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 23, 2000. The hearing officer determined that the appellant’s (claimant herein) compensable injury of __________, does not extend to include the cervical spine, thoracic spine, or right hip; and that the respondent (carrier herein) did not waive its right to dispute the extent of injury. The claimant appeals, arguing that the evidence was contrary to these determinations. The carrier responds that these determinations were supported by the evidence.
DECISION
Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.
The hearing officer summarizes and discusses the evidence as follows:
The Claimant was a housekeeper for a resort, working for the (Employer). While doing laundry on __________, the Claimant felt pain in her lower back. The Carrier accepted the diagnosed injury of lumbar strain/sprain and paid benefits.
The Claimant had no other pain which spread over other parts of her back and body. No specific injury diagnosis was assigned to the pain areas other than universal names for pain.
The Claimant had MRI’s which showed that she had degenerative disc disease fairly widespread in her spine, but the injury of __________, did not cause the degenerative disc disease. There was no credible evidence that the injury of __________, aggravated the degenerative disc disease beyond the lumbar strain/sprain. There was no credible evidence that the injury of __________, extended to include the cervical and thoracic spine as well as the right hip.
The question of whether an injury occurred is one of fact. Texas Workers’ Compensation Commission Appeal No. 93854, decided November 9, 1993; Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. This is also true of the extent of an injury. Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.- Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.- El Paso 1991, writ denied). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should 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 Co., 715 S.W.2d 629, 635 (Tex. 1986).
A finding of injury may be based upon the testimony of the claimant alone. Houston Independent School District v. Harrison, 744 S.W.2d 298, 299 (Tex. App.-Houston [1st Dist.] 1987, no writ). However, as an interested party, the claimant’s testimony only raises an issue of fact for the hearing officer to resolve. Escamilla v. Liberty Mutual Insurance Company, 499 S.W.2d 758 (Tex. Civ. App.-Amarillo 1973, no writ). In the present case, the hearing officer found no injury to the claimant’s cervical spine, thoracic spine and right hip contrary to the testimony of the claimant and medical evidence. Claimant had the burden to prove she was injured in the course and scope of her employment. Reed v. Aetna Casualty & Surety Co., 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref’d n.r.e.). We cannot say that the hearing officer was incorrect as a matter of law in finding that the claimant failed to meet this burden regarding injury to her cervical spine, thoracic spine and right hip. This is so even though another fact finder might have drawn other inferences and reached other conclusions. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.).
In regard to carrier waiver, Section 409.021(c) provides that if an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the carrier is notified of the injury, the carrier waives its right to contest compensability. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.3(c) (Rule 124.3(c)), effective March 13, 2000, provides, in part, that Section 409.021 and the implementing provisions of the statute in Rule 124.3(a) “do not apply to disputes of extent of injury.” The CCH in this case was convened on March 23, 2000. Therefore, there could not have been carrier waiver regarding the extent of the claimant’s injury.
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore
CONCUR:
Dorian E. Ramirez – Appeals Judge
Judy L. Stephens – Appeals Judge