Following a contested case hearing held on September 12, 2000, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, resolved the disputed issues by determining that the appellant (claimant) did not sustain a compensable injury on __________, and that he did not have disability. The claimant appeals these determinations, asserting that his evidence proved that he sustained the claimed injury and had disability from May 20 through July 16, 2000. The respondent (self-insured employer) urges in response that the evidence is sufficient to support the challenged determinations.
DECISION
Affirmed.
The claimant testified that on __________ (all dates are in 2000 unless otherwise stated), while employed by the self-insured employer as a bus operator, he injured his low back while assisting a wheelchair passenger with freeing the wheelchair from the locking mechanism; that he saw his family doctor, Dr. B, for this injury on May 24 and later saw a chiropractor, Dr. S; that both doctors took him off work; and that he returned to light-duty work on July 17. He acknowledged having had prior on-the-job injuries from motor vehicle accidents (MVA) on __________, and __________, while working as a bus operator for other transportation companies; having had a previous on-the-job injury from an MVA on __________ while working for the self-insured employer; and having been involved in an MVA on April 1 while on vacation in another state and at a time when he was still off work from the __________ MVA. The claimant stated that he could not recall the nature of his injuries from the 1991 and 1993 MVAs; that he injured his left shoulder and back in the __________ MVA; and that he injured his low back and neck in the out-of-state MVA. He acknowledged that in his answers to the self-insured employer’s interrogatories, he wrote that he had shoulder and upper back pain after the out-of-state MVA. The claimant also testified that he did tell Dr. B about having injured his low back on May 19 while struggling with the wheelchair but acknowledged that Dr. B’s May 24 record reflects a history of back pain for the past five months and does not mention the wheelchair event.
Dr. B’s record states that the claimant complains of pain for five months “following [an] accident at work” and that he had tried chiropractic treatment. The June 22 record of Dr. S does reflect the claimant’s giving a history of unloading a wheelchair passenger and feeling tightness in his back and then intense pain. The medical records reflect that Dr. S treated the claimant’s low back injury following his __________ accident. Dr. S wrote on April 28 that he treated the claimant from February 14 to March 29 and that the claimant was injured in an MVA on March 31 while on vacation.
The claimant had the burden to prove that he sustained the claimed injury and that he had disability as that term is defined in Section 401.011(16). Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. The Appeals Panel has stated that in workers’ compensation cases, the disputed issues of injury and disability can, generally, be established by the lay testimony of the claimant alone. Texas Workers’ Compensation Commission Appeal No. 91124, decided February 12, 1992. However, the testimony of a claimant, as an interested party, only raises issues of fact for the hearing officer to resolve and is not binding on the hearing officer. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref’d n.r.e.). 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’s discussion of the evidence makes clear that she considered conflicts and inconsistencies in the claimant’s evidence and found that evidence unpersuasive.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Kenneth A. Huchton – Appeals Judge