This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. Articles 8308-1.01 et seq. (Vernon Supp. 1992) (1989 Act). A contested case hearing was held on September 10, 1992, in (city), Texas before (hearing officer), hearing officer. The issue was whether the claimant sustained a repetitive trauma injury on (date of injury). The hearing officer held that the claimant failed to prove by a preponderance of the evidence a causal connection between her injury, the onset of her symptoms, and her work, and thus failed to prove that she sustained a repetitive trauma injury on the date alleged.
In her request for appeal, the claimant contends the evidence presented at the hearing indicates that she sustained a new injury on (date of injury). A response filed by claimant’s employer, a self-insured governmental entity for purposes of providing workers’ compensation insurance (hereinafter referred to as “carrier”), basically contends that other than the claimant’s testimony, there is no evidence that she suffered damage or harm to the physical structure of the body as the result of repetitious, physically traumatic activities at work, and carrier urges this panel to uphold the hearing officer’s decision.
DECISION
Finding the hearing officer’s decision to be supported by sufficient probative evidence, we affirm.
The claimant worked for the Texas Department of Corrections as a corrections officer. She had been injured on the job on (injury of 1990), when she fell while running to get a supervisor. As a result of that accident, she suffered a L4-5 disc herniation with compression of the L5 nerve root on the right, had surgery, and was off work approximately 13 months. She returned to work on August 26, 1991. She said that her doctor had first released her to light duty, which she was told was not available. However, she was told that if she got a full release her employer would assign her to the type of duties that would not require standing or sitting on a full time basis. On her first day back, she was assigned to central control, which involved opening doors electronically and checking what was being brought in. Thereafter, it appears that she went back to doing the same duties as before. Her job, in which she was responsible for 160 inmates, two per cell, involved repeated standing, walking, climbing stairs, and handling heavy doors. She said she starting having physical problems from the first day she went back to work, although she initially thought it was because she had been off work for 13 months and was not used to standing.
On the morning of (date), as she was about to get in her car and go to work (she had worked the previous five days) she fell to her knees, could not straighten up, and crawled back into her house. She sought medical treatment, and was initially seen by (Dr. S), the doctor who had treated her for her prior back injury. Dr. S ordered an MRI which disclosed evidence of recurrent disc herniation at L4-5, with bulging of the L5-S1 disc on the sagittal view.
Because she was concerned that Dr. S wanted to operate on her right away, she went to (Dr. H) in late (month) of (year), who referred her to another neurosurgeon, (Dr. L). An October 22nd letter from Dr. L found “back and bilateral leg pain secondary to herniated disc by history.” A December 29, 1991 letter from Dr. H to the Texas Workers’ Compensation Commission stated that “[o]n September 10, 1991, patient suffered an apparent similar, but different, on the job injury, diagnosed as disc herniation L5-S1 as well as disc re-herniation L4-L5. The actual or probable etiology of the injury was by nature of the patient’s performance of job related duties involving difficult and heavy work, with much lifting, step climbing, and strenuous activities.”
A January 20, 1992, report of a CT of the lower lumbar spine found midline bulging annulus at L4 and L5, with possible previous partial laminectomy at L4 on the right. A lumbar omnipaque myelogram also performed on January 20th revealed a bulging annulus at L4 and L5, along with “mild posterior bulge in the thecal sac on the right at the L4 disc level and extending interiorly over the body of L5 compatible with changes secondary to previous surgery.” Based on these studies Dr. L on January 20th found no evidence of a definite herniated disc, and said he did not recommend surgery at that time. A February 3, 1992 progress note from Dr. L stated, “I do not find evidence of herniated disc at this time and feel that this second injury was a strain of the back rather than herniated disc.”
A handwritten note on the bottom of the December 29th letter from Dr. H stated as follows: “[Dr. L], If you will verify that Dr. E’s evaluation is correct, then W/C will be paying my medical under a new claim, which will give me lifetime medical for my back. You should be hearing from W/C soon. I was told in a meeting on Dec. 31st that they needed further testing by you to verify the extent of my injury.” When asked about this note on cross-examination, claimant said that because she had filed a new workers’ compensation claim, she wanted to make sure that it did not get confused with the prior claim.
