On January 8, 1992, a contested case hearing was held in (city), Texas, with (hearing officer), hearing officer, presiding. (hearing officer) determined that the claimant, (claimant), the respondent in this appeal, had suffered an injury on (date of injury), in the course and scope of his employment as a truck driver with (“employer”). The insurance carrier, the appellant herein, was ordered to pay benefits. The appellant has asked that we review the decision of the hearing officer, and find that a compensable injury did not occur under the Texas Workers’ Compensation Act (the 1989 Act), TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq.
DECISION
We find that there is sufficient probative evidence supporting the decision of the hearing officer, and we affirm his decision.
Appellant asks first that the issue in the hearing decision be restated to read: “whether the claimant is entitled to income benefits as a result of an injury occurring in the course and scope of employment.” However, we would note that the issue dealt with at the benefit review conference, and agreed upon by the parties at the beginning of the contested case hearing, was whether the claimant suffered an injury in the course and scope of employment on (date of injury), by breathing chemical fumes at a delivery site. There was no limitation on the issue as now suggested by appellant, and we will not now impose one.
(claimant), the respondent, testified that he was sixty years old and had been a truck driver for the employer for 13 years at the time of the incident underlying his claim. He stated that he went to work approximately 8:00 a.m. on the morning of (date of injury), checking in first at the employer’s terminal to pick up three hoses. He left that terminal at approximately 11:45 a.m. that day, and arrived at around noon at the plant of Lubrisol (“chemical company”), a customer of his employer, to make a delivery. He stated that he weighed in and presented delivery papers to the guard. He was conducted into the loading area of the plant, and at this point an unloader came out and took a sample of the chemical in his truck, a non-hazardous petrochemical. While awaiting the sample results, he stayed in his truck with the windows down. Shortly, an announcement came over the plant public address (“P.A.”) system, indicating that there was an emergency. He estimated that this happened about half an hour after he arrived at the chemical company. At this time, a person who he understood was a safety officer came to his window and indicated that he was to evacuate the area and go to the lunchroom. Respondent stated that he went on to the lunchroom, which was around a city block from the unloading area.
Respondent stated that when he arrived at the lunchroom, he immediately called in to his employer, in accordance with company policy, to report that he was detained at the chemical company because of a spill or a leak. Respondent stated that he had feelings of nausea and dizziness at this time. He stated that another announcement came over the P.A. system while he was on the telephone. Respondent testified about Federal Department of Transportation regulations that limit the amount of time he can work or drive, and stated that at the time he called, he was nearly “out of hours” so that he asked for someone from the employer to come and pick up him and his truck. He stated that he told his employer at this time he felt bad and wanted to go to the doctor. They responded that there was no one available and asked him to call in again within an hour. Respondent stated that he called again at around 2:00 or 2:30 p.m., and during this call reported that he felt bad because of the leak at the chemical company. He was instructed to stay at the plant until someone could come to relieve him.
Respondent said that he asked a guard who came to the cafeteria what the substance was that was spilled, and could not get any answers. He stated that while he was in the cafeteria, another alert was broadcast over the P.A. system about a sulphur spill from another company’s delivery truck, but that he detected no odor from this and was told by someone at the chemical company that this was on the other side from where they were. After approximately two hours in the lunch room, respondent was summoned by chemical company personnel. He unloaded his truck. Respondent stated that when he called in around 6:00 or 6:30 p.m., he found out that his employer was under a strike. He stated that several people from his employer came to pick him up, including the terminal manager and assistant manager. He discussed his symptoms with them in the car. Those symptoms included dizziness, ringing in the ears, and vision problems in connection with the dizzy spells. He stated that when he arrived back at the plant, he attempted to fill out an accident report but was told that there was no one then to process it. His wife drove him home because he was unable to drive. He had not worked between (date of injury) and the time the hearing was held.
Respondent testified that he had been to several doctors about his persistent dizziness, beginning with the company doctor on (date). Under cross-examination, respondent testified that he had sat on the picket line at the employer during June 1991, experiencing some occasional dizziness, and that he did this only for the union benefits he would get for this, as he was experiencing great financial hardship from loss of income.
