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 March 7 and August 22, 1997. With regard to the issues at the CCH, he determined as follows: 1) the appellant (claimant) did not sustain a compensable injury on injury 1; 2) the claimant timely filed a claim for compensation with the Texas Workers’ Compensation Commission (Commission); 3) the claimant did not have disability; 4) the claimant is not barred from receiving benefits under the 1989 Act due to an election of group health insurance benefits; 5) the claimant is not barred from receiving benefits under the 1989 Act due an election to withdraw his claim; 6) the claimant is not estopped from pursuing benefits under the 1989 Act due an election to withdraw his claim; 7) the respondent (carrier) did not waive its right to contest the compensability of the claimant’s alleged injury; 8) the carrier did not waive its right to contest whether the claimant timely filed a claim for compensation with the Commission; 9) the carrier did not waive its right to contest whether the claimant made an election of remedies; 10) the claimant’s alleged injury 1, compensable injury does not extend to his back and hips; and 11) the carrier did not waive its right to contest whether the claimant’s alleged injury 1, compensable injury extends to his back and hips.
The claimant appeals the above-referenced determinations Nos. 1, 3, 7, 8, 9, 10 and 11, seeks a reversal of the decision and argues that it is not supported by the evidence. The carrier responds and seeks an affirmance of the decision. Determinations Nos. 2, 4, 5 and 6 are not appealed and, therefore, became final by operation of law. Section 410.169. Determination No. 8, dealing with the carrier’s waiver of the claim for compensation defenses, and determination No. 9, dealing with the carrier’s waiver of election of remedy defense relate to underlying determinations No. 2 and No. 3, respectively. We consider the appeal of determinations No. 8 and No. 9 as conditional since the underlying determinations were resolved in the claimant’s favor and became final. Consequently, we do not consider the claimant’s appeal of determinations Nos. 8 and 9. Texas Workers’ Compensation Commission Appeal No. 92618, decided January 4, 1993. We do consider whether the record supports the determinations that the claimant did not sustain a compensable injury, that he did not have disability, that his alleged injury did not extend to his back and hips and that the carrier did not waive its right to contest the compensability or extent of the alleged injury.
DECISION
We affirm.
It is undisputed that the claimant sustained a neck injury in a Injury 2 motor vehicle accident and had C3-4 and C5-6 fusion surgery in January 1991. The claimant testified at the CCH that on injury 1, he injured his neck pulling computer cable.
On March 21, 1995, the claimant’s doctor for his Injury 2 injury, Dr. M, noted that he “lifted grandchildren around Christmas, developed a severe neck pain and has been unable to get relief.” The claimant admitted he experienced pain periodically from Injury 2 to July 25, 1995, but denied sustaining an injury in December 1994. On August 10, 1995, the claimant’s initial choice of treating doctor, Dr. W, stated that “approximately two weeks ago,” he “suffered some pain and tenderness along his shoulders and para-cervical area . . . .” He noted that “there was no acute onset of these symptoms at the time of the exertion, but since that time, the pain has not significantly resolved.” A doctor who treated the claimant for both the Injury 2 injury and the injury in the claim in review, Dr. N, testified at the CCH that the claimant aggravated his previous neck condition on injury 1. He based his opinion on a January 1996 examination and a documented increase in spinal impingement after the injury 1, alleged injury. One of the carrier’s peer review doctors, Dr. SU testified that there was no evidence of an acute injury on injury 1, or a new herniated disc after injury 1. Another of the carrier’s peer review doctors, Dr. SI, testified that there was no evidence of an aggravation injury on injury 1.
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). An employee has the burden of proving, by a preponderance of the evidence, that he sustained a compensable injury. Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. A compensable injury may be an aggravation of a preexisting bodily infirmity. Texas Workers’ Compensation Commission Appeal No. 91039, decided November 15, 1991. Whether an employee sustained a new compensable injury or merely experienced the effects of a prior compensable injury is a factual question for the hearing officer to determine. Texas Workers’ Compensation Commission Appeal No. 92681, decided February 3, 1993. The issue of the extent of an injury is also factual question for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 92653, decided January 21, 1993; Texas Workers’ Compensation Commission Appeal No. 92654, decided January 22, 1993.
