Following a contested case hearing held on October 10, 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 compensable injury does not include depression and that the appellant’s (claimant) impairment rating (IR) is 6%. The claimant appealed, asserting that the hearing officer’s determinations were against the great weight of the evidence and that the great weight of the evidence proved that the claimant’s compensable injury included her depression and that her IR is 18%, not the 6% assigned by the designated doctor. The respondent (carrier) responded that the hearing officer’s decision is supported by the evidence and should be affirmed.
DECISION
Affirmed.
On _________, the claimant sustained a compensable low back injury while pulling a seam cart. She initially treated with a company doctor, then began treating with Dr. H on March 11, 1996. Dr. H diagnosed a thoracic sprain and lumbar discogenic syndrome. On September 6, 1996, Dr. H certified that the claimant had reached maximum medical improvement (MMI) on September 4, 1996, with an 18% IR. Dr. H then referred the claimant to Dr. G, a neurologist and pain management specialist in his practice group.
Dr. H’s assignment of an 18% IR was disputed and Dr. R was appointed to act as the Texas Workers’ Compensation Commission (Commission)-selected designated doctor. Dr. R examined the claimant on December 19, 1996. In the narrative accompanying Dr. R’s Report of Medical Evaluation (TWCC-69), he noted that the claimant denied a history of sleep disturbance and also denied having unusual emotional changes or mood swings. Dr. R found that, in general, the claimant was well-developed, well-nourished, and in no acute distress. After reviewing the file and performing range of motion (ROM) measurements, Dr. R concluded that the claimant was entitled to a 5% impairment for specific disorders of the spine and an additional 1% impairment for loss of left lateral flexion. Dr. R found that the measurements for lumbar flexion and extension were invalidated by the straight leg raise test. Dr. R determined that the claimant had reached MMI on September 4, 1996, with a 6% IR.
The claimant disputed the accuracy of Dr. R’s evaluation. In an attempt to resolve the dispute, the Commission sent Dr. R a letter from Dr. H and a copy of Dr. H’s ROM calculations. Dr. R reviewed the material and responded that he found no reason to amend his report.
The hearing officer found that Dr. R’s evaluation of the claimant and his determination of the claimant’s impairment were done in accordance with the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association and that the great weight of the other medical evidence was not contrary to the designated doctor’s report. Section 408.125(e) provides that the designated doctor’s report has presumptive weight and requires that the Commission “shall base the [IR] on that report unless the great weight of the other medical evidence is to the contrary.” The hearing officer’s determination that the great weight of the other medical evidence was not contrary to Dr. R’s report is supported by the evidence. See Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992, and decisions where that case is cited for the standard of what is necessary to overcome the designated doctor’s opinion on MMI and IR.
After Dr. H executed his TWCC-69 but before the claimant was seen by Dr. R, the claimant saw Dr. G on September 18, 1996. In a report of that evaluation, Dr. G stated that the claimant told her that she had been depressed since the injury and had experienced some suicidal thoughts. Dr. G stated that three weeks before her evaluation the claimant had thought about trying to overdose on pills. Dr. G did not express any opinion as to the cause of the claimant’s depression.
The claimant was evaluated by a psychologist, Dr. A, on June 9, 2000. Dr. A diagnosed major depression, but failed to express an opinion on the cause of the depression. Dr. A did note that the claimant suffered from severe back pain, that she was married, that her husband was a truck driver, that three children lived in her home, and that the quality of her marital and familial relationships was described as fair. Although the claimant testified that she has not worked since her injury, Dr. A’s report inexplicably stated that the claimant reported an annual income between $31,000 and $40,000 and that the major source of this income was from the claimant’s employment.
When asked to describe, in her own words, why she was depressed, the claimant testified as follows:
Because I am after the injury, after the depression, I’ve been not able to work regularly, and my life has changed completely and–and the way my life has changed–my life has changed, so that depresses me more.
When asked to explain what she meant by the statement that her life had changed, the claimant testified:
Well, I’m not the same person, and I cannot do the same things that I used to do before. I get more tired, and I cannot do all the things at home the same way. I have a constant pain. I cannot sleep well.
The hearing officer correctly noted that the claimant has the burden to prove that her depression is a part of the compensable injury. In Texas Workers’ Compensation Commission Appeal No. 992149, decided November 15, 1999, the Appeals Panel discussed the proof necessary to establish that a compensable injury extends to a psychological injury. The Appeals Panel stated:
In Texas Workers’ Compensation Commission Appeal No. 990257, decided March 24, 1999 (Unpublished), the Appeals Panel reviewed some cases where causality of a psychological condition was at issue and commented:
In Texas Workers’ Compensation Commission Appeal No. 961449, decided September 9, 1996, we stated that “if a claimant’s psychological condition is causally related to the compensable injury, it, too, is compensable,” and “[t]he fact that there may be more than one cause of the claimant’s psychological condition and that there are other stressors in this case beyond the claimant’s chronic pain and multiple failed surgeries does not preclude a finding of compensability, provided that there is a causal connection between the compensable injury and the claimant’s psychological problems.” In Texas Workers’ Compensation Commission Appeal No. 950749, decided June 21, 1995, the Appeals Panel stated “[a]lthough the claimant may not have experienced a psychological problem but for the fact that a back injury occurred in February 1991, and set in motion a protracted dispute resolution process, this is not alone a sufficient basis to conclude that an additional compensable injury has occurred.” Appeal No. 950749 quoted the prior decision of Texas Workers’ Compensation Commission Appeal No. 94591, decided June 22, 1994, which in turn quoted Texas Employers Ins. Ass’n v. Wilson, 522 S.W.2d 192, 195 (Tex. 1975), as follows:
[i]t therefore must be concluded that although the claimant may be disabled by reason of a neurosis traceable in part to circumstances arising out of and immediately following his injury, there must be a finding that the neurosis was the result of the injury. [Emphasis in original.]
We concluded that “[i]f a claimant’s psychological problems are traceable to the ‘circumstances arising out of and immediately following the injury’ as opposed to being the ‘result of the injury,’ they are not part of the compensable injury.” Appeal No. 961449, supra.
The 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. 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. 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. The hearing officer determined that the evidence failed to establish that the claimant’s alleged depression was a result of the compensable injury. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995. In this case, there is sufficient evidence to support the hearing officer’s finding that the claimant’s depression is the result of the circumstances arising from the compensable injury and not the injury itself. We therefore affirm the hearing officer’s determination that the claimant’s compensable injury does not extend to the alleged depression.
The hearing officer’s determinations being supported by the evidence and there being no reversible error found in the record, we affirm the hearing officer’s decision and order.
Kenneth A. Huchton – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Gary L. Kilgore – Appeals Judge