This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-1.01-11.10 (Vernon Supp. 1993) (1989 Act). A contested case hearing was held in (city), Texas, on May 19, 1993, before hearing officer (hearing officer). The record closed on May 28th. The appellant, hereinafter carrier, alleges error in the hearing officer’s determination that the claimant suffered a compensable injury in the course and scope of her employment on (date of injury), and that the claimant suffered disability as the result of the compensable injury. There was no reply by the claimant.
DECISION
We affirm the hearing officer’s decision.
The claimant testified that she was employed by (employer), doing general cleaning at a bank building. Her shift was approximately 5:45 p.m. to 10:00 p.m., and she said it was her practice to empty trash first, then vacuum, and finally to dust. On the evening of (date of injury), she testified that she experienced a “tingling, burning sensation” in her lower back while pulling trash out of a barrel at around 9:45 p.m. Later on that night, she said she also felt pain in her back as she vacuumed. Although she finished her shift that night, she said she called downstairs to the office and told the person who answered to send someone up. She said (Mr. M) came up, and she told him she had hurt her back while pulling the trash and vacuuming. She said he did not reply, but stayed on the floor with her. Claimant’s unsigned, transcribed telephone conversation with carrier’s representative said that on (month) 3rd claimant told “some of the ladies that work there” that she had hurt her back, but indicated that she did not talk to Mr. M until the following day. Claimant said at the hearing that the answers contained in the transcription were inaccurate.
The next day the claimant said her back was hurting and she called her employer and spoke with (Ms. B) about seeing a doctor. Medical records from Hospital show claimant was seen there on (month) 4th and diagnosed with low back sprain. The report also said, in part, “[u]pper back pain x 1 day lifted heavy trash can at work . . . .” She subsequently was seen once by a doctor at Primacare. She began treating with (Dr. W) on (month) 15th, and at the time of the hearing she was still seeing him. On March 22, 1993, Dr. W wrote that his current diagnosis was lumbar radiculitis, lumbalgia, lumbar myofascitis, and thoracic myofascitis.
The claimant had been in a bus accident in (date of injury), for which she was hospitalized and prescribed physical therapy. Her final diagnosis by (Dr. C) was “acute cervical myocitis (sic) with strain, generalized body contusions, and lumbosacral myositis with strain.” Dr. W wrote in his March 22, 1993 letter that “[i]t is my opinion that [claimant’s] current injuries are different and unrelated to her prior injuries because of mode of onset and symptomatology.”
Mr. M, employer’s project manager, testified that claimant called employer on the morning of (month) 4th and spoke to Ms. B, telling her she was not coming in to work. At that point, Mr. M got on the telephone and was told by claimant, “I had a prior auto accident around ten years ago, and I’m down in my back.” He said she told him she intended to go to the hospital and he agreed that she should do so.
Mr. M said he did not know that claimant was contending she had suffered a work-related injury until she called on (month) 7th to say she had “hurt herself Thursday night.” Mr. M said that when he asked her why she had not told him that when she called before, claimant maintained that she had done so. Mr. M said he filled out an Employer’s First Report of Injury after talking to her, and that he would have filled out such report on (month) 4th had she said she had hurt herself on the job.
Mr. M also said that he could not recall whether he had worked the night of (month) 3rd, but denied going up to discuss claimant’s injury with her, because he believed he would have remembered doing that if she had called and reported an injury. A late-filed exhibit which contains printouts for Mr. M’s electronic access cards purports to show either no access to the 19th floor, where claimant contended she was working, or access to unnamed floors at a time later than the time claimant estimated she had been injured (9:45 p.m.).
The claimant said she attempted, on an unspecified date, to return to light duty work with employer (cleaning restrooms), but that she was unable to do the work. She said her most recent job prior to this one was also doing cleaning work for a maintenance company, where she worked for four years; she said she lost no time between the end of that job and the beginning of her employment with employer.
