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 September 28, 2001. The hearing officer resolved the disputed issues by determining that the appellant (claimant) did not sustain a compensable injury in the form of an occupational disease on __________, or at any other time, and that she therefore did not have disability. The claimant appealed the hearing officer’s determinations on sufficiency grounds and the respondent (carrier) responded, urging affirmance.
DECISION
Affirmed.
The claimant testified that she had sustained a prior compensable injury to her lumbar spine while working for the employer in __________; that as a result of the compensable lumbar injury, she was placed on modified duty in the shipping and receiving department; that her assigned duties in shipping and receiving involved a lot of repetitive lifting, bending, and reaching; that as a result of her repetitive duties, she began to experience pain in her neck, which radiated down her right arm; that she was eventually diagnosed as having a 1-2 mm bulge at C4-5, which her doctor attributed to her repetitive activities at work; and that her doctor took her off work on January 13, 2001, as a result of her new neck injury and had not released her back to work as of the date of the hearing. The carrier presented evidence to support its assertion that the claimant only alleged a neck injury because she was about to be placed at maximum medical improvement for her lumbar injury.
The hearing officer made findings of fact and concluded that the claimant did not sustain a compensable injury in the form of an occupational disease on __________, and that she therefore did not have disability. Without a compensable injury, the claimant would not have disability, as defined by Section 401.011(16). The claimant had the burden to prove that she was injured in the course and scope of her employment and that she had disability. There is conflicting evidence in this case. The 1989 Act makes the hearing officer the sole judge of the weight and credibility to be given to the evidence. Section 410.165(a). As the trier of fact, the hearing officer may believe all, part, or none of the testimony of any witness. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. The finder of fact may believe that the claimant has an injury, but disbelieve the claimant’s testimony that the injury occurred at work as claimed. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). A fact finder is not bound by the testimony (or evidence) of a medical witness where the credibility of that testimony (or evidence) is manifestly dependent upon the credibility of the information imparted to the medical witness by the claimant. Rowland v. Standard Fire Insurance Company, 489 S.W.2d 151 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ ref’d n.r.e.). An appellate level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its judgment for that of the trier of fact, even if the evidence would support a different result. Appeal No. 950084. When reviewing a hearing officer’s decision to determine the factual sufficiency of the evidence, we should set aside the decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Appeal No. 950084. We conclude that the hearing officer’s findings, conclusions, and decision are supported by sufficient evidence and that they are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is LUMBERMENS MUTUAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701.
Philip F. O’Neill – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert W. Potts – Appeals Judge