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 October 10, 2001. The hearing officer resolved the disputed issues by determining that the respondent’s (claimant) __________, compensable injury includes plantar fascitis, bone spur, and Achilles tendinitis of the left foot and does not include a low back strain, and that the claimant had disability resulting from the compensable injury from January 18, 2001, through May 2, 2001. The appellant (self-insured) appealed the hearing officer’s determination that the compensable injury includes a bone spur in the left foot and that the claimant had disability from January 18, 2001, through May 2, 2001. The hearing officer’s determination that the compensable injury includes plantar fascitis and Achilles tendinitis has not been appealed and has become final. Section 410.169. There is no response from the claimant in the file.
DECISION
Affirmed.
The claimant testified that he was employed as a police officer for the self-insured; that on __________, while responding to an altercation in the hallway, a student stepped on his left heel that day and he immediately felt pain; that he began conservative treatment for his left heel and continued to work on sedentary duty; that the pain did not improve; that he underwent surgery on January 18, 2001, to treat his plantar fascia, excision of plantar calcaneal heel spur, and excision of retro-calcaneal exostosis, and that as a result of the surgery, he was unable to work from January 18, 2001, through May 2, 2001. The claimant further testified that he had never had problems with his left heel prior to the accident. The self-insured presented evidence that the claimant had a preexisting bone spur in his left heel and asserted that the surgery, and therefore the claimant’s inability to work as a result of the surgery, was not related to the compensable injury.
A “compensable injury” means “an injury that arises out of the course and scope of employment for which compensation is payable under this subtitle.” Section 401.011(10). Section 401.011(26) defines “injury” as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease.” In Cooper v. St. Paul Fire & Marine Insurance Company, 985 S.W.2d 614 (Tex. App.-Amarillo 1999, no pet.), the court held that “to the extent that the aggravation of a prior injury caused damage or harm to the physical structure of the employee, it can reasonably be said that the resulting condition fell within the literal and plain meaning of ‘injury’ as defined by the 71st Legislature” and that “the legislature intended the meaning of ‘injury’ to include the aggravation of preexisting conditions or injuries.” See also Peterson v. Continental Casualty Company, 997 S.W.2d 893 (Tex. App.-Houston [1st Dist.] 1999, no pet. h.), in which the court held that the aggravation of a preexisting condition is a compensable injury for purposes of the 1989 Act. In Texas Workers’ Compensation Commission Appeal No. 94428, decided May 26, 1994, the Appeals Panel noted that to prove an aggravation of a preexisting condition there must be some enhancement, acceleration, or worsening of the underlying condition from the injury and not just a mere recurrence of symptoms inherent in the etiology of the preexisting condition. See also Texas Workers’ Compensation Commission Appeal No. 011280, decided July 25, 2001.
The hearing officer determined that although the claimant did have a preexisting bone spur in his left heel, the __________, accident aggravated or worsened the preexisting condition and constituted a new injury. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the trier of fact the hearing officer resolves the conflicts and inconsistencies in the evidence including the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. The Appeals Panel will not disturb the challenged factual determinations 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 to be 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 hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is (SELF-INSURED) and the name and address of its registered agent for service of process is
SUPERINTENDENT
3700 ROSS AVENUE
DALLAS, TEXAS 75204.
Philip F. O’Neill – Appeals Judge
CONCUR:
Robert E. Lang
Appeals Panel
Manager/Judge
Robert W. Potts – Appeals Judge