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 29, 2001. The hearing officer resolved the disputed issues by concluding that the compensable injury of__________, extends to and includes the respondent’s (claimant) right knee and that the claimant had disability due to the compensable injury from ___________, through May 30, 2000. The appellant, (carrier) appealed asserting that there is insufficient evidence to support the determinations made by the hearing officer. The claimant responds, urging affirmance.
DECISION
Affirmed.
The claimant testified that she worked for the employer as a security officer and testified that she was injured when she tripped on an electrical cord causing her to fall to the floor. The parties stipulated that the claimant sustained a compensable injury on__________. At issue at the CCH was whether the compensable injury extended to the claimant’s right knee and whether the claimant had disability. Though the claimant testified that her right knee was injured in the fall, she testified she did not initially list her knee as an injured body part on the initial report of injury because she thought the burning she felt in her knee was a carpet burn.
Conflicting evidence was presented at the hearing regarding the extent of the compensable injury. Extent of injury is usually a question of fact. Texas Workers’ Compensation Commission Appeal No. 93613, decided August 24, 1993. The hearing officer is the sole judge of the weight and credibility of the evidence including the medical evidence. Section 410.165(a); and see Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). 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). When reviewing a hearing officer’s decision for factual sufficiency of the evidence, the Appeals Panel should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). There is sufficient evidence in the record to support the hearing officer’s decision.
The carrier argues in its appeal that there was no evidence to support the disability determination made by the hearing officer. “Disability” is defined as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). The claimant testified that she returned to work two or three weeks after her injury. In evidence was a return to work slip from the claimant’s initial treating doctor, Dr. D, dated May 30, 2000. Disability is a question of fact. Texas Workers’ Compensation Commission Appeal No. 93560, decided August 19, 1993. There was sufficient evidence to support the determination made by the hearing officer regarding disability.
The carrier argues that the Benefit Review Officer’s recommendation did not include any disability for any period prior to January 25, 2001. The disputed issue to be determined at the CCH was did the claimant have disability resulting from an injury sustained on __________, and if so, for what period. The hearing officer is not bound by the recommendation of the benefit review officer.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is KEMPER NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
EMMA WILLIAMS
KEMPER NATIONAL INSURANCE COMPANY
12377 MERIT DRIVE
DALLAS, TEXAS 75251.
Gary L. Kilgore – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Thomas A. Knapp – Appeals Judge