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 September 24, 2001. The hearing officer resolved the disputed issues by concluding that the respondent (claimant) sustained an injury in the course and scope of employment on __________, that the appellant (carrier) is not relieved of liability for this claim under Section 409.002, and that the claimant’s disability began April 18, 2001 and continued through the date of the CCH. The carrier appealed, arguing that the great weight of the evidence is contrary to the claimant’s allegations of injury. The carrier additionally argues that the claimant needed expert medical evidence to connect the L4-5 disc herniation to the alleged incident and that the decision should be reversed and rendered on the basis of legal sufficiency. The carrier offers new evidence for the first time on appeal. In her response, the claimant contends that the evidence supports the determination made by the hearing officer.
DECISION
Affirmed as reformed.
The claimant testified she was employed as an LVN and that on __________, she was assisting a doctor and felt a warmth and pull in her back as she lifted a wheelchair bound patient to the examining chair. She testified that though her back was throbbing and hurting, she completed that rest of her shift and reported the incident to her supervisor the next day. The claimant stated she called her family doctor and obtained a referral and scheduled an appointment for April 27, 2001, however, her pain worsened and she was able to get in to see the doctor on April 20, 2001. She related an incident in which she fell on __________, at her home but testified it did not cause her back pain to worsen because it was her head that struck when she fell.
An MRI dated April 20, 2001, revealed an L4-5 disc herniation as well as an annular tear. The hearing officer incorrectly found an EMG and MRI were ordered on April 27, 2001, in Finding of Fact No. 5. Therefore, Finding of Fact No. 5 is reformed as follows:
5.Both an EMG and MRI were ordered to be performed on the claimant.
In its appeal, the carrier correctly points out that the hearing officer stated that Mr. M testified when in fact he did not. However, there was documentary evidence that the claimant had excessive absenteeism. In a note authored by the claimant’s supervisor dated March 30, 2001, the claimant was reported to have been absent 12 1/2 days out of the 43 days she had been working for the employer.
The carrier argues on appeal that it was necessary for the claimant to have expert medical evidence to connect the L4-5 disc herniation to the incident, citing Texas Workers’ Compensation Commission Appeal No. 990453, decided April 14, 1999. However the case cited by the carrier does not control the case under review. Appeal No. 990453, supra, dealt with a compensable neck strain with the issue of whether a cervical herniated disc was compensable and cited Texas Workers’ Compensation Commission Appeal No. 982649, decided December 23, 1998, and stated that while it was not a repetitious trauma case, it too involved symptoms that were delayed 2 1/2 months. The claimant in that case developed symptoms of a herniated disc (tingling) after he had returned to work from the compensable strain and had been released from medical care; plus he had a prior history of neck problems. The herniated disc was found to be part of the injury by the hearing officer but the Appeals Panel remanded, in part, because the physician who provided evidence of casuation had not been told of the prior neck problem.
Injury may be proven by the testimony of the claimant alone, and medical or expert evidence is not required to establish that particular conduct resulted in the claimed injury, except in those cases where the subject is so technical in nature that a fact finder lacks the ability from common experience and knowledge to find a causal connection as a matter of reasonable medical probability. See Texas Workers’ Compensation Commission Appeal No. 93560, decided on August 19, 1993, and Texas Workers’ Compensation Commission Appeal No. 92598, decided December 23, 1992. Ordinary trauma can often be established as the cause of an injury from the testimony of a claimant, who actually experiences and is aware of, the trauma. In the present case, the claimant testified that she felt pain immediately and that the pain worsened. This was not a case where the symptoms were delayed or the injury is so technical in nature as to be beyond common experience and knowledge.
The Specific and Subsequent Medical Report (TWCC-64), the Initial Medical Report (TWCC-61), and correspondence dated December 12, 1995, authored by Dr. C regarding an on-the-job injury the claimant sustained in 1995 was new evidence offered for the first time on appeal. The Appeals Panel will not generally consider evidence not submitted into the record, and raised for the first time on appeal. Texas Workers’ Compensation Commission Appeal No. 92255, decided July 27, 1992. To determine whether evidence offered for the first time on appeal requires that a case be remanded for further consideration, we consider whether it came to the appellant’s knowledge after the hearing, whether it is cumulative, whether it was through lack of diligence that it was not offered at the hearing, and whether it is so material that it would probably produce a different result. Texas Workers’ Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). The carrier concedes that due diligence may have resulted in the prior injury medical records having been sought and obtained. However, the carrier argues that the claimant testified falsely at the hearing regarding the extent of her 1995 injury and therefore due diligence should not apply. The claimant testified at the hearing that she told her doctors about her injury in 1995, she testified that she was injured in 1995 while lifting a patient and stated she treated with a chiropractor. While the new evidence attached to the carrier’s request for review states an MRI taken in 1995 showed the claimant suffered from a “small herniated disc at L4-5 with eccentricity to the left side,” it is not so material that it would probably produce a different result. The MRI was taken over five years prior the injury at issue. While there was conflicting evidence regarding whether the claimant suffered from back and leg pain for the past several years, this was a fact determination to be made by the hearing officer.
The hearing officer is the sole judge of the relevancy and materiality of the evidence and its weight and credibility. Section 410.165. The hearing officer judges the weight to be given to the expert medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The hearing officer may believe all, part, or none of the testimony of any witness. We will not substitute our judgment for that 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.). Nothing in our review of the record indicates that the hearing officer’s determinations are so against the great weight of the evidence as to be clearly wrong and unjust. Accordingly, no sound basis exists for us to disturb those determinations on appeal. Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The decision and order of the hearing officer are affirmed as reformed.
The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is
For service in person the address is:
RON JOSSELET, EXECUTIVE DIRECTOR
STATE OFFICE OF RISK MANAGEMENT
300 W. 15TH STREET
WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR
AUSTIN, TEXAS 78701.
For service by mail the address is:
RON JOSSELET, EXECUTIVE DIRECTOR
STATE OFFICE OF RISK MANAGEMENT
P. O. BOX 13777
AUSTIN, TEXAS 78711-3777.
Gary L. Kilgore – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Thomas A. Knapp – Appeals Judge