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 May 10, 2000. The hearing officer determined that the appellant (claimant) did not have disability from the injury sustained on July 6, 1998, for the period from February 5, 1999, to the date of the CCH. The claimant appeals and argues that she provided medical evidence to show that she could not work for some of the time period sought. The respondent (carrier) responds that the decision should be affirmed.
DECISION
Affirmed based upon the record.
The claimant injured her lumbar spine on __________, while lifting items at a store operated by (employer). A previous CCH decision determined that a cervical injury was not part of this injury. The claimant sought to be found to have disability from the date of that last decision until the present. Although medical evidence was sparse, as the hearing officer commented, the claimant has offered “off work” letters from Dr. N, one of her treating doctors, dated February 1, 1999, and August 16, 1999. On September 10, 1999, Dr. N released the claimant back to work with no restrictions.
The claimant contended that her participation in work hardening after this date caused increasing pain. She said she was referred to Dr. H, who wrote on October 18, 1999, that the claimant was in work hardening and had been “disabled” from January 7, 1999, until the present. The previous CCH decision found that the claimant did not have disability from January 1999 until the date of the CCH (February 4, 1999).
The claimant said she continued to have pain in her lower back and hip. She did not directly answer the question as to whether this caused her to be unable to work or not, stating only that she “some times” got a bad pain and did not know whether to stand or sit. Although the hearing officer noted that the claimant worked for a period of time, this occurred before the period under review.
There was testimony offered from the previous CCH in which the claimant indicated that Dr. N took her off work to relax because she had several children to attend to. The claimant testified that she had five children ranging in age from 3 to 17 years. She denied that these children were the reason she was taken off work.
The carrier offered medical evidence that the claimant had, at a required medical examination in May 1999, essentially normal lumbar range of motion and objective testing.
The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). The hearing officer, both in her discussion and findings of fact, indicates that the claimant failed to prove she had a “total inability to work.” This was an inartful choice of words. While that burden of proof is an essential one when the issue of bona fide search for employment for supplemental income benefits is involved, a person seeking temporary income benefits must prove only “disability.” A claimant can be employed and still found to have disability if the compensable injury results in “the inabilit…..o obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). However, our review of the decision as a whole shows that the legal conclusion that the claimant had no disability is sufficiently supported. We affirm the decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Judy L. Stephens – Appeals Judge