Following a contested case hearing held on June 8, 1998, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), which considered two separate claims with different dates of injury and docket numbers, the hearing officer, resolved the disputed issues in both cases by determining that the appellant (claimant) did not sustain compensable injuries on (date of first injury), and on (date of second injury), and that because she did not sustain compensable injuries on either date, she did not have disability following those dates. Claimant has appealed these determinations contending, in effect, that they are not sufficiently supported by the evidence. The respondent (carrier) replied, objecting to claimant’s attempt to introduce new evidence on appeal and urging the sufficiency of the evidence to support the hearing officer’s determinations.
DECISION
Affirmed as reformed.
It was claimant’s contention that on (date of first injury), and (date of second injury), she sustained two new injuries or, in the alternative, sufficiently aggravated her preexisting condition so as to constitute two new injuries. It was the carrier’s position that claimant’s symptoms on the two dates were simply recurrences of symptoms from a preexisting condition which did not amount to new injuries.
Claimant testified that in April 1997 (all dates are in 1997 unless otherwise stated), she experienced the sudden onset of pain in her back, at the level above her bra strap, which radiated around to the area beneath her left breast; that she went to an emergency room (ER) on April 10, 1997, and was diagnosed with herpes zoster, which she described as a viral disease which attacks the nerve endings; that she was treated by Dr. V; that Dr. V referred her to Dr. A, who treated her with injections; and that in August she self-referred to Dr. G, a chiropractor, because she had started back to work at the high school where she was employed. She conceded that she had been taking various pain medications since April. Claimant said she saw Dr. G on August 18th and that Dr. G adjusted a rib, painful procedure.
Claimant further testified that at about 7:40 a.m. on (first date of injury), she pulled a student’s desk-chair, which she estimated to weigh between 40 and 50 pounds, out of a classroom with one hand to sit in it while monitoring the hallway; that at about 2:00 p.m., she experienced “horrible” back pain in the area below her bra strap which was “very localized”; that she finished work and saw Dr. G later in the day; that she was not sure whether the appointment with Dr. G had already been scheduled; and that Dr. G told her she had disturbed the rib he had previously adjusted and he readjusted it. She said she continued working; that on the morning of September 8th she fixed a paper jam in a copy machine which involved pulling on levers; that in the afternoon she felt very bad pain similar to that experienced on (date of first injury); that she saw Dr. G, who took her off work because of her pain; and that this incident did not result in a new claim because Dr. G told her she just had an exacerbation.
Claimant further stated that in early November she underwent a trial with a dorsal column stimulator (DCS); that a permanent stimulator was implanted on December 22nd; and that she returned to work on January 6, 1998. Claimant further testified that on (second date of injury), while standing in the doorway of a temporary classroom building, the door, which was a heavy steel door, shut and the handle struck her in the back near the surgical site; that she experienced immediate pain and was seen by the school nurse; that on the following Monday she saw Dr. A; that x-rays were negative; and that Dr. A did not think there was any problem but she was “bruised and there was some swelling.” She said that Dr. A took her off work and that she did not return to work until March 3, 1998. Dr. A’s February 16, 1998, report, notes claimant’s physical examination as “unchanged,” and states that claimant is to return to work on March 3, 1998. The hearing officer’s recitation of the evidence states that claimant remained off work until February 10, 1998, and the hearing officer made a finding to that effect (Finding of Fact No. 6) which claimant appeals. We agree with claimant’s assertion of error in this regard and reform that finding to change the February 10, 1998, date to March 3, 1998.
A July 17th report to Dr. V stated that dorsal spine x-rays revealed minimal midthoracic wedge compression fractures at T7 and T8 and mild degenerative changes, and that x-rays of the left ribs were normal.
Dr. A reported to Dr. V on July 23rd that claimant, a 61-year-old teacher, complains of pain in the dorsal column and intercostal region which began on _____ without known precipitating cause and which has increased in intensity since onset. Dr. A diagnosed left chest wall pain with dermatomal distribution and he administered thoracic injections and prescribed pain medication. Dr. A’s records reflect that on July 28th, August 4th, August 15th, and September 24th he administered thoracic injections and recommended a trial of a dorsal column stimulator; that he implanted the stimulator on November 5th; that claimant reported a 90% improvement in pain on November 17th; that on December 22nd, Dr. A implanted a permanent stimulator; and that on December 29th, Dr. A stated that claimant could return to work at the start of the new term on January 6, 1998. Dr. A’s diagnosis throughout remained left chest wall pain with, variously, dermatomal pattern or radicular pattern, or thoracic pain.
Dr. C reviewed the records for the carrier. He reported on October 23rd that claimant had not been treated for herpes; that the diagnosis for thoracic radiculopathy was clinically indicated by all the treating physicians according to the application of medications and injections; and that the relationship of the complaint and the treatment given before the reported (first date of injury), while dragging a student desk, and the lack of cutaneous evidence of herpes leads him to believe that claimant’s complaints are not related to her (first date of injury) and are possibly due to other medical conditions yet undetermined.
