Following a contested case hearing held on March 31, 1998, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer resolved the disputed issues by determining that the appellant (claimant) sustained a compensable injury in the form of an occupational disease, that the date of injury is_____, that claimant timely notified his employer of his injuries, and that he had disability from August 12 to September 23, 1997. Claimant has appealed the disability determination contending that he proved his period of disability began on August 11, 1997, and continued through January 14, 1998. The respondent (carrier) urges in response that the evidence is sufficient to support the hearing officer’s determination.
DECISION
Reversed and a new decision rendered that claimant had disability from August 12, 1997, to January 14, 1998.
Claimant testified that he injured his back from the repetitious activities of working as a tile setter, which involved lifting boxes of tiles weighing approximately 30 pounds and bags of mortar weighing approximately 50 pounds and kneeling and bending all day long; that he was first seen by his family doctor, Dr. BC; that he continued working after the _____, date of injury; that on August 4, 1997, the date he reported the occupational disease injury, he was seen at an occupational health clinic by Dr. B, who released him for work with restrictions; that he returned to work on August 4th and was given light duties in the employer’s office; that he worked through August 9, 1997, and then stopped because of his pain and therapy; that no doctor took him off work at that time; and that on September 23, 1997, when his new treating doctor, Dr. CC, released him for work with restrictions, he was able to return to work, but the employer’s foreman had told him that he could not return to work until he passed a physical test, apparently because he had ceased the employment, and he so advised Dr. CC. Claimant further testified that he applied for unemployment benefits in January 1998 and began to receive them in late February 1998.
Dr. BC’s record of November 4, 1997, states that over the past eight months claimant has had low back and right leg pain, has been diagnosed with lumbar degeneration, which causes severe pain radiating from the low back into the right leg, and that “he has been unable to work during this period secondary to the above problem.”
Dr. CC reported on May 16, 1997, that claimant has lumbar degeneration at L4-5 and L5-S1 with radicular pain and that “the degree of pain is hampering his ability to perform his job.” Dr. CC reported on September 2, 1997, that claimant is currently walking with a cane, that he has not been able to work, that his last full day of work was August 11, 1997, and that he stopped work due to intensity of back and lower extremity pain. Dr. CC’s impression was probable herniated nucleus pulposus (HNP) at L4-5 or L5-S1 and he ordered an MRI. The September 12, 1997, MRI report stated the impression as bulges at L4-5 and L5-S1 with a superimposed right-sided HNP at L5-S1. Dr. CC’s September 23, 1997, report stated that claimant may return to light-duty work with restrictions against bending, lifting, and carrying more than 15 pounds. Dr. CC reported on October 22, 1997, that claimant was not allowed to return to work as they have no light duty and will be required to pass a lifting test prior to return. On January 14, 1998, Dr. CC reported both that he would send claimant for a functional capacity evaluation (FCE) to determine his work status and that claimant could return to work with restrictions not to lift more than 25 pounds. An addendum stated that the carrier denied the medically necessary FCE, whose purpose was to help integrate claimant back into the workforce. Dr. CC also wrote on January 14, 1998, that claimant could return to work with a limit of 40 hours per week until seen again and was not to lift more than 25 pounds. On March 25, 1998, Dr. CC wrote that claimant’s work status was “off work 8/11/97 until 1/14/98.”
The August 4, 1997, record of physical therapist, Ms. G, states that claimant has continued his work, which involves a lot of bending, up to Saturday, and that “upon visiting the doctor today he returned to his employer who just took him off work all together until he gets through his physical therapy [PT].”
The August 21, 1997, Initial Medical Report (TWCC-61) of Dr. B states the anticipated return to limited type of work as “08/04/97” and the treatment plan as including limited duty, PT, and medication. Another of Dr. B’s records of that date state work restrictions of no repetitive lifting over five pounds, no bending, squatting, kneeling, climbing stairs or ladders, no pushing or pulling of over five pounds, and limited use of the low back.
