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 March 9, 1999. The issue at the CCH was did the respondent (claimant) sustain an injury to his right shoulder on ______, in addition to the compensable right elbow injury. The hearing officer determined that the claimant did sustain an injury to his right shoulder on ______, in addition to the compensable right elbow injury. The appellant (carrier) appeals this determination on sufficiency of the evidence grounds. The appeals file contains no response from the claimant.
DECISION
Affirmed.
The parties stipulated that on ______, the claimant sustained a compensable injury to his right elbow. The claimant testified that on ______, he was cleaning the cab of a truck and, as he was getting out of the truck, he slipped and fell, landing on his right elbow. The claimant testified that all of his weight went on his right elbow, and the impact jammed his arm and shoulder, causing a right shoulder injury. On ______, the claimant completed an incident report for employer which states that he fell on his elbow. The claimant testified that his elbow and shoulder were sore, but he continued to work at his regular job duties. The claimant testified that he attempted to get medical treatment from a family doctor in June, but canceled the appointment after he was told that he needed to see an orthopedic doctor for his injury. The claimant admitted a 1989 right shoulder injury that resulted in shoulder surgery in 1992 or 1993, but testified that he was fully recovered and without any shoulder pain until the ______, fall. On July 6, 1998, the claimant testified he was terminated from employment because of a dispute over his job duties. The claimant filed an Employee’s Notice of Injury or Occupational Disease and Claim for Compensation (TWCC-41) with the Texas Workers’ Compensation Commission on July 23, 1998, and indicated an injury to his elbow and shoulder.
The claimant was examined by Dr. A on August 3, 1998, at the request of the carrier. Dr. A’s history reflects that claimant’s right elbow pain had ceased, but he was left with pain in his right shoulder. Dr. A certified that the claimant reached maximum medical improvement (MMI) on August 3, 1998, with a zero percent impairment rating (IR). The claimant disputed Dr. A’s certification and was examined by a designated doctor, Dr. G, on November 11, 1998. Dr. G’s history reflects right shoulder pain. Dr. G also certified MMI on August 3, 1998 with a zero percent IR. On January 12, 1998, the claimant began treating with Dr. GO, who had previously treated him for the 1989 right shoulder injury. Dr. GO’s history reflects right shoulder pain, and a diagnosis of possible rotator cuff tear. Dr. GO states, “I feel that when he sustained the injury on 5-1-98 to his elbow he also injured his shoulder.”
The carrier argues that the claimant did not sustain an injury to his right shoulder on ______. In support of its position, the carrier presented the testimony of Mr. L, whose job duty for employer was to complete accident reports. Mr. L testified that he spoke to the claimant twice following his termination on July 6, 1998. Mr. L testified that in the first conversation the claimant did not mention an injury and asked for his job back, which he refused. In the second conversation on July 16, 1998, Mr. L testified that the claimant asked for his job back, the claimant stated that he couldn’t find another job, and after Mr. L stated that he would not rehire him, the claimant stated that he would have to file a workers’ compensation claim. In that conversation, the claimant did not say anything about a shoulder injury. The carrier urges the evidence does not support a shoulder injury because: the incident report completed by the claimant on ______, indicates only an injury to the elbow, the claimant continued performing his job duties for two months following the elbow injury until his termination, and the claimant did not receive medical treatment for his injury until December 2, 1998.
The claimant had the burden to prove that he injured his right shoulder on ______. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Whether he did so was a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. The hearing officer, as fact finder, may believe all, part, or none of the testimony of any witness. The testimony of a claimant as an interested party raises only an issue of fact for the hearing officer to resolve. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). The hearing officer was the sole judge of the weight and credibility to be given the evidence. Section 410.165(a). Based on the evidence presented, the hearing officer concluded that the claimant met his burden of proving he sustained a right shoulder injury on ______. When reviewing a hearing officer’s decision, we will reverse such decision only if it is so contrary to the overwhelming weight 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). We find there was sufficient evidence to support the determination of the hearing officer that the claimant sustained an injury to his right shoulder on ______, in addition to the compensable right elbow injury.
The decision and order of the hearing officer are affirmed.
Dorian E. Ramirez – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Alan C. Ernst – Appeals Judge