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 June 27, 2000. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury on _________, and did not have disability. The claimant appealed, expressing his disagreement with these determinations. The respondent (carrier) replies that the decision is correct, supported by sufficient evidence, and should be affirmed.
DECISION
Affirmed.
The claimant worked as a long-haul truck driver. He sustained prior compensable back injuries in _________ and _________. He testified that after the _________ injury, he regularly took pain medication for an arthritic condition brought on by the injury, but that he was otherwise essentially recovered from these injuries. On or about _________, he said he was driving in Arkansas when the truck hit a pot hole and his seat bottomed out causing him immediate, significant back pain. He continued the trip to Pennsylvania without reporting the defective seat and returned to (Texas) in three days. He wrote on his log entry which he turned in to his employer that he “beat [his] back and neck to a pulp.”
The claimant sought medical attention from Dr. L, his family doctor, on October 28, 1999. Dr. L, in his report of this visit, did not refer to a history of a specific incident of striking a pot hole, but to a rough ride to Pennsylvania and back. The diagnosis was cervical and lumbar strain. On May 9, 2000, Dr. L wrote in a letter that while the claimant was driving on _________, he injured his back when the seat bottomed out “causing a direct blow to the back. . . . In my opinion this is an isolated incident and certainly not related to previous injuries or strains.”
The claimant had the burden of proving he sustained a compensable injury as claimed. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). The aggravation of a preexisting injury or condition may be a new injury in its own right if it has a reasonably identifiable cause and is not the mere recurrence or remanifestations of prior symptoms but is some enhancement, acceleration, or worsening of the underlying condition. Whether there is an aggravation injury or continuation of a prior injury or condition presents a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93866, decided November 8, 1993.
The hearing officer in this case was not persuaded that the claimant sustained a new injury on _________. In reaching this conclusion, he considered the similarities in the nature of the old and new injuries (sprain/strain) and symptoms, the claimant’s delay in seeking treatment for two weeks in the face of what he described as “significant pain,” and the lack of a description of a specific event as the cause of the claimed new injury in Dr. L’s initial treatment report. In his appeal, the claimant contends again that he was essentially healthy before the _________, incident; that he waited to go to the doctor in the hope of getting well on his own; and that Dr. L’s letter of May 9, 2000, establishes a new injury. Section 410.165(a) provides that the hearing officer is the sole judge of the weight and credibility of the evidence. The claimant’s position was presented to the hearing officer and was considered by him in making his findings of fact and conclusions of law. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance 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 Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we decline to substitute our opinion of the credibility of the respective evidence for that of the hearing officer.
We also find no error in the hearing officer’s determination that the claimant did not have disability, as the 1989 Act requires a finding of the existence of a compensable injury as prerequisite to a finding of disability. Section 401.011(16).
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Robert W. Potts – Appeals Judge