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 March 14, 2000. The hearing officer determined that the appellant (claimant) is not entitled to lifetime income benefits (LIBs). The claimant appeals, contending that the hearing officer erred in finding that the claimant was not entitled to LIBs. The respondent (carrier) replies that the hearing officer’s decision should be affirmed.
DECISION
Affirmed.
It was undisputed that the claimant sustained a compensable injury on __________. We had previously discussed this case in our decision in Texas Workers’ Compensation Commission Appeal No. 992191, decided November 4, 1999 (Unpublished), where we affirmed a decision of a hearing officer deciding that the claimant was not entitled to supplemental income benefits (SIBs) for the 10th compensable quarter and had permanently lost entitlement to SIBs. A copy of that decision is in evidence in the present case.
In the present case, the claimant contends that he is entitled to LIBs because, due to his injury, he suffered a total loss of use of his back and legs. The claimant testified that his back and legs no longer had substantial utility to allow him to get and keep employment. The claimant further testified that he has not worked since the time of injury. The claimant also put into evidence a report from Dr. N, his treating doctor, in which Dr. N stated as follows:
[The claimant] has total loss of use to his back and knees due to injuries related to his work-related accident. These members no longer possess any substantial utility. The condition of these injured members is such that [the claimant] cannot obtain or maintain employment requiring the use of such members.
The claimant testified under cross-examination that he did not suffer from paralysis as a result of his injury and did not use a cane, a walker or a wheelchair. There is a surveillance tape in evidence showing the claimant ambulating.
The hearing officer’s findings of fact and conclusions of law include the following:
FINDINGS OF FACT
2.Claimant sustained a work related injury to his knee in __________ and a work related back injury in __________.
3.Claimant has not been employed since his back injury of __________.
4.Claimant is able to sit, stand, walk and drive his motor vehicle.
5.Claimant’s injury to his spine does not result in permanent and complete paralysis of both arms, both legs, or one arm and leg.
6.Claimant is not entitled to [LIBs] as set out in Texas Labor Code Section 408.161.
CONCLUSION OF LAW
2.Claimant is not entitled to [LIBs].
The provisions of the 1989 Act controlling LIBs is Section 408.161 which provides as follows in relevant part:
Sec. 408.161. LIFETIME INCOME BENEFITS. (a) [LIBs] are paid until the death of the employee for:
(1)total and permanent loss of sight in both eyes;
(2)loss of both feet at or above the ankle;
(3)loss of both hands at or above the wrist;
(4)loss of one foot at or above the ankle and the loss of one hand at or above the wrist;
(5)an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg; or
(6)an injury to the skull resulting in incurable insanity or imbecility.
(b)For purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part.
(c)Subject to Section 408.061, the amount of [LIBs] is equal to 75 percent of the employee’s average weekly wage. Benefits being paid shall be increased at a rate of three percent a year notwithstanding Section 408.061. (V.A.C.S. Arts. 8308-4.31(a), (b), (c).)
The claimant contends that the hearing officer did not properly apply the correct legal standard in determining whether or not the claimant met the requirement of Section 408.161. In our decision in Texas Workers’ Compensation Commission Appeal No. 94689, decided July 8, 1994, we held that the legal test for total loss of use had not changed from prior law and that the proper standard is as follows:
“Total loss of use” of member of the body exists whenever by reason of injury such member no longer possesses any substantial utility as a member of the body or the condition of the injured member is such that the worker cannot get and keep employment requiring the use of such member.
The claimant points to numerous Appeals Panel decisions in which we have followed Appeal No. 94689 and points out that the ruling in that case is consistent with a number of decisions of the Courts of Appeal, including Pacific Employers Insurance Company v. Dayton, 958 S.W.2d 452 (Tex. App.-Fort Worth 1997, writ denied). We have most recently reiterated our adherence to this standard in Texas Workers’ Compensation Commission Appeal No. 000412, decided April 10, 2000; and Texas Workers’ Compensation Commission Appeal No. 000417, decided March 31, 2000.
The question then is whether the hearing officer adhered to this standard in reaching his decision. We note that Section 408.161(a)(5) differs from several of the other provisions of 408.161(a) in that it requires that a spinal injury result in complete paralysis of either both legs, both arms or one arm and one leg. This requires more than proof of the loss of use as is required by other provisions of Section 408.161(a). In the present case, the hearing officer found that the claimant’s back injury did not result in paralysis, and under these circumstances, we find no error in his not granting LIBs pursuant to Section 408.161(a)(5). There was some evidence that the claimant had loss of use of both legs. However, whether or not the claimant suffered such loss of use was still a factual matter for the hearing officer.
Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should reverse such decision only if it is 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); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
It would have been better had the hearing officer made specific factual findings linked to the definition of total loss of use. However, as the case before him was fully developed and these definitions were presented to him as well as an exhaustive survey of the case law, we find that the present Finding of Fact No. 6, quoted above, sufficiently indicates that the hearing officer did not find that the claimant suffered a total loss of use of his legs. Nor, applying the standard of review cited above, do we find this contrary to the overwhelming weight of the evidence. This is so even though another fact finder might have drawn other inferences and reached other conclusions. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.).
Finally, we need to the address the questions raised concerning the applicability of Section 408.146(c) to the present case. The carrier argued that since it had been determined in Appeal No. 992191, supra, that the claimant had lost entitlement to SIBs then the claimant could not, as a matter of law, be entitled to LIBs. The hearing officer in the present case, while not incorporating findings of fact or conclusions of law regarding this in his decision, does seem to indicate in his “Statement of the Evidence” that this is an alternative theory. The claimant in his appeal contends that this is not a proper interpretation of Section 408.146. The carrier argues in response that it is and points to language in Appeal No. 992191 which it argues supports this position. As the decision of the hearing officer is affirmable, on the basis previously discussed, we find this matter to be moot.
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Judy L. Stephens – Appeals Judge