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 April 7, 2000, hearing officer, to consider the following disputed issues: 1. Was [appellant’s] Claimant’s “serum sickness” a result of the compensable injury sustained on __________; and 2. Does Claimant have disability. The hearing officer concluded that claimant’s “serum sickness” is not a result of the compensable injury sustained on __________, and that she does not have disability. Claimant challenges these conclusions as well as two underlying factual findings, contending that her evidence proved that she has serum sickness which resulted directly from the medical treatment of her compensable injury and that she had disability. Claimant also takes issue with certain statements in the hearing officer’s Statement of the Evidence, the hearing officer’s admission of a certain letter, and the hearing officer’s requiring her to state her closing argument based on the evidence developed at the hearing and not read from some statement prepared before the hearing. The respondent (self-insured) urges in response that the evidence is sufficient to support the challenged findings and conclusions and that the hearing officer did not commit reversible error with regard to his statement of the evidence, his admission of evidence, and his conduct of the closing arguments.
DECISION
Affirmed.
Claimant testified that on __________, her right wrist was injured by a heavy door at the self-insured’s jail where she works and that she lost one day of work on December 23, 1998, and one hour on January 29, 1999, due to her arm injury and has “not been paid any disability.” She further stated that on January 29, 1999, she underwent a bone scan of her injured wrist and that the next day she developed a rash on the arm that was injected, her joints ached, and she was tired; that these symptoms became worse; and that by February 6, 1999, she also had pain in her side and could not urinate and her supervisor sent her to a hospital emergency room where she was tested, told she had 70% kidney failure, and treated. Claimant said that she believes the radioactive dye injected into her bloodstream for the bone scan test caused her to develop serum sickness and that it was not caused by unrelated kidney failure because her former treating doctor, Dr. L, tested her kidneys in October 1998 following her exposure at work to AIDS and TB and these tests were normal. She indicated that she was also treated by Dr. W after Dr. L relocated his practice, and that she was also examined by Dr. J for the self-insured.
Claimant further testified that she was off work from February 6 to February 20, 1999, and from March 1 to March 15, 1999, due to serum sickness; and that she was released by the doctor for full duty on April 28, 1999, and that the release was from serum sickness. She concluded that her period of disability from serum sickness was from February 6 to April 2, 1999.
On a prescription pad note dated “3/8/99,” Dr. L wrote the following: “I feel she has serum sickness as a result of bone scan.” Dr. L wrote on “8/24/99” that when he saw claimant in his office on February 8, 1999, his diagnosis was acute renal failure, etiology unclear (although the dye was suspected); that serum sickness was also considered a possibility; that he referred her to Dr. R, a kidney specialist; and that claimant’s kidney function slowly improved over the next several weeks. Dr. L wrote on October 25, 1999, that in his medical opinion, claimant’s kidney failure was due to an adverse reaction to the bone scan dye. Dr. L further wrote on November 18, 1999, that “dye reaction” and “serum sickness” are essentially synonymous in this case, with dye reaction indicating the probable cause and serum sickness indicating the set of signs and symptoms claimant exhibited. Dr. L further stated that in all probability claimant’s condition was the direct result of the bone scan, citing a passage from a medical textbook concerning urticarial reactions to certain drugs including radiographic dyes. Dr. L also stated that Dr. R did not mention a specific etiology in his report and may not have been aware of the bone scan, and that in his, Dr. L’s, medical opinion, claimant’s kidney failure “was due to an adverse reaction (i.e. “serum sickness”) to the bone scan dye.”
Dr. W wrote on November 3, 1999, that after her right wrist injury claimant had a bone scan to rule out a scaphoid fracture and was injected with a radioactive contrast material; that she developed a rash and itching at the site and a few days later had aching joints and generalized myalgia; that when she went to a hospital on February 5, 1999, she was found to have renal failure; and that she has made a complete recovery. Dr. W opined that claimant most likely had an allergic or serum sickness reaction due to the injection of the radioactive contrast material, and that this serum sickness caused her renal failure.
The November 10, 1999, report of Dr. J states that he saw claimant on April 21, 1999, for a work-related injury she sustained to her right arm on __________; that after persistent right wrist pain, a bone scan was performed on January 29, 1999; and that claimant apparently developed a reaction some time later and was treated for serum sickness. Noting that “it may be possible,” he has not had a patient develop serum sickness following an injection for a bone scan, Dr. J stated his opinion that claimant’s serum sickness was probably not related to the bone scan and was perhaps more likely related to any other medication she was taking at that time.
At the hearing, claimant, upon request, produced a February 22, 1999, report from Dr. R to Dr. L, indicating she had not exchanged this letter because the carrier had already obtained an authorization for the release of her records and had been denied a subpoena, and because she felt the letter was more of a personal letter of thanks from Dr. R to Dr. L. In the report, Dr. R, after thanking Dr. L for the referral, states that when he saw claimant on February 22, 1999, her renal function was essentially normal and he noted “no physical findings consistent with renal insufficiency.” Dr. R went on to state that he felt claimant’s abdominal pain is related to “a GI problem” and for which he has referred her back to Dr. L.
Claimant had the burden to prove that she sustained the claimed injury. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Given the nature of the claimed serum sickness injury, claimant was required to prove with expert evidence that the medical treatment for her wrist injury caused the claimed injury. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.); Schaefer v. Texas Employers= Insurance Association, 612 S.W.2d 199 (Tex. 1980). The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence (St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.)). As an appellate reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The hearing officer notes that Dr. L did not mention the type of dye used in the bone scan nor explain how such dye caused kidney failure and serum sickness; that Dr. R did not find kidney insufficiency on February 22, 1999; and that Dr. J opined that the serum sickness was not related to the bone scan. That another fact finder may have drawn different inferences from the evidence does not afford the Appeals Panel a basis to substitute its judgment for that of the hearing officer. We cannot say that the challenged factual determinations of the hearing officer are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra; King’s, supra.
We do not find error in the hearing officer’s admission of Hearing Officer Exhibit No. 2, nor in his Statement of the Evidence nor in his conduct of the parties’ closing arguments. The ombudsman made the initial closing argument and claimant was allowed to add to that argument at some length. The hearing officer, clearly trying to focus the arguments and conserve time, asked claimant to directly address the evidence in the record and not just read some statement prepared before the hearing. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 140.4(a) (Rule 140.4(a)) provides, in part, that the presiding officer may establish times for beginning the proceeding, for recesses, and for ending the proceeding.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Robert W. Potts – Appeals Judge