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 January 6, 1998, with hearing officer. The issues were:
1.What is the date of injury pursuant to TEX. LABOR CODE ANN. § 408.007, the date the employee knew or should have known the disease may be related to the employment?
2.Did the Claimant sustain a compensable injury in the form of an occupational disease?
3.Did the Claimant report an injury to the Employer on or before the 30th day after the injury, and if not, does good cause exist for failing to report the injury timely?
4.Did the Claimant timely file a claim for compensation with the Commission within one year of the injury as required by the TEX. LABOR CODE ANN. § 409.003, and if not, does good cause exist for failing to timely file a claim, or did the Employer or the insurance carrier not contest the claim?
5.Did the Claimant have disability resulting from the injury?
6.Is the Claimant barred from pursing Texas Workers’ Compensation benefits because of an election to receive benefits under another insurance policy?
The hearing officer determined that the date of claimant’s claimed injury (bilateral carpal tunnel syndrome (CTS)) is ________ (all dates are in 1997 unless otherwise noted), that claimant did not sustain a compensable occupational disease (the CTS) in the course and scope of employment, that claimant timely reported his asserted injury to the employer and timely filed a claim for the injury, that claimant did not have disability because he did not have a compensable injury and that claimant has not made an election of remedies. None of the parties appeal the election of remedies determination and therefore, that finding has become final. Section 410.169.
Claimant, in his appeal, appeals the determinations regarding injury and disability, specifically contending that he had established a causal relationship between the injury and the employment, that CTS is not “an ordinary disease of life” and that he has disability. (Claimant says he is appealing the election of remedies determination, but clearly he is not as this determination was in his favor.) Claimant, also filed a second timely appeal which generally tracks claimant’s initial contentions but further elaborates on his testimony with details not in the record. Claimant requests that we reverse the hearing officer’s decision on the compensability and disability issues. Carrier L, appeals the determinations on the date of injury, contending that the date of injury should be no later than February 4, 1996, which would make claimant’s notice to the employer and claim untimely. Carrier L points to portions of the medical records which suggest that claimant had been diagnosed with “mild carpal tunnel” in 1996. Carrier L requests that we reverse the hearing officer’s decision on the date of injury issue. Carrier S, essentially urges affirmance.
DECISION
Affirmed on all issues as determined by the hearing officer.
Claimant testified that he was a truck driver, driving an 18-wheeler with a 10-speed manual transmission on both long and short hauls. Claimant’s duties included “tailgating” which meant “taking merchandise to the back of the trailer or side door.” Although claimant’s appeal recited how many time a day claimant was required to unload merchandise and the weight of the items unloaded, that was not evident in the record. Claimant testified that in 1993 he began to have problems with his fingers “tingling” and hand “going numb.” Claimant explained that he had had a spinal tap in 1988 or 1989 and that he was told that his arthritis might cause tingling or numbness in his leg and he believed the hand symptoms were related. The numbness and tingling in claimant’s hand initially was intermittent but gradually became worse. Claimant testified that on _______ he had an appointment with his family doctor, (Dr. K), for a routine physical for high blood pressure. Claimant testified that during the examination he told Dr. K about the problems he was having with his hands and that Dr. K diagnosed bilateral CTS and referred him for “an electric conduction study.” Claimant said that Dr. K knew that he was a truck driver and told him that his CTS was work related. It appears undisputed that claimant reported a work-related injury to his supervisor the same day ______, and filed his claim on July 7th. Claimant continued working, was off three days in mid-May, worked again until his vacation the last part of May and worked a week upon return from his vacation. Claimant testified that he has not worked since June 29th and had surgery in early December on his right hand.
Dr. K in a progress note dated March 25, 1994, notes discomfort to the right arm and “tennis elbow.” In a progress note dated February 24, 1996, Dr. K notes left elbow soreness from lifting and “some intermittent tingling and numbness in both his hands, lasts a few seconds . . . .” Dr. K notes “Tinel and Phalen’s signs are negative” and diagnoses “mild carpel tunnel.” Dr. K goes on to say that he “discussed with patient that I do not think that this is related to his previous [noncompensable] neck problems. Obviously symptoms very mild . . . At this point further intervention would not suggest to be warranted.” Claimant denies that he was told that he had CTS, or that he was ever given a copy of the doctor’s progress note. Carrier L points to this record as being when claimant “knew or should have known” that he had CTS. Section 408.007.
Claimant saw Dr. K on _______ for a routine physical and during the examination complained about his hands tingling and getting numb. In a progress note of that date Dr. K notes the complaints and states:
Bilateral carpal tunnel, surely appears to be most prevalent when he is driving. Surely wouldn’t seem consistent with a work related problem. (Emphasis added, but it is not clear whether this is a typographical error.)
