This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on June 21, 1999, in_________, Texas, with ____________presiding as hearing officer. He determined that the appellant’s (claimant) compensable injury to the right hand on _____________, did not extend to the right shoulder and that the claimant did not have disability. The claimant appeals these determinations, contending that they are against the great weight and preponderance of the evidence and that the hearing officer’s disability determination is also legally defective. The respondent (carrier) replies that the decision is correct, supported by sufficient evidence, and should be affirmed.
DECISION
Affirmed.
The claimant worked as a telephone ordering services representative. Her job involved primarily entering numeric data into a computer to process customer orders. On _____________, she sustained a compensable injury to the right hand, diagnosed as carpal tunnel syndrome (CTS) and accepted by the carrier as compensable. There was also evidence of cubital tunnel syndrome of the right elbow. The claimant testified that when she raised her elbow, she experienced pain in her shoulder, but denied that any activity at work was above the shoulder level. She first treated with a clinic to which the employer referred her, was diagnosed with right CTS, released to limited work, and terminated from employment on___________, as more fully discussed below. Some two months after termination, she saw Dr. H (Dr. H), D.C. In an Initial Medical Report (TWCC-61) of December 8, 1998, he described complaints of pain shooting up into the shoulder but did not diagnose a separate right shoulder injury. He placed her in an off-work status, which has essentially continued “until further notice.” Dr. L (Dr. L), a referral doctor from Dr. H, wrote on March 29, 1999, that he felt the claimant had anterior impingement syndrome of the right shoulder. Dr. K (Dr. K) examined the claimant at the request of the carrier and in a report of April 20, 1999, concluded that she did not have an impingement problem of the shoulder “in conjunction with her work activity.”
In his discussion of the evidence, the hearing officer commented that the claimant may have had pain radiating into the shoulder, but she did not establish a distinct shoulder injury. In her appeal of this determination, the claimant states that the shoulder injury is the impingement syndrome and that even Dr. K agrees there was an injury extending “at least to the elbow.” Whether the claimant’s compensable injury included a distinct right shoulder injury presented a question of fact for the hearing officer to determine. Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. The evidence was conflicting on this issue. The hearing officer was not persuaded that the claimant met her burden of proving a right shoulder injury. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance 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). Applying this standard of review to the record of this case, we find the evidence sufficient to support the extent-of-injury determination of the hearing officer.
There was uncontradicted evidence that the claimant returned to light duty, the terms of which were 30 minutes taking telephone orders and 30 minutes doing non-telephone work. She worked in this capacity presumably at her preinjury wage and hours until____________, when she was terminated. Extensive evidence was introduced that the termination was for cause unrelated to the injury, specifically excessive tardiness. In his discussion of the evidence, the hearing officer commented that the claimant was terminated for cause “for which attendance problems are detailed in the recor… .” and that the claimant’s “inability to work was caused by her termination and not her hand injury or hand and right shoulder injury if the injury extended to the shoulder.” He made the following Finding of Fact No. 3 to support his conclusion of law that the claimant did not have disability:
Claimant’s inability to obtain and retain employment at wages equivalent to her preinjurying [sic] wages from October 13, 1998 through the date the testimonial record in this BCCH [benefit CCH] was closed on June 21, 1998 is because of something other than the compensable injury.
The claimant appeals this determination, contending that she was not terminated for good cause and that her medical evidence supports disability. The fact that a claimant is terminated while on a light-duty release does not compel a finding that disability ended, but may be considered by the hearing officer in determining why the claimant was no longer able to earn the preinjury wage. Texas Workers’ Compensation Commission Appeal No. 92200, decided July 2, 1992. We also note that the practical ability of an injured worker to return to light duty with the existing employer may be significantly different from the ability to gain new employment with another employer. See Texas Workers’ Compensation Commission Appeal No. 91027, decided October 24, 1991. The claimant asserts on appeal that it is “unconscionable to base a decision on a company doctor’s release to light duty, particularly when the job duties did not permit the duty restrictions to be observed.” The evidence in this case from both the claimant and the employer is that she was performing light duty in accordance with the only release in evidence up to the time of termination and only thereafter saw Dr. H. The hearing officer considered Dr. H’s duty excuse unpersuasive in light of this actual work history. Thus, we cannot agree with the claimant’s assertion that the carrier “had no evidence to indicate that she was able to work during the claimed disability period.” Whether disability existed was a question of fact, which the claimant had the burden to prove. Texas Workers’ Compensation Commission Appeal No. 93560, decided August 19, 1993. Under our standard of review, we find the evidence sufficient to support this determination.
One other matter requires comment. In her appeal, the claimant relies on our decision in Texas Workers’ Compensation Commission Appeal No. 990092, decided February 10, 1999, for the proposition that Finding of Fact No. 3 is fatally defective and cannot support a conclusion of law that the claimant did not have disability. See also Texas Workers’ Compensation Commission Appeal No. 990970, decided June 11, 1999, the decision on remand. In Appeal No. 990092, the hearing officer made a finding of fact virtually identical with Finding of Fact No. 3 in this case. Chief Judge Sanders, the author judge, described this as a “single conclusory finding” without “underlying facts, particularly regarding the extensive medical evidence” showing treatment results for a compensable back injury. In the case we now consider, the medical facts for purposes of disability were narrowly confined to a diagnosis of CTS and/or cubital tunnel syndrome with minimal treatment, a history of light-duty work up to the date of termination, and the claimant’s testimony of limited use of the right hand. While it would have been better practice and preferable that the hearing officer incorporate some of his comments into formal findings of fact, we believe that his comments as to the persuasiveness of the claimant’s evidence and his determination that she was terminated for cause, adequately amplify his Finding of Fact No. 3 to provide a more comprehensive rationale for his conclusion of no disability than was present in Appeal No. 990092. Under these circumstances, Appeal No. 990092 is not considered controlling.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Judy L. Stephens – Appeals Judge