This appeal arises pursuant to the Texas Workers’ Compensation Act of 1989, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On January 3, 2000, a hearing was held. The hearing officer determined that while appellant (claimant) had back pain at work on __________, she did not sustain a compensable injury at that time; she did not have disability. Claimant asserts that the decision is against the great weight of the evidence, citing statements that she was “hurting” at work, medical evidence, her own credibility, and the lack of credibility of her supervisor, Mr. Q. Respondent (self-insured) replied that the decision should be affirmed.
DECISION
We affirm.
Claimant worked for (employer) on __________. She testified that on that day a “ditch” beside the work area of the plant was being cleaned of debris (including excess glue and water); this was a regularly recurring event. While Mr. Q described using rakes and shovels to remove what he referred to as “mud,” claimant said she felt pain in her back as she lifted a bucket of “mud” out of the four-foot wide by about one-foot deep ditch. Mr. Q said that he had never seen a bucket used, that shovels are used to lift the raked-up debris into a dumpster. A coworker, Mr. S, provided a statement in which he said that he and claimant were “pulling out wet trash” and “[claimant] told me that her back was hurting.” Mr. S described bending, pulling, and pushing, but he did not mention that claimant had been lifting or using a bucket, and he did not mention that he noticed any outcry or any body language that might signal an acute injury at the time of occurrence.
Claimant continued to work that day; she was scheduled to be off work the next two days; she returned to work the third day and said she performed nondemanding work; she said she then reported the injury the following day, __________. She first saw Dr. W, on September 8, 1999. Dr. W placed her on sedentary duty and then on September 16, 1999, took her off work. Dr. W also stated on October 15, 1999, that claimant had an acute injury consistent with bending and lifting; he mentioned the “wet mud in a bucket” and then referred to “expelling the mud from the bucket.” An MRI was provided on November 9, 1999, which showed a disc bulge at L4-5 and a disc protrusion at L5-S1 that has an “annular tear”; the protrusion was said not to indent the thecal sac or S1 nerve root.
The hearing officer commented in his Statement of Evidence and Discussion that claimant reported high degrees of pain. Dr. W noted on October 7, 1999, that claimant’s pain was “8” on a scale of 10; he then noted on October 11, 1999, that her pain was “7” on a scale of 10. Claimant agreed at the hearing that on this scale, a “10” would be the highest degree of pain.
We agree with claimant’s point on appeal concerning what a video of claimant at a football game on October 8, 1999, showed (and we note that the hearing officer’s comment was consistent with our view of the video); the video did not show her doing any movements that would be inconsistent with the limitations set forth in her work restrictions provided in early September. However, observation of that video depicting claimant for several hours on a day sandwiched between dates of pain so bad that they were designated an “8” and a “7” could reasonably cause confusion. Claimant’s demeanor on the video gave no indication of such pain. Then one week later, on October 15, 1999, Dr. W noted that claimant said she could not do “any recreational activities at all”; Dr. W also observed at that time, “symptom magnification is a possibility,” which is in contrast to his statements earlier in treatment that “no exaggeration of symptoms is indicated.”
Claimant’s appeal does not make it clear whether she is appealing the determination that the two videos (attendance at football games on October 8 and October 29, 1999) were admissable. An objection was made at the hearing that the videos were not timely exchanged. The hearing officer heard argument from both sides. The benefit review conference (BRC) was held on November 18, 1999, at which time the videos were said to be in existence. Self-insured stated that it sent the videos for copying and received them back in early December (but more than 15 days after the BRC) and exchanged them without delay thereafter. The hearing officer found good cause for not exchanging within 15 days of the BRC. His determination was based on the explanation, concerning copying time, provided by self-insured and does not reflect an abuse of discretion on the part of the hearing officer. Admission of the videos was not error.
Mr. Q testified that although he had never seen a bucket used to clean the ditch, there may be old paint buckets (five-gallon type) around that may have been used. He said that he did not have claimant work outside of her sedentary restrictions when she was on such limited work. Mr. Q’s credibility was questioned right after he testified that he had a report in regard to claimant “in his back pocket” and produced it; he said that an attached document was not relevant to this proceeding. When he showed the attached document to the hearing officer, the hearing officer found that it was relevant and it was admitted as Claimant’s Exhibit No. 6, a short statement of Mr. D, which said that claimant had told him she hurt her back cleaning the ditch; it also said claimant was taken to the nurse and was put on light duty. This sequence of events in Mr. D’s statement could reasonably be interpreted as consistent with Mr. Q’s report which he had produced for admission; that report referred to Mr. D being told by claimant on __________, about her back hurting and then going to the nurse. As claimant states, Mr. Q’s actions raised a question about his credibility but that credibility was for the hearing officer to determine.
There was no issue of timely notice. Claimant stated that she did not report the injury right away and did not see a doctor for over a week because she thought her pain was not serious. Claimant’s account of her pain was buttressed somewhat by the statement of Mr. S, who said she told him of pain, and by the statements of Mr. Q (and Mr. D), who said that Mr. D also said claimant told him of her pain on __________. On the other hand, claimant’s testimony did not have to be accepted in its entirety by the hearing officer. The hearing officer shows in his Statement of Evidence and Discussion that he accepted the fact that claimant felt “some sort of back pain” on that date. The hearing officer then considered the objective evidence as “not conclusive.” Although objective evidence is not necessary to find a compensable injury, the fact finder may certainly consider the objective evidence available and may draw reasonable conclusions from it. The hearing officer then stated that claimant’s credibility was “troublesome,” having cited her referrence to the bucket, her past statement that she did not know she was supposed to report an injury right away as contradicted by her three prior immediate reports of injury, and her claims of the severe level of pain.
The hearing officer is the sole judge of the weight and credibiltiy of the evidence. See Section 410.165. It was for him to determine the credibiltiy of any witness, including claimant. While another fact finder may have weighed the evidence differently, that is not a proper basis for the Appeals Panel to overturn a factual determination that a compensable injury did not occur. The evidence sufficiently supports the determination that claimant did not show that she sustained a compensable injury. With no compensable injury, there can be no disability. See Section 401.011(16).
Finding that the decision and order are sufficiently supported by the evidence, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Thomas A. Knapp – Appeals Judge