Dr. K prescribed a splint and referred claimant for nerve conduction studies. Dr. K also completed an Initial Medical Report (TWCC-61) dated May 8th regarding the _______ visit noting “bilat hand numbness [with] driving” and that the nerve conduction studies had confirmed bilateral CTS. Subsequent progress notes track the CTS treatment. In reports dated September 25th, October 20th, and December 18th, Dr. K suggests that Claimant’s CTS was caused by truck driving (“driving his truck was causing his difficulty”) and, in the September 25th report, that previous symptoms “had completely resolved until this recent episode.” Claimant was eventually referred to (Dr. B), an orthopedic surgeon, who Dr. K states “is a specialist in carpal tunnel and hand surgery.” In a report dated December 12th, Dr. B comments on causation as follows:
Claimant] works as a truck driver and we discussed the fact that once a patient has developed carpal tunnel, that the exposure to vibratory problems associated with driving either a car or a truck can cause the patient to have increased pain and increased numbness. It has not been shown by the Occupational Safety and Health Administration that individuals who perform truck driving per se are at significant risk of an increased appearance or development of [CTS]. Therefore, the simple act of driving a truck does not indicate that the patient will have an increased chance of developing [CTS]. There is a certain percentage of the population which develops carpal tunnel without known exposure to those factors which cause increased percentage or occurrence of [CTS]. Those activities which cause such a problem are repetitive flexion/extension of the wrist, repetitive flexion/extension of the fingers, repetitive grasping, and anything which requires compression of percussion in the area of the palm, overlying the carpal canal. The vast majority of activities which have been followed indicate [CTS] have to do with repetitive flexion and extension of the fingers and wrist. These have been highlighted by what are referred to as repetitive motion disorders. This would not be the case with the driving of the truck. There are certain conditions in which the constant and continuous exposure to vibration has increased the changes in development of [CTS] and other problems. These have been primarily in situations in which the patient had to apply both hands continuously to a vibratory object or to a tool with a forceful grip activity. This has not been shown to be the situation with driving a truck at this time.
Carrier L submitted a report dated December 31st, from a (Dr. H), who did a document peer review report which cited several Appeals Panel decisions and stated that he found nothing in the records “to substantiate the claim of [CTS] as work related . . . .” (Claimant on appeal objects to the admission of this document, as addressed later.)
Claimant’s appeal takes issue with certain statements made by the hearing officer in his Statement of the Evidence, such as the hearing officer refers to pain in the hands and wrists whereas the claimant actually said his hands were “tingling and going numb.” While our review indicates there may have been some minor misstatements regarding exactly what claimant said, we find those misstatements, such as they were, to be harmless and insignificant to the main thrust of claimant’s case namely causation of claimant’s admitted CTS. The hearing officer, although commenting on Dr. H’s report appeared to heavily rely on Dr. B’s report, which is quoted at length above. Claimant in his appeal contends that Dr. B only considered his truck driving and did not consider the grasping necessary in opening and closing the truck doors and tailgating. The extent of claimant’s grasping the doors was not in evidence and we can only assume that claimant accurately and fully explained his duties to Dr. B when Dr. B performed his examination. While conceding there is some conflict in the opinions of Dr. K, Dr. B, and Dr. H, we have many times held that Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). 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). The trier of fact may believe all, part, or none of the testimony of any witness. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). The hearing officer could, and apparently did, give greater weight to Dr. B’s explanation of causation than Dr. K’s opinion. As noted, it is within the prerogative of the hearing officer to do so and we find the hearing officer’s determinations that claimant’s CTS was not caused by work-related repetitious physical traumatic activities to be supported by sufficient evidence. In that we are affirming the hearing officer’s determinations that claimant had not sustained a compensable injury, claimant cannot, by definition in Section 401.011(16), have disability and therefore we also affirm the hearing officer’s determination that claimant has not had disability.
Claimant, in both appeals, complains about the admission of Dr. H’s report at the CCH, because it was not timely exchanged and “was not properly obtained.” Claimant contends that he did not have an opportunity to review Dr. H’s report and that he “looked to the Ombudsman for guidance” but “didn’t know how to stop the hearing so I didn’t.” Our review of the record indicates that Carrier L offered Dr. H’s report, dated December 31st, (the CCH was on January 6, 1998) into evidence, and the hearing officer asked “[w]hat says the claimant?”; claimant replied “[w]as that the fax that you just received”; Carrier L’s attorney said “[y]es, sir”; and that claimant said “I have no objection.” The hearing officer admitted Carrier L’s Exhibit No. 9 into evidence without objection. The record does not indicate that claimant said he had not seen the report before or that claimant wanted to stop the proceeding in order to read the record. Further, we note the hearing officer addressed the claimant, not the ombudsman. No objection was raised at the CCH and the issue of timely exchange of Dr. H’s report was not preserved for appeal. While a formal objection may not be necessary by a pro se claimant, at the very minimum, claimant should have told the hearing officer he had not seen that document before and wanted a moment to read it or confer with the ombudsman. We would further note that the hearing officer, although referring to Dr. H’s report, appeared to place greater reliance on Dr. B’s report.
Carrier L appeals the date of injury referring to Section 408.007, which provides that for an occupational disease the date of injury is the date on which the employee knew or should have known that the disease (in this case the CTS) may be related to the employment. Carrier L cites portions of the testimony and evidence that claimant had some problems with his hands “as early as 1988,” that by 1993 claimant had tingling and numbness in both hands, and that in the February 24, 1996, report Dr. K diagnosed “mild carpal tunnel” and that Dr. K “did not think it was related to his previous neck problems.” All of these contentions may arguably be true, and claimant certainly might have been aware that he had problems with his hands but nowhere in the reports is there any indication that claimant was told, or should have known, the symptoms were work related. Claimant testified that he was told that his tingling and numbness were due to arthritis and his neck condition. Claimant denied that he was told he had mild CTS, and the February 24, 1996, report only indicates that Dr. K told claimant the tingling and numbness were not related to his neck. Further Dr. K, in his September 25th report stated that the earlier CTS had resolved. In any event, the weight and credibility to be given to the various reports and claimant’s testimony regarding what he knew or should have known at any particular time were factual determinations for the hearing officer to resolve. Carrier L asks us to substitute our judgment for that of the hearing officer, which we decline to do. The hearing officer obviously looked to all the evidence in making his determinations and we find that his resolution of the issues is supported by sufficient evidence. In that we are affirming the hearing officer’s determination of an ______ date of injury, we also affirm that claimant timely gave notice to the employer and timely filed his claim.
Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer’s determinations unless they are 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). We do not so find and consequently, the decision and order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Judy L. Stephens – Appeals Judge