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APD 93436
July 1, 1993

APD 93436

July 1, 1993

This appeal arises under the Texas Workers' Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-1.01-11.10 (Vernon Supp. 1993) (1989 Act). A contested case hearing was held May 6, 1993. The issues in dispute were as follows: whether the appellant, hereinafter claimant, sustained an injury in the course and scope of her employment on ________ whether the respondent, hereinafter carrier, was entitled to adjust the claimant's temporary income benefits pursuant to Article 8308-4.23(f) based on their postinjury offer of employment; and whether the claimant has disability as defined in Article 8308-1.03(16) or is the claimant's inability to obtain and retain employment at preinjury wages due solely to a preexisting condition. The claimant appeals the hearing officer's determination that she did not sustain an injury in the course and scope of her employment on the date alleged. The carrier essentially argues in reply that the hearing officer is the sole judge of the weight and credibility of the evidence and that his decision should be upheld. The hearing officer, having determined the first issue against the claimant, did not make any determination regarding the remaining issues.


Finding that the hearing officer's determination that the claimant did not suffer a compensable injury is against the great weight and preponderance of the evidence, we reverse that decision and remand for determination of the remaining issues.

The claimant worked in the kitchen of (employer). She testified that on the morning of Saturday, ________, she slipped while in the walk-in cooler where she had gone to get lettuce and onions. Claimant said someone apparently had taken up the mat that usually was on the floor, and the floor was wet. She said that she fell forward, hitting her hands on a shelf on which food and supplies were stored. She described feeling scared and shaken afterwards, but said she did not think anything about it, and did not report it because she did not expect anything to be wrong.

Claimant left work at the end of her shift, around 1 p.m. Around 6 p.m. she said her left hand started aching. When she told her fiance, (Mr. M), about what had happened he told her to report the incident to her employer. The next morning claimant said she told her supervisor, (Mr. C), what had happened and showed him her hand, which had become swollen and bruised. She said he filled out a report and told her to go see a doctor, but that he asked her to wait to go until the following Tuesday, her day off. In the meantime, she continued to work her regular shifts, although she said it was a little hard to make the sandwiches. (Claimant also testified that she is right handed.) On the morning of Tuesday, (three days after date of injury) claimant saw (Dr. T), who took x-rays and diagnosed a dislocated thumb. (The history stated in pertinent part, "________ PT walked in walk in refrigerator, someone had picked up mat, PT slipped injuring Lt hand and thumb.") Claimant's hand and thumb were bandaged, and she was given a work release to modified duty, with no use of the left thumb. Claimant continued to see Dr. T but was later referred to (Dr. H), an orthopedic surgeon, when her hand did not improve. On November 23rd Dr. H wrote that x-rays showed claimant had preexisting degenerative arthritis and that she had injured her carpometacarpal joint by her fall. He recommended a nonsteroidal anti-inflammatory and a thumb support splint, but released her to work. At a follow-up visit on December 22 Dr. H placed claimant's hand in a cast. Physical therapy was attempted in January of 1993, but was discontinued because carrier had disputed the claim.

Mr. C, employer's manager, agreed that claimant told him of her injury when she came into work early Sunday, (day after date of injury), and that he filed a report of injury. He denied seeing any objective signs of an injury, however, and contended he did not observe swelling or bruising in claimant's hand until several days later. He also denied that the mats had been taken out of the cooler, saying that no cleaning was done on Saturdays because those days were too busy. The following Friday, when talking with assistant manager (Ms. B), he said, he first heard that claimant's injury did not occur at work. He then began talking to other employees and found out that none of them knew claimant had suffered an injury on the job, nor had observed her having a problem doing her work.

Ms. B testified that claimant came into the office of employer's restaurant Tuesday, (three days after date of injury) with her hand bandaged and an off work note from her doctor. Ms. B said she had not been at work between ________ and (three days after date of injury) and that was the first she was aware claimant had hurt her thumb; she said when she asked claimant how she had hurt herself claimant said she had been running after her little boy at home and had slipped and fallen. (At the hearing Ms. B said that was what she thought claimant said; her written statement says claimant said the accident happened "at home running after something.") She said another coworker, (Ms. F), was in the office at the time and heard what claimant said. Ms. F testified that this conversation took place, but recalled that it happened at the front register. Ms. F said claimant told them she fell "running after the kid," and that she gave the child's name. The claimant specifically denied making this statement, saying that her children were 18 and 14 years old, and that they live in (state). She also denied that the accident happened in any way at home.

