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 November 30, 1997. With regard to the issues at the CCH, he determined that the appellant (claimant) did not sustain a compensable injury on ______, and did not have disability. The claimant appeals, seeks a reversal of the decision and argues that she met her burden of proof to show she sustained a compensable injury. The respondent (carrier) responds and seeks an affirmance of the decision.
DECISION
We affirm.
There is no dispute that on ______, the claimant had been employed for 10 weeks as a prep cook at (employer) restaurant, that on ______, she was hit in the back, either with an aluminum colander or a metal pot, while in the course and scope of her employment and that she had sustained prior back injuries. The hearing officer found that the colander incident did not result in a compensable injury. Since there is no dispute that an incident occurred in the course and scope of employment, our inquiry focuses on whether the record supports a conclusion that the claimant did not sustain an injury. 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 she sustained a compensable injury. Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994.
The claimant testified that the colander fell from an equipment shelf in the kitchen of the employer’s restaurant. Both Mr. MG and Mr. AG, gave statements to the effect that they were working in the kitchen at the time the colander fell. They each described the claimant complaining of back pain after the incident. On April 30, 1996, the emergency room (ER) doctor, Dr. SM, noted that the claimant “presents to the [ER] with a chief complaint of back pain. The patient apparently was bending down when a cooking pot fell onto her back, hitting her in the area of her lumbar surgery.” His assessment was “[c]hronic back pain.” On May 12, 1996, she went to the ER again, where another doctor, Dr. C noted that she had injured her back 13 years before, when she fell on a metal bar, and injured her back one day before, when she pushed her husband’s wheelchair. Dr. C also stated that she had been hit with a “metal pot” two weeks before but does not mention whether the pot incident caused an injury. Nevertheless, Dr. C’s impression was “[l]ow back pain, strain.” Dr. SM referred her to her treating doctor, Dr. P. The claimant was examined by Dr. P on June 3, 1996, and his report from that day reflected that “[s]he was apparently bent over at the time and a pot fell onto her back striking her just above the level of her fusion and further flexing her back as well as flexing her neck.” He rendered diagnoses of “(1) cervical discogenic pain, (2) a discogenic pain syndrome in the low back associated with a possible S-1 nerve root inflammatory neuritis, (3) loosening of the titanium cross piece link.” Dr. P also opined that she could not return to her job at the employer. On September 25, 1997, Dr. P referred to the claimant’s alleged ______, injury and stated that “[p]rior to this, the patient was not troubled by similar symptoms or symptoms of equivalent intensity.” He went on to say “she was indeed a victim of a technically new event,” and stressed that the colander incident was the proximate cause of her pain. The carrier’s peer review doctor, Dr. SU, opined that “[n]o new pathologic changes are demonstrated by the available imaging to have developed around the date in question (_______),” and that her “antererolisthesis developed mostly or entirely later.”
The claimant had an exhaustive medical and social history, both prior and subsequent to her alleged ______, compensable injury. Events documented in the record include: a 1983 back injury from falling on a metal bar; a February 28, 1995, slip-and-fall at retail discount store; a May 23, 1995, back surgery performed by Dr. P, due to 15 years of chronic back pain; an August 19, 1995, back strain caused by her husband falling against her; a September 1995 back surgery; an October 1, 1995, buttocks injury caused by an attack; November 14, 1995, back pain from pushing an automobile; January 25, 1996, left buttock and SI (sacroiliac) joint pain due to bursitis or enthesopathy; April 30, 1996, back pain from rolling out of bed; May 11, 1996, back pain caused by pushing her husband’s wheelchair; June 4, 1996, back pain from rolling out of bed; and February to September 1997 incarceration at Texas Department of Criminal Justice’s penitentiary.
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 or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995. Although there is conflicting medical evidence as to whether the claimant sustained an injury when the colander or pot hit her in the back, we conclude that the compensability determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Therefore, we affirm the decision as to the compensability issue.
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 the decision as to the compensability issue, we also affirm it as to the disability issue.
Christopher L. Rhodes – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Philip F. O’Neill – Appeals Judge