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 October 13, 1998, and January 13 and 14, 1999. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury as a result of exposure to ammonia on ______; that the claimant had good cause for failing to give his employer timely notice of the injury; and that the claimant did not have disability. The claimant appeals the adverse determinations, expressing his disagreement with them. The respondent (carrier) replies that the decision is correct, supported by sufficient evidence, and should be affirmed. The finding of good cause for untimely notice has not been appealed and has become final. Section 410.169.
DECISION
Affirmed.
The claimant testified that he worked for four hours on ______, in a control room where there was a constant release of ammonia with no ventilation. He said that as a result of inhaling the ammonia he experienced flu-like symptoms, headaches, confusion, disorientation, tightness in the chest, dry mouth, watery eyes, despondency, chills, and general soreness. There was other evidence that there was an odor of ammonia in the room when the compressor was shut off, but that there was no ammonia leak and the odor was dissipated with fans.
The claimant first sought medical care for his conditions in May 1998 from Dr. W. In a report of May 7, 1998, Dr. W recorded the history provided by the claimant. His examination was essentially normal except for a decrease in sensation. His impression was that “as a result of his exposure to ammonia in ______ and to caustic materials on his hands in December of 1997, he now has a toxic encephalopathy, toxic neuropathy, and chemcial sensitivity syndrome.”[1] In a letter of October 8, 1998, Dr. W reported that an EEG test “indicated multiple abnormalities consistent with residual effects from toxic exposure.” These effects were described primarily as “certain parts of the brain being ‘out-of-sync’ with other parts of the brain.” Dr. W also stated that a pulmonomolgist on June 22, 1998, diagnosed “reactive airway disease.” Dr. W also noted a blurred vision problem.
Dr. F, a pulmonologist, examined the claimant on June 22, 1998, at the request of Dr. W. In a report of this date, Dr. W wrote that pulmonary functions studies were “normal” though in part suggestive of reactive airways disease (RADS). Whole lung diffusion capacity was normal. His impression was reactive airways disease, with the irritant appearing to be ammonia.
Dr. K reviewed the claimant’s records at the request of the carrier. In a report of October 9, 1998, Dr. K challenged Dr. W’s diagnoses on the basis of “a chemical exposure to ammonia which does not cross the respiratory membrane to get into the blood to go to the brain!” He also did not believe that nerve testing was appropriate for an ammonia exposure. He described Dr. F’s pulmonary function test result as “supernormal” and thus not supportive of a RADS diagnosis. He also did not believe that the correct test was administered to the claimant to establish RADS. He listed several additional reasons why he did not believe the facts of claimant’s case were consistent with an inhalation injury. These included the lack of illness in coworkers when ammonia is an irritant gas, not an allergic sensitizer; the odor threshhold of ammonia is below serious health hazards as suggested by the claimant; that ammonia is a surface irritant, not a systemic poison; and that the criteria for a RADS diagnosis were not met. He concluded that the claimant’s exposure to ammonia was “inconsequential in relation to any continuing valid long term health effects”; and that there were no objective findings to support any respiratory problems.
The hearing officer made findings of fact that there was a release of ammonia on ______, in the room where claimant later worked; that the claimant was not present in the room until after the released ammonia was removed and all that remained was an ammonia odor; and that the claimant was not injured due to exposure to ammonia on ______. The claimant appeals these determinations, asserting that he was exposed to ammonia which caused his subsequent injury.
The claimant had the burden of proving that he was injured as a result of exposure to ammonia on ______. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Whether he was injured as claimed was a question of fact for the hearing officer to decide and had to be proved by expert evidence to a reasonable degree of medical probability. Schaefer v. Texas Employers= Insurance Association, 612 S.W.2d 199 (Tex. 1980); Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.). Although much effort was spent at the CCH addressing other matters, the critical issue to be proven by the claimant concerned causation of his medical conditions. Both Dr. W and Dr. F attributed various conditions to an incident of exposure to ammonia. Dr. K, on the other hand, challenged these conclusions on the bases of what the objective medical tests disclosed and on the nature of ammonia as an irritant. The hearing officer was the sole judge of the weight and credibility of this evidence. Section 410.165(a). As fact finder, he could accept or reject in whole or in part any of the evidence, including the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ) He evaluated the evidence and found Dr. K’s opinion more credible and persuasive than the opinions of Dr. W and Dr. F. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we decline to substitute our opinion of the credibility of the evidence for that of the hearing officer. Rather, we find the opinion of Dr. K, deemed credible by the hearing officer, sufficient to support his determination that the claimant was not injured by an exposure to ammonia on ______.
We also find no error in the hearing officer’s determination that the claimant did not have disability, as the 1989 Act requires a finding of the existence of a compensable injury as prerequisite to a finding of disability. Section 401.011(16).
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge
- The caustic materials exposure is the subject of a separate claim. ↑