Following a contested case hearing held on August 7 and 24, 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 respondent (claimant) compensably injured his cervical spine in addition to having sustained a compensable carpal tunnel syndrome (CTS) injury on _________, and that he has had disability from May 21, 2000, through the date of the hearing. The appellant (carrier) contends that the evidence failed to establish that the claimant’s _________, injury extended to his cervical spine and thus that he did not have disability. The carrier also asserts that the Appeals Panel should reverse the hearing officer’s decision because the claimant is attempting to combine two separate injuries with different dates of injury. The claimant urges in response that the evidence is sufficient to support the challenged determinations.
DECISION
Affirmed.
The hearing officer’s Decision and Order contains a summary of the evidence with which neither party takes issue. Accordingly, only so much of the evidence will be set out in this decision as is necessary to support our decision.
It is undisputed that the carrier accepted liability for the claimant’s carpal tunnel injury with an injury date of _________. However, the carrier does dispute that the claimant’s compensable injury extends to his cervical spine. The carrier contends that it accepted liability for the CTS based on the claimant’s repetitive use of a computer keyboard in his work and that he is now attempting add a neck injury from repetitive lifting with the same date of injury. We observe that neither the date of injury nor the timeliness of the notice of injury were in issue.
The claimant testified that at the time of his injury he was working as a ladle furnace operator for a company that made steel; that although he spent more time in the control room at the computer and at certain controls, he did have to pick up 50-pound bags of graphite and place them in a chute for dumping into the molten steel; and that the number of times he would engage in this physical activity during his 12-hour shifts depended on the specifications for each batch of steel. He stated that his duties also included making up heavy cylindrical steel electrodes which required jerking on a chain to tighten sections of cylindrical steel added to the electrodes. The claimant further testified that after carpal tunnel surgery, his symptoms of the feeling of needles sticking into his forearm and itchiness of the forearm largely abated but that he continued to experience numbness in that extremity. He said that when he underwent an EMG, Dr. H talked to him about his neck and that Dr. A, the neurosurgeon who performed his carpal tunnel surgery on October 21, 1999, told him that his cervical spine had four bone spurs and a slipped disc pressing against a nerve. The claimant also stated that he has been off work since May 20, 2000, because Dr. A has only released him for light duty and the plant will not provide him with more than the three months of light duty which he worked. Dr. A’s records reflect restrictions against lifting and climbing.
Dr. A reported on April 12, 2000, that following the carpal tunnel release the claimant continued to have posterior neck pain radiating into his right shoulder and then paresthesia in his entire right upper extremity, including the hand and digits. He also noted that the claimant’s neck has paraspinous spasm, that there are some dysesthesias in the right C6-7 dermatome, and that his impression is cervical radiculopathy and status post carpal tunnel release. Dr. A further reported that he believes the claimant suffers from a “double crush” syndrome and that with the release of the entrapment at the wrist, the claimant is becoming more symptomatic in the neck. He further stated that he believes that “this is a job-related problem secondary to all of [the claimant’s] pushing, straining, and the like while operating the furnaces” and that “most likely, this has caused his spurs to flare up and gives him the discomfort.” Dr. A wrote a letter with similar information to a Texas Workers’ Compensation Commission employee on June 19, 2000.
The employer’s safety manager, Mr. H, testified that he estimated that the claimant spent about 70% of his 12-hour shifts working the computer and controls and he would engage in eight or nine “heats” during a shift and spend about five minutes during each “heat” adding the graphite. He agreed that the bags weighed 50 pounds and had to be lifted into a chute. Ms. C testified that she went to the steel plant and observed others perform the work that the claimant did. She said that about 70% of the job is not physically active and that she was told that the ladle operators lift the graphite bags eight to ten times per shift. She said she also observed the process of making up the electrodes.
The claimant had the burden to prove that he sustained the claimed injury and that he had disability as that term is defined in Section 401.011(16). Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. The Appeals Panel has stated that in workers’ compensation cases, the disputed issues of injury and disability can, generally, be established by the lay testimony of the claimant alone. Texas Workers’ Compensation Commission Appeal No. 91124, decided February 12, 1992. However, the testimony of a claimant, as an interested party, only raises issues of fact for the hearing officer to resolve and is not binding on the hearing officer. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref’d n.r.e.). The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). As an appellate reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The decision and order of the hearing office are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Tommy W. Lueders – Appeals Judge