This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1992). On January 3, 1992, (hearing officer) presided at the hearing in (city), Texas. He found claimant, respondent herein, was injured in the course and scope of employment and entitled to benefits as authorized by law. Appellant believes the decision is against the great weight and preponderance of the evidence, calls attention to the diagnosis of cystitis at the emergency room immediately after the “injury,” and disagrees with Findings of Fact 3, 4, and 5, and Conclusion of Law 2 that stem therefrom.
DECISION
Finding that the decision is not against the great weight and preponderance of the evidence, we affirm.
Appellant began working for (employer) on March 10, 1991, while she lived at a restitution center as a result of violating her probation for forgery by passing checks. She alleges injuring her back at noon or near that time on (date of injury) while lifting a bed to push it back into place after changing it at work. She states that she felt a pop in her back, could not move for a noticeable period, notified her employer and her transportation, and went to a hospital emergency room (ER) for care.
The ER record for that date and time has some writing that is illegible but clearly has only one diagnosis, “cystitis.” It shows that urine was to be tested, that no x-rays were taken, and that the “no” box in “Workmen’s Compensation” was checked. A nurse’s entry does show, “complains of lower back pain. States has previous back problems. Complains of pain and burning with urination onset today.”
Respondent returned that night to the ER after 10:00 p.m. complaining of pain in her head, neck, and flanks. An entry at that time says, “Was seen in ER today for same complaints.” She was said to not have pain in urinating now. The diagnosis was headache and no x-rays were taken. On her return to the ER on March 18, the first reference to any injury was made and it was said to be an injury at work, “picked up bed.” X-rays were taken and the diagnosis said, “back strain and urinary tract infection.” On March 25, a visit to the same ER shows a diagnosis of lumbar strain. On those occasions that she visited the same ER in April of 1991, she did not complain of her back and on April 24, when she presented with a rash, the following entry was made, “Denies any other problems.”
The “complete” records of a chiropractor, (Dr. C) (DC), as they pertain to care of respondent were admitted. These records consisted of 46 pages, of which 30 are bills or pertain to billing, 10 are either Medical Reports to TWCC, Notes on Absences, or “Supplemental Reports,” 2 pages are appellant’s own response to a questionnaire, 1 is an “Employee’s Notice of Injury . . .,” 1 is a Carrier’s Refusal to Pay, and 2 are records of care or treatment. One bill in these papers shows “kinetic activities” on April 22 and April 24 for $42 each. While respondent had no other problem than a rash on April 24 at the hospital emergency room, she received more “kinetic activities” from DC on April 26. (We note on a separate bill within these papers, respondent, on April 24, also had an “intermediate exam” for $42, “mechanical function” for $14, and “electrical stimulation” for $14.) Billings continued in May and June. Respondent testified at hearing on January 3, 1992, that she was still seeing DC and her back was still hurting.
The medical records cast doubt on respondent’s injury because of what she complained of, or did not complain of, on two visits to the ER the day of the incident.
Not to mention “work” or an employer’s name at the ER is understandable; not to mention an injury situation for which respondent testified she went to the ER and from which she said she could not move for a period of time, is hard to believe.
Just as questionable was the testimony of appellant’s witness, (the witness)
(Mr. W), who was a maintenance man at the motel. He stated that on (date of injury), he was in the bathroom doing repairs when he heard respondent in the bedroom of the same unit say “I hurt my back.” He repeated this phrase later, again using the verb “hurt.” He also described her words as “my back is hurting,” and said he heard her make no phone call to the manager’s office. (Appellant introduced a record to show such a phone call was made but said it reported no injury, since it referred to her condition as “hurting.”) Mr. W also said respondent said her problem was an old injury and she would not file a workers’ compensation claim. Mr. W acknowledged that he has been convicted of rape, indecency with a child, and burglary.
The manager of the motel, (Mr. H), testified for appellant that he was absent during the events but offered a memorandum made by a temporary manager that showed appellant had called at 12:25 on (date of injury) from a room and said her back was hurting. She checked out at 12:30 and later called back saying that she had an excuse from a doctor.
Appellant’s counsel referred to Mr. W by saying in final argument that he had a past record but also said his story was buttressed by other evidence. That it is. The ER record of (date of injury) indicates not an old injury but perhaps an on-going infection. Respondent stated she had had problems with kidney and bladder infections. However,
Mr. W, in saying that respondent said “I hurt my back,” added to the evidence before the hearing officer that could indicate an injury did occur.
The standard of review we follow does not permit this panel to determine where the preponderance of the evidence lies. That is the task of the hearing officer who is “sole judge” of the weight and credibility of evidence. Article 8308-6.34(e) of the 1989 Act. He observed both the respondent and the appellant’s principal witnesses. The ER records are very strong evidence of no injury, but the hearing officer could weigh Mr. W’s testimony as corroboration of respondent by believing him when he said that respondent stated, “I hurt my back” rather than “I am hurting,” or words to that effect. Findings of Fact 3, 4, and 5 – that respondent hurt her back at work, went to the ER immediately and that the injury was not related to an infection – are supported by sufficient evidence of record and support Conclusion of Law 2 that found an injury in the course and scope of employment. The hearing officer, as trier of fact, can believe all, part or none of any testimony and is to 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). Though we might well have not decided the matter for respondent, we cannot substitute our judgment for that of the trier of fact if challenged findings are supported by some evidence of probative value and are not against the great weight and preponderance of the evidence. TEIA v. Alcantara, 764 S.W.2d 865 (Tex. App.-Texarkana 1989, no writ).
We affirm.
Joe Sebesta – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Philip F. O’Neill – Appeals Judge