On August 25, 1999, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issues at the CCH were: (1) whether respondent (claimant) sustained a compensable injury on ____________; and (2) whether claimant had disability. The hearing officer decided that: (1) claimant sustained a compensable thoracic and lumbar back injury on ____________; and (2) claimant had disability from the injury sustained on ____________, from _______, to the date of the CCH, August 25, 1999. Appellant (carrier) requests that the hearing officer’s decision on the disputed issues be reversed and that a decision be rendered in its favor or, in the alternative, that the case be remanded to the hearing officer. No response was received from claimant.
DECISION
Affirmed.
Section 401.011(26) defines “injury” as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease.” Section 401.011(10) defines “compensable injury” as “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.” Section 401.011(16) defines “disability” as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Claimant has the burden to prove that he was injured in the course and scope of his employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Claimant also has the burden to prove that he sustained disability. Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993. In workers’ compensation cases, the issues of injury and disability may generally be established by the testimony of the claimant alone, if found credible by the trier of fact. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.).
Claimant testified that he is a porter for employer and that, among other things, his job is to keep the premises clean. He said that he normally works Monday through Friday. Outside of the shop building there is a fenced-in area with a covering over it that is called the cage. Various items are stored in the cage, including old and new truck parts and office furniture. Claimant said that he was told that a high up employer officer was coming for a visit and that everything needed to be cleaned up. Claimant said that the shop foreman, CW, gave him permission to work on Saturday, ______, and Sunday, ____________, to get the cleaning done. Claimant said that he clocked in and out at work on ___________ and _______, that on ___________ he cleaned the shop area, and that on _______ he cleaned up the cage. Claimant said that while cleaning up the cage on _______, he was lifting a heavy skid when he lost his balance and fell and injured his lower and upper back. He said that on Monday, _______, he reported to employer that he had fallen and hurt himself and that employer sent him to the company doctor. Claimant said the company doctor released him to light-duty work, that employer had him do sweeping, and that sweeping was hard on his back. He said that on April 27th he went to Dr. H, D.C., who, he said, took him off work and has not released him to return to work. Claimant said that he has back and leg pain.
The shop manager, ST, testified that he told CW to tell claimant that claimant was to work on Saturday, ___________, to clean the shop and the cage; that, according to a person in the human resources department, claimant did clock in on ___________ at about noon and that on Sunday, _______, he clocked in at 10:00 a.m. and clocked out about 3:00 p.m.; that, as far as he, ST, knows, claimant was paid for the hours he was clocked in on _______; that none of the technicians worked in the shop on _______; that, as far as he knows, no one saw claimant working on _______; that he observed the cage on Friday, _____, and on Monday, _____, and it did not look like any work had been done in the cage; and that in his opinion, although claimant may have clocked in on Sunday, he did not do any work that day. ST further testified that on _____ claimant told him that he had fallen over a pallet and bruised his ribs and that he sent claimant to the company doctor. ST said that the company doctor released claimant to light-duty work and he had claimant sweep and also direct a temporary employee to do any lifting that needed to be done. He said that claimant did not indicate to him that he was unable to sweep.
CW testified that claimant asked him if he could work Saturday, ___________, to make extra money and he told claimant that he could; that claimant was supposed to clean the outside of the shop, including the cage, on ___________; that he had no conversation with claimant about working Sunday, _______; that it is very rare to have anyone work on Sundays; that claimant would need to have authorization from ST to work on a Sunday; that on Friday, _____, the cage was a mess and it was still a mess on Monday, _____; that on _____ the cage looked the same as it had on _____; and that he concluded that, although claimant may have clocked in on ___________ and _____, he did not do any work.
A medical report dated April 19, 1999, from the clinic that employer sent claimant to notes that claimant complained of upper back pain for one day and that he had tripped over a pallet and hit something. The report reflects that x-rays showed no fracture, that claimant was diagnosed as having a thoracic contusion, and that he was released to return to light-duty work. Claimant was again seen at the clinic on April 21st and he continued to be diagnosed as having a thoracic contusion. An April 27th clinic report notes that claimant’s thoracic contusion was resolving and that claimant was released to return to regular work that day.
Claimant began seeing Dr. H on _______, and, according to ICD-9 codes on Dr. H’s initial report, he diagnosed claimant as having a lumbar intervertebral disc without myelopathy, thoracic or lumbosacral neuritis or radiculitis, and muscle spasm. Dr. H noted that claimant was working as a porter at the time of his injury and that the injury occurred when claimant was lifting a heavy part and he tripped over a pallet and landed on his back. Dr. H noted that claimant complained of upper and lower back pain and pain down his left leg. Dr. H prescribed chiropractic treatment and noted that he anticipated that claimant could return to work on May 28, 1999. On July 6, 1999, Dr. H noted that he anticipated that claimant could return to work on August 6, 1999. Claimant said that Dr. H has not, as of the date of the CCH, released him to return to work. An MRI of claimant’s lumbar spine done in July 1999 reported facetal sclerosis at three levels and a bulge at L5-S1. Dr. B reported that nerve conduction studies done in July 1999 showed evidence of mild bilateral L5 radiculopathy.
The hearing officer found that claimant sustained an injury to the thoracic and lumbar areas of his back in the course and scope of his employment on ____________, and that claimant was unable to obtain and retain employment as a result of his injury of ____________, from _______, through the date of the CCH on August 25, 1999. The hearing officer concluded that claimant sustained a compensable thoracic and lumbar back injury on ____________, and that claimant had disability from the injury sustained on ____________, from _______, to the date of the CCH on August 25, 1999. Carrier contends that insufficient evidence supports the hearing officer’s findings in favor of claimant.
The hearing officer is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. Section 410.165(a). As the trier of fact, the hearing officer resolves conflicts in the evidence and may believe all, part, or none of the testimony of any witness. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. The hearing officer states in her decision that claimant’s testimony was credible. An appellate level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its judgment for that of the trier of fact, even if the evidence would support a different result. Appeal No. 950084. When reviewing a hearing officer’s decision to determine the factual sufficiency of the evidence, we should set aside the decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appeal No. 950084. We conclude that the hearing officer’s decision is supported by sufficient evidence and that it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Tommy W. Lueders – Appeals Judge