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 September 21, 2000. With regard to the issues before her, the hearing officer determined that the respondent (claimant) sustained a compensable injury in the form of an occupational disease (repetitive trauma) on _________ (all dates are 2000 unless otherwise noted), and that the claimant had disability from June 29 through July 31.
The appellant (carrier) appealed several of the hearing officer’s determinations, contending that the claimant’s current medical complaints had not been adequately defined, that the claimant’s current complaints are merely a continuation of a similar prior compensable injury, that the claimant’s treating doctor had “refused to give an opinion whether the Claimant suffered a new injury or a continuation of her prior injury,” and that the claimant did not have disability. The carrier requests that we reverse the hearing officer’s decision and render a decision in its favor. The claimant responds, urging affirmance.
DECISION
Affirmed.
The claimant was employed by an association of (employer) auditing workers’ compensation claims. The claimant testified that her job required her to date stamp approximately 300 documents per day. (It is unclear whether the claimant was referring to 300 multipage documents with each page requiring a date stamp or only 300 date stamps per day.) It is undisputed that the claimant sustained a similar injury in February 1996, which apparently was accepted by the carrier, and that she missed about two weeks’ work due to that injury. The claimant’s treating doctor for both the 1996 injury and her current complaints is Dr. S. The claimant testified that she continued to have intermittent pain and continued to receive treatment for her 1996 injury until sometime in 1999. The claimant testified that in March she began to suffer pain in her neck, right shoulder, and down her right arm, and after a few days she again sought treatment with Dr. S.
In a prescription pad note dated May 22, Dr. S wrote:
Patient presented with new injury _________,-she stated it was similar to previous injury, but review of records indicates that it had not been [retreated] in past year.[1]
Dr. S diagnosed a “Shoulder & neck strain” and noted that she was referring the claimant “to orthopedist for treatment.” In a report dated June 27, sent to the carrier, Dr. S stated:
The patient was seen on March 2, 2000, with right shoulder pain. The chart was reviewed at that time, which showed a presentation for a similar injury in 1997. The patient stated that the pain had been intermittent since that time but had worsened significantly over the past few days. This was corroborated by review of her chart, which showed she had no visits for this discomfort since May of 1999. She indicated that she was stamping papers 8 hours a day in a highly repetitive movement. I believe that this is a similar injury to the previous one but not the same injury. I think her work, which involves repetitive movements, puts her at risk for recurrent overuse syndrome.
There seems to be some debate regarding whether this is a new injury or an exacerbation of a prior injury. I am not sure of the significance of this argument, nor am I sure of the answer to the question. Because of that, I have transferred her care to [Dr. Q]…..My opinion is that her initial injury subsided enough for her to not need medical care for 10 months. I believe that her representation in March of this year was related to a second and not unexpected overuse syndrome.
Dr. Q, in a report dated August 3, was asked his opinion whether the claimant’s “pain is work related” and replied:
At this point in treatment, I believe it is likely that her symptoms are a result of the repetitive motion and sustained posture required to do data entry. She has recently reported an improvement in her symptoms, which she attributes to medication and increased physical activity.
Two record review doctors stated that the claimant’s complaints were not work-related. Dr. T in a July 7 report, said that the claimant had not sustained a repetitive trauma injury and that her complaints were an “ordinary disease of life.” Dr. RS, although indicating a March 30 “Date of Visit” clearly only conducted a record review and concluded that the claimant now has a nonwork-related “rotator cuff injury where the previous injury was repetitive use injury of her neck and extremities.”
On the issue of disability, in evidence is a return-to-work slip with “0 restrictions” starting July 31. The claimant testified that she was unsure how much work she had missed and after a recess, the claimant said that she had called her employer, who had told her she had been off from June 29 through July 31.
The hearing officer, in the Discussion portion of her decision, commented:
Based on careful consideration of the evidence and testimony presented, the claimant met her burden of proving by a preponderance of the evidence that she sustained a compensable repetitive trauma injury. The claimant was credible and her testimony is believed by the hearing officer. Although contradictory medical evidence was presented, the medical evidence of [Dr. S] is more persuasive because she evaluated and treated the claimant for the prior compensable injury.
The carrier, in its appeal, contends that the claimant had not met her burden of proving an injury as defined in Section 401.011(26) and that Dr. S had never defined “overuse syndrome.” We disagree. Dr. S, in her May 22 note, diagnosed a “shoulder & neck strain” and her other comments are sufficient to support a repetitive trauma injury.
Whether a claimant sustained a new injury or merely suffered a continuation of an original injury is a question of fact to be determined by the hearing officer. Texas Workers’ Compensation Commission Appeal No. 000670, decided May 17, 2000. The hearing officer’s decision on this point is supported by the claimant’s testimony and the medical documentation, the record review doctor’s opinions notwithstanding.
Regarding disability, we are affirming the hearing officer’s decision that the claimant sustained a compensable injury which supports the hearing officer’s determinations on disability. The claimant’s testimony regarding lost time, the fact that a recess was taken, and her explanation for her claim of disability were all matters for the hearing officer to resolve. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as 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 (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 (Tex. App.-Houston [14th Dist.] 1984, no writ).
Upon review of the record submitted, we find no reversible error. We will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Robert E. Lang
Appeals Panel
Manager/Judge
Judy L. Stephens – Appeals Judge
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