This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 20, 2000. He determined that on __________, the respondent/cross-appellant (claimant) was injured in the course and scope of his employment as the result of being hit by a coworker; that the claimant was not intoxicated at the time he was injured; that the appellant/cross-respondent (carrier) is not relieved of liability based on intoxication; that the claimant sustained a compensable injury on __________; and that the claimant did not have disability. The carrier appealed, urged that the determinations of the hearing officer related to the intoxication defense are so against the great weight and preponderance of the evidence as to be manifestly erroneous and unjust; and requested that the Appeals Panel reverse those determinations and render a decision that the claimant was intoxicated at the time of the injury and that it is relieved of liability. A response from the claimant has not been received.
The claimant appealed, contended that the hearing officer erred in determining that he did not have disability, and requested that the Appeals Panel reverse that part of the decision of the hearing officer and render a decision in his favor on the issue of disability. The carrier responded, urged that the hearing officer’s determination that the claimant did not have disability is not so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust, and requested that that part of the decision be affirmed.
DECISION
We affirm.
We first address the determination of the hearing officer that on __________, the claimant was not intoxicated at the time he was injured by being hit by a coworker. The claimant testified that he drank beer the night before he was injured, that he stopped drinking between midnight and 2:00 a.m., that he did not drink at work, and that he was not intoxicated when he was injured. The carrier had admitted into evidence a laboratory report of urine tests for drugs and alcohol. It indicates that a confirmation test for urine alcohol revealed a positive result of 0.36 and that the cutoff value is 0.04 followed by two marks or characters that cannot be deciphered. The carrier did not offer an explanation of the laboratory report. The record does not contain information needed to determined if the claimant was intoxicated under the provisions of TEX. PEN. CODE ANN. § 49.01 (Vernon Supp. 2000). In the discussion in his Decision and Order, the hearing officer stated that there was a lack of scientific or expert testimony to explain the test results, that the evidence was inadequate to make a prima facie case of intoxication, and that he could not conclude that the claimant was intoxicated.
The hearing officer is the trier of fact and is 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). Nothing in the record indicates that the hearing officer did not properly apply the law concerning intoxication. His determination that the claimant was not intoxicated at the time of the injury is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust and is affirmed. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
We next address the determination that the claimant did not have disability. The claimant, who said that he is five feet and nine inches tall and weighs 165 pounds, testified that on __________, he was hit on his chest with the fist of his supervisor, who is at least six feet and five inches tall and is very solid. He said that the blow knocked the breath out of him; that he flexed backwards; that he hit a rack that holds pallets; that he went to an emergency room; and that he injured his chest, neck, upper back, and lower back. The claimant used motions to demonstrate and describe what occurred when he was hit. The claimant stated that he went to a chiropractor on April 10, 2000; that he received chiropractic treatment until about three weeks ago; that he stopped receiving the treatment because he did not have the money for gasoline to drive to the chiropractor; that he is now about the same as he was when he was injured; and that he cannot work because of the pain.
In an Initial Medical Report (TWCC-61) dated April 24, 2000, Dr. VB, a chiropractor, said that the claimant stated that his injury occurred when his supervisor hit him; that the claimant injured his chest, upper back, mid back, and lower back; and that the claimant was experiencing aching pain, stabbing pain, numbness, and stiffness in the listed areas. Reports from Dr. VB indicate that the claimant was taken off work on April 10, 2000, the first day the claimant was seen by Dr. VB; that the claimant received treatment through mid June 2000; and that Dr. VB has not released the claimant to return to work.
The burden is on the claimant to prove by a preponderance of the evidence that he had disability. Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993. The testimony of the claimant alone may be sufficient to satisfy the burden of proof. Texas Workers’ Compensation Commission Appeal No. 91013, decided September 13, 1991. The hearing officer is the trier of fact and is 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). While a claimant’s testimony alone may be sufficient to prove a claim, the testimony of a claimant is not conclusive but only raises a factual issue for the trier of fact. Texas Workers’ Compensation Commission Appeal No. 91065, decided December 16, 1991. The trier of fact may believe all, part, or none of any witness’s testimony because the finder of fact judges the credibility of each and every witness, determines the weight to assign to each 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). The hearing officer is not bound by the testimony of a medical witness when the credibility of that testimony is manifestly dependent upon the credibility of the information imparted to the medical witness by the claimant. Texas Workers’ Compensation Commission Appeal No. 952044, decided January 10, 1996. An expert witness’s deductions from facts are not binding on the hearing officer even when they are not contradicted by another expert. Texas Workers’ Compensation Commission Appeal No. 961610, decided September 30, 1996. In his discussion in the Decision and Order, the hearing officer stated that the blow to the chest was sufficient to cause temporary pain and damage or harm to the physical structure of the body; that the medical evidence is not credible and is not objective; that, at the hearing, the claimant reenacted his actions and the actions of the person who hit him with a great deal of agility and flexibility; that the claimant testified that his condition was the same as it was right after the incident; and that the claimant was neither credible nor persuasive concerning disability. An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact even if the evidence would 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). Only were we to conclude, which we do not in this case, that the hearing officer’s determination that the claimant did not have disability is so against the great weight and preponderance of the evidence as to be clearly wrong or unjust, would there be a sound basis to disturb that determination. King, supra; Pool, supra. Since we find the evidence sufficient to support the determination of the hearing officer that the claimant did not have disability, we will not substitute our judgment for his. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
We affirm the decision and the order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Robert W. Potts – Appeals Judge