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 24, 2000. The hearing officer determined that the appellant (carrier) did not waive the right to contest the compensability of the respondent’s (claimant) claimed thoracic condition; that the claimant’s thoracic injury is related to the __________, compensable injury; and that the claimant reached maximum medical improvement on September 28, 1999, with a 15% impairment rating (IR) as certified by Dr. J, the Texas Workers’ Compensation Commission-selected designated doctor. The carrier appealed, pointed out what it considers an inconsistency between findings of fact and conclusion of law concerning the waiver issue, urged that the evidence does not support an injury to the thoracic spine, urged that the report of Dr. J that certifies that the claimant’s IR is 13% without the thoracic injury should be adopted, and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision that it did not waive the right to contest compensability of the claimed thoracic injury, that the claimant’s compensable injury does not include an injury to the thoracic spine, and that the claimant’s IR is 13%. The claimant responded, urged that the evidence is sufficient to support the determinations of the hearing officer that his injury includes an injury to the thoracic spine and that his IR is 15%, and requested that those determinations be affirmed.
DECISION
We affirm.
We first address the findings of fact and the conclusion of law that the hearing officer made concerning the issue of whether the carrier waived the right to dispute the thoracic spine injury. The hearing officer made findings of fact that the carrier received written notice of the claimed thoracic injury on __________; that the carrier disputed the claimed thoracic injury on June 26, 1999; and that the dispute was not filed within 60 days and was not timely filed. She then made a conclusion of law that, even though the carrier did not timely file a dispute, it did not waive the right to dispute the claimed thoracic injury pursuant to the rules in existence as of March 13, 2000. It appears that the hearing officer made findings of fact so that if the Appeals Panel did not agree with her interpretation of the new Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3), the Appeals Panel would have findings of fact that would permit it to reverse the decision of the hearing officer and render a decision, rather than having to reverse and remand her decision. In Texas Workers’ Compensation Commission Appeal No. 000784, decided May 30, 2000, after the decision of the hearing officer was rendered, the Appeals Panel agreed with the interpretation of the hearing officer and held that carriers do not waive the right to dispute the extent of an injury if they do not dispute it within 60 days of receiving notice of the claimed extent of injury even if the notice of extent of injury was received before March 13, 2000, the effective date of the new Rule 124.3.
The Decision and Order of the hearing officer contains a thorough statement of the evidence. Only a brief summary of the evidence will be contained in this decision. The claimant testified that on __________, he fell backwards from a trailer; landed on his back on the ground about six or seven feet below; and hit his head, neck, and upper and middle back. He said that he was sent to Dr. MR by the employer the same day and that he told Dr. MR that he injured his upper and middle back. He said that on February 25, 1999, he went to Dr. TR, a chiropractor; and that he told Dr. MR and Dr. TR that he had tremendous pain in his head, neck, and upper and middle back and that he still has pain in his upper and middle back.
In an Initial Medical Report (TWCC-61) dated __________, Dr. MR reported that the claimant complained of pain in the upper lumbar area, that there was no radiation of pain into the legs and no muscle spasm, that a straight leg raise test was negative, and that x-rays of the lumbosacral spine were negative. In a report dated February 25, 1999, Dr. TR said that the claimant had constant pain, stiffness, and muscle spasm in the mid-back and neck; that he, Dr. TR, diagnosed cervical sprain/strain and thoracic radiculitis, intercostal neuralgia, and pain; and that the claimant’s symptoms appear to have come as a result of a work-related accident consistent with the one described in this report. Reports of Dr. TR continue to mention the mid-back and the thoracic region. In a letter dated July 6, 1999, Dr. TR said that an MRI showed a herniation at the T2-3 level. In a letter dated August 10, 1999, Dr. T said that MRIs performed on the cervical and thoracic areas were positive for herniations in both areas. In a Report of Medical Evaluation (TWCC-69) dated November 17, 1999, Dr. J assigned a 15% IR, consisting of 6% for a specific disorder of the cervical spine, 7% for loss of cervical range of motion, and 2% for a specific disorder of the thoracic spine. In a TWCC-69 dated January 17, 2000, Dr. J assigned a 13% IR for the cervical spine.
The hearing officer is the trier of fact and the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The trier of fact may believe all, part, or none of any witness’s testimony and resolves conflicts and inconsistencies in the evidence. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). In a case such as the one before us where both parties presented evidence on the disputed issues, the hearing officer must look at all of the relevant evidence to make factual determinations and the Appeals Panel must consider all of the relevant evidence to determine whether the factual determinations of the hearing officer are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Texas Workers’ Compensation Commission Appeal No. 941291, decided November 8, 1994. An appeals level body is not a fact finder and it does not normally pass upon the credibility of witnesses or substitute its own judgement for that of the trier of fact even if the evidence could 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). The determination of the hearing officer that the claimant’s thoracic injury is related to the compensable injury is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In re King=s Estate, 150 Tex. 662, 224 S.W.2d 660 (1951); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Since we find the evidence sufficient to support that determination of the hearing officer, we will not substitute our judgement for hers and we affirm the determination that the compensable injury includes a thoracic injury. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
Since we found the evidence to be sufficient to support the determination that the claimant’s compensable injury includes a thoracic injury, we also affirm the determination that the claimant’s IR is 15%.
We affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Philip F. O’Neill – Appeals Judge