The August 12, 1997, report of Dr. S, who examined claimant on that date, states that claimant “has been working up until last week when his pain has gotten so severe that he has been unable to do so.” In an August 18, 1997, interview in which claimant was assisted with Spanish/English translations by other persons, he was asked about time lost from work and which doctor took him off work and another person told the interviewer that claimant saw Dr. S on Tuesday, August 12th, and stated “that is the date he told him not to go to work, but prior to that on Monday, you know, he already felt that he couldn’t work any more. He didn’t go in on Monday.” Claimant further stated that he had too much pain, could not walk well and needed a cane to walk, and therefore he “did not go to work on the 11th.”
The hearing officer found that because of claimant’s back and leg injury, he was unable to obtain and retain employment at wages equivalent to his preinjury wage from August 12 to September 23, 1997, and concluded that claimant’s period of disability was from August 12 to September 23, 1997. In his discussion, the hearing officer states that Dr. CC states that claimant was off work from August 11, 1997, until January 14, 1998, but that claimant stated on the record under oath that he thought he could have returned to work on or about September 23, 1997, and that he, the hearing officer, finds sufficient evidence that claimant’s disability ended on September 23, 1997. This reference to claimant’s testimony is accurate but taken out of context. What claimant testified to was that when Dr. CC released him to return to light-duty work with restrictions effective September 23, 1997, he thought he could return to such work but that the employer at that point, apparently because he had stopped working, required that he pass a physical examination involving lifting before he could return to work. There is no evidence that claimant was released by any doctor to return to his regular duties as a tile setter which, of course, involved lifting, kneeling, stooping, and bending.
Disability is defined in the 1989 Act as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). While the claimant has the burden of proving disability (Texas Workers’ Compensation Commission Appeal No. 941566, decided January 4, 1995), the compensable injury need not be the sole cause of the disability (Texas Workers’ Compensation Commission Appeal No. 960054, decided February 21, 1996). In Texas Workers’ Compensation Commission Appeal No. 950246, decided March 31, 1995, the Appeals Panel reversed a hearing officer’s determination that a claimant did not have disability during the period of time that he was released to light duty and rendered a new decision that the claimant had disability for that period. In so doing, Appeal No. 950246 stated:
As we have previously noted “a restricted release to work, as opposed to an unrestricted release, is evidence that the effects of the injury remain, and disability continues.” Texas Workers’ Compensation Commission Appeal No. 92432, decided October 2, 1992. See also Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991 (“Where the medical release is conditional and not a return to full duty status because of the compensable injury, disability, by definition, has not ended unless the employee is able to obtain and retain employment at wages equivalent to his preinjury wage.”). In addition, we have stated that “an employee under a conditional work release does not have the burden of proving inability to work.” Appeal No. 941566, supra (quoting Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993). Finally, we have noted that where claimant is released to return to work light duty, there is no requirement that the claimant look for work. Texas Workers’ Compensation Commission Appeal No. 941092, decided September 28, 1994; Appeal No. 91045, supra. That is, “an employee under a conditional medical release [does] not have to show that work was not available.” Texas Workers’ Compensation Commission Appeal No. 941261, decided November 2, 1994.
Whether claimant had disability and if so, for what period(s), were questions of fact for the hearing officer to resolve and it is the hearing officer who is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and who, as the trier of fact, is to resolve the conflicts and inconsistencies in the evidence Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb a challenged finding of a hearing officer unless it 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); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In this case, we determine that the hearing officer’s Finding of Fact No. 4 and Conclusion of Law No. 6 are against the great weight of the evidence which established that claimant was only released for work with restrictions between September 23, 1997, and January 14, 1998. In fact, even Dr. CC’s release of January 14, 1998, contains the restrictions of working no more than 40 hours per week and not lifting more than 25 pounds. However, claimant quite clearly contends in his request for review that his period of disability was for the period September 12, 1997, to January 14, 1998, and thus we have no basis to render a decision for disability beyond January 14, 1998.
The decision and order of the hearing officer are reversed and a new decision and order are rendered that claimant had disability from August 12, 1997, to January 14, 1998.
Philip F. O’Neill – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Thomas A. Knapp – Appeals Judge