On March 24, 1992, a contested case hearing was held in (city), Texas, (hearing officer) presiding as hearing officer. He determined that an injury to the respondent’s back occurred on (date of injury), at the same time he sustained a hernia injury, that the injury was incurred in the course and scope of his employment, and that the appellant was, accordingly, entitled to benefits for his back injury under the provision of the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN., arts.8308-1.01 et seq. (Vernon Supp 1992) (1989 Act). Appellant, disagreeing with a finding of fact and several conclusions of law entered by the hearing officer, urges us to reverse the decision of the hearing officer arguing that the decision is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust.
DECISION
Finding the evidence sufficient to support the findings, conclusions and decision of the hearing officer, we affirm.
The statement of the evidence set out in the hearing officer’s decision fully and accurately summarizes in detail the evidence before him, is not contested as to content but only as to its sufficiency, and is adopted by us and set forth below:
STATEMENT OF EVIDENCE
“The parties stipulated to the fact that the Claimant had suffered a double hernia during the course and scope of his employment on (date of injury). The insurance carrier paid for the operation and Claimant is presently receiving temporary income benefits. Claimant has been an employee of (employer) for approximately five years. He was employed at the store located at (address), (city), Texas. His duty title was automotive technician. In this capacity, he performed such functions as front end alignments and repairs, brakes, air conditioning repair, changing tires, etc. On (date of injury), he was installing two heavy batteries in a modified diesel Ford pickup truck. The modification left the truck sitting higher than normal. In the process of taking a battery down, he felt a sharp pain in the genital area. At the time, he disregarded the pain but later felt a bulge and told his supervisors. This resulted in his going to a doctor and subsequent surgery.
About the second week after his surgery, Claimant stated he began to notice pain in his leg and hip area. He first noticed this when he was walking. At times the pain would begin in the bottom of his leg and work upwards, and other times it would begin at the hip and work down. This would generally occur when he was walking. In such instances, he would have to sit down and rest. At first he thought it was a part of the post-recovery from the hernia operation. He had never before experienced anything of this nature. Claimant did have a back sprain in 1984, for which he saw a doctor. However, he saw the doctor but once and there was no follow-up (Carrier’s Exhibit F).
Carrier’s Exhibit C is a letter from Dr. M. He states that Mr. V was seen in his office on June 20, 1991. At that time, he was diagnosed as having bilateral inguinal hernias. He was operated on for the hernias on July 2, 1991, and the staples were removed on July 9, 1991. He further stated that the patient should be off work for six weeks from the day of surgery, at which time he could resume full physical activity. Light duty could be performed one month after the date of surgery. On August 22, 1991, Dr. M signed a slip indicating that the Claimant was being released to return to work on September 4, 1991, with no work restrictions (Carrier’s Exhibit G).
On September 6, 1991, Claimant was seen by a neurologist, Dr. D, complaining of pain in his hip and leg. The doctor states that the patient’s symptoms do hint at a possible left lumbar radiculopathy, though they do not localize well, and his neurological exam is rather unrevealing. He further states that it is theoretically possible that Claimant may have sustained a lumbar disc protrusion at the time of the initial injury that seemingly did not become symptomatic until he increased his activity in the post-operative period of his hernia repairs. He goes on to state that he would have expected the lumbar radicular symptoms to have been more prominent initially; however, they may have been obscured by the pain from his hernias. This report reflects that Claimant was referred to Dr. D by Dr. M.
Claimant was seen again by Dr. D on September 17, 1991. At that time, he further states that the lumbar spine x-rays showed marked narrowing of the L4-5 disc space and less so at L5-S1. Multiple osteophytes were seen in the L4-5 region. He states that the patient should not return to work until the problem is better defined and a CT scan was scheduled. An MRI scan was not appropriate as Claimant had a wire in his jaw from several decades previous.
Claimant was seen again by Dr. D on October 1, 1991. At that time he states that the CT of the lumbar spine on September 25, 1991 showed degenerative disc changes at L4-5 and L5-S1, but no significant HNP. The spinal canal was small at L4-5, as were lateral recesses, and in particular, the right L4-5 and left L5-S1 foramina were stenotic.
Claimant was seen again by Dr. D on October 28, 1991. He had not responded to treatment and the doctor states that there is a strong suspicion of foraminal disease, particularly at L4-5 as the primary etiology of his symptoms. He further states that Claimant likely will need myelography followed by CT scan with surgical opinion (sic) as there is little more that he can do medically to improve Claimant’s status.
