On December 11, 1991, a contested case hearing was held in (city), Texas, to determine whether (hearing officer), appellant herein, was injured in the course and scope of his employment with his employer, (employer), on (date of injury). The hearing officer determined that appellant failed to establish by a preponderance of the evidence that he sustained an injury in the course and scope of his employment on (date of injury), and that he was not entitled to benefits under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 et seq. (Vernon Supp. 1992) (1989 Act). Appellant contends that the hearing officer erred in finding no evidence that appellant sustained a compensable injury; that the hearing officer’s decision is against the great weight and preponderance of the evidence; and that the hearing officer erred in not crediting appellant’s testimony. Appellant requests that we reverse the hearing officer’s decision and award appellant workers’ compensation benefits. Respondent, the employer’s workers’ compensation insurance carrier, contends that the hearing officer’s decision is supported by the evidence and requests that we affirm his decision.
DECISION
Finding that the hearing officer’s decision is supported by sufficient evidence and that it is not against the great weight and preponderance of the evidence, we affirm his decision.
On (date of injury), a Wednesday, appellant was working as a service porter in the employer’s car dealership. He testified that about 11:00 a.m. on that day he hurt his back lifting a 55-gallon trash barrel full of paper and scrap metal parts into a truck. He said he had to stop working for about five minutes to recover. The shop foreman, (Mr. G), testified that he saw appellant loading the barrel into the truck, that appellant had no difficulty doing that task, that it did not appear to him that appellant sustained an injury at that time, and that he did not see appellant stop working. Appellant acknowledged that Mr. G was in the area at the time of the incident. Appellant said he did not report the injury to anyone when it happened because he didn’t think it was serious. Appellant continued to work the rest of that day, and worked Thursday and until noon on Friday, (date). He said he left work at noon on Friday because of stomach cramps. On Monday, July 15th, appellant said he called work and told the service manager, Mr. H, that he thought he hurt his back lifting trash cans and needed to see a doctor. He said Mr. H told him to see a doctor. Mr. H testified that appellant called in on Monday and said he had a stomachache so he told appellant to see a doctor and get back to work as soon as possible. He said appellant did not mention anything about his back. Mr. H further testified that it was not until Tuesday, (date), that appellant called and said a doctor told him he had hurt his back and that he told appellant to come into the office to fill out an accident report.
Appellant further testified that he went to a hospital on Monday, July 15th, but the doctor at the hospital was too busy to see him so he went to another hospital on Tuesday, July 16th, where he was examined and told he had a strained ligament going to his spine. An Initial Medical Report (TWCC-61) from Harris Methodist Hospital revealed that appellant was examined there on Tuesday, July 16th; that he told the emergency room doctor he hurt his back on July 10th; that the doctor diagnosed “Lumbar Sacral Strain;” and that the doctor said he could return to limited work on July 18th and full time work on July 25th.
Appellant said he was next examined by Dr. N on July 19th and that he is still being treated by that doctor. Dr. N’ records revealed that he initially examined appellant on July 19, 1991; that appellant told him he started hurting in his neck and low back right after moving and lifting a 55-gallon trash can; that Dr. N diagnosed cervical and lumbar strain/sprain, acute muscle spasms, and sciatic pain in both legs; that appellant was taken off work; and that appellant had 42 electrical stimulation therapy sessions for complaints of neck, shoulder, and low back pain between the initial visit and October 16, 1991. On August 24, 1991, Dr. N advised appellant to have an MRI scan done. Appellant’s attorney represented that the scan was not done due to respondent’s refusal of appellant’s claim.
Appellant also testified that on the morning of Friday, (date), two days after the alleged accident and several days before reporting it, he was cleaning his personal car at work and was told not to by Mr. G. He said he had no trouble taking things out of the trunk of his car or vacuuming his car on that day, and that he did not get mad when Mr. G told him to stop. Mr. G testified that appellant did get mad and that appellant left work at noon on that day without telling anyone of his leaving. Appellant acknowledged that he had on two prior occasions been warned about leaving work early on Fridays. Appellant said he asked his wife to pick up his paycheck on Friday afternoon, but that they would not give it to her, so he returned to work and got it himself.
Appellant said he still has problems with pain in his neck, shoulders, and lower back, and that he can not do any kind of work now, although he said he had not looked for regular or light duty work.