Medical records in evidence reflect varied diagnoses. (“Dr. S”) observed respondent having a dizzy spell and describes it in a letter report dated April 22, 1991. Dr. S. states: “I think the patient clearly has peripheral vestibular dysfunction. It is difficult to understand how this relates to his exposure to the gas. He is to have an MRI scan of his head as well as an EEG.” A follow-up report dated 5/1/91 from Dr. S. states that respondent appears to be improving, but contains no statements about any tests that may have been given. (“Dr. M”), reporting on a May 17, 1991, examination, states that lungs were clear, but symptoms were related to gas, fume, or vapor inhalation, and referred him to (“Dr. SY”). Dr. SY’s initial medical report dated June 26, 1991, reports that respondent has “cervical myelopathy”, with a mid-carotid bruit suggestive of possible carotid artery stenosis. Dr. SY indicates a desire to have respondent undergo an MRI and carotid ultrasound. Dr. SY’s re-evaluation report of an August 27 examination confirms respondent’s dizziness and vision problems, and states that the MRI revealed herniation of a cervical disk, with mild indentation of the spinal cord. Dr. SY’s report indicates a need for further testing and study to evaluate the ongoing dizziness and visual problems. (“Dr. J”) in an initial medical report dated August 11, 1991, states that respondent is suffering from toxic effect from unknown gas, fume, or vapor. Respondent further testified that he consulted over the two to three months prior to the hearing with a (“Dr. SU”), who told him that his artery is okay. Dr. SU has further indicated to respondent that his symptoms could result from an accumulated effect of the (date of injury), chemical exposure along with an inhalation respondent suffered six years earlier. Respondent stated the doctors haven’t been able to say for sure what has caused his symptoms, but stated that he was in excellent health prior to the incident at the chemical company. He stated that he hit his head in the cab of his truck going over a bump about a month prior to the inhalation incident.
A letter report dated October 23, 1991, from the chemical company, (“Mr. L”), the Safety Superintendent, states that he cannot substantiate respondent’s claim based upon review of their records. Mr. L confirms that respondent entered the chemical plant around 12:05 on (date of injury), and was conducted to tank car spot W-4. Mr. L writes that at 12:50, there was a fume leak at an unloading station about 800 feet south of tank car spot W-4. Mr. L states that the emergency alarm sounded at 1:03 p.m. Mr. L states that the wind was out of the south, southwest at 8 to 20 miles an hour that time. His letter indicates that the spot immediately around the leak was barricaded, and announcements were made over the P.A. system to stay clear of the area, but there was no evacuation of the plant as this was considered a minor incident. Mr. L states that respondent would not have been affected by this incident, based upon his location at spot W-4. Mr. L confirms that an all-clear was sounded at 3:47. The chemical company records indicated that respondent exited their plant around 6:15, and that there were no records indicating that he communicated to their employees about becoming ill or being exposed to the chemical release.
Appellant takes issue with three findings of fact, as follows:
5.On (date of injury), while on the premises of the [chemical company] plant, waiting to unload his truck, [Respondent] accidentally inhaled chemical or gas fumes.
6.The inhalation of chemical or gas fumes on (date of injury) at the [chemical company] plant caused [Respondent] to have dizziness and nausea at that time . . .
8.Exposure to the fumes at the [chemical company] plant on (date of injury) caused physical damage to the structure of [Respondent’s] body.
Appellant states in its appeal that there are two explanations for respondent’s symptoms: chemical exposure or cervical myelopathy. Having conceded this, and noting that the disputed findings are consistent with respondent’s testimony, appellant nevertheless asks that the decision be reversed. However, the evidentiary determinations made by the hearing officer are those strictly within his purview to make. The hearing officer is the sole judge of the relevance, the materiality, weight, and credibility of the evidence presented at the hearing. Art. 8308-6.34(e) of the 1989 Act. His decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Co. of Newark, N.J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). Inhalation of substances traceable to a definite time and place, which results in damage or harm to the physical structure of the body, can constitute an injury under the workers’ compensation act. Texas Employers’ Insurance Ass’n v. Murphy, 506 S.W.2d 312 (Tex. Civ. App.-Houston [1st Dist.], writ ref’d n.r.e.); Consolidated Underwriters’ v. Wright, 408 S.W.2d 140 (Tex. Civ. App.-Houston 1966, writ ref’d n.r.e.). Any conflicts in testimony of medical witnesses is a matter to be resolved by the trier of fact. Highlands Underwriters Insurance co. v. Carabajal, 503 S.W.2d 336 (Tex. Civ. App.-Corpus Christi 1973, no writ); Atkinson v. U.S. Fidelity & Guaranty Co., 235 S.W.2d 509 (Tex. Civ. App.-San Antonio 1950, writ ref’d n.r.e.). In considering all the evidence in the record, we cannot agree that the findings of the hearing officer are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 244 S.W.2d 660 (Tex. 1951). The occurrence of a chemical spill at the chemical company around the time testified to by the respondent is undisputed. The effect of that spill upon the respondent is the matter that the hearing officer was called upon to resolve, albeit from conflicting evidence. Nevertheless, there is sufficient probative evidence to support his decision, and we affirm it in all respects.
The decision of the hearing officer is affirmed.
Susan M. Kelley – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Joe Sebesta – Appeals Judge