This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 23, 2000. With respect to the issues before her, the hearing officer determined that the appellant (claimant) did not sustain a new compensable injury on __________, and that he did not have disability. In his appeal, the claimant argues that those determinations are against the great weight of the evidence. In its response to the claimant’s appeal, the respondent (self-insured) urges affirmance.
DECISION
Affirmed.
The claimant testified that on __________, he was working as a truck driver for the self-insured and that he injured his back when he slipped and twisted it as he walked back to open the doors of the trailer. After his injury, the claimant attempted to see Dr. D, who had treated him for a __________, work-related back injury. He could not see Dr. D because he did not have an appointment; thus, he sought treatment at the emergency room. The records from the emergency room contain a history of complaints of low back pain for one year and do not reflect a history of the claimant’s having slipped and twisted his back at work that day, although the claimant insisted that he told the doctors at the emergency room about the __________, incident at work.
On September 15, 1997, the claimant sought treatment for his back from Dr. D. On October 1, 1997, Dr. D requested a repeat lumbar MRI. In the “Letter of Medical Necessity” for the repeat MRI, Dr. D stated that the claimant’s “present symptoms and complaints are a continuation of his back problem caused by the accident of __________.” On January 13, 1998, Dr. D completed a Report of Medical Evaluation (TWCC-69) increasing the claimant’s impairment rating for the ________ injury from one percent to 11%. In a letter dated April 5, 1998, to an attorney with the firm representing the claimant, Dr. D stated:
Based on your information, I feel the accident of ________, unknown to me until your letter of 3/31/98, was a new injury to the lumbar spine causing increased problems to the lumbar region which provided objective diagnostic changes on MRI . . . .
In an August 4, 1999, letter, Dr. D again opined that “the accident of ________ was a separate injury and not a continuation of the injury of __________.”
The Texas Workers’ Compensation Commission had Dr. F examine the claimant for the purpose of determining whether the claimant sustained a new injury on __________. In his November 10, 1998, report, Dr. F stated that “[i]t is the opinion of this examiner that his initial injury of ________ [sic] is the causation of his problems. There has been no aggravation that I am able to find from an injury of ________.”
The claimant has the burden to prove by a preponderance of the evidence that he sustained a new compensable injury on __________, namely an aggravation of his low back injury. Johnson v. Employers Reinsurance Corp., 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). That question presented the hearing officer with a question of fact. The hearing officer is the sole judge of the relevance, materiality, weight, and credibility of the evidence before her. Section 410.165. The hearing officer resolves conflicts and inconsistencies in the evidence and determines what facts have been established. Texas Employers Ins. Ass=n v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). To that end, the hearing officer may believe all, part, or none of the testimony of any witness. The testimony of the claimant, as an interested party, raises only an issue of fact for the hearing officer to resolve. Campos; Burelsmith v. Liberty Mut. Ins. Co., 568 S.W.2d 695 (Tex. Civ. App.-Amarillo 1978, no writ). An appeals level body is not a fact finder and it does not normally pass upon the credibility of the witnesses or substitute its judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Ins. Co. v. Soto, 819 S.W.2d 619 (Tex. App.-El Paso 1991, writ denied).
In this instance, the hearing officer determined that the claimant did not sustain a new compensable injury on __________. A review of the hearing officer’s decision demonstrates that, although she believed that the claimant was involved in an incident at work on that date, she simply was not persuaded by the evidence presented by the claimant that he sustained new damage or harm to the physical structure of his body as a result of that incident. The hearing officer was acting within her province as the fact finder in so finding. Her decision in that regard finds support in the evidence from Dr. F that no aggravation of the claimant’s lumbar spine condition occurred and that the claimant’s problems were the result of his 1996 injury. The hearing officer was free to give more weight to Dr. F’s opinion than to Dr. D’s opinion that the __________, incident caused additional damage to the claimant’s lumbar spine. Our review of the record does not reveal that the hearing officer’s determination that the claimant did not sustain a new compensable injury is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Accordingly, no sound basis exists for us to reverse that determination on appeal. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Given our affirmance of the determination that the claimant did not sustain a new compensable injury on __________, we likewise affirm the hearing officer’s determination that the claimant did not have disability. Disability means the Ainability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. Section 401.011(16). Thus, the existence of a compensable injury is a prerequisite to a finding of disability.
Elaine M. Chaney – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Dorian E. Ramirez – Appeals Judge