Following a contested case hearing held on August 4, 2000, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer resolved the disputed issues by determining that the appellant (claimant herein) did not suffer an injury on ___________, and did not have disability. The claimant appeals, arguing that these determinations are contrary to the evidence. The respondent (carrier herein) replies 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.
It was undisputed that the claimant had suffered a back injury as a result of a motor vehicle accident several years ago during the course of military service. There is also evidence that the claimant had moved his residence on September 20, 1999. The claimant testified that on __________, he injured his back at work while moving pallets of duck ammunition with two other employees using a pallet jack. The claimant testified that the pallets of duck ammunition weighed 3,000 pounds. The claimant also testified that he told one of the other employees, Mr. R, that he injured his back. Mr. R testified that he did not recall the claimant telling him this. There is a written statement from the other employee involved in moving the pallets, J, that the claimant did make this statement.
It was undisputed that the claimant was allowed to leave work early on __________, because it was his birthday. The claimant testified that he was unable to get out of bed the next morning and called Mr. L, an assistant store manager, to tell him he was sick. The claimant testified that he told Mr. L that he had injured his back moving boxes at home and it was Mr. L’s fault for letting him off work early the previous day. The claimant testified that he was joking when he told Mr. L this. Mr. L testified that he thought the claimant was joking about the injury being his fault, but did not think the claimant was joking about being injured at home.
The claimant sought medical treatment on Monday, September 27, 1999, with Dr. S. The claimant returned to work on light duty in October 1999 and then ceased working, eventually resigning his employment. The claimant was diagnosed by fluoroscopy with a herniated lumbar disc.
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). However, as an interested party, the claimant’s testimony only raises an issue of fact for the hearing officer to resolve. Escamilla v. Liberty Mutual Insurance Company, 499 S.W.2d 758 (Tex. Civ. App.-Amarillo 1973, no writ). In the present case, the hearing officer found no injury contrary to the testimony of the claimant. The claimant had the burden to prove he was injured in the course and scope of his employment. Reed v. Aetna Casualty & Surety Co., 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref’d n.r.e.). We cannot say that the hearing officer was incorrect as a matter of law in finding that the claimant failed to meet this burden. 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, with no compensable injury found, there is no loss upon which to find disability. By definition, disability depends upon a compensable injury. See Section 401.011(16).
We affirm the decision and order of the hearing officer.
Gary L. Kilgore – Appeals Judge
CONCUR:
Kenneth A. Huchton – Appeals Judge
Philip F. O’Neill – Appeals Judge