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 April 26, 1999. He made the following findings of fact and conclusions of law:
FINDINGS OF FACT
2.Claimant [appellant] did not sustain harm or damage to the physical structure of his body in the course and scope of his employment on ________.
3.Claimant did not sustain a mental trauma injury in the course and scope of his employment on ________.
4.If Claimant sustained a mental trauma injury, the injury was a result of the cumulative effects of stressful events and not the result of a specific event in the course and scope of his employment.
CONCLUSIONS OF LAW
3.Claimant did not sustain a compensable mental trauma injury in the course and scope of employment on or about ________.
4.Claimant did not have disability resulting from the alleged injury of ________.
The claimant appealed those findings of fact and conclusions of law, stated why he disagreed with them, and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision in his favor. The respondent (carrier) replied, urged that the evidence is sufficient to support the determinations of the hearing officer, and requested that his decision be affirmed.
DECISION
We affirm.
The Decision and Order of the hearing officer contains a detailed statement of the evidence. Only a brief summary of the evidence will be repeated in this decision. The claimant testified that on ________, he was driving a large truck for the employer; that there was ice on the road; that the truck had a cooling system leak and the engine would shut down when the coolant level became low; that, on one occasion, he had to walk to a house to obtain water for the truck; that he was told to make another delivery in the area of the ice storm; that he decided to drive south away from the ice storm and back toward the facility of the employer; that all of this was very stressful; that when he got out of the area of the ice storm, he noticed that he had a severe headache; that the headache did not go away like he thought that it would; that he saw a doctor in an emergency room (ER) and also went to Dr. R and Dr. C; and that both doctors gave him a shot, prescribed medication, and told him that the headache resulted from stress. The claimant said that he never had headaches before and that he thought that his headache resulted from a combination of the stress and carrying a five-gallon bucket while walking on ice, climbing on the icy truck, and putting the water in the cooling system of the truck.
Mr. B, the claimant’s supervisor, testified that in November and December 1998 the claimant told him that he no longer wanted to drive the large truck on the long hauls because he did not want to have to start the trips on Sundays, that the claimant said that he wanted to drive the small truck three days a week, and that the claimant was told that he could drive the small truck for local deliveries but would have to also work in the warehouse when he was not driving so that he would be available to make deliveries five days a week. Mr. B said that he agreed that there was an ice storm in the area where the claimant was driving, that the claimant was told to drive to a city on the way back to the employer’s facility to have the company that owned the rental truck repair it, but that the claimant returned without having the truck repaired. He stated that, after the claimant returned, he again asked to drive the small truck three days a week; that he was given the same answer; that, at that time, the claimant did not say anything about a headache; and that the claimant reported the headache on January 21, 1999.
In a letter dated January 18, 1999, Dr. R said that the claimant went to an ER on January 13, 1999; that he first saw the claimant on January 15, 1999; that the claimant had intractable headaches; that he was not to return to work; and that an EEG and a CT scan were scheduled for January 26, 1999. The report of the head scan indicates that it was normal and the report of the MRI indicates minimal degenerative cervical spine changes. On January 28, 1999, Dr. R wrote that the claimant was being placed on light duty and was not to drive a truck or operate heavy machinery because of the medication he was taking. In a Initial Medical Report (TWCC-61) dated February 2, 1999, Dr. C stated that he diagnosed muscular contraction headache, cervical and thoracic strain, and extreme stress reaction; prescribed therapy and medication; and made a referral for a neurological consultation. In an initial neurological evaluation dated February 9, 1999, Dr. M diagnosed A1. Tension type headaches and migraine headaches without aura, due to initial stress and psychological trauma. 2. Neck pain, secondary to cervical strain.
The burden is on the claimant to prove by a preponderance of the evidence that an injury occurred in the course and scope of employment. Texas Workers’ Compensation Commission Appeal No. 91028, decided October 23, 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). 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, the weight to assign to each witness’s testimony, and resolves conflicts and inconsistencies in the 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. 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). 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). The hearing officer’s determination that the claimant did not sustain an injury in the course and scope of his employment on ________, is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. 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). Since we find the evidence sufficient to support that determination of the hearing officer, we will not substitute our judgment for his. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
Disability is defined as inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. Section 401.011(16). Disability, by definition, depends upon there being a compensable injury. Id. Since we have affirmed the determination that the claimant did not sustain a compensable injury, he cannot have disability.
We affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Elaine M. Chaney – Appeals Judge