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 May 17, 2001. The hearing officer determined that the respondent’s (claimant) had disability beginning on January 19, 2001, and continuing through the date of the CCH.
The appellant (carrier) appeals, arguing that the hearing officer’s decision is against the great weight and preponderance of the evidence. The claimant did not file a timely response.
DECISION
Affirmed.
At the CCH, the parties stipulated to the following:
1. The claimant sustained a compensable injury on __________;
2. The employer did not tender a bona fide offer of employment from January 19, 2001 to the date of the CCH, (May 17, 2001); and,
3. The claimant has received temporary income benefits (TIBs) from March 21, 2001, through the date of the CCH, (May 17, 2001), as a result of a March 20, 1999 (previous) compensable injury.
At issue is whether the claimant had disability from January 19, 2001 to the date of the CCH. The claimant testified that she was employed as a waitress by the employer. The claimant testified that on __________ she slipped and fell at work and injured her back and left knee. The claimant testified that she had a previous injury to her back on March 20, 1999, while employed by the present employer. The claimant testified that after the __________ injury, she continued to work for the employer in a light-duty capacity; however, on January 19, 2001, the claimant was taken off work by her treating doctor, Dr. K to attend a work hardening program for her back. The claimant testified that she was unable to complete the six-week work hardening program because of back pain. The claimant stated that she did not receive wages from her employer or benefits from the carrier during the work hardening program. The claimant testified that she subsequently changed treating doctors from Dr. K to KE and that Dr. KE released her to light duty work on February 9, 2001. It was stipulated that the employer did not tender a bona fide offer of employment to the claimant. The claimant testified that she has not worked from January 19, 2001, to the date of the CCH.
The evidence sufficiently supports the hearing officer’s determination that the claimant had disability beginning January 19, 2001, and continuing through the date of the CCH. Section 401.011(16) defines disability as the inability because of a compensable injury to obtain and retain employment at wages at the preinjury wage. The hearing officer was persuaded by the claimant’s testimony and the medical reports in evidence that the claimant had disability during the period in question. The hearing officer commented that although, the claimant may have concurrent disability as a result of her prior injury on March 20, 1999, “the [ ________ ] back injury is a producing cause of her present disability according to her testimony and the most credible medical evidence presented.” The hearing officer’s decision states that the claimant received temporary income benefits (TIBs) from March 21, 2001, through the date of the CCH for the March 20, 1999 compensable injury with the same employer. This decision is not to be read as affirming a payment of TIBs for the same period of time due to the compensable __________ injury. The Appeals Panel has held that a carrier is not liable for TIBs for two different injuries during the same period of time. Texas Workers’ Compensation Commission Appeal No. 93794, decided October, 1993.
It is the hearing officer, as the sole judge of the weight and credibility of the evidence (Section 410.165(a)), who 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.). This is equally true of medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). 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 of the hearing officer is affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Robert W. Potts – Appeals Judge