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 October 9, 1997. With regard to the issues at the CCH, she (hearing officer) determined that the respondent (claimant) sustained a compensable back injury on_____, and had disability from June 3 to June 15, 1997. The appellant (self-insured) appeals, seeks a reversal of the decision and argues that the claimant did not meet her burden of proof to show she sustained a compensable injury and had disability.
DECISION
We reverse and render.
The claimant alleges that on_____, she sustained a compensable injury while employed at the self-insured’s facility. She testified at the CCH that she had been typing a report for Mr. W, rolled her chair back from her desk, attempted to stand up out of her chair, and felt excruciating back pain. She said she reported her alleged injury immediately and informed the self-insured that she was going to her treating doctor, Dr. B. She said she had to have assistance picking up her belongings and going to her car. She drove herself to Dr. B’s, where his staff helped her into his office.
Dr. B’s_____, Initial Medical Report (TWCC-61) reflected a “lumbosacral radiculitis” diagnosis. The history taken was:
She was typing at her desk about 10:30 A.M. in the classification office of [the facility] and a severe muscle spasm hit her as she got out of her chair. She had to have assistance to get to the parking lot to come to this office.
Dr. B’s clinical assessment findings were:
Positive finding: Laseque, Kemp, forward flexion and lateral flexion, Soto-Hall and Fabere-Patrick.
X-rays revealed “right rotational malposition of L1-L4 . . . .” Dr. B prescribed daily chiropractic treatment for two weeks. On July 30, 1997, Dr. B stated that the claimant received care “for an injury that occurred on_____,” and was unable to work through June 16, 1997, certified her at maximum medical improvement and dismissed her from care. On August 1, 1997, Dr. B wrote that he saw the claimant “due to a problem at work where she had been typing and upon trying to get up a severe pain hit her in the low back.”
The claimant admitted to having injured her back in 1995 and in 1996 but explained that neither injury occurred on the job. On August 1, 1997, Dr. B stated that he treated her for a 1995 back injury and that she was dismissed from care for that injury on August 1, 1995. A February 6, 1997, report from Dr. D reflected treatment for a November 5, 1996, motor vehicle accident, neck, shoulder, left knee and back pain complaints, and cervical and lumbar sprain diagnoses. X-rays taken prior to that report showed mild degenerative changes at the L4-L5 levels. Dr. D noted that the claimant needed to return only in the event of a recurrence.
An employee has the burden of proving, by a preponderance of the evidence, that she sustained a compensable injury. Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. The self-insured argues that the claimant did not sustain an injury and merely suffered from the continued effects of a 1995 injury and a 1996 injury. It argues that she failed to prove the necessary causal connection between pushing her chair away from her desk and standing up, and the pain she experienced. We agree. An injury is “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). A compensable injury is one that “arises out of and in the course and scope of employment . . . .” Section 401.011(10). An activity that results in an injury is in the course and scope of employment if it is “an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.” Section 401.011(12). Standing up without more, from sitting in a chair is the type of activity that is a normal occurrence without regard to the work situation and has noting to do with furthering the business of the employer.
The alleged physical effects of repetitive standing or walking are generally not compensable injuries. See Texas Workers’ Compensation Commission Appeals Panel Decision No. 951630, decided November 15, 1995; Texas Workers’ Compensation Commission Appeals Panel Decision No. 951129, decided August 22, 1995; and Texas Workers’ Compensation Commission Appeals Panel Decision No. 931067, decided December 31, 1993. Likewise, repetitive sitting is not usually a repetitive injury. Texas Workers’ Compensation Commission Appeals Panel Decision No. 92340, decided September 3, 1992; and Texas Workers’ Compensation Commission Appeals Panel Decision No. 92272, decided August 6, 1992. These types of activities do not ordinarily result in compensable injuries because the repetitively traumatic activities are ordinary diseases of life. See Section 401.011(34). There is not an “ordinary disease of life” or similar statutory exclusion for injuries involving specific instances of trauma but, in those cases, employees must still prove that the alleged injury resulted from an activity originating in her work. Section 401.011(12).
The case under review is analogous to the underlying facts in our decision in Texas Workers’ Compensation Commission Appeals Panel Decision No. 941056, decided September 21, 1994, where we reversed a hearing officer’s determination that an employee who felt pain after a bodacious sneeze sustained a compensable injury and rendered a decision that the alleged injury was not sustained in the course and scope of employment. In that decision, we likened the facts to those in “idiopathic fall” Appeals Panel decisions and case law under TEX. REV. CIV. STAT. ANN. Art. 8306 et seq. (Vernon Pamph 1992), now repealed. Idiopathic falls resulting in an employee’s physical contact with some instrumentality of the employer, such as a floor, asphalt parking lot or other hard surface, are more likely to succeed as compensable injuries. Appeal No. 941056, supra. In that decision, we held that the alleged injury was not compensable, partially on the theory that because it did not involve the employee’s contact with anything, it simply involved pain he experienced while at work. We also relied on the “potential risk” test, which “focuses the court’s inquiry upon whether the injury would have occurred if the conditions and obligations of employment had not placed the claimant in harm’s way . . . .” Id, citing Employers’ Casualty Company v. Bratcher, 823 S.W.2d 719 (Tex. App.-El Paso 1992, writ denied).
The contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. Section 410.165(a). However, when the determination regarding whether an injury is in the course and scope of employment is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust, then applying our legal standard, we must reverse. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see also Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995. We conclude that the determination is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Neither the claimant nor Dr. B offer any evidence regarding the mechanism of damage or harm to the physical structure of the body. The claimant failed to offer proof that her injury resulted from the employer placing her in harm’s way. We distinguished this case from our decision in Texas Workers’ Compensation Commission Appeal No. 971671, decided October 10, 1997. In that case, we affirmed a hearing officer’s decision that standing up out of a chair resulted in a compensable injury. Our decision hinged on findings of fact that the injury was cause by the standing and the employee’s repetitive door closing activities.
Disability means the “inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). The determination as to an employee’s disability is a question of fact for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 92147, decided May 29, 1992. Disability, by definition, depends upon there being a compensable injury. Id. Since we reverse the determination that the claimant sustained a compensable injury, she cannot have disability and we reverse the determination that she had disability.
We render a new decision that the claimant’s alleged injury did not occur in the course and scope of her employment and, therefore, is not compensable and that she did not have disability.
Christopher L. Rhodes – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Joe Sebesta – Appeals Judge