This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1993) (1989 Act). A contested case hearing was held in (city), Texas, on April 15, 1993, (hearing officer) presiding. The appellant, hereinafter claimant, appeals the hearing officer’s determination that the claimant did not sustain an injury to his back on (date of injury) in the course and scope of his employment. There was no response filed by the carrier.
DECISION
We affirm the hearing officer’s decision and order.
The claimant was hired as a truck driver for (employer) on May 20, 1992. At the hearing he testified that he believes he injured his back while unloading cargo, either on (date of injury) (which were days that he knew he had done unloading), although he could not recall picking up or lifting a particular piece of cargo that triggered his back pain. He said that the day after he unloaded goods on July 31st, he became sick and told his employer he had to come in off the road. He first thought he had a problem with his kidneys, and was originally treated for flu-like symptoms when he first saw a doctor on August 18th. However, when he saw (Dr. H) on September 1st he was told his problem was a back injury rather than an illness, and Dr. H asked him whether he had lifted anything.
Patient notes from Dr. H show the claimant reported experiencing a dull ache in his lower back for three weeks and told the doctor he lifted a lot at work. An x-ray ordered by Dr. H showed mild to moderate degenerative changes within the lower thoracic and upper lumbar spine and the report recommended further evaluation with CT scanning or MRI if clinical symptoms persisted. Dr. H stated he believed the claimant’s problem was “most likely work related,” and referred claimant to (Dr. B), an orthopedic surgeon. An MRI showed degenerative disc changes at L5/S1, but no evidence of herniation. On December 15, 1992, Dr. B wrote that he had treated the claimant for a resolved back strain and that the claimant could return to regular activities without restrictions. The claimant testified that he attempted but was unable to return to work for employer around January 1, 1993. Following physical therapy as prescribed by Dr. B, he was again released, and was re-hired by employer (claimant said he had been given a medical termination after being off work for 60 days). In a December 22, 1992, letter Dr. B noted claimant’s complaints of back pain and stomach problems, but said he could not determine whether the claimant’s condition was work related.
The claimant said he told several individuals with employer about his back problems. Summaries of telephone calls to Brenda Womble, who worked in employer’s office, showed that claimant telephoned on August 19th to report stomach cramps and diarrhea, and that on September 2nd claimant reported that he thought he had had a kidney problem around the 1st of August, but that he “was diagnosed yesterday with lower back problems.” An unsigned transcription of a September 4th telephone conversation between claimant and (Ms. H), who worked in employer’s workers’ compensation division, stated in part as follows:
Ms. H:Do you know how you got this back pain?
Claimant:No ma’am, I wish I did.
Ms. H:Okay, You don’t know, do you know approximately when it began, or. . .
Claimant:I always thought it was just from sitting too long in the truck, now I don’t know if it happened when I was unloading something or what, you know. . .
Ms. H:Okay. Do you know approximately when this happened?
Claimant:No, I don’t.
In his appeal, the claimant states his disagreement with the hearing officer’s finding that he did not sustain an injury to his back while unloading a truck for his employer on July 27 or July 31, 1992, as well as the hearing officer’s conclusion of law that the claimant was not injured within the course and scope of his employment on those dates.
The claimant in a workers’ compensation case has the burden to establish that he sustained an injury in the course and scope of his employment. Reed v. Aetna Casualty and Surety Co., 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref’d n.r.e.). Further, the hearing officer is the sole judge of the relevance and materiality of the evidence adduced and of its weight and credibility. Article 8308-6.34(e). This panel will not substitute its judgment for that of the hearing officer unless the hearing officer’s decision is so against the great weight and preponderance of the evidence as to be manifestly unjust and unfair. In re King’s Estate, 244 S.W.2d 660 (Tex. 1951).
In this case, the claimant acknowledged on cross-examination that he could not recall a specific incident in which he hurt his back, and that his belief that it occurred on July 27th or 31st was speculation, although based upon the fact that he had unloaded on those days. At one point, the claimant said he had thought his problems could have been caused by “driving and bouncing in the truck.” Dr. H also speculated that claimant’s lower back problems arose from his work, apparently based upon claimant’s description of his job duties. Dr. B, on the other hand, was not able to say with certainty the cause of claimant’s back strain. Based upon the element of uncertainty contained in the evidence in this case, we are unable to say that the hearing officer’s decision in carrier’s favor was so against the great weight and preponderance of the evidence as to merit reversal.
We accordingly affirm the hearing officer’s decision and order.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Philip F. O’Neill – Appeals Judge