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 October 29, 2001. The hearing officer resolved the disputed issues by concluding that the respondent (claimant) sustained a compensable injury in the form of an occupational disease with a date of injury of ___________; that the claimant had disability beginning October 21, 1999, and continuing through November 27, 1999; that the appellant (carrier) is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; and that the claimant timely filed a claim for compensation with the Texas Workers’ Compensation Commission (Commission) within one year of the injury. The carrier appealed, arguing that the hearing officer erred in finding that the claimant sustained a compensable injury, that the claimant had disability, and that the carrier is not relieved of liability under Section 409.002. In his response, the claimant argues that the evidence supports the determinations of the hearing officer.
DECISION
Affirmed.
The claimant testified that he worked for employer as an operator in the fabrication of computer parts. He testified that his job duties included placing the fabricated material in a tank containing phosphoric acid. The claimant testified that he began working at this position in March 1998. He stated that sinus congestion and sinus headaches were the symptoms he initially experienced and in December 1998, he began having nosebleeds. The claimant testified that in December 1998 some maintenance was performed on the tanks and when the claimant returned to work, ___________, after two weeks of vacation, warning labels were placed on the tanks detailing the hazards of overexposure and that is when the claimant realized his symptoms were work related rather than allergies. He testified that he reported his injury on ___________, to a nurse with the employer, as well as his supervisor and his shift administrator.
The 1989 Act generally requires that an injured employee or person acting on the employee’s behalf notify the employer of the injury not later than 30 days after the injury occurred. Section 409.001. The date of injury for an occupational disease is the date on which the employee knew or should have known that the disease may be related to the employment. Section 408.007. The 1989 Act provides that a determination by the Commission that good cause exists for failure to provide notice of injury to an employer in a timely manner can relieve the claimant of the requirement to report the injury. Section 409.002.
The carrier argues that the Employer’s First Report of Injury or Illness (TWCC-1), the First Report of Injury to Employer, signed November 19, 1999, and the testimony of a witness stating that she had reviewed the claimant’s employment file and nothing indicated he reported the injury, establishes the claimant did not timely report the injury. However, the claimant’s testimony as well as the First Report of Injury, though it is dated November 19, 1999, states that the claimant reported his injury in ___________ to his direct supervisor and his shift administrator.
Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the overwhelming weight 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. There was conflicting evidence regarding whether the claimant reported the injury on ___________. The hearing officer was acting within his province as the finder of fact in determining the weight and credibility to be afforded the testimony and documentary evidence on whether the claimant reported the injury within 30 days. The hearing officer’s determination that the claimant reported the injury within 30 days is supported by the evidence and we will not substitute our judgment for the hearing officer’s.
On the issue of compensability, the carrier argues that the claimant failed to sustain his burden of proof. The claimant in a workers’ compensation case has the burden to prove by a preponderance of the evidence that he sustained a compensable injury in the course and scope of his employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). The 1989 Act defines “injury” as damage or harm to the physical structure of the body and a disease naturally resulting from the damage or harm. Section 401.011(26). The definition of disease includes occupational diseases. An occupational disease is defined as “a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body,” but does not include “an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease.” Section 401.011(34). To establish that he has an occupational disease, the claimant’s evidence must show a causal connection between the employment and the disease. Texas Workers’ Compensation Commission Appeal No. 91002, decided August 7, 1991. Where, as here, the causal connection is not a matter of general knowledge, it must be proven to a reasonable medical probability by expert evidence. Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980); Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93668, decided September 14, 1993; Texas Workers’ Compensation Commission Appeal No. 94254, decided April 14, 1994 (Unpublished). The effects of chemical inhalation and the resultant effect on the body are matters beyond common experience and medical evidence should be submitted to establish causation as a matter of reasonable medical probability as opposed to possibility, speculation or guess. See Appeal No. 94254, supra. Whether the necessary causation exists is a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 94266, decided April 19, 1994.
In the present case, both the claimant and a safety engineer for the employer testified that the tanks of phosphoric acid were kept at around 160 to 165 degrees centigrade. The safety engineer additionally testified that tanks of phosphoric acid were kept above the boiling point. The claimant testified that he would have to open the tanks numerous times during a shift and due to the temperature of the phosphoric acid, a mist or vapors containing phosphoric acid would escape, hitting him in the face. In evidence was a material safety data sheet which stated that a mist of phosphoric acid can cause damage to nasal and respiratory passages. The claimant had right functional endoscopic sinus surgery and septoplasty on October 21, 1999. The carrier introduced a report from Dr. M, who concluded that after reviewing the claimant’s records and “employing the scientific principles used to evaluate potential toxic causation,” that it is not medically probable that the claimant’s symptoms are related to chemical exposure. However, both Dr. S and Sl concluded that the injury sustained by the claimant was a result of the chemical exposure he received on the job.
The carrier argued that the claimant failed to meet a three pronged test that required the claimant to identify the specific chemical to which he was exposed, provide evidence that the chemicals were detected in his body, and show that these detected chemicals caused his occupational disease, citing Texas Workers’ Compensation Commission Appeal No. 962277, decided December 23, 1996. However, in that case the claimant alleged an occupational disease described as “chemical sensitivity” and the claimant was exposed to various chemicals at his job. The Appeals Panel held that the medical evidence was not probative at all on the issue of the cause of the claimant’s condition. In the present case, there was some medical evidence, as well as other documentary evidence and testimony, to support the determination of compensability made by the hearing officer.
Turning to the disability issue, the hearing officer determined that the claimant had disability from October 21, 1999, to November 27, 1999. The carrier argues that the claimant is not entitled to disability because he provided no medical documentation that he was ever taken off work. The hearing officer has expressly stated that he found the claimant to be credible. The claimant’s testimony supports the determination of the hearing officer.
The hearing officer is the sole judge of the relevance and materiality of the evidence and its weight and credibility. Section 410.165. The hearing officer judges the weight to be given to the expert medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The hearing officer may believe all, part, or none of the testimony of any witness. Nothing in our review of the record indicates that the hearing officer’s determinations are so against the great weight of the evidence as to be clearly wrong and unjust. Accordingly, no sound basis exists for us to disturb those determinations on appeal. Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986); Cain, supra.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is CONTINENTAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION
350 NORTH ST. PAUL
DALLAS, TEXAS 75201.
Gary L. Kilgore – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Michael B. McShane – Appeals Judge