The CT lumbar spine report prepared by the Diagnostic Imaging Center, dated September 25, 1991, provides the following conclusions:
1. Scoliosis
2. Small L4-5 bony canal
3. Compromise L4 lateral recesses
4. Small right L4-5 and left L5-S1 intervertebral foramina
5. Multilevel lumbar spondlyosisi.
On November 6, 1991, Dr. D states that, “Mild but definite denervation/nerve root irritation signs in the left L4-5 distribution, correlating with the patient’s symptoms and CT scan findings. With his failure to respond to conservative treatment including ESI, approach toward a surgical option is greater.” A myelogram was scheduled, followed by a CT scan, as well as surgical consultation.
A lumbar myelogram was performed on November 12, 1991. The interpretation indicates, “Normal conus, shallow to medium size anterior indentations of the thecal sac at the upper four lumbar disc spaces, greater at L4-5. At L4-5, there is a circumferential dissection of the thecal sac which probably is due to a combination of disc herniation, bone spurring, etc. No lateral defects at any other level.”
A CT lumbar spine exam was likewise performed on November 12, 1991. At L3-4 it reflected mild to moderate smooth bulging, no focal herniation. At L4-5 there was irregular bony spurring facets. Bilateral ligamentum flavum hypertrophy. As a result there is significant constriction of the thecal sac at this level and left lateral recessed stenosis. At L5-S1 there are degenerative changes. Left facet joint, mild bulging of the disc, left lateral recess stenosis (Claimant’s Exhibit 4).
By letter, dated November 22, 1991, Dr. K states that he saw the Claimant in his office on that date. Claimant was referred to Dr. K by Dr. M with respect to the pain in his left leg. He states that a review of the myelogram and post-myelogram CT scan shows Claimant to have two levels of significant degenerative disease at L4-5 and L5-S1. This results in a picture of lumbar stenosis at both levels with L4-5 as the worse level. Superimposed on this he has what looks like a unilateral disc herniation. Dr. K states that at this point Mr. V has a combination of bony changes that result in an architectural lumbar stenosis. He further states that nonetheless he has no disabling neurologic deficit at present. He has not had any physical therapy and he is not on medications. The doctor states that he thinks it is unlikely that it is going to give Claimant any lasting benefit, due to the degree of structural abnormality that he has, but he was going to send Claimant for two weeks of physical therapy and give him some motrin and some Parafan DSC and see how he does (Claimant’s Exhibit 5).
Claimant agreed with the Carrier to be seen by another doctor for a second opinion. As a result, he was seen by Dr. Q on February 18, 1992. As a part of his observations, the doctor states that Claimant has normal motion of his back but all motion produces pain on the left gluteal area and left lower extremity. He states that he reviewed films of the myelogram which shows spinal stenosis with large defect at the level of L4, although he also has prominent discs above and below this level. They also show that he has severe osteoarthritic changes with narrowing of the L4-5 and L5-S1 spaces. The CT scan post-myelogram revealed the same changes. His diagnosis is:
1. Herniated nucleus pulposus L4
2. Spinal stenosis
3. Osteoarthritis of lumbar spine.
Dr. Q concludes by stating that Mr. V has not reached maximum medical improvement. He states that Claimant is going to need a lumbar laminectomy and decompression with excision of L4 and possible (sic) L5. He may require a spinal fusion. He has already tried steroid injections and physical therapy without improvement. He is being seen at the present time by Dr. K and was instructed to return to see him.
According to Mr. B, the Manager of the (employer), about a week before September 4, 1991, Claimant had given him a slip indicating that he would be able to return to work on September 4, 1991. At that time he had informed Claimant that he would be transferred to another location. Though Claimant did not say much, he did not appear to be happy about being transferred. This store is close to his residence. On September 4, 1991, Claimant gave him a slip indicating that he would not be able to return to work. It was sometime after this that he was first made aware that Claimant had an additional problem other than the hernia. He also noted that at the time of Claimant’s injury that he was wearing a back brace. This was because of a company policy that employees such as the Claimant wear the brace to prevent back injuries.
Mr. T, an employee of (employer), appeared as a witness. A telephone interview with Mr. T (Carrier’s Exhibit A) was also introduced. He stated that he had a conversation with the Claimant outside of the (employer) on September 5, 1991. He stated the Mr. V had indicated that he was going to get the short end of the deal in that he was being relocated. Mr. V told him that he had spoken with his doctor and his doctor had said that he would try and support him as much as he could and he was going to try to convince the doctor to give him surgery which probably was not needed. Mr. T was not sure what the nature of the surgery might be. Claimant was going to try to see what he could get out of the company. He also told Mr. T that he was feeling fine and was ready to return to work.
