This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 30, 2001. The hearing officer determined that the appellant (claimant) had not sustained a compensable (low back) injury on __________ (all dates are 2000 unless otherwise noted), and that the claimant did not have disability.
The claimant appeals, contending that various medical records show a new injury and damage and that her prior nonwork-related motor vehicle accident (MVA) “was very minor.” The respondent (carrier) responds, urging affirmance.
DECISION
Affirmed.
The claimant testified about several prior injuries, including a 1981 MVA which led to spinal surgery in 1982. The claimant was also in a nonwork-related MVA on September 22, 1999. The severity of that accident is in dispute, however, she did treat with Dr. K for neck, right shoulder, and low back pain until October 11, 1999, and then again from May 8 through July 27. The claimant testified that she began to have back pain in May 2000. The claimant had continued to work on light duty and on July 27, Dr. K released the claimant to regular duty. The claimant testified that on ________, she injured her low back throwing out some trash. The claimant claims disability from August 3.
The medical records are principally in the form of handwritten progress notes. Dr. S, in an off-work slip diagnosed “Acute Low Back Pain.” In a handwritten note of August 8, Dr. S references the 1982 injury but does not mention the 1999 MVA. A lumbar MRI performed on September 18 indicates lumbar spondylosis and degenerative lumbar disc disease.
The hearing officer commented that the claimant experienced pain on ________, which caused her to go to the doctor but that a flare-up of pain from a prior condition is not a new injury. The hearing officer mentions that the claimant may have an ordinary disease of life, or her pain may be from a prior MVA or it may have stemmed from work activities in early May. The claimant argues the medical reports indicate a new injury, specifically referencing Dr. S’s “report of November 14, 2000.” That report is actually an off-work slip which states that the claimant is under his care for “Low back injury-Lumbar Spondylosis/stenosis.”
The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves 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)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.)). 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).
Because we have affirmed the hearing officer’s decision that the claimant did not sustain a new injury, the claimant, by definition in Section 401.011(16), cannot have disability.
The hearing officer’s decision and order are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Robert E. Lang
Appeals Panel
Manager/Judge
Philip F. O’Neill – Appeals Judge