Specific and Subsequent Medical Reports (Form TWCC-61) of Dr. W show that Dr. W on visits of (month) 29, 1992 and January 19, 1993, estimated that claimant could return to limited work on February 16th and to full time work on March 16th. At a February 10th visit Dr. W estimated claimant could return to limited work on March 16th and full time work on April 16th; on March 24th he estimated she could do limited work on April 16th and full time work on May 16th. Dr. W’s March 22nd letter did not mention claimant’s work status.
At the benefit review conference the parties agreed that the claimant would see . (Dr. DW) for a required medical examination under Article 8308-4.16, in an attempt to resolve the issue of disability. Following an April 9th exam, Dr. DW wrote his recommendation that claimant undergo an active exercise and stabilization program for the short term, with weight reduction a long-term recommendation. He said that if the claimant improved satisfactorily, “then I think she could go back to work after the physical therapy program. If not improved, then we would recommend some confirmatory tests,” including a possible MRI of the lumbar spine.
As the carrier states in its first point of error concerning whether the claimant sustained an injury in the course and scope of her employment, this case turns largely on the veracity of the claimant. The carrier cites to numerous conflicting and contradictory statements made by the claimant, and notes that the hearing officer’s summary of evidence says the claimant “was less than consistent when she testified concerning what she allegedly told [Mr. M] about her injury on the evening in question.”
Despite the foregoing, the 1989 Act provides that the hearing officer is, among other things, the sole judge of the weight and credibility of the evidence. Article 8308-6.34(e). As the trier of fact, the hearing officer resolves conflicts and inconsistencies in the evidence. Garza v. Commercial Insurance Co. of Newark, N.J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). He or she is privileged to believe all, part, or none of the testimony of any one witness. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). While another fact finder might well have drawn different inferences from the evidence than those drawn by the hearing officer, this is not, in and of itself, a sound basis for reversal. Texas Workers’ Compensation Commission Appeal No. 92113, decided May 7, 1992. We will set aside the hearing officer’s decision only if it is so against the great weight and preponderance of the evidence as to be manifestly unfair and unjust. Pool v. Ford Motor Company, 751 S.W.2d 629 (Tex. 1986).
The carrier also contends in its second point of error that the claimant did not meet her burden of proving disability from (month) 4, 1992 to the date of the contested case hearing. This panel has ruled that the 1989 Act does not limit the evidence that may be considered concerning the question of disability. Texas Workers’ Compensation Commission Appeal No. 92202, decided July 13, 1992. Disability can be established by the claimant’s testimony even if contradicted by medical evidence, and an unconditional medical release does not by itself equate to an end of disability although it certainly constitutes probative evidence. Texas Workers’ Compensation Commission Appeal No. 92299, decided August 10, 1992.
The record below contains evidence both contrary to and in support of disability. The claimant’s unrefuted testimony was that she attempted to return to light duty work for employer but was unable to perform. Her treating doctor gave prospective dates by which he estimated she could return to full duties, but nothing in the record indicates whether the last date given–May 16th, predating the contested case hearing–was ever amended. Likewise, Dr. DW gave claimant a conditional release to work pending further therapy, nothing in the record indicated whether such was ever accomplished. While, as with the issue of injury, different minds could reach different results, we do not hold that the hearing officer’s determination on disability was so against the great weight of the evidence as to be manifestly unfair. Pool v. Ford Motor Co., supra.
Finally, the carrier questions whether the findings of fact as submitted are valid, as the hearing officer who signed the decision and order did not conduct the hearing. The hearing was conducted by hearing officer (hearing officer), and the decision and order is signed ” FOR Hearing Officer.” On its face, the order does not indicate that it was rendered by anyone other than the hearing officer who heard the case, nor is there any other evidence that this was not the case. (We note that at the close of the hearing the hearing officer mentioned his upcoming separation from the Texas Workers’ Compensation Commission, but added, “but because of this and other matters, I guess I’ll be here a little bit longer. I’m going to have to extend that a little bit.”) We find that no error has occurred with respect to Article 8308-6.34(g), which requires a hearing officer to issue a written decision including findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits.
The decision and order of the hearing officer are affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Robert Potts – Appeals Judge