This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On January 16, 1998, a contested case hearing (CCH) was held in (City), Texas, with (hearing officer) presiding as hearing officer. With respect to the two issues before her, the hearing officer determined that the employer had not extended a bona fide offer of employment to the respondent (claimant) prior to January 16, 1998, the date of the CCH, and that claimant had disability from May 8, 1997 (all dates are 1997 unless otherwise noted), to the date of the CCH. The hearing officer noted that the parties at the CCH had resolved a disputed issue of extent of injury, with the appellant (carrier) accepting liability for cervical, shoulder and head injuries.
Carrier appealed, speculating on claimant’s motives, arguing that the medical evidence and a video do not support a finding of disability, and arguing its version of disputed conversations which occurred at and shortly after a benefit review conference (BRC) on May 8th constituted a bona fide offer of employment. Carrier requests that we reverse the hearing officer’s decision and render a decision in its favor. Claimant urges affirmance.
DECISION
Affirmed.
It is undisputed that claimant was employed as a boiler maker at a refinery when she was struck in the back of her head and shoulders on ____________ by the outside rear view mirror of a passing bus (the bus was to take claimant and other workers to a different area of the work site). Claimant contends that she sustained a shoulder contusion and a concussion, which has resulted in varying degrees of vertigo. At a BRC on May 8th, the employer’s safety director suggested a light-duty position of fire watch/laborer to the claimant. Exactly what duties that position entailed and how much, if any, climbing on ladders was required was disputed. Claimant maintained that her intermittent vertigo and dizziness would make it dangerous to climb ladders. Claimant further contended that salary was not discussed and that she believed the fire watch/laborer position being discussed paid substantially less than her preinjury wage. Carrier argued that the claimant should have known of the employer’s policy of bringing injured employers back on light duty at the preinjury wage. In any event, no written offer was made by the safety director on May 8th and the safety director testified that he told claimant that Mr. C would be in touch with her to work out the details. Mr. C called claimant, but the specifics of that conversation are disputed. That conversation resulted in a letter, dated May 8th, which stated:
This letter is to confirm our phone conversation this morning at 7:50 am offering you employment at [employer] in (City 2), Texas. The job would have been that of a Firewatch at your previous wage rate. I regret that you declined the position without qualification. It was offered pursuant to the outline of your restrictions given by your doctor and the recommendations of the hearing officer from the recent [BRC]. Please see attached job description for a Firewatch. The job would have lasted until the current project ended.
The attached job description did not include climbing ladders, but it does have a notation that the job description was not to be “construed as a complete listing of all or similar duties which may be required from day-to-day.” The safety director acknowledged that some fire watch/ laborer duties might require some climbing but that the employer would have made allowances for claimant’s vertigo.
Claimant was treated and released back to light duty on ____________ and, in fact, worked some light duty doing clerical duties and “nothing.” Because the period of time between the injury on ____________ and the BRC on May 8th is not at issue in this appeal, we will not summarize the various medical reports during this period. We would, however, note that a surveillance video was taken of claimant between March 7th and March 9th and that both parties comment on the video. We will only note that the video shows claimant performing certain activities of daily living. Carrier argues that the video shows claimant was able to obtain and retain employment. Claimant argues that she was moving slowly and carefully. It is up to the hearing officer to resolve whatever inferences that video may raise.
Regarding the period in question on appeal (May 8th until January 16, 198), Dr. S, a referral doctor, in a note dated May 7th, states that claimant “may return to work as long as there is no dizziness.” Claimant contends that she continued to have intermittent spells of dizziness and vertigo. Dr. F, claimant’s treating doctor, in a report of May 7th, references his review of the surveillance video and states:
She is moving fairly normally. She has been moving fairly normally while in my office here. She loses her balance when she makes sudden movements, sudden movements of the head for example, but can avoid this by moving slowly.
Dr. MS, carrier’s record review doctor, in a report dated November 16th, without examining claimant, is of the opinion that claimant can go back to her previous occupation “immediately.” Dr. B, apparently a carrier required medical examination doctor, saw claimant on January 8, 1998, and, in a report of that date, notes he, too, has seen the videotape, has the impression that claimant “has the possibility of benign positional vertigo . . . ,” recommends additional testing for the vertigo and concludes that if the testing is normal, claimant “will be able to return to a modified job which would probably eliminate climbing and heavy activity.” In the meantime, claimant changed treating doctors to Dr. LS, who, in a report dated January 9, 1998, stated that she first saw claimant on September 8th and that she has not released claimant to her prior boiler maker job. Dr. LS comments:
Given the demands of her type of work, I cannot confidently release her to her job until workup [sic] of her symptoms has been completed, significant pathology ruled out or identified, and she also is cleared medically to work at her occupation by [Dr. S], who has been treating her vertigo symptoms.
The hearing officer, in her discussion, comments on Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 129.5 (Rule 129.5), that Carrier’s Exhibit No. 10 (Mr. C’s May 8th letter) “cannot be presumed to constitute a bona fide offer of employment . . .,” that carrier has not provided other “clear and convincing evidence” of a bona fide offer of employment (until the CCH on January 16, 1998) and comments on the video and various medical reports. The hearing officer does note that claimant “apparently exaggerated the severity of [her] symptoms” and that claimant had greater use of her left arm and shoulder than she led her health care providers to believe. The hearing officer, nonetheless, determined that claimant had disability, as defined in Section 401.011(16), until January 16, 1998, when she accepted the employer’s offer of modified employment.
Carrier questions claimant’s motives when claimant asked a doctor to take her off work, and by the fact that claimant did not change treating doctors until August. Carrier also emphasizes the video and what it purported to show and the safety director’s version of the events of May 8th, referencing what Mr. C purportedly told claimant. Carrier contends “that all of the employer’s actions, taken together, would constitute a bona fide offer of employment.”
As the hearing officer noted, Rule 129.5(a) sets out the various factors to be considered in determining whether an offer of employment is bona fide. Rule 129.5(b) provides, in part, that a written offer, if it complies with certain requirements, “shall be presumed to be a bona fide offer.” The hearing officer determined that employer’s May 8th letter was not a bona fide offer of employment. We affirm that determination and further add that the May 8th letter merely recites that it is confirming that claimant had declined a verbal offer, and outlined what the verbal offer is purported to have contained.
Rule 129.5(b) goes on to state that if the offer of employment is not made in writing, the carrier “shall be required to provide clear and convincing evidence that a bona fide offer was made.” The evidence of what was said, what the duties of a fire watcher/laborer and whether those duties involved climbing were conflicting. The hearing officer, in her discussion, clearly applied the correct standard and factually concluded that carrier’s “allegation with respect to this matter falls short of the necessary [clear and convincing] standard . . . .” We find the hearing officer’s determinations on this point supported by the evidence.
Similarly, on the issue of disability, the hearing officer comments on the video and several of the doctors’ reports and concludes that claimant was unable to obtain and retain employment at her preinjury wage until she accepted the employer’s offer of modified employment on January 18, 1998. We have often noted 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).
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 manifestly 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:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge