P stated claimant has legitimate back complaints but “. . . he probably has exaggerated in the past his pain and discomfort in order to get additional narcotics but I do think he had a legitimate injury.” In another letter dated January 27, 1993, Dr. P stated claimant “is a narcotics abuser” and “probably has a personality disorder as well. . . .” In both Dr. P’s January 27 and 28, 1993, letters he states that claimant “is a very skillful and manipulative patient.” In a report to carrier’s adjustors dated April 12, 1993, Dr. P compares the November 27, 1991, MRI with the December 29, 1992, MRI and states they are different and that claimant had a herniated disc which is why he underwent surgery. In a Specific and Subsequent Medical Report (TWCC-64) dated May 12, 1993, Dr. P comments on his April 7, 1993, MMI certification and recommended claimant “is still off work at this time.”
Evidence in the form of a transcribed statement of an official of the “Arizona State Fund” indicates claimant sought to reopen his 1989 Arizona workers’ compensation claim on December 16, 1991, and again on May 27,1992, stating that “his back still hurts.” Claimant’s request was denied in that his Arizona case was closed and all benefits terminated on May 31, 1991.
Based on the facts, the hearing officer concluded in pertinent part:
CONCLUSIONS OF LAW
2.Claimant’s current disability is the result of a back injury sustained on (date of injury), while working for [employer].
3.Claimant’s disability began on May 21, 1992, and ended on June 11, 1992.
4.Claimant’s disability recurred on December 21, 1992, and continues through June 2, 1993, the date of this hearing.
5.Claimant timely disputed [Dr. E’s] certification of [MMI] and impairment rating.
6.Claimant has not reached [MMI].
7.Claimant cannot be evaluated for impairment because he has not reached [MMI].
Carrier contends that the hearing officer erred in concluding claimant’s current disability is a result of the (date of injury), injury. To support this position, carrier cites the inconsistencies in claimant’s testimony to include claimant’s November 1991 hospitalization for back spasms followed by a CAT scan claimant contends was for a pre-employment physical, and the fact that claimant had on two occasions, in December 1991 and May 1992, attempted to reopen his 1989 Arizona workers’ compensation case saying his back was “still hurting.” We agree that claimant’s testimony is rife with inconsistencies and contradictions. However, it is the province of the hearing officer to resolve those conflicts and inconsistencies in the evidence and testimony. Garza v. Commercial Insurance Co. of Newark, N.J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The hearing officer’s conclusion that claimant’s current disability was a result of the (date of injury), injury is supported by not only claimant’s weak and contradictory testimony, but also Dr. O’s report and opinion where he states that in his opinion claimant’s injury of (date of injury), resulted in the disc injury and necessity of subsequent surgery, as well as Dr. P’s unequivocal statements that claimant had a legitimate injury due to the (date of injury), accident. Dr. P supports this opinion by comparing the November 1991 MRI and the December 1992 MRI which “were different.” In Texas Workers’ Compensation Commission Appeal No. 92308, decided August 20, 1992, we stated: “We note that different inferences might reasonably be drawn from the evidence but this is not a sufficient basis to reverse a decision where there is some probative evidence sufficient to sustain a decision.” See also Commercial Union Assurance Company v. Foster, 379 S.W.2d 320 (Tex. 1964). We also note that the mere fact that a claimant has a pre-existing injury which enhances or aggravates the injury complained of, does not in itself defeat his right to recover. See Texas Workers’ Compensation Commission Appeal No. 93317, decided June 4, 1993, and Texas Employers’ Insurance Association v. Page, 553 S.W.2d 98 (Tex. 1977). The court in Page held “. . . to defeat the [employee’s] claim for compensation because of the pre-existing injury, [the carrier] must show that the prior injury is the sole cause of [the employee’s] present incapacity.” (We note that the term “incapacity” was used under the “old law” and is not a term as such under the 1989 Act.) We find that the hearing officer’s determination on this point is supported by sufficient evidence.
We note the carrier’s comments regarding the implausibility of some of claimant’s contentions, the fact that claimant’s own doctor, Dr. P, believes claimant is “a very skillful manipulative patient” and that in his opinion claimant was going “to use this injury to the fullest for his benefit.” Dr. P also states he believes claimant is a narcotics abuser as evidenced by his frequent use of hospital ERs for “pain medication.” However, all of these contentions and allegations go to the credibility to be given to the statements and the hearing officer is the sole judge of the weight and credibility to be given to the evidence. Article 8308-6.34(e). The hearing officer apparently believed enough of claimant’s testimony, supported by the medical evidence of Drs. O and P, to find that claimant’s current disability is due to the (date of injury), injury rather than the 1989 injury.
Carrier further contends that even if the disability was a result of the (date of injury), injury claimant did not timely dispute the MMI certification of Dr. E pursuant to Texas W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)). Rule 130.5(e) states:
(e)The first impairment rating assigned to an employee is considered final if the rating is not disputed within 90 days after the rating is assigned.
In Texas Workers’ Compensation Commission Appeal No. 92542, decided November 30, 1992, and Texas Workers’ Compensation Commission Appeal No. 92693, decided February 8, 1993, we held that whether a claimant had actually disputed an impairment rating (and by implication MMI (Texas Workers’ Compensation Commission Appeal No. 92561, decided December 4, 1992)) under Rule 130.5(e) would be fact specific in each case and that “we would agree that it would require some stretch of the imagination to find that claimant could dispute a doctor’s report before he was aware that it was rendered.” Carrier contends “that there is no probative evidence to establish that the claimant timely disputed this rating.” We do agree that claimant answered “Yes” to the question: “Did [Dr. E] tell you in June of 1992 that he rated you an (sic–maybe should be on) MMI and given you a 0 – percent impairment?” Similarly, on page 94 of the transcript, this exchange is noted:
Q.Did [Dr. E] tell you that he had rated you at MMI on June 4th of ’92?
A.He told me right there.
Yet virtually at the same time, claimant states he did not know of Dr. E’s June 4th rating until the BRC on April 19, 1993. Claimant explains his statements by saying about Dr. E’s rating “I didn’t say he physically told me. I know that from that piece of paper.” The hearing officer judges the credibility of the witnesses and, as trier of fact, may accept some parts of a witness’s testimony and reject other parts of that testimony where the testimony is inconsistent or contradicted. Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). Here, the hearing officer obviously chose to believe those portions of the claimant’s testimony where he stated he was unaware of Dr. E’s rating until the BRC.
Claimant, in his appeal, states he believes he “should be paid through my entire disability including June 11, 1992 (sic) December 21, 1992.” We would note that claimant was fired by the employer on June 11, 1992, when he returned to work “because he had lied on his pre-employment physical.” There is no evidence of any medical treatment after June 11th until claimant began treatment with Dr. P in December 1992. In November claimant worked for a period of time (either three days or 10 days) for (employer)., when he was terminated because of lack of diesel mechanic skills rather than an inability to work because of his injury. Consequently, there is no evidence that claimant had disability where he was unable to obtain and retain employment at his pre-injury wage because of his compensable injury. Article 8308-1.03(16). Consequently, the hearing officer’s determinations that claimant was physically able to work and did not have disability are sufficiently supported by the evidence.
Where, as here, there is sufficient evidence to support the hearing officer’s determinations, there is no sound basis to disturb his decision. Only if we were to determine that the decision of the hearing officer was so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust would we be warranted in setting aside his decision. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986); In re King’s Estate, 244 S.W.2d 660 (Tex. 1951).
The decision of the hearing officer is affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Gary L. Kilgore – Appeals Judge