On August 17, 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 that CCH were: (1) “Does the compensable right hand injury of ___________, extend to and include carpal tunnel and cubital tunnel”; and (2) “Did the Claimant [respondent] have disability resulting from the injury sustained on ___________, from December 9, 1998 to the present.” The hearing officer decided that: (1) “The compensable right hand injury of ___________, does extend to and include carpal tunnel and cubital tunnel”; and (2) that “The Claimant had disability from the injury sustained on ___________ from December 12, 1998, through June 11, 1999, and then again from August 7, 1999, through to the date of this [CCH].” Appellant (carrier) requests that the hearing officer’s decision on the disputed issues be reversed and that a decision be rendered in its favor. Claimant requests affirmance.
DECISION
Affirmed as reformed herein.
Claimant testified that on ___________, he was working as an electrician’s helper installing cables when the “hammer drill” he was drilling with jammed and spun his right hand around. The parties stipulated that claimant sustained a compensable injury to his right hand on ___________, and that he had disability from August 7, 1998, to November 20, 1998. Medical records state that claimant is right hand dominant. Carrier represented that in a prior CCH, another hearing officer decided that claimant did not have disability from November 21, 1998, to the date of that CCH, December 8, 1998. Claimant said that he went to the company doctor and was diagnosed with a fracture of the right hand; that (Dr. S) put his hand in a cast; that when the carrier refused to pay for diagnostic tests recommended by (Dr. G), his treating doctor, he went to work welding barns to pay for the tests himself; that he worked from June 12, 1999, to August 6, 1999; that he was not able to continue working and is unable to work because of hand pain and numbness and stiffness in two fingers of his right hand; that he was terminated from his latest employment because he was unable to do his part of the work; and that Dr. G has told him that he needs an operation to stop the hand pain.
Dr. S wrote on August 5, 1998, that on ___________, claimant was using a hammer drill to drill through a piece of aluminum when he hit a cable and was spun around and torqued his hand, and that he was diagnosed at a medical clinic as having a fracture of the right fourth metacarpal. Dr. S noted that he put claimant in an ulnar gutter cast and wrote that claimant could return to light duty with limited use of his right hand. On November 20, 1998, Dr. G wrote that claimant’s accident with the drill on ___________ resulted in a twisting injury to the right hand and forearm; that claimant’s right hand was in a cast for two months; that claimant had not worked since August 7, 1998; that “there is significant bowing deformity of the right forearm and limited forearm rotation from a childhood injury”; and that “[t]his patient appears to have two separate problems in his right hand, both possibly residual from his injury on ___________: (1) Some type of carpal instability; (2) probable cubital tunnel syndrome.” Dr. G noted that claimant would be evaluated with electrodiagnostic studies and a bone scan and that claimant should remain off work at least until he is seen again. Dr. G noted in December 1998 that the studies he recommended were not approved by carrier. On January 4, 1999, Dr. G wrote that carrier continued to refuse to authorize diagnostic studies and that:
I saw this patient on one occasion on 11/20/98 at which time two things were apparent to me: 1) his fractured fourth metacarpal had healed solidly (in fact there was no evidence of the previous fracture on x-ray); 2) the cause for his persistent pain in the right hand and wrist has never been established. It was for this reason that I recommended additional studies to make a definitive diagnosis so that this patient can be treated.
The patient described a twisting injury which is entirely compatible with some form of carpal instability, and the bone scan was requested to try to pinpoint the site of a problem in the carpus. Nerve conduction studies were also requested because it is possible that the patient injured the ulnar nerve at the time of the twisting injuries.
Claimant said that the Texas Workers’ Compensation Commission sent him to (Dr. L). Dr. L reported on February 16, 1999, that claimant had not reached maximum medical improvement. Dr. L wrote that Dr. G’s recommendation of a bone scan and electrodiagnostic studies of the upper extremity was consistent with a proper standard of care in the case and that:
I believe [claimant] has suffered a significant injury to the hand and wrist due to the accident with the drill. Certainly the physics and mechanism of the injury could have caused a ligamentous injury to the wrist and along the MCP’s of the right hand. Although the fracture has been treated, and immobilization of the hand and wrist likely helped with the recovery and repair of such ligament damage, it does not appear that these structures have recovered to the extent required to allow him to use the hand normally.
I agree with [Dr. G’s] assessment of a carpal instability (ligament injury) persisting still. I also believe that the ligamentous structures about the 4th and 5th MCP’s are still unhealed. Third, the idea of a cubital tunnel syndrome is validated by the exam findings today.
Dr. G noted on May 6, 1999, that carrier was continuing to deny diagnostic studies and that claimant wanted to pursue those studies under a “self-pay status.”
Claimant said that although he was in pain and taking pain medications and was really not able to work, he went to work on June 12th to pay for the diagnostic studies and that he worked until August 6th when he was terminated for not being able to do his part of the work. Claimant said he paid for the studies himself. A bone scan of claimant’s hands and wrists was done on June 28, 1999. (Dr. SN) impression of that scan was: “1) joint centered activity at the right long PIP and MCP joints which may be post traumatic or degenerative. 2) vague activity proximal left 3rd metacarpal. 3) focal areas of activity at both scapholunate articulations and in the region of the hamulus bilaterally. There is also focal activity at the left 1st and right 2nd carpometacarpal joint.” A nerve conduction velocity test report dated June 28, 1999, notes an impression of “marked relative, but not absolute slowing of the conduction velocity around the elbow as compared with the forearm velocity” for both right ulnar motor and right ulnar sensory testing.
