This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 8, 2000. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury in the course and scope of her employment on __________; that the claimant did not have disability; and that there was no offer of light-duty employment. The claimant requests our review of the sufficiency of the evidence to support the hearing officer’s determinations on the issues of compensability and disability and states that the ombudsman did not allow her to speak or ask questions of witnesses. The respondent (carrier) replies that the hearing officer’s findings and conclusions are not so against the great weight of the credible evidence so as to be manifestly unjust.
DECISION
Affirmed.
The claimant worked for the employer as an overnight cashier and her job duties required her to check out customers and stock merchandise. The claimant testified that while working her shift beginning __________, she was stacking pallets and felt a pain in her lower back. According to the claimant, she thought it was a kidney infection, so she did not tell anyone at work. The claimant was scheduled to be off work on October 11 and 12, 1999. The claimant said that on October 13, 1999, she worked, although she was stiff and hurting, and when she was asked by her supervisor, Ms. D, to do the “comp board,” she told Ms. D that she could not because her back hurt. The claimant testified that on October 13, 1999, she realized that it was not her kidneys causing the pain. After the claimant finished her shift on the morning of October 14, 1999, she sought medical treatment with a chiropractor, Dr. C. Dr. C’s medical records state that the claimant gave a history of injury on __________, which occurred when lifting and stacking crates on top of each other and that the claimant complained of severe lower back pain, neck pain, upper back pain, and heartburn. The claimant testified that she called (Mr. J), the assistant manager for the employer, on October 15, 1999, and told him that she had hurt her back on ________ and was unable to work. Dr. C released the claimant to return to work with restrictions on December 15, 1999, and the claimant was terminated from employment on January 17, 2000.
The carrier presented the testimony and statements of Ms. D and Mr. J. Ms. D testified that in August 1999, the claimant had been counseled for absenteeism and tardiness. The claimant was absent from work on October 9, 1999. Ms. D said that she worked with the claimant on October 13, 1999; that the claimant declined to work the “comp board” without explanation; that the claimant did not report an injury; and that the claimant did not discuss, nor appear to be having, any physical problems. Mr. J testified that the claimant reported an injury to the employer on October 18, 1999, and that the claimant had not told him on October 15, 1999, that she had been injured.
The claimant had the burden to prove that she injured herself as claimed on __________. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.- Texarkana 1961, no writ). Whether she did so was a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. The hearing officer, as fact finder, may believe all, part, or none of the testimony of any witness. The testimony of a claimant as an interested party raises only an issue of fact for the hearing officer to resolve. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). The hearing officer was the sole judge of the weight and credibility to be given the evidence. Section 410.165(a). He resolved contradictions in the evidence against the claimant and concluded that claimant did not sustain an injury in the course and scope of employment on __________. When reviewing a hearing officer’s decision, we will reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). We find there is sufficient evidence to support the determination of the hearing officer that the claimant did not sustain a compensable injury on __________.
The claimant appealed the hearing officer’s finding of no disability. “Disability” is defined as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). Since we have found the evidence to be sufficient to sustain the determination of the hearing officer that the claimant did not sustain a compensable injury, the claimant cannot have disability under the 1989 Act. Texas Workers’ Compensation Commission Appeal No. 92640, decided January 14, 1993.
The claimant states in her appeal that the ombudsman did not allow her to speak or ask questions of witnesses. An ombudsman does not represent a claimant as an attorney would, but is present to assist the claimant in the presentation of his or her case. The claimant is responsible for how the case is presented and for making sure the evidence considered relevant and important is available at the hearing. We, therefore, do not consider this allegation as a proper or sufficient basis to disturb the decision and order of the hearing officer. See Texas Workers’ Compensation Commission Appeal No. 931006, decided December 17, 1993. For the first time on appeal, the claimant states that there was a mistake in the doctor’s notes and that she can obtain evidence to correct the mistake. If the claimant felt that such information was pertinent to the presentation of her case, she should have developed such information and presented it at the CCH. The Appeals Panel generally reviews only the record and evidence developed at the CCH. Texas Workers’ Compensation Commission Appeal No. 93682, decided September 20, 1993; Section 410.203.
The decision and order of the hearing officer are affirmed.
Dorian E. Ramirez – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Judy L. Stephens – Appeals Judge