Following a contested case hearing (CCH) held on August 8, 2000, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer resolved the disputed issue by determining that the respondent (claimant herein) sustained a compensable injury on ________, that the claimant timely reported this injury to her employer, and that the claimant had disability from August 6, 1999, continuing through the date of the CCH. The appellant (carrier herein) files a request for review arguing that the hearing officer’s findings of injury and timely report of injury were contrary to the evidence. The carrier also argues that, absent a compensable injury, the claimant could not have disability. The claimant responds that there is sufficient evidence to support the decision of the hearing officer.
DECISION
Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.
The claimant testified that she was injured on ________, when, working as an apartment manager, she was pulling up carpet. The claimant testified that she felt an immediate pain in her right arm and continued to experience right shoulder pain after the incident. The claimant stated that she reported the incident to her supervisor on May 3, 1999. In July 1999 the claimant sought medical treatment and was diagnosed with a right rotator cuff tear. The claimant underwent shoulder surgery. The claimant testified that she had been unable to work from August 6, 1999, through the date of the hearing as a result of injury. The claimant’s supervisor testified that the claimant did not report the injury.
The question of whether an injury occurred is one of fact. Texas Workers’ Compensation Commission Appeal No. 93854, decided November 9, 1993; Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. Section 410.165(a) provides that the contested case 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).
A finding of injury may be based upon the testimony of the claimant alone. Houston Independent School District v. Harrison, 744 S.W.2d 298, 299 (Tex. App.-Houston [1st Dist.] 1987, no writ). In the present case, the hearing officer found an injury and this finding was supported by the testimony of the claimant. The carrier argues that there was evidence that the claimant said nothing about an injury when she was terminated on May 7, 1999, and points to the delay between the claimant’s injury and her seeking medical treatment. The carrier argues that the claimant did not pursue a workers’ compensation claim until she was denied unemployment benefits. It was the province of the hearing officer to weigh and evaluate the evidence. The claimant testified that she reported the injury prior to her termination and the hearing officer found that evidence credible. Applying our standard of review, we find sufficient evidence to support the hearing officer’s finding of injury.
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 burden is on the claimant to prove the existence of notice of injury. Travelers Insurance Company v. Miller, 390 S.W.2d 284 (Tex. Civ. App.-El Paso 1965, no writ). In the present case, the hearing officer found as a matter of fact that the claimant did report her injury to her employer on May 3, 1999. The carrier points to contrary testimony from other witnesses. Again, it was for the hearing officer as the finder of fact to judge the credibility of the witnesses. The carrier argues that the hearing officer should have explained in greater detail why she believed the claimant rather than the carrier’s witnesses and asks that we remand the case for such an explanation. We find no basis to do this in the present case. We find no legal error in the hearing officer’s determination that the claimant timely reported her injury.
In regard to disability, the carrier argues that, absent a compensable injury, a claimant cannot have disability. This is true. However, having affirmed the hearing officer’s determination that the claimant had an injury and timely reported this injury, the claimant has established the prerequisite of a compensable injury. Disability can be established by a claimant’s testimony alone, even if contradictory of medical testimony. Texas Workers’ Compensation Commission Appeal No. 92285, decided August 14, 1992; Texas Workers’ Compensation Commission Appeal No. 92167, decided June 11, 1992. In the present case, the hearing officer’s finding of disability was supported by both the testimony of the claimant and medical evidence.
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Kenneth A. Huchton – Appeals Judge