(Ms. K), employer's breakfast manager, testified that claimant worked on her crew and that she did not observe claimant having any difficulty doing her job, including wrapping sandwiches which she said took two hands to do. Her written statement said in part, "[t]o the best of my recall I do not remember her saying a word to me about hurting her hand on the job. I do remember watching her work and thinking how slow she still was after her length of service here."

The hearing officer stated in his statement of the evidence that there was no dispute that the claimant had suffered an injury to her left thumb; however, he determined that the claimant did not suffer the injury at work on ________ when she allegedly slipped on a floor in the cooler. The claimant's appeal essentially challenges the sufficiency of the evidence to support the hearing officer's determination.

A finding of fact by a hearing officer should not be overturned unless it is so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. Civ. App.-San Antonio 1983, writ ref'd n.r.e.). In determining a sufficiency question on appeal, all evidence must be considered and objectively discussed in sufficient detail to demonstrate that the correct standard of review has been followed. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986).

Our review of the evidence of record convinces us that the hearing officer's determination is against the great weight of the evidence. As the hearing officer acknowledged, the fact of the injury was not in dispute; the issue concerned whether it occurred on the job or elsewhere. The evidence contrary to claimant's contention consisted of the testimony of Ms. B and Ms. F, who stated claimant had told them she had been injured while running after a child. (Mr. C stated that he relied on what Ms. B had told him, and that he did not talk to the claimant about it.) While such testimony, standing alone, would be probative evidence, there is persuasive evidence to the contrary. Claimant testified, and Mr. C agreed, that she told him early on the morning of (day after date of injury) that she had hurt her hand when she slipped in the cooler and that she needed to see a doctor. This is the same version of events that is contained in the (three days after date of injury) report of Dr. T, whom claimant saw before she came to work later in the day to bring in her work release.1 As argued at the hearing, it is hard to conceive that a claimant would report an incident to the store manager (and relatively promptly following the incident), give the same version to a treating doctor, and then deny it was work related the same day she has told a doctor otherwise. Other evidence offered by carrier to refute claimant's testimony--including testimony of Ms. K--actually corroborated it, as claimant acknowledged that she continued to work, using both hands, until she saw the doctor, although she said it was "a little hard to make sandwiches." We note that Ms. K's statement commented upon claimant's slowness in performing her job.

As this panel stated in an earlier decision, Texas Workers' Compensation Commission Appeal No. 92503, decided October 29, 1992, "[w]e do accord appropriate deference to a hearing officer in his or her fact finding role and are instructed to do so as clearly set forth in Article 8308-6.34(e) which provides that the hearing officer is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given the evidence. However, where our careful and thorough evaluation of all the evidence in the record compellingly leads us to conclude that the evidence in opposition to a finding is so great in weight and preponderance against the finding, we must set aside such finding on a legal sufficiency basis."

The evidence in this case includes claimant's testimony that she slipped and fell on a Saturday while at work; her immediate and undisputed reporting of the incident to her supervisor the next morning, following onset of symptoms; and the diagnosis of an injury consistent with the incident described. As stated earlier, we do not view the undisputed fact that she continued to work for two days following her injury to be compelling evidence to the contrary. While her coworkers' testimony regarding the cause of the accident is indeed some evidence, the protative force of that evidence is diminished when juxtaposed with when the testimony of Mr. C and by claimant's own testimony and the accounts given her doctor. We note that the Supreme Court has held that it is an erroneous ruling of law that the existence of any evidence of probative force in support of a verdict determines that the verdict is not contrary to the overwhelming weight of all the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Given our determination on appeal, this case is also remanded for determination of the two issues (disability and post-injury offer of employment) which the hearing officer did not decide due to his holding on the issue of injury in course and scope. However, because evidence was taken on both these issues at the first hearing, no reopening of the proceedings below should be necessary in order for the hearing officer to decide these issues.

The decision of the hearing officer is reversed and remanded consistent with the decision herein. A final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers' Compensation Commission's division of hearings, pursuant to Article 8308-6.41. See Texas Worker's Compensation Commission Appeal No. 92642, decided January 20, 1993.

Lynda H. Nesenholtz
Appeals Judge


Susan M. Kelley
Appeals Judge

Gary L. Kilgore
Appeals Judge

1We recognize, of course, that a doctor's recitation of the history of an injury as reported by a claimant is not competent evidence that an injury in fact occurred on the date alleged. Presley v. Royal Indemnity Insurance Co., 557 S.W.2d 611 (Civ. App. - Texarkana 1977, no writ).