A contested case hearing was held in (city), Texas, on January 20, 1993, before hearing officer, (hearing officer), under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. LAB. CODE ANN. § 401.001, et seq. The hearing was recessed to allow the inclusion in the record of current medical records and reports, with the record in the hearing closing on June 29th. The single issue for resolution was whether the appellant (hereinafter claimant) had disability beginning August 31, 1991, as a result of her injury of (date of injury). The claimant appeals from the hearing officer’s determination that she did not have disability. The respondent (hereinafter carrier) argues that the hearing officer’s decision is supportable and should be affirmed.
DECISION
We affirm the decision and order of the hearing officer.
The claimant, who had been office supervisor of the nursing department, (employer), injured her back when she lifted a box in her office on (date of injury). She took nonprescription medicine, and the following day when her supervisor observed her discomfort, she was sent to see (Dr. L) of employer’s occupational medicine department, who immediately placed her in physical therapy. The claimant said she was initially in therapy five days a week, for approximately three months, then began going three days a week. The claimant’s physical therapist, (Ms. SB), testified at the hearing that she had seen claimant for approximately 76 treatments, for a total of 380 hours.
Prior to her injury, by letter dated July 18, 1991, the claimant wrote employer’s director of nursing that she had decided to terminate her employment as of August 31st. The letter stated that “Recent financial assets have forced me to make this decision earlier than I had planned.” Claimant at the time of the letter had been working for the employer for 24 years. Following her injury, Dr. L took claimant off work and then on August 27th released her to work with the restrictions of no bending, stooping, squatting, or lifting more than 15 pounds. Claimant said she returned to her job on August 28th, and worked at light duty (answering phones and taking messages) until August 30th, the last working day of the month. The claimant said that she changed her mind about resigning after she was hurt and that she “probably” would have gone back to work for employer if she could, but believed that she could not be rehired. She also said she did not think she could change her mind about resigning after she had sent the July 18th letter. Claimant’s exit evaluation, signed by her department head, called claimant “a faithful, loyal employee” and recommended re-employment within the department and the employer in general.
(Ms. R), employer’s human resources group manager, testified that she had talked to claimant about retirement approximately four months prior to the time of the letter; Ms. R said she told claimant at that time that she did not meet the age requirement of 55. Around the end of June 1991, Ms. R said claimant talked to her about resigning, saying that her tax advisor had told her she would have tax problems if she continued to work. Ms. R said she told claimant that if she did not withdraw her retirement she could apply for retirement benefits in two years, when she reached 55. Ms. R said her final conversation with claimant was in May or June of 1992 when claimant discussed withdrawing her retirement money; Ms. R said she advised claimant of the consequences of that action, and later learned that claimant had changed her mind.
Ms. R said employer had not offered claimant a job nor made arrangements for light duty because claimant had previously made known her desire to resign. Ms. R said she was not aware claimant wanted a job. She also said employees’ resignations had been revoked in the past. The claimant said she had talked to someone and put in an application for employment with Medical Center Hospital sometime after the benefit review conference on November 17, 1992. She said she was going to inquire about returning to employer, but could not do so because of her back problems.
Claimant also testified that several months prior to her injury she had had discussions with her friend, (Ms. MB) about the two of them forming a catering business. (The claimant also said she had done some catering before, but only on an occasional basis.) Ms. MB confirmed these discussions, and said she had spoken with another friend who ran a catering business about getting started; she said that friend, who worked alone, could make in excess of $800 a week when catering a big event. However, although claimant said she and Ms. MB had been getting ready to buy the necessary materials, they had not done such things as establish a checking account, come up with an assumed name, talk to an accountant, or get a tax ID number. Ms. MB stated that claimant has been unable to do things around her house since the injury, and indicated that the two of them have had to cancel their plans for a catering business due to the inability of Ms. MB, who was 78 at the time of the hearing, to do the work by herself.
A November 16, 1992 letter from Dr. L stated that claimant had had chronic pain from her injury except for one brief pain-free period (due, apparently, to injections given by (Dr. F) ), and that she “retired soon after her injury occurred. However, had this not been the case, she would continue to be on modified duty at this time.” Dr. L had referred claimant to Dr. F because of her pain; on June 25, 1992, he estimated that claimant could return to limited and full time work on September 25th of that year. Claimant pointed out that she was still under Dr. L’s care at the time and that he had not released her to full time work. Dr. L also referred claimant to (Dr. D), who wrote on February 27, 1992 that the claimant was not a surgical candidate and that she was not interested in further rehabilitation or a return to work. His recommendation to claimant was “learn to live with it.” The claimant said that Dr. D only examined her once, that she did not like him and stated her intention of not returning to him, and denied that she discussed rehabilitation with him. Dr. L also referred claimant to (Dr. W), who claimant was treating with at the time of the hearing. Dr. W administered a series of facet injections for claimant’s back pain.
The hearing officer made findings of fact that the claimant voluntarily resigned her position for non-injury related reasons and that she has not obtained employment since August 31, 1991, based on her own voluntary decision not to work. In her appeal, claimant contends that the evidence in this case establishes that the claimant did not voluntarily decide not to work and that she does have disability, defined by the 1989 Act as the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. Section 401.011(16).
This panel has ruled that the 1989 Act does not limit the type of evidence that may be considered by a hearing officer in making a determination on disability. Texas Workers’ Compensation Commission Appeal No. 92209, decided July 13, 1992. Where an employee has received a conditional medical release, evidence to establish disability can include the fact that there is employment at preinjury wage levels reasonably available to the employee meeting the conditions of the medical release, taking into consideration reasonable limitations on the type of work suitable within the framework of the employee’s abilities, training experience and qualifications, and that the employee has not availed herself of such employment opportunities. Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991.
While the claimant in this case testified that she had changed her mind about resigning but believed her decision was irrevocable, the evidence also shows that she had contemplated leaving her position well in advance of her injury, for reasons totally unrelated thereto, and that she never attempted to return. Although she and Ms. MB indicated that they could not pursue their catering business due to claimant’s injury, other testimony could lend support to the inference that their discussions had been occasional and had never progressed to the point of actual implementation. Dr. L’s last communication on the subject indicated that claimant was released only to “moderate duty,” although Dr. F projected a release to full duty and Dr. D opined–incorrectly, claimant maintained–that she did not want to work.
This case undoubtedly presents conflicts in the evidence bearing on the issue of disability. However, such conflicts were for the hearing officer to resolve; the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165, 1989 Act. As the trier of fact, the hearing officer may believe all, part or none of the testimony of witnesses; judge credibility; assign weight; and resolve conflicts and inconsistencies. Ashcraft v. United Supermarkets, Inc., 758 S.W.2d 375 (Tex. App.-Amarillo 1988, writ denied). Only if we were to determine that the findings of the hearing officer were so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust would we set aside or otherwise disturb his findings and determinations. Pool v. Ford Motor Company, 715 S.W.2d 629 (Tex. 1986). This we decline to do in this case.
The decision and order of the hearing officer are affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Thomas A. Knapp – Appeals Judge