Dr. A reported on February 2, 1998, that claimant returned for evaluation of a new injury received on(second date of injury), when she was struck in the upper midback by a closing door. Dr. A reported the results of his physical examination as “unchanged.”
(Dr. P), who performed an independent medical examination of claimant, reported to the carrier on April 10, 1998, that claimant was apparently injured moving a desk on (first date of injury); that it is important to note that she had the spontaneous onset of low back and midthoracic spine pain on April 25th, severe enough to prompt a visit to the ER; and that she was given a diagnosis of preherpetic syndrome but that the rash never showed up. Dr. P further stated that claimant continued to have fairly significant pain; that on August 18th, before the incident at school, Dr. G diagnosed thoracic sprain/strain; rib sprain/strain; lumbalgia; thoracic, lumbar, and paravertebral myospasms; multiple thoracic subluxations; rib subluxations; multiple lumbar subluxations; and lumbar spondylosis without myelopathy, and that claimant underwent manipulations. He further reported that Dr. A’s injections apparently provided little relief, that a thoracic spine MRI on September 17th was essentially normal, that an October 8th sonogram suggested some periostal 12th rib thickening and thickening soft tissue at T12, that claimant states she has had about a 50% reduction in pain from the DCS, and that claimant apparently suffered an exacerbation of her pain on (second date of injury), when struck in the back by a door at work but that the note from Dr. A states that claimant’s physical examination is unchanged. Dr. P’s diagnosis was chronic posterior thoracic pain of uncertain etiology, status post DCS, and several other preexisting medical diagnoses. Dr. P described claimant’s physical examination, the palpations, as nonphysiologic and suggestive of some functional overlay. Dr. P stated that claimant is suffering from the same problems she suffered from before (first date of injury), that he saw no evidence that the problems at work caused her current medical condition, that her problems are recurrences or exacerbations of the original condition which started insidiously in April, and that the medical record does not show any additional harm or damage to the physical structure. Dr. P concluded that claimant has focal but continuing left thoracic pain which is nonanatomical in terms of its pain distribution and quite easily reproduced with superficial palpations; that the condition started insidiously in April, well before her work incident; and that any problems since are nothing more than exacerbations of the same problem.
The hearing officer found that on April 25th, claimant experienced a severe onset of pain to her lower back for no apparent reason; that on (first date of injury), she did not sustain an injury while in the course and scope of employment; and that on (second date of injury), she did not sustain an injury while in the course and scope of employment. Though also finding that claimant was unable to obtain and retain employment, due to the claimed injuries, from September 5 through January 6, 1998, and from January 30 through February 10, 1998, the hearing officer concluded that claimant did not have disability during these periods because she did not sustain compensable injuries.
In her discussion, the hearing officer reasoned that the (first date of injury) incident was not an aggravation injury as such but rather an exacerbation of a previously existing condition. As for the (second date of injury), incident, the hearing officer stated that there was little evidence of an injury other than claimant’s having sustained “a trauma” to her back and that the ensuing pain, which caused her to be off work, did not amount to an injury since pain alone does not constitute an injury or an aggravation of a previously existing injury.
Claimant had the burden to prove by a preponderance of the evidence that she sustained the injuries she alleged and that she had disability resulting from compensable injuries (Section 401.011(16)). “Injury” means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. Section 401.011(26). The Appeals Panel has recognized that the work-related aggravation of a preexisting condition may constitute an injury. Texas Workers’ Compensation Commission Appeal No. 91038, decided November 14, 1991. However, we have also held that the bare assertion that an aggravation has occurred does not relieve the proponent of the burden of proving that an injury, as defined in the 1989 Act, has been sustained. Texas Workers’ Compensation Commission Appeal No. 93416, decided July 8, 1993. We have also repeatedly held that to be compensable, an aggravation must be a new injury and not merely a transient increase in pain from an existing condition. Texas Workers’ Compensation Commission Appeal No. 94107, decided March 10, 1994. In Texas Workers’ Compensation Commission Appeal No. 94428, decided May 26, 1994, the Appeals Panel stated that what must be proven is not a mere recurrence of symptoms inherent in the etiology of the preexisting condition that has not been completely resolved, but that there has been some enhancement, acceleration, or worsening of the underlying condition from the injury.
Whether the claimant sustained a new injury or merely suffered a continuation of an original injury is normally a question of fact for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 950125, decided March 10, 1995. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, is to resolve the conflicts and inconsistences in the evidence including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). As an appellate reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. 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). The hearing officer could credit Dr. P’s report and conclude from the medical evidence that claimant did not sustain new injuries at work but rather experienced recurrences of symptoms from whatever the condition was that she was afflicted with in April.
The decision and order of the hearing officer are affirmed as reformed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Judy L. Stephens – Appeals Judge