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 October 10, 2001. The hearing officer determined that (1) the appellant (claimant) did not sustain a compensable injury in the form of an occupational disease (asthma) with a date of injury on or about __________, but did sustain a compensable injury in the form of an “exacerbation” of her underlying asthma on or about __________________; and (2) the claimant did not have disability from the compensable injury. The claimant appeals on sufficiency grounds. The respondent (carrier) urges affirmance.
DECISION
Affirmed.
COMPENSABLE INJURY
The claimant asserts error in the hearing officer’s determination that she did not sustain a compensable injury in the form of asthma, but merely suffered an exacerbation of a preexisting condition. The claimant had the burden to prove a causal connection between her asthma and her employment at the employer recycling company. Texas Workers’ Compensation Commission Appeal No. 94309, decided April 29, 1994. There was conflicting evidence presented at the hearing regarding this issue. 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, resolves the conflicts and inconsistencies 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)). There is medical evidence from which the hearing officer could find that the claimant’s asthma was not related to her employment but, rather, preexisted her exposure to chemicals in the smelting room (pot room). The hearing officer could, and did, find that the claimant’s exposure to chemicals in the pot room exacerbated or aggravated the claimant’s preexisting asthma and, therefore, the claimant had sustained a “compensable injury in the form of an exacerbation of the Claimant’s underlying and non-work related asthma.” The hearing officer’s decision is supported by the evidence and is not so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
DISABILITY
Disability is defined in the 1989 Act as “the inability because of a compensable injury to obtain or retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). The claimant has the burden of proving disability. Texas Workers’ Compensation Commission Appeal No. 94820, decided August 9, 1994. Whether disability exists is a question of fact for the hearing officer to decide. Id.
Although the claimant’s treating doctor took the claimant off work, the hearing officer comments that even though the carrier’s required medical examination doctor doubts that the claimant can ever go back to work in the pot room, the claimant’s injury does not preclude her from working altogether. In view of the evidence, the hearing officer could determine that the claimant did not have disability. See Texas Workers’ Compensation Commission Appeal No. 951062, decided August 15, 1995. The hearing officer’s determination that the claimant did not have disability is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is LIBERTY MUTUAL FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. CURT HOSKINS
CT CORPORATION SYSTEMS
350 NORTH ST. PAUL, SUITE 2900
DALLAS, TEXAS 75201.
Thomas A. Knapp – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert W. Potts – Appeals Judge