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 January 15, 1999. With respect to the issues before her, the hearing officer determined that the appellant (claimant) did not sustain a compensable injury on ______, and that she did not have disability within the meaning of the 1989 Act. In her appeal, the claimant argues that those determinations are against the great weight and preponderance of the evidence. In its response, the respondent (self-insured) urges affirmance.
DECISION
Affirmed.
It is undisputed that the claimant sustained a compensable low back injury on ______. An October 23, 1996, MRI indicated that she had bulging and desiccation at L4-5. She was assigned a five percent impairment rating (IR) for the ______ injury. On (subsequent date of injury), the claimant sustained a second compensable low back injury. An MRI of July 23, 1997, revealed posterior disc bulging at L3-4 and L4-5 and desiccation at L4-5 and L5-S1. Dr. O, the claimant’s treating doctor, certified that she reached maximum medical improvement (MMI) for the (subsequent date of injury) injury on December 17, 1997, and assessed a six percent IR.
A Specific and Subsequent Medical Report (TWCC-64) dated March 5, 1998, Dr. O “suspect[s] recurrent HNP lumbar spine.” On April 8, 1998, the claimant went to the emergency room for lumbar pain. The records from that visit reflect complaints of severe lumbar pain and pain into the right leg. Stadol and Phenergan IM were administered for pain. In the evening of April 8th, the claimant was involved in a motor vehicle accident. She testified that she was not injured in the accident. On April 9, 1998, the claimant had an appointment with Dr. O. His TWCC-64 of that visit notes “worsening low back symptoms possibly disc disruption versus SI syndrome right.” He recommended a lumbar CT myelogram. On April 17, 1998, Dr. O sent a preauthorization request to the self-insured asking for approval of the CT myelogram. In that letter, Dr. O noted that the claimant had “a diagnosis of low back pain with radicular symptoms in to the right lower extremity.” In addition, Dr. O stated:
She continues to complain of worsening symptoms in spite of conservative treatment. MRI of 7/97 demonstrated bulging discs at L4 and L5 levels. I am concerned that one of these bulging disc[s] has herniated.
On April 24, 1998, the claimant returned to the emergency room with complaints of chronic, severe back pain. Demerol and Phenegran were administered for pain.
The claimant testified that she is a behavior management specialist for the self-insured school district. She stated that on ______, she was working with children on the first-grade program. She testified that after one of the students completed her solo, the student began to hyperventilate. The claimant was helping the student walk to the nurse’s office, when the student fainted and fell, causing the claimant, who had her arm around the student, to fall also. The claimant stated that she had intense pain in her back “like someone had stabbed her” and that after the fall, she was not able to straighten her back. In addition, she stated that her right leg became numb after the fall. The claimant went to the emergency room on April 28th, with complaints of low back pain radiating into the right leg. On May 4, 1998, the claimant underwent a CT myelogram of the lumbar spine, which had been scheduled prior to the alleged injury of ______. That testing revealed a central and left paracentral disc herniation at L5-S1.
Mr. B, a claims adjuster with the self-insured’s third-party administrator, testified that on April 1, 1998, the claimant contacted him to advise him that she had been off work for two days in March 1998. Mr. B testified that the claimant asked him if she would receive temporary income benefits (TIBS) for the days she missed and that he advised her she was not eligible to receive further TIBS for the (subsequent date of injury) injury because she had been certified at MMI and was receiving impairment income benefits (IIBS). He stated that he also advised her that she would receive four additional IIBS checks.
Under the 1989 Act, the claimant has the burden of proving that she sustained a compensable injury. Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. That issue presented a question of fact to be resolved by the hearing officer. The hearing officer is the sole judge of the weight, credibility, relevance and materiality of the evidence. Section 410.165(a). As the fact finder, the hearing officer is charged with the responsibility for resolving the conflicts and inconsistencies in the evidence. Texas Employers Ins. Ass’n v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). To that end, the hearing officer could believe all, part, or none of the testimony of any witness and could properly decide what weight she would assign to the other evidence before her. Id. We will not substitute our judgment for that of the hearing officer where her determinations are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The hearing officer determined that the claimant did not sustain a compensable injury in the ______, incident. In so finding, she noted that “the medical history of Claimant’s back pain does not support a finding that she sustained another back injury on ______.” The hearing officer was not bound to accept the claimant’s testimony that her condition deteriorated after the ______, incident and it is apparent that she did not elect to credit that testimony. Instead, the hearing officer reviewed the medical records in this case and determined that the claimant’s complaints were unchanged after the incident and that the radicular symptoms, which the claimant asserted were different, had been previously documented in Dr. O’s records and in the April 8, 1998, emergency room records. The hearing officer was acting within her province as the sole judge of the evidence in determining that the evidence was insufficient to support a determination that the claimant sustained a new low back injury on ______. Our review of the record does not demonstrate that that determination is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Therefore, no sound basis exists for reversing it on appeal. Pool, supra; Cain, supra. The fact that another hearing officer may well have drawn different inferences from the evidence, which would have supported a different result, does not provide a basis for us to reverse the hearing officer’s decision on appeal. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.). Given our affirmance of the hearing officer’s determination that the claimant did not sustain a compensable injury, we likewise affirm the determination that she did not have disability as the existence of a compensable injury is a prerequisite to a finding of disability. Section 401.011(16).
The hearing officer’s decision and order are affirmed.
Elaine M. Chaney – Appeals Judge
CONCUR:
Judy L. Stephens – Appeals Judge
DISSENTING OPINION:
I dissent. First, the hearing officer has made no findings of fact, as such, but has essentially made conclusions of law. Having no real findings of fact to review, I cannot uphold a decision against a claimant who suffered an undisputed fall and thereafter is found to have a herniated disc, but whom (one must infer) was determined by the hearing officer to have a condition that was the “sole cause” of her subsequent inability to work. The fact that claimant had some problems prior to her accident does not rule out per se the fact of an aggravated injury; indeed it renders the prospect of injury that much more credible. The “medical history” simply is not inconsistent with a subsequent injury either. The decision is against the great weight and preponderance of the evidence so as to be manifestly unjust, and should be reversed.
Susan M. Kelley – Appeals Judge