In addition to his testimony previously noted, (Mr. H) testified that the scrap metal parts are kept in separate trash barrels from the paper trash and that the “scrap people” pick up the scrap metal trash barrels. Appellant’s duties involved emptying the paper trash barrels which contained only paper and air filters. He also said that he had given appellant one verbal warning and one written warning for leaving work early on Fridays previous to the week of the alleged incident, and that he would have terminated appellant for leaving work early without telling anyone on Friday, (date). The written warning for a violation on June 21, 1991, which was in evidence, stated “This conduct will not be tolerated.” He also testified that he told appellant to report all injuries immediately. Appellant said he knew of this company policy.
Ms. W, the employer’s business manager, testified that she filled out a disciplinary report on Friday, (date), which reported appellant’s unexcused absence from work on Friday afternoon, two days after the day of the alleged accident but before he reported it, and reported his use of company time to clean his car. This report was in evidence. She said Mr. H, the service manager, would have terminated appellant for the unexcused absence since it was his third violation. She also said appellant did not appear to have any problem when he returned to work late Friday afternoon to pick up his check. She also stated that appellant did not show up for work on Monday, July 15th, and that when he came into the office on Tuesday, July 16th, with a doctor’s slip she made out an accident report.
In addition to his testimony previously noted, Mr. G testified that appellant did not appear to have any difficulty doing his work on the day of the alleged incident, or on Thursday and Friday. He said appellant drove off at noon on Friday without telling anyone and that he did not return to his job that day. He said they had problems with appellant leaving work early on Fridays.
A “compensable injury” is defined as “an injury that arises out of and in the course and scope of employment for which compensation is payable under this Act.” Article 8308-1.03(10). In a contested case hearing held under the 1989 Act, the hearing officer is the finder of fact, and is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. Article 8308-6.34(e) and (g).
We agree with appellant’s first contention that there is some evidence to support his claim of an injury in the course and scope of his employment. However, we disagree with appellant’s second contention that the hearing officer’s decision is against the great weight and preponderance of the evidence. When considering the factual sufficiency of the evidence, we consider and weigh all the evidence in the case and should set aside the hearing officer’s decision only if we conclude that the decision is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. See In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Although appellant’s testimony concerning the occurrence of the work-related incident and his doctors’ diagnoses of cervical and lumbar strain tend to support his claim, his testimony as to the circumstances surrounding the incident was directly contradicted by his shop foreman, who was an eyewitness to the activity claimed to have caused an injury, and the doctors’ diagnoses are based on subjective findings and do not relate the strain to the alleged work-related incident. The history of the incident given by appellant to Dr. Naugles is not proof of the truth of appellant’s statements to the doctor. See Texas Employers’ Insurance Association v. Butler, 483 S.W.2d 530, 534 (Tex. Civ. App.-Houston [14th Dist] 1972, writ ref’d n.r.e.). Having reviewed the entire record, we find that there is sufficient evidence to support the hearing officer’s decision of no compensable injury, and that his decision is not so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust.
We also disagree with appellant’s third point on appeal that the hearing officer was bound by appellant’s testimony under the circumstances presented in this case. Article 8308-6.34(e) provides that the hearing officer is the sole judge of the weight and credibility to be given the evidence. In R.J. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1987), the Supreme Court of Texas stated the following concerning the testimony of an interested witness and conflicting evidence:
“The uncontradicted testimony of an interested witness cannot be considered as doing more than raising an issue of fact unless that testimony is clear, direct, and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony. Anchor Casualty Company v. Bowers, 393 S.W.2d 168 (Tex. 1965). The trier of fact has several alternatives available when presented with conflicting evidence. It may believe one witness and disbelieve others. Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561 (1952). It may resolve inconsistencies in the testimony of any witness. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (1951). It may accept lay testimony over that of experts. Muro v. Houston Fire & Casualty Insurance Co., 329 S.W.2d 326 (Tex. Civ. App.-San Antonio 1959, writ ref’d n.r.e.).”
In the present case, portions of appellant’s testimony concerning his trash barrel loading activity were directly contradicted by the service manager and shop foreman. Moreover, there were circumstances in evidence tending to cast doubt on his testimony. Also, as noted, the trier of fact could believe respondent’s witnesses and disbelieve appellant when presented with conflicting evidence. In sum, as the trier of fact, the hearing officer was not bound to accept appellant’s testimony at face value. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ).
Although not necessary for our decision, we note that the hearing officer should not have stated in Finding of Fact No. 4 that “although the claimant may have sustained disability . . . .” because it is necessary for a claimant to have sustained a compensable injury for there to be disability. Article 8308-1.03(16).
We affirm the decision and order of the hearing officer.
Robert W. Potts – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Philip F. O’Neill – Appeals Judge