On April 14, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. The hearing officer determined that the claimant, Ms H, who is the respondent, had sustained a compensable injury to her back as well as her knee on (date of injury), in the course and scope of her employment with Sony Microelectronics, and had disability as a result of that injury on and after June 1, 1992, as the term “disability” is defined by the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.03(16) (Vernon Supp. 1993) (1989 Act).
The carrier has appealed, arguing that the credibility of the claimant is so lacking that her testimony effectively amounts to “no evidence” on the issues at hand. As part of its argument, the carrier complains that claimant has refused to disclose records relating to her hospital treatment for a fall that occurred in December 1991, which may have bearing on the issues of injury and disability. The carrier further argues there is no proof of disability, from the standpoint, however, of the contention that the underlying back injury is not compensable. The claimant responds by noting that credibility was a factor for the hearing officer to determine, and that the evidence shows that the claimant complained of back pain a few weeks before her December 1991 fall. The claimant notes that even if there were no records relating to the December 1991 fall, carrier is in a situation of its own making, because it proceeded to hearing without such records.
DECISION
After reviewing the record, and not being able to find reversible error therein, we affirm the determination of the hearing officer.
The claimant worked as a smock room attendant/monitor for the employer. She stated that it was primarily her duty to ensure that people entering an area of the employer’s premises where microchips were manufactured were free of dirt and dust. This entailed making sure that proper clothing was worn, and to some extent involved cleaning the entry area.
Claimant stated that people entering the microchip area had to walk over “tacky mats” which picked dirt and dust from the bottoms of their feet. It was part of claimant’s job to pull up these mats and replace them.
On (date of injury), the claimant pulled up a tacky mat and was cleaning the adhesive from the floor with rubbing alcohol. She stated that the alcohol/adhesive combination was slippery. As she began to rise from a squatting position, she indicated that her feet went out from under her and she ended up falling back on her buttocks. The height of the fall is recorded only on the record as “like this,” with no further clarification. It is clear from the record, however, that the claimant performed a reenactment of her accident for the hearing officer, notwithstanding her contention that she remained in a state of constant soreness to the point of disability.
Claimant stated, and the company nurse, (Ms. R), agreed, that claimant reported next day to Ms. R that her left knee had been hurt in the fall. She stated that her back was sore, but that she was mainly concerned with her knee. She was then referred to the company doctor, (Dr. G), with whom she continued treatment until June 1992. Dr. G examined the claimant on October 1, 1991, and diagnosed a strain and sprain of the left knee. He gave her a full release to work. Claimant stated clearly that she did not complain of back pain to anyone until (date), her next examination with Dr. G, and told him that she had back pain she felt was related to her knee. This is documented in Dr. G’s notes and subsequent medical report. Dr. G opined that claimant had musculoskeletal strain.
Claimant continued to work at her usual job from the date of her injury until she took a vacation to Canada over the Christmas holidays. Claimant was unable to specify, beyond “Saskatchewan,” where she was on vacation. She described, however, a fall on her face on an icy sidewalk that occurred on December 26, 1991, as she departed from an automobile. She testified that she sought treatment for this injury at a hospital emergency room, whose name she did not recall. She stated that the fall blackened her eye, and that both knees were also hurt. Ms. R testified that when she saw claimant in January 1992, after her return to work, claimant had a black eye, contusions to the face, bruises on her arm, and bruises on both legs. Claimant denied, however, that her back was injured by this fall.
Ms. R stated that claimant first complained to her about a back injury in April 1992. The medical records in evidence indicate that Dr. G ordered an MRI examination when claimant complained of unrelieved lumbar back pain. The MRI performed April 30, 1992, indicated that claimant had degenerative disc disease with bulges (but no herniation) at the L3-4 and L4-5 levels. Dr. G took claimant fully off work June 1, 1992, and she had not worked from that date to the date of the hearing. Dr. G opined in July 1992 that her back and left hip area began to hurt as a result of repetitive physical trauma to her injured left knee. Claimant was terminated from employment in December 1992 due to an employer policy of holding open a position for no longer than six months of personal leave taken for any cause. Claimant testified that she had been treated further for her back by Dr. G
Carrier brought out in cross-examination that claimant, in answer to an interrogatory requesting the names of health care practitioners whose treatment she sought for the fall in Canada, disclosed only two Texas doctors and one clinic. Claimant acknowledged that she might have records at home that would indicate the name of the Canadian facility or doctor, but that she saw no need to search for them since she had already answered the question. She further disputed that the Canadian injury had anything to do with her work-related injury.
Carrier put into evidence an affidavit from the attorney who represented the carrier at the benefit review conference on August 24, 1992, who swore that claimant refused at the conference to identify the health care facility or doctors in Canada where she was treated. There is nothing in the record, however, indicating any efforts undertaken by the carrier to compel production of the evidence in the ensuing 7-1/2 months before the hearing, aside from the interrogatory which was recited in the record. At the hearing, carrier did not move for continuance nor ask for official notice of any denied discovery motion. As a result, there is no ruling in the record from the hearing officer, one way or the other, which can be reviewed for error regarding information which would appear to be relevant to the issues of injury or disability in this case.
The hearing officer is the sole judge of the relevance and materiality, the weight and credibility, of the evidence offered in a contested case hearing. 1989 Act art. 8308-6.34(e). The decision of the hearing officer will be set aside only if the evidence supporting the hearing officer’s determination is so weak or against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). 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 Co. of Newark, N.J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The burden is on the claimant to prove that an injury occurred within the course and scope of employment. Texas Employers’ Insurance Co. v. Page, 553 S.W.2d 98 (Tex. 1977). However, the burden is on the carrier to prove that a pre-existing, or a subsequent, injury are the “sole cause” of incapacity. See Federal Underwriters’ Exchange v. Tubbe, 193 S.W.2d 563 (Tex. Civ. App.-Beaumont 1946, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 92463, decided October 14, 1992.
There were inconsistencies in claimant’s testimony, but these were matters for the hearing officer to weigh. While we are troubled whenever a party appears to have withheld requested information relevant to the case from the other party, based on the unilateral determination that the information was irrelevant, we are nevertheless inclined to agree with claimant that carrier has sustained the consequences of its decision to proceed to hearing without this information. We will not assign error to the hearing officer for deciding the case based only upon the facts developed in the record.
There is sufficient evidence to support the hearing officer’s decision that an injury occurred, and it is affirmed.
Susan M. Kelley – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Gary L. Kilgore – Appeals Judge