On August 18, 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 issue at the CCH was whether respondent (claimant) sustained a compensable injury to her thoracic and lumbar spine in addition to the injury to her right ankle on ___________. The hearing officer decided that claimant sustained a compensable thoracic and lumbar spine injury in addition to her compensable right ankle injury on ___________, while in the course and scope of her employment with appellant (self-insured). Self-insured requests that the hearing officer’s decision be reversed and that a decision be rendered in its favor. Claimant requests affirmance.
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.” Claimant has the burden to prove that she was injured in the course and scope of her employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Claimant has the burden to prove the extent of her compensable injury. Texas Workers’ Compensation Commission Appeal No. 960733, decided May 24, 1996. In workers’ compensation cases, the issue of injury 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 is a substitute teacher for self-insured. She testified that on ___________, as she was walking down stairs at self-insured’s school, she lost her balance, tripped, twisted her ankle, fell, and hit her back on three or four steps. She said that another substitute teacher, (CB), was walking down the stairs when the accident occurred, but that CB was a little ahead of her going down the stairs and did not see the accident. Claimant said that CB and another teacher helped her to the nurse’s office and that the nurse advised her to see (Dr. L). Claimant said that the day before her accident, (date), was an in-service day at the school for full-time teachers but that she went to the school on that day to talk to the principal. Claimant said that she had a meeting with the school principal on January 11, 1999, about the way in which the principal’s secretary, (ME), treated her, and that she was not reprimanded for being at the school on (date), a day she may not have been scheduled to be at school. Claimant went to (Dr. M) on January 12, 1999, and has treated with him since then. Claimant said that she has not worked since January 12, 1999.
CB stated in a written statement that she was walking down the stairs to the left of claimant with a handrail between them; that she was looking straight ahead; that she heard claimant say “Oh, I turned my ankle”; that when she turned to look at claimant, claimant had “sat down on the stairs”; that claimant stood up and said her ankle hurts; and that she assisted claimant to see the nurse. The school nurse wrote that when she saw claimant on ___________, claimant told her that she had twisted her ankle while walking down the stairs, that claimant had no other complaints, that there was slight swelling of the ankle, that she put ice on the ankle, that she gave claimant a referral to see a doctor, and that she reported the injury to ME.
ME testified that when she spoke to claimant on ___________, about her injury, claimant told her that she had turned her ankle but did not say she fell; that she had claimant complete an injury report; that on January 11, 1999, she and claimant had a meeting with the principal concerning whether there was a problem between ME and claimant; that at that meeting claimant was instructed not to be at the school on a day she was not scheduled to be there; and that a memorandum from the principal to that effect was put in claimant’s file.
In her written report of injury dated ___________, claimant wrote that “I was walking down the stairs and I tripped down several stairs,” that she twisted her right ankle, and that the injured body part was her right ankle. In answer to the injury report’s question of what caused the injury, claimant wrote “fall.”
Claimant was seen by Dr. L on ___________, and the patient information form states “tripped down stairway – twisted ankle.” Dr. L diagnosed a right ankle sprain and prescribed a splint and crutches. Dr. L noted that claimant could return to work the next day with restrictions. Dr. L’s initial medical report notes the history of injury as “twisted right ankle and fell, but caught fall with right arm on stair rail.” Dr. L wrote in April 1999 that when he evaluated claimant on ___________, claimant told him that she tripped down a stairway and twisted her ankle and that she made no mention of any injury to any other body part, including her back.
Claimant went to Dr. M on January 12, 1999, and Dr. M’s initial report notes that claimant told him that she was injured at work on ___________, when she tripped coming down stairs, fell three or four steps, landed on her buttocks, and twisted her right ankle. Dr. M noted claimant complained of pain in her right ankle and lumbar region and noted that examination revealed, among other things, thoracic and lumbar paraspinal muscle spasm bilaterally. Dr. L diagnosed claimant as having a right ankle internal derangement, myofascial pain syndrome, bilateral thoracic facet syndrome, a left forearm strain, and bilateral lumbar facet syndrome, and took claimant off work. An MRI of claimant’s right ankle done on January 20th showed a small amount of swelling. Claimant has continued to see Dr. M and Dr. M noted in March 1999 that claimant “continues to complain of thoracic and lumbar pain. . . .” Dr. M recommended a lumbar MRI which self-insured denied. Dr. M also noted in several reports that claimant continued to have thoracic and lumbar paraspinal muscle spasms and recommended therapy.
A benefit review officer sent claimant to (Dr. S), who reported that claimant reached maximum medical improvement on May 19, 1999, with a zero percent impairment rating. Dr. S noted that claimant was uncooperative and that claimant has no impairment of her thoracic and lumbar spine or of her right ankle, but also noted “(thoracic and lumbar strain syndrome).”
A surveillance videotape of claimant taken on March 17 and 18, 1999, shows claimant walking outdoors and getting into a car. Apparently, she was able to drive the car to the various places she was shown walking.
The parties stipulated that on ___________, claimant was an employee of self-insured and that on ___________, claimant sustained a compensable right ankle injury while in the course and scope of her employment with self-insured. With regard to the disputed extent-of-injury issue, the hearing officer found that on ___________, claimant also sustained harm to her thoracic and lumbar spine while in the course and scope of her employment with self-insured and she concluded that claimant sustained a compensable thoracic and lumbar spine injury in addition to her compensable right ankle injury on ___________, while in the course and scope of her employment with self-insured. Self-insured contends that claimant exaggerated the extent of her injury in retaliation for “disciplinary action” directed at claimant, and contends that the hearing officer’s finding, conclusion, and decision on the extent-of-injury issue are incorrect and against the weight of the evidence.
The hearing officer states in her Statement of the Evidence that claimant’s testimony was credible and that that testimony along with other evidence established that she injured her thoracic and lumbar spine in the incident of ___________. There is conflicting evidence in this case on the disputed issue. The 1989 Act makes the hearing officer the sole judge 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. An appellate level body is not a fact finder and 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. 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 finding, conclusion, and decision on the extent-of-injury 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).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Tommy W. Lueders – Appeals Judge