A contested case hearing was held in (city), Texas, on June 14, 1993, to determine whether the respondent (claimant) was injured in the course and scope of his employment, whether he provided his employer with timely notice of his injury, and whether he had disability under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.011(16) (1989 Act). The hearing officer, (hearing officer), determined these disputed issues for the claimant and the appellant (carrier) has requested our review challenging the sufficiency of the evidence to support the pertinent factual findings and legal conclusions. Claimant’s response urges the sufficiency of the evidence and our affirmance.
DECISION
Finding the evidence sufficient to support the challenged findings and conclusions, we affirm, with modification.
Claimant testified that on (date of injury), while employed by (Employer) to perform hydroblasting of lines and vessels, he reported to a job site at the HC plant (plant) with two coworkers to perform a hydroblasting job. He and a plant representative left the control room on the second floor of the unit and walked up to the third floor and out onto a balcony to survey the job to be performed. At that time, claimant saw a flashing yellow light which he knew from past experience to be warning of the presence of sulphur dioxide (SO2). However, the plant representative acted unconcerned. While the plant representative showed claimant around the area to be worked on, an audible alarm for SO2 sounded and they left the area. Claimant said he did not notice odors. Claimant, who had failed an Employer required pulmonary function test the preceding March and who was a smoker, then called (Mr. P), Employer’s safety manager and a supervisor, and advised him that the SO2 alarm was sounding, that he would not do the job without “fresh air,” and that the plant representative had agreed to the use of “fresh air.” Mr. P then brought positive pressure breathing equipment to the plant and the hydroblasting job was commenced. Claimant said the alarm was sounding throughout the time he and his two coworkers performed the hydroblasting. When they returned to Employer’s shop that night to turn in their equipment, claimant said he reported to a supervisor, probably Mr. P, that he had a headache and sore throat which he thought was associated with the SO2 exposure that morning. He said he understood his coworkers, (Mr. B) and (Mr. C), had sore throats also. Claimant denied prior or subsequent exposure to SO2 and said the only time he could have been exposed to SO2 was during the first five to ten minutes on August 29th when he was being shown the work area. He said he developed that day a rash on his arms, back and chest, as well as a headache, sore throat and cough, all of which he attributed to the SO2 exposure.
Claimant further testified that after a safety meeting conducted within two weeks of the incident, he tried to talk to Mr. P about his constant headaches, sore throat, rash, and coughing from the plant job but that Mr. P indicated he was in a hurry and did not have time to discuss the matter. Claimant also said he thought his problems would dissipate. He twice took and failed pulmonary function tests in September 1992 and did not mention the inhalation incident when taking those tests. He said he feared the loss of his job. When his condition, which included persistent headaches, coughing, and difficulty in breathing worsened and he began vomiting and became so debilitated he had trouble doing his work, he arranged on his own to see (Dr. McD) in late November 1992. According to claimant, Dr. McD took him off work and referred him to a lung specialist, (Dr. A), who told him he had chemically induced asthma. He said he was also seen by (Dr. G), has been referred for psychiatric evaluation, and is presently unable to work.
Mr. C testified that at the plant on August 29th, claimant first “walked the job” and that Mr. P was called after they learned they would be working with SO2. According to Mr. C, the alarm light was flashing the entire time they worked at the plant and that for most of that time the audible alarm was sounding. He recalled seeing claimant walk through the area at one point without a mask on. He himself once took his mask off to talk to claimant, “got a whiff of it,” and developed a scratchy throat for a few days. He said that when they returned to Employer’s shop, claimant told a supervisor, who was probably not Mr. P, that he was having “a bit of trouble breathing” and had an irritated throat. Mr. C also said he heard a part of claimant’s conversation with Mr. P after a safety meeting a few days later and claimant telling Mr. P he had a sore throat and thought it was from having been over at the plant. Claimant had told Mr. C before the meeting he intended to bring the matter up with Mr. P.
The carrier introduced a December 1, 1992, statement from Mr. B which stated that, to the best of his recollection, while they used positive pressure air equipment and there was SO2 in the air while they worked, there was not a release of SO2 and they were not subjected to SO2 that day.