Ms. F, an employee of Allstate, the insurance carrier, testified that she had received a call from Claimant on August 22, 1991. He informed her that (employer) was not going to take him back and that he had a full release for work effective September 4, 1991. At that time he did not mention his back. On September 5, 1991, she received a call from the office of Dr. J. Claimant had informed the doctor that he wanted to be checked and that he had a release to return to work. She informed the doctor’s office that the Claimant had a doctor and would need a release from the Texas Workers’ Compensation Commission before changing doctors. On September 4, 1991, the Claimant called and said that he had a release but Dr. M had taken him off work and referred him to Dr. D. She, thereafter, on the same day called Mr. B, the Manager of the (employer). Mr. B said that Claimant had just been in and had given him a slip indicating that he could not work. They were ready to return him to work but at another location.”
The appellant faults the following finding and conclusions:
Finding 10:That the injury to Claimant’s back occurred on (date of injury) at the same time as his hernia, and while he was working for (employer).
Conclusion 3:That the Claimant has proven by a preponderance of the evidence that his back injury was sustained within the course and scope of his employment with (employer)
Auto and that his hernia injury extends to and includes his back injury.
Conclusion 4:That Claimant’s back injury was within the course and scope of his employment.
Conclusion 5:That Claimant is entitled to benefits under the Texas Worker’s Compensation Act.
In essence, appellant urges that the evidence (principally the report of Dr. D dated September 6, 1991), is nothing more than a scintilla of evidence, does not measure up to a reasonable medical probability to establish a causal relationship between the appellant’s work and the back injury and, when considered with the testimonial evidence concerning the appellant’s change of attitude about returning to work when he found out he was to be transferred, fails in establishing, by a preponderance of the evidence, that a back injury was sustained by the respondent within the course and scope of his employment.
An individual claiming a work related injury under workers’ compensation has the burden of proving by a preponderance of the evidence that the injury occurred in the course and scope of his employment. Reed v. Aetna Casualty & Surety Company, 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref’d n.r.e.). There must be evidence establishing a causal connection between the injury and the employment. See Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980). In the instant case, there is no dispute that an incident resulting in injury occurred on (date of injury) while the appellant was lifting a heavy battery. Indeed, the immediate manifestation of the incident was a double hernia for which the appellant underwent surgery. Subsequently, and during the recuperative process from the surgery, the appellant states he began to experience leg and hip pain which he had never experienced prior to the incident of (date of injury). There are medical reports as set forth above which document that the appellant has a back injury. The appellant relates this to the injury producing incident of (date of injury). The opinion contained in one of the medical reports provides a rational explanation for why the back symptoms may not have manifested themselves immediately or that the symptoms may have been masked somewhat by the initial primary concern with the hernia condition and the discomfort it caused. In a case such as this where the subject of inquiry is not so scientific or technical in nature as to require expert testimony to establish causation, lay testimony and circumstantial evidence may combine to establish a causal connection between the employment and the injury. See Travelers Insurance Company of North America v. Stretch, 416 S.W.2d 591 (Tex. Civ. App.-Eastland 1967, writ ref’d n.r.e.); Northern Assurance Company of America v. Taylor, 540 S.W.2d 832 (Tex. Civ. App.-Texarkana 1976, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 91003 decided August 14, 1991. We do not believe expert medical testimony stating definitively that the injury was caused by the employment was necessary. In this case, reasonable medical probability can properly be based upon the evidence as a whole. See Texas Workers’ Compensation Commission Appeal No. 92083 decided April 16, 1992.
The hearing officer, as the trier of fact, is the sole judge of the relevance and materiality of the evidence and the weight and credibility to be given the evidence. Article 8308-6.34(e). Here, the hearing officer had the testimony of the appellant before him relating the matters surrounding the accident and that he had not experienced the leg and hip pain prior to the accident. This evidence, if believed as it must have been, together with the extensive medical evidence of a back injury and the explanation in one of the medical reports that the back injury could have been involved with other injuries at the same time, although not immediately recognized under the circumstances, is sufficient to establish the back injury and the causal link to the event at the work place. See Gee v. Liberty Mutual Insurance Co., 765 S.W.2d 394 (Tex. 1989); Johnson V. Employers’ Reinsurance Corp., 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ); Texas Workers’ Compensation Commission Appeal No 92128 decided May 11, 1992.
The decision is affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Philip F. O’Neill – Appeals Judge