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 17, 2001. There were two claims of injury by occupational disease brought before the hearing officer. The appellant/cross-respondent (claimant) contended that her filing activities first caused injury to her right thumb and wrist, and then to her left wrist. The hearing officer held that the claimant had not made an election of remedies by initially seeking medical treatment through her regular health insurance. He held that the dates of injury (when the claimant first knew or should have known that her injuries may be related to her employment) were __________, and __________. He determined that she had given timely notice of her first injury to her employer (a notice issue was not raised for the second injury). However, he stated that neither injury was causally related to her employment and she did not therefore have disability as defined in the 1989 Act.
The claimant has appealed, and argues that the decision of no injury and disability is against the great weight and preponderance of the evidence. The respondent/cross-appellant (carrier) responds that the decision should be affirmed. The carrier has appealed the date of injury, timely notice, and election of remedies issues with respect to the first injury. The claimant has not responded to this appeal.
DECISION
We affirm.
The claimant worked as a file clerk for the employer. She testified as to a range of activities that she performed; the only activity for which there was any testimony from the claimant regarding quantity or duration was processing postage on invoices through a postal meter. She said that this was done twice a week, involving 200-500 invoices each time, and that she pushed on the meter machine lever with her right thumb. Job analyses reports from her employer are in the record showing a variety of activities undertaken through the day and week, including processing the mail, folding documents and stuffing envelopes, writing and logging in faxes, filing, and making up file folders.
The claimant testified that she developed pain in her right thumb in June 2000, which she assumed was arthritis of some sort, and received four injections for pain over the next six months from her family doctor. This was paid for through regular health insurance. When referred to a specialist, she said that he discussed the job relationship with her on February 20, 2001; his notes reflect that he opined that this was due to repetitive pinching and, in later notes, grasping. At this time, she reported her injury to her employer. She was diagnosed with trigger thumb and had surgery in February 2001. She said that when she returned to work, her left hand began to hurt. In May 2001, the pain in her left hand was noted to be carpal metacarpal degenerative joint disease.
REPETITIVE TRAUMA INJURY
To recover for an occupational disease of this type, one must not only prove that repetitious, physically traumatic activities occurred on the job, but also must prove that a causal link existed between these activities on the job and one’s incapacity; that is, the disease must be inherent in that type of employment as compared with employment generally. Davis v. Employer’s Insurance of Wausau, 694 S.W.2d 105 (Tex. App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.).
The hearing officer, in commenting on the lack of evidence of repetitive activities, also noted that the claimant did not perform a single activity throughout the day. Although we would not agree that a single activity throughout a workday is the only proof establishing a repetitive trauma injury, proof of a repetitive trauma injury should consist of some presentation of the duration, frequency, and nature of activities alleged to be traumatic. Texas Workers’ Compensation Commission Appeal No. 960929, decided June 28, 1996. The hearing officer explained why he did not believe that the pressing on the postage machine bar was repetitively injurious. His findings are not against the great weight and preponderance of the evidence.
DATE OF INJURY AND NOTICE
Although the date of diagnosis does not “fix” the date of injury for an occupational disease, the hearing officer could choose to believe the claimant’s testimony that she thought her condition was arthritis and did not relate it to her work until the specialist so informed her.
Section 408.007 states that the date of injury for an occupational disease (which includes a repetitive trauma injury) is “the date on which the employee knew or should have known that the disease may be related to the employment.” This will not, in every case, mean the date on which a diagnosis is rendered. Likewise, Section 409.001(a)(2) requires the injured worker to give notice to the employer of an occupational disease within 30 days of this same level of knowledge. However, the notice given, while it need not be fully detailed, should at a minimum apprise the employer of the fact of a work-related injury and the general area of the body affected. Texas Employers’ Insurance Association v. Mathes, 771 S.W.2d 225 (Tex. App.-El Paso 1989, writ denied). The record supports the hearing officer’s determination as to date of injury and timely notice.
ELECTION OF REMEDIES
Mere use of health insurance may not constitute an election of remedies such that resorting to workers’ compensation benefits is precluded. That is especially true when, as here, the claimant initially believes that the injury is not the result of employment. Texas Workers’ Compensation Commission Appeal No. 990022, decided February 19, 1999.
The hearing officer is the sole judge of the relevance, materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). 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); American Motorists Insurance Co. v. Volentine, 867 S.W.2d 170 (Tex. App.- Beaumont 1993, no writ).
In considering all the evidence in the record, we cannot agree that the findings of the hearing officer are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We affirm the decision and order.
The true corporate name of the insurance carrier is SAFECO INSURANCE COMPANY OF AMERICA and the name and address of its registered agent for service of process is
LINDA LEWIS
1600 NORTH COLLINS BLVD., SUITE #300
RICHARDSON, TEXAS 75080.
Susan M. Kelley – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Philip F. O’Neill – Appeals Judge