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 convened in (city), Texas, on December 1, 1992, and was continued on two occasions, January 6 and 29, 1993. In addition, the record was left open for receipt of additional medical evidence, and closed on May 3, 1993. The single issue before hearing officer (hearing officer) was as follows: whether the claimant suffered a compensable injury in the course and scope of his employment with (employer), employer, on or about (date of injury). The carrier, who is the appellant in this case, appeals the hearing officer’s determination in claimant’s favor, contending that it is supported by no evidence or insufficient evidence. The carrier further alleges error in the fact that the decision and order was rendered by a hearing officer other than the one who presided at the hearing. The claimant basically contends that the hearing officer’s decision should be affirmed.
DECISION
We affirm the decision and order of the hearing officer.
The claimant, who testified through an interpreter, was employed part time in the make-ready department of (employer). (employer). He said that on (date of injury), which was the last day he worked for employer, he slipped on some oil on the floor of the washing bay and fell to the ground. He said that two coworkers, (LT) and (AM) were in the same general area at the time he fell. He also said he reported the fall to his supervisor, (Mr. M), but declined an offer to see a doctor. The claimant said he worked the rest of his shift, until 8 or 9:00 that night, then went to the emergency room at Hospital after he had trouble sleeping. The emergency record reflects that claimant was seen that night, that he said he slipped and fell while washing, and that he was diagnosed with lumbar sprain and prescribed Vicodin and Advil. (Claimant said, however, that he had taken no medication between April 28, 1992, and the time of the hearing.) X-rays taken on April 25th were negative for signs of acute trauma.
The claimant said he had had another “slight incident” while working for employer in January of 1992, but that he had lost no time from work. Medical records from Methodist Hospital dated January 19, 1992, show that claimant complained of left flank pain, that he was x-rayed and diagnosed with muscle strain–back and given muscle relaxants and pain medication. He said he did not have the same back pain from the two incidents.
The claimant acknowledged that, at the same time he was working for employer, he had a full-time job in construction, as a bricklayer, and had held construction jobs since 1983. He did not have workers’ compensation insurance at any of the construction jobs, but he denied ever having told Mr. M that he had been injured on his full time job.
Mr. M, employer’s service manager and claimant’s supervisor, testified that on April 25th claimant came to him, smiling and rubbing his posterior, and told him, “I fell down and hurt my butt.” He said claimant went on to say he was all right and that he did not need to see a doctor. Mr. M said claimant had been an unreliable employee who had been discharged after the date of the incident but before Mr. M was aware that claimant was pursuing a workers’ compensation claim. Mr. M felt that the accident could not have happened as claimant described. For one thing, he said, the floor of the washing bay had a “virtually nonskid” surface, and he said it was against the law to drain or discharge oil in that area; however, he also said it was possible that oil could have been there. He also testified from, and made markings on, a hand-drawn diagram of the work area purporting to show that LT could not have observed claimant fall. He also said that on a date he could not remember, but prior to April 25th, claimant had mentioned hurting his back at his construction job. Mr. M said he found out about the full time job because some of claimant’s excuses for tardiness or absences had to do with back pain from that job. Mr. M also identified claimant’s time card showing claimant did not work for employer the four days (April 21-24) prior to the accident. Claimant had testified that he had worked some of those days.
The claimant introduced into evidence affidavits from AM and LT. AM stated that on or about (date of injury), while he was washing a van, he saw claimant on the ground. He asked if he was all right and also observed Mr. M asking the claimant the same question. Afterwards, AM stated, he had to do most of the heavy work because claimant was unable to. LT’s affidavit stated that on April 25th he was “cleaning an oil spill” when he saw claimant on the floor “as he had fallen on the spill.” LT also said he saw claimant holding on to his back as if he were hurt. He stated that he and claimant reported the accident to Mr. M. Mr. M testified that LT was not present when the incident was reported.
Medical records in evidence show claimant began treating with (Dr. Z) on May 15, 1992. On that date Dr. Z noted claimant’s low back and left leg pain, along with neck pain. He stated his impression as lumbar disc disorder with the possibility of cervical disc disorder as well, and ordered a dermatomal sensory latency study. On June 5th Dr. Z reported this study as positive for nerve damage both in cervical and lumbar spine, and recommended myelography and discography with CT scans. Dr. Z’s records in evidence show claimant continued to treat with him at least until September of 1992, and claimant testified at the hearing that he was still under treatment. The record does not indicate whether the additional studies were performed.
Apparently upon agreement of the parties, claimant was seen by (Dr. O) for an independent medical examination. Dr. O completed a TWCC-69 (Report of Medical Evaluation) stating that claimant had reached maximum medical improvement (MMI) on October 25, 1992, with a zero percent impairment rating. In a narrative dated March 19, 1993, Dr. O stated that “[claimant] fails to show any specific structural abnormalities on imaging studies” and “sensory disturbances were not considered to be within the standard dermatomal pattern expected with this specific pathology.” He explained the MMI date by saying that Texas Workers’ Compensation Commission guidelines indicate that when a medical condition has reached a static course under appropriate medical treatment and there has been no change in the clinical condition after three months MMI can be assumed.
In its appeal the carrier challenges the hearing officer’s findings and conclusion that on (date of injury), claimant slipped and fell on wet and oily pavement while performing his job for his employer; that claimant suffered a back injury as a consequence of this accident; and that such was a compensable injury to claimant’s back in the course and scope of his employment. The carrier alleges there is no or insufficient evidence to support these findings and conclusion, citing to numerous inconsistencies in claimant’s testimony at the hearing including claimant’s answers to questions concerning prior injuries. The carrier thus challenges claimant’s credibility as a witness.
Without going into detail, suffice it to say that there were numerous inconsistencies within claimant’s testimony and between his testimony and other documents such as medical reports and his own deposition. As we have so often observed, however, the hearing officer is the sole judge of the relevance and materiality of the evidence and of its weight and credibility. Article 8308-6.34(e). Moreover, where evidence is conflicting, it is the hearing officer’s job to resolve conflicts and inconsistencies in and between the testimony of witnesses; he may also determine what credence should be given to the whole, or any part, of the testimony of each witness. Gonzales v. Texas Employers Insurance Association, 419 S.W.2d 203 (Tex. Civ. App.-Austin 1967, no writ). Bearing this in mind, our review of the record reveals sufficient evidence upon which, if believed, the hearing officer could base his decision. Although a different fact finder might well have drawn different inferences from the evidence than those drawn by the hearing officer, this is not, in and of itself, a sound basis for reversal. See Texas Workers’ Compensation Commission Appeal No. 92113, decided May 7, 1992. We do not find the hearing officer’s determination so against the great weight and preponderance of the evidence as to be manifestly unfair and unjust. In re King’s Estate, 244 S.W.2d 660 (Tex. 1951).
Finally, with regard to carrier’s last point, we note that the hearing was conducted by hearing officer, and the decision and order was signed “PR FOR TW Hearing Officer.” On its face, the order does not indicate that it was rendered by anyone other than the hearing officer who heard the case. Nor is there any other evidence that any error occurred with respect to Article 8308-6.34(g), which requires a hearing officer to issue a written decision including findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. The carrier’s point of error is overruled.
The decision and order of the hearing officer are affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Gary L. Kilgore – Appeals Judge