On June 28, 1999, Dr. G wrote that electrodiagnostic studies done that day by (Dr. M) confirmed the clinical impression of right cubital tunnel syndrome and that the bone scan done that day showed multiple areas of increased uptake in the right wrist. Dr. G wrote that the studies confirmed the clinical impression of cubital tunnel syndrome and intracarpal pathology “[b]oth of which could easily have been caused by the twisting injury his right-hand forearm on ___________.”
Dr. G noted on July 23, 1999, that claimant had continued to work despite having significant pain and that the pain required him to take up to four Vicodin tablets per day. Dr. G also wrote on July 23, 1999, that “[t]he lack of response to the wrist injection and persistent symptoms related to cubital tunnel suggest to me that his pain problem continues to be cubital tunnel syndrome,” that claimant wished to continue doing his job, and that he prescribed pain pills for claimant to take during the day.
Claimant had the burden to prove the extent of his compensable injury. Texas Workers’ Compensation Commission Appeal No. 960733, decided May 24, 1996. 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 had the burden to prove that he had disability. Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993. The extent-of-injury issue, stated as: “Does the compensable right hand injury of ___________, extend to and include carpal tunnel and cubital tunnel” lacks clarity as to what the nature of the claimed injury is. In the Statement of the Evidence portion of her decision, the hearing officer states “based on the evidence as a whole it is this Hearing Officer’s finding the Claimant has established by a preponderance of the evidence that he sustained an injury in the form of cubital tunnel syndrome and in the form of a ligamentous injury to the carpal region of his wrist.” In the Findings of Fact and Conclusions of Law sections of her decision, the hearing officer made the following findings and conclusions, which are appealed by carrier:
FINDINGS OF FACT
2.On ___________, the Claimant sustained an injury in the form of cubital tunnel syndrome and in the form of carpal tunnel syndrome while in the course and scope of employment.
3.The Claimant was unable to obtain and retain employment at his pre-injury wages from December 12, 1998, through June 11, 1999, and then again from August 7, 1999, through the date of this [CCH].
CONCLUSIONS OF LAW
3.The compensable right hand injury of ___________, does extend to and include carpal tunnel and cubital tunnel.
4.The Claimant had disability from the injury sustained on ___________ from December 12, 1998, through June 11, 1999, and then again from August 7, 1999, through the date of this [CCH].
The section labeled as “Decision” states:
The compensable right hand injury of ___________, does extend to and include carpal tunnel and cubital tunnel. The Claimant had disability from the injury sustained on ___________ from December 12, 1998, through June 11, 1999, and then again from August 7, 1999, through to the date of this [CCH].
Carrier contends that the medical evidence was insufficient to carry claimant’s burden of proof, that Dr. G did not consider a “congenital defect,” that evidence of causation was not based on reasonable medical probability, that claimant was not diagnosed by Dr. G as having carpal tunnel syndrome but instead as having intracarpal pathology, and that there was no evidence of a “change of circumstances” to support a disability finding, as evidenced by claimant’s return to work for two months.
Section 410.165 provides that 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, that conformity to legal rules of evidence is not necessary, and that a hearing officer may accept a written statement signed by a witness and shall accept all written reports signed by a health care provider.
It has been held that a medical expert need not use exact magic words in providing an opinion on causation. Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102 (Tex. 1979). The hearing officer can consider the substance of the opinions rendered. The hearing officer could consider the claimant’s testimony, medical reports and studies, and the opinions of Drs. G and L in determining the extent-of-injury issue. In particular, Dr. G wrote that the twisting injury was entirely compatible with some form of carpal instability and that both the cubital tunnel syndrome and the intracarpal pathology could easily have been caused by the twisting injury of ___________. Dr. G’s reports reflect that he was aware of claimant’s bowing deformity of the right forearm when he rendered his opinions. Dr. L notes that claimant had a “significant injury to the hand and wrist due to the accident with the drill” and states that the mechanism of the injury could have caused a ligamentous injury to the wrist. The hearing officer apparently found claimant’s testimony to be credible regarding the disability issue. The Appeals Panel has noted that it is possible for an injured worker to go in and out of disability over a course of time. Texas Workers’ Compensation Commission Appeal No. 962342, decided January 6, 1997. If, as contended by carrier, evidence of “changed circumstances” is needed to support a finding of disability after December 8, 1998, the hearing officer could certainly consider the results of diagnostic testing and claimant’s testimony that Dr. G has told him he needs surgery.
As noted, the 1989 Act makes the hearing officer the sole judge of the weight and credibility to be given to the evidence. 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 witnesses. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. 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 could 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 do agree with carrier’s contention that claimant has not been diagnosed as having carpal tunnel syndrome and therefore Finding of Fact No. 2, Conclusion of Law No. 3, and the hearing officer’s decision are hereby reformed as follows to comport with the hearing officer’s finding on the extent-of-injury issue set forth in her Statement of the Evidence (regarding injury in the form of cubital tunnel syndrome and in the form of a ligamentous injury to the wrist):
FINDINGS OF FACT
2.On ___________, the Claimant sustained an injury in the form of cubital tunnel syndrome and in the form of a ligamentous injury to the wrist while in the course and scope of employment.
CONCLUSIONS OF LAW
3.The compensable right hand injury of ___________, does extend to and include cubital tunnel syndrome and a ligamentous injury to the wrist.
DECISION
The compensable right hand injury of ___________, does extend to and include cubital tunnel syndrome and a ligamentous injury to the wrist. The Claimant had disability from the injury sustained on ___________, from December 12, 1998, through June 11, 1999, and then again from August 7, 1999, through the date of this [CCH].
We conclude that the hearing officer’s finding, conclusion and decision on the extent-of-injury issue, as reformed herein, and her finding, conclusion, and decision on the disability issue are supported by sufficient evidence and are 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).
As reformed herein, the hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Susan M. Kelley – Appeals Judge