Pursuant to the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act), a contested case hearing was held in (city) Texas, on April 27, 1993, (hearing officer) presiding as hearing officer. He determined that although the appellant (claimant) did timely notify his employer of a claimed back injury, he was not injured in the course and scope of his employment and that he did not suffer disability. The claimant asserts that many of the hearing officer’s findings of fact were wrong, states his own rendition of the facts, and disagrees with the determination that he was not injured in the course and scope and that he did not have disability. No response was filed.
DECISION
Finding the evidence sufficient to support the findings and conclusions of the hearing officer, the decision is affirmed.
The evidence in this case is set out fully and fairly in the Decision And Order of the hearing officer and is adopted for purposes of this appeal. Succinctly, the claimant testified that he was employed as a scaffold builder’s helper. He states that for three days around the (date of injury), his back started hurting on the job and that it got worse. He states he mentioned that his back was hurting to his foreman and that he actually got permission to leave early from a midnight shift he was working. The statement of the foreman indicates that the claimant told him that he had been having a back problem for some time and that the claimant had hurt himself playing softball a week or so earlier. Claimant states that the next day he and his foremen got into an argument involving the claimant taking an unauthorized break and that it reached the point where both parties had picked up two-by-fours. The altercation was broken up before any physical activity took place and the evidence is in dispute as to whether the claimant was fired or whether he quit at that time. There is also conflicting evidence (the claimant’s testimony on one hand and the statements of carrier’s witnesses on the other) as to whether the claimant was an innocent victim of the foreman’s aggressive attitude or if the claimant had been a constant problem employee and provoked the altercation. In any event, there was evidence that the claimant returned several days later and wanted to be rehired (and did not mention anything about an injury) which request was denied. The claimant went to the Texas Employment Commission and applied for unemployment compensation which was denied. The claimant contacted an attorney at sometime during this period who suggested he go to a (Dr. K), which he did on (date), approximately one month after the claimed injury. Dr. K examined him and took x-rays and, other than a finding of a loss of curve in the spine, does not indicate other objective clinical findings, but notes that claimant complains of aching in his low back and right knee. Dr. K gives a diagnosis of lumbosacral strain and also indicates a back injury in 1989. Claimant states this injury was caused by being on his knee picking up asphalt and that it has not been a problem since 1989. The claimant did not see Dr. K again until February 1993. On January 21, 1993, the claimant was seen by a carrier requested doctor, (Dr. F), a diplomate of the American Board of Orthopaedic Surgery. Dr. F stated that he had the claimant’s medical records and indicated that “[c]linically, I simply find no pathology” and set out his opinion as follows:
In my opinion, the claimant probably sustained at most an unverifiable soft tissue injury, which has inexorably resolved in the three month’s time since the asserted injury. In my opinion, he had reached maximum medical improvement, and is physically capable of employment. I find nothing further to test or treat. I find no indication for surgical consideration. I assess no permanent partial functional impairment, due to the absence of demonstrable objective medical pathology, which in reasonable medical probability would be associated with the asserted event at issue.
The claimant was also seen by another orthopaedic surgeon, (Dr. P) on March 15, 1993. Dr. P recommended that since the claimant continues to complain of pain in the lower back that an “MRI might well be quite helpful in terms of delineating the underlying change that may or may not be present.” Dr. P notes that the x-ray shows a spina bifida occulta over the upper sacrum and that although there is some anterior/posterior flattening of the vertebral segments, this is modest and “seems to be an anatomic variation and not a posttraumatic change.” In the Discussion section of his report, Dr. P states in part:
The patient has modest osteophyte formation at several vertebral margin end plates suggestive of some loss of anatomic integrity to those discs. His complaints have been pain about his back. He has had no lower extremity symptomatology. He manifests no sciatic tension response today and his neurologic as well as his muscle function is intact. The patient warrants further study.
In his Discussion section, the hearing officer sets forth a well reasoned and convincing rationale for his evaluation of the evidence and his ultimate decision. He also states that he did not attach much credibility to the claimant’s testimony under the circumstances. The hearing officer is in the best position to assess the credibility of witnesses and is given that sole responsibility under the provisions of Article 8308-6.34(e). Our review of the complete record in this case discloses evidence sufficient to support the findings and conclusions of the hearing officer. While there may have been some inconsistency and conflict in the evidence, this was for the hearing officer, as the fact finder (Article 8308-6.34(g)) to resolve. Garza v. Commercial Insurance Company of Newark, N. J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ); Texas Workers’ Compensation Commission Appeal No. 92234, decided August 13, 1992. Where there is sufficient evidence to support the decision of the hearing officer, and his determinations
are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, there is no sound basis to reverse or otherwise disturb the decision. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 92232, decided July 20, 1992. Accordingly, the decision is affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Gary L. Kilgore – Appeals Judge