This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 9, 2000. The Appeals Panel, in Texas Workers’ Compensation Commission Appeal No. 002735, decided January 9, 2001, remanded the case for reconstruction of the record. The record was reconstructed and on remand the hearing officer issued a decision concluding that the appellant (claimant herein) had disability from July 14, 1998, through August 20, 1998, but did not have disability from May 8, 1996, to July 13, 1998. The claimant appeals, arguing that the determination that she did not have disability from May 8, 1996, to July 13, 1998, is against the great weight and preponderance of the evidence and points to the evidence supporting her position. The respondent (carrier herein) replies that the hearing officer’s decision was sufficiently supported by the evidence.
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.
Disability is a question of fact to be determined by the hearing officer. Texas Workers’ Compensation Commission Appeal No. 93560, decided August 19, 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 InsuranceAssociation 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. Taylorv. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); AetnaInsurance 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 great weight and preponderance 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). Applying this standard, we find sufficient evidence to support the decision of the hearing officer. 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.).
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
DISSENTING OPINION:
I dissent. I’m not sure what standard of proof is being imposed by the hearing officer when he observes that the claimant failed to show “justification” prior to her work hardening experience for being out of work. Presumably, there is justification to be found in the course of recovery which preceded work hardening. The decision in this case depriving the claimant of temporary income benefits for any of a logical recovery period is manifestly unjust.
Susan M. Kelley – Appeals Judge