In Finding of Fact No. 3 the hearing officer found that the claimant did not injure her back between August 27, 1991 and (date of injury) through repetitive standing, climbing, lifting, or bending while working for her employer. He also made conclusions of law as follows:
Conclusion of Law No. 2: The claimant failed to prove, by a preponderance of the evidence, a causal connection between her injury, the onset of her symptoms, and her work.
Conclusion of Law No. 3: The claimant failed to prove, by a preponderance of the evidence, that she sustained a repetitive trauma injury on (date of injury).
The claimant argues that the medical evidence is overwhelmingly in her favor. She points to the lack of medical evidence that her prior injury was limited to a disc herniation at L4-5, and the fact that a reinjury of L4-5 and a herniation at L5-S1 was a new injury.
The claimant in a workers’ compensation case has the burden of establishing by a preponderance of the evidence that an injury occurred in the course and scope of his or her employment. Parker v. Employers Mutual Liability Insurance Co. of Wisconsin, 440 S.W.2d 43 (Tex. 1969). The term “injury” is defined to include occupational disease, which in turn is defined to include repetitive trauma. Article 8308-1.03(27), (36). “Repetitive trauma injury” is defined by the act as “damage or harm to the physical structure of the body occurring as the result of repetitious, physically traumatic activities that occur over time and arise out of and in the course and scope of employment.” Article 8308-1.03(39). To recover for an injury of this type the claimant must prove not only that repetitious, physically traumatic activities occurred on the job, but must also show that a causal link existed between the traumatic activities and the incapacity. Texas Employers Insurance Association v. Ramirez, 770 S.W.2d 896 (Tex. App.-Corpus Christi 1989, writ denied).
With regard to the issue of causation in this case, the record consists of the claimant’s testimony and the reports of medical experts. The opinion of expert medical witnesses, however, is but evidentiary, and is never binding on the trier of fact. Hood v. Texas Indemnity Insurance Co., 209 S.W.2d 345 (Tex. 1948). In this case there was some conflict between the medical evidence; one doctor found a herniated disk at L5-S1, while another found a strain rather than a herniation. In addition, medical records of Dr. S in June, July and August of 1991 noted that the claimant at times had a sore lower back. The uncontradicted testimony of a claimant also does nothing more than raise an issue of fact unless such testimony is clear, direct, and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony. Anchor Casualty Co. v. Bowers, 393 S.W.2d 168 (Tex. 1965).
A compelling circumstance in evidence in this case is the short length of time claimant worked before an alleged repetitive trauma injury occurred. (By claimant’s own testimony, she only performed the strenuous activities of which she complained for four days, as the first day she performed less strenuous tasks, and the sixth day she was not able to go to work.) While neither the statute nor case law require a minimum period of exposure to establish repetitive trauma or occupational disease, the time factor certainly is an element that the fact finder could consider in making a determination.
A claim for an occupational disease must be judged on a case-by-case basis. Davis v. Employers Insurance of Wausau, 694 S.W.2d 105 (Tex. App. Houston [14th Dist.] 1985, writ ref’d n.r.e.) The hearing officer is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the value. Article 8308-6.34(e). In this case, the hearing officer determined that the claimant failed to meet her burden of proof in establishing a compensable injury and we do not substitute our judgment when, as here, the challenged findings are supported by some evidence of probative evidence. Texas Employers Insurance Association v. Alcantara, 764 S.W.2d 865 (Tex. App.-Texarkana 1989, no writ). The hearing officer’s findings and
conclusions were not based upon insufficient evidence nor were they against the great weight and preponderance of the evidence. In re King’s Estate, 244 S.W.2d 660 (1951).
The decision of the hearing officer is affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Susan M. Kelley – Appeals Judge