Mr. P testified that he did indeed take the air breathing equipment to claimant on August 29th. Mr. P agreed he was a supervisor to whom employees’ injuries were reported. However, he recalled no conversations with claimant concerning complaints of sore throat, coughing, and breathing problems saying he would have made a note of such. Mr. P said he was unaware of the matter until November 30th when claimant said he was going to see a doctor to get his lungs checked because of his SO2 exposure. When he asked claimant when he had been so exposed, claimant responded, “back in July, or something like that.”
Carrier introduced a data sheet on SO2 which described it as colorless poison gas with a pungent odor which when inhaled can result in pulmonary vascular resistance, respiratory depression, and other pulmonary changes, and which is a corrosive irritant to the skin.
A medical record from Dr. McD, dated November 30, 1992, took claimant off work until further notice “due to inhalation injury.” Dr. McD’s Initial Medical Report (TWCC-61) stated the diagnosis as chemically induced bronchial asthma and related a history of claimant’s working as a hydroblaster and inhaling SO2 for at least two or three minutes after which he developed shortness of breath, dizziness, cough with wheezing, and headache.
Dr. A’s January 13, 1993, report stated that claimant was unsure whether the chemical he had been exposed to was formaldehyde or SO2, but that he later began to cough, feel dizzy, have a sore throat, and begin to wheeze. Dr. A felt claimant had “developed a very definite chemical irritation of his tracheobronchial tree that has caused bronchospasm as a result of working at the [plant].”
A report dated April 2, 1993, by Dr. G stated the results of his physical examination of claimant and contained an assessment of SO2 exposure producing chemical induced bronchitis, dermatologic eruptions over chest and upper extremities, post-traumatic headache syndrome, and post-traumatic stress disorder, and noted “no previous past medical history prior to injury.”
The hearing officer found that claimant was exposed to SO2 gas while working at the plant on (date of injury), that SO2 is a toxic substance which affects the respiratory tract and the bronchi, that claimant reported the exposure to the supervisor present when he returned to Employer’s shop on August 29th, that he suffered breathing and coughing problems as a result of his exposure, that he did not seek medical treatment until November 11th as he did not realize the seriousness of his condition and thought it would clear up, that his delay in seeking medical care was reasonable, that he missed no work as a result of the chemical exposure until taken off work by his doctor on November 11, 1992, and that he has not been returned to work by his treating doctor through the date of the hearing. Grounded on these findings, the hearing officer concluded that claimant sustained a compensable injury on August 29th when he was exposed to SO2, that he notified Employer not later than 30 days after his injury, and that he has suffered disability under the 1989 Act since November 11, 1992. The carrier has challenged the sufficiency of the evidence to support the findings and conclusions.
Except for the November 11, 1992, date found by the hearing officer to be the date that claimant was taken off work by his doctor and the commencement date of his disability, we are satisfied that the evidence is sufficient to support the challenged findings and conclusions. TEX. LAB. CODE ANN. § 410.165 provides that the hearing officer is the sole judge not only of the relevance and materiality of the evidence, but also of the weight and credibility it is to be given. Claimant had the burden to prove by a preponderance of the evidence that he sustained an injury in the course and scope of his employment. Johnson v. Employer Reinsurance Corporation, 351 S.W.2d 936, 939 (Tex. Civ. App.-Texarkana 1961, no writ). The hearing officer may believe all, part, or none of the testimony of any one witness, including claimant, and may give credence to testimony even where there are some discrepancies. Taylor v. Lewis, 553 S.W. 2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). Johnson supra at 939. As the trier of fact, it was for the hearing officer to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W. 2d 701 (Tex. Civ. App.-Amarillo 1974, no writ.). We will not substitute our judgment for that of the hearing officer where, as here, the challenged findings are supported by sufficient evidence. Texas Employers Insurance Association v. Alcantara, 764 S.W.2d 865, 868 (Tex. App.-Texarkana 1989, no writ). The challenged findings and conclusions are not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re Kings’ Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
The records of Dr. McD state that claimant was taken off work on November 30, 1992, and claimant himself testified he first sought medical treatment at the “end of November.” With the evidence in this posture, we can and do reform Findings of Fact No. 8 and No. 10 and Conclusion of Law No. 5 to change the date of “November 11, 1992,” to November 30, 1992, and we similarly modify those dates in the “Decision” which follow the Conclusions of Law.
The decision of the hearing officer, as modified, is affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Gary L. Kilgore – Appeals Judge