This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 11, 2000. The hearing officer determined that the appellant (claimant) was not injured in the course of his employment on or about __________, and that, since the claimant did not sustain a compensable injury, he did not have disability. The claimant appealed, stated why he thought that the evidence established that he was injured in the course and scope of his employment and had disability, and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision in his favor. The respondent (carrier) replied, urged that the evidence is sufficient to support the decision of the hearing officer, and requested that it be affirmed.
DECISION
Affirmed.
The claimant testified that he worked for the employer and as a manager for an emergency medical service company; that prior to __________, he had been off work for about two weeks because of sinus surgery; that he returned to work for the employer on Monday, __________; that while working on April 4, 2000, he had back pain and the pain was limited to his lower back; that on April 5, 2000, he was driving a van for the employer; that the driver’s seat would move and was in need of repair; that he drove over a dip in the road, went up from the seat, and had excruciating pain in his lower back that shot down his left leg all the way to his ankle; that he drove the van over speed bumps in completing his route; that the pain became worse as he drove over each speed bump, even though he drove slowly over the speed bumps; and that when he returned to the dispatch office he told Mr. W and Mr. C what had happened and that he had severe pain in his lower back and into his left leg to his ankle. He said that he saw Dr. P on April 5, 2000; that he told a nurse in Dr. P’s office about driving and having back pain; and that the records of Dr. P probably do not mention the van and the dip because he was in pain, had taken pain medication, was confused, and was concentrating on getting something for his pain.
Mr. C, the branch manager for the employer, testified that the first day the claimant was back, another van driver told him that the claimant was in pain; that it was obvious that the claimant was in pain; that they helped the claimant get into his car; that the claimant complained of pain in his leg, but did not mention pain in his lower back; and that the claimant did not say anything about driving a van, having a problem with a seat in a van, or hitting a bump. Mr. C said that the claimant worked a day or two and then he took off work; that the claimant had an MRI performed; that after he obtained the results of the MRI he came back in; that he asked about workers’ compensation; and that he said that there was something wrong with the seat of the van the way it moved. Mr C stated that he drove the van before and after the day of the claimed injury, that he did not have any problem with the seat, and that no other drivers reported a problem with the seat. Mr. C testified that he had Mr. W, the dispatcher and maintenance person for the branch, check the seat in the van and that Mr. W reported that there is a little play in the seat, but that there is nothing in the seat that needs to be repaired.
It is undisputed that the claimant had a disc herniation at L5-S1 and that he had a microlumbar laminectomy on May 26, 2000, and was discharged from the hospital on May 28, 2000.
The burden is on the claimant to prove by a preponderance of the evidence that an injury occurred in the course and scope of employment. Texas Workers’ Compensation Commission Appeal No. 91028, decided October 23, 1991. The testimony of the claimant alone may be sufficient to satisfy the burden of proof. Texas Workers’ Compensation Commission Appeal No. 91013, decided September 13, 1991. The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). While a claimant’s testimony alone may be sufficient to prove a claim, the testimony of a claimant is not conclusive but only raises a factual issue for the trier of fact. Texas Workers’ Compensation Commission Appeal No. 91065, decided December 16, 1991. The trier of fact may believe all, part, or none of any witness’s testimony because the finder of fact judges the credibility of each and every witness, the weight to assign to each witness’s testimony, and resolves conflicts and inconsistencies in the testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. In the statement of the evidence in his Decision and Order, the hearing officer stated that there was no doubt that the claimant had a herniated disc, but the evidence was insufficient to establish that an injury was sustained in the course and scope of employment with the employer. An appeals level body is not a fact finder and it 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). Only were we to conclude, which we do not in this case, that the hearing officer’s determination that the claimant was not injured in the course and scope of his employment is so against the great weight and preponderance of the evidence as to be clearly wrong or unjust, would there be a sound basis to disturb that determination. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
Disability means the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. Section 401.011(16). Disability, by definition, depends upon there being a compensable injury. Id. Since we have found the evidence to be sufficient to support the determination that the claimant did not sustain a compensable injury, the claimant cannot have disability.
We affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Judy L. Stephens – Appeals Judge