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 August 3, 2004. The hearing officer determined that the respondent’s (claimant) compensable injury of ______________, includes depression, and that the claimant is entitled to lifetime income benefits (LIBs) on the basis of the total and permanent loss of use of both feet at or above the ankle as of this date. The appellant (carrier) appealed based on sufficiency of the evidence grounds. The claimant responded, urging affirmance.
DECISION
Affirmed.
The hearing officer did not err in determining that the claimant’s compensable injury of ______________, includes depression. The extent-of-injury issue involved a fact question for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude that the hearing officer’s determination that the compensable injury includes depression is supported by the record and 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).
The hearing officer did not err in determining that the claimant was entitled to LIBs. At issue is whether the claimant is entitled to LIBs based on the total and permanent loss of use of both feet at or above her ankles as provided in Section 408.161(a)(2). The test for total loss of use is whether the member possesses any substantial utility as a member of the body or whether the condition of the injured member is such that it keeps the claimant from getting and keeping employment requiring the use of the member. Texas Workers’ Compensation Commission Appeal No. 94689, decided July 8, 1994, citing Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex. 1962). It is clear from the hearing officer’s decision that he considered and applied the Seabolt, test in making his determination. Whether the claimant satisfied the aforementioned test was a question of fact for the hearing officer to resolve. 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)). In view of the evidence presented, we cannot conclude that the hearing officer’s determination is 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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. RUSSELL RAY OLIVER, PRESIDENT
221 WEST 6TH STREET, SUITE 300
AUSTIN, TEXAS 78701-3403.
Veronica L. Ruberto
CONCUR:
Gary L. Kilgore – Appeals Judge
Edward Vilano – Appeals Judge