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). 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 Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). We will not substitute our judgment for that of the hearing officer when the determination is not 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); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995. We conclude that the determinations regarding compensability and extent of the injury are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and, therefore, we affirm determinations Nos. 1 and 10.
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 affirm determination No. 1, we also affirm determination No. 3.
It is also undisputed that the carrier first received written notice of the claimant’s injury on August 15, 1995, when it received the Employer’s First Report of Injury or Illness (TWCC-1), that it filed a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) on August 21, 1995, stating “carrier is disputing compensability/disability as claimant has a long history of neck problems,” and that it filed a TWCC-21 on October 29, 1996, addressing the extent of the claimant’s alleged injury. On August 16, 1995, the carrier recorded the claimant’s statement and its adjuster, Ms. C, testified that it received the transcript of the statement soon thereafter. In the statement, the claimant described his injury as “always back of my neck,” and mentioned back pain and tailbone pain. However, when asked in the statement if the pain radiated “up your back or down,” he answered “[i]t has not done that.”
A carrier must contest compensability of an injury on or before the 60th day after it is notified of the injury or else it waives its right to contest compensability and is liable for payment of benefits. Section 409.021(c), Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.6(c) (Rule 124.6(c)). The analysis to determine whether a carrier has timely contested compensability is essentially a two-step process. In the first step, the hearing officer must determine when the carrier was notified of the injury. Within the first step lies an analysis of the sufficiency of the notice to the carrier. Receipt of a TWCC-1 is notice of injury. Rule 124.1(a)(1). A notice of injury must fairly inform the carrier of the nature of the injury, the name of the injured employee, the identity of the employer, the approximate date of injury, and must state “facts showing compensability.” Rule 124.1(a). The writing may be from any source. Rule 124.1(a)(3). A carrier must timely contest compensability of additional injuries. Texas Workers’ Compensation Commission Appeal No. 950183, decided March 22, 1995. The hearing officer must determine if the carrier contested compensability on or before the 60th day after it received notice. The claimant argues on appeal that the August 21, 1995, TWCC-21 only contested disability and did not contest compensability. Our review of the August 21, 1995, TWCC-21 reveals that it does contest compensability of the injury and, therefore, we affirm determination No. 9.
Notices that claim injury to additional parts of the body not previously claimed will start a new 60-day time period for contesting compensability for those particular parts of the body. Texas Workers’ Compensation Commission Appeal No. 950522, decided May 11, 1995; Texas Workers’ Compensation Commission Appeal No. 93491, decided August 2, 1993. Written reports that consider whether a condition is work related may constitute written notice of injury under Rule 124.1, whether or not a concrete diagnosis is made. Appeal No. 950522, supra. The hearing officer found that the carrier timely contested whether the claimant’s alleged injury 1, compensable injury extends to his back and hip within 60 days of its first receipt of notice of the extent of the claimant’s injury. The claimant argues that the carrier first received notice that his alleged injury 1, compensable injury extends to his back and hip when it took his recorded statement on August 16, 1995, and that it did not timely contest whether his injury extends to his back and hip. The carrier contested the compensability of a back injury in its original August 21, 1995, TWCC-21. The carrier did receive the transcript of the claimant’s recorded statement in excess of 60 days before it filed its October 29, 1996, TWCC-21 and receipt of a transcript of a recorded statement may constitute receipt of written notice for the purpose of determining whether it waived its right to timely contest compensability. Texas Workers’ Compensation Commission Appeal No. 962512, decided January 27, 1997. However, whether the statement put it on notice that his alleged injury 1, compensable injury extends to his hips is open to interpretation. The hearing officer did not interpret the statement as claiming back and hip injuries. We do not conclude that his finding in that regard is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and, therefore, we affirm determination No. 11.
The decision is not against the great weight and preponderance of the evidence and, therefore, we affirm.
Christopher L. Rhodes – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Susan M. Kelley – Appeals Judge