Pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. §401.001, et seq. (1989 Act) (formerly V.A.C.S. 8308-1.01 et seq.), a contested case hearing was held in (city), Texas, (hearing officer) presiding as hearing officer. He determined that the appellant (claimant) failed to prove by a preponderance of the evidence that he was injured in the course and scope of his employment on or about (date of injury). Claimant urges on appeal that the decision of the hearing officer was against the great weight and preponderance of the evidence and asks that we reverse the decision and order. Conversely, the respondent (carrier) urges that there is “more than enough evidence to support the findings, conclusions and decision of the hearing officer” and asks that the decision be affirmed.
DECISION
Determining that the decision of the hearing officer is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and that there is a sufficient evidentiary basis to support the decision, we affirm.
The ultimate determination of this case hinged largely on credibility and the resolution of inconsistencies and conflicting matters in the evidence. Clearly, this is a matter within the province of the fact finder (Garza v. Commercial Insurance Co. of Newark, N. J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ) and the hearing officer, as the fact finder, is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given the evidence. Section 410.165(a). Upon review, even if the evidence of record gives equal support to inferences different from those drawn by the fact finder, this is not a sound basis to set aside the determinations
of the fact finder. Garza, supra; Texas Workers’ Compensation Appeal No. 93667, decided September 9, 1993.
The evidence and factual setting of this case are adequately and fairly set forth in the hearing officer’s Decision and Order. Succinctly, the claimant had a known severe diabetic condition which he did not adequately manage according to medical records. The medical records also indicate that he came to the emergency room of a hospital on the 27th of September, 1992 with a painful, swollen right foot which was determined to be gangrenous and which ultimately led to amputation of his toes and subsequently of his right leg below the knee. Other than the ongoing diabetic condition, the medical records do not mention any cause of the condition and do not reflect any injury or trauma either on or off the job. One medical report notes that the claimant indicated pain in the right foot for four days and that he does not recall exactly what happened except for the onset of the infection of the right foot. Other medical records shows that on September 10, 1992, the claimant was complaining of burning sensations in his lower leg and refused to use insulin and that he had been under treatment for a diabetic condition since 1989.
The claimant testified that on either the 21st or 22nd September 1992, a metal plate or bar dropped on his foot at work and that this caused his foot to swell and hurt (in an earlier statement he indicated he kept working because he did not feel that it hurt a lot), resulting in his ultimate hospitalization and the amputations. Although in a prehearing statement the claimant stated two coworkers witnessed the accident, at the hearing he testified he told the two coworkers about the injury. Their statements, indicating the claimant had told them about his injury from the metal hitting his foot, were admitted into evidence. In this same statement, the claimant indicated that his supervisor had witnessed the incident. At the hearing, he claimed he told his supervisor about the matter several hours after it happened. The supervisor totally denies any mention of an injury or complaint of a physical condition and offers a different version of the problem with claimant’s foot. He testified that he had been concerned about the claimant’s diabetic condition and gotten the claimant to go to his, the supervisor’s, physician. He also stated that he noticed the claimant limping on Friday the 25th of September and that he asked him what had happened to which the claimant replied that he did not know. The supervisor insisted that the claimant go home and made arrangements for the claimant to be paid his wages for the day. The claimant’s wife testified that her husband told her about the injury the day it happened and that the next day he went to work even though his foot was starting to get streaks of purple in it. (There was some conflict as to what day the alleged incident occurred, 21st or 22nd September). In an earlier statement, the claimant’s wife indicated that when they talked to the doctor at the hospital about what could have happened, the doctor suggested that it might be from an injury on the job and further suggested that the claimant might not remember. The claimant’s daughter testified that she saw her father at the hospital on a Sunday and that he told her an object at work had fallen on his foot.
Claimant introduced a statement from a referral doctor who noted the gangrene of the claimant’s right foot and the subsequent amputations, and stated the “patient also had uncontrolled diabetes mellitus.” The statement also provides “that trauma to an extremity can cause an ulcer and the incidence is higher on a diabetic.”
Although the claimant has faced an unfortunate situation in this case resulting in the partial amputation of his right leg, the hearing officer was not convinced from the state of the evidence that the condition found its origin in the work place. The hearing officer specifically found that the claimant did not injure his foot on September 21st or 22nd by having a metal plate fall on it and that he became ill on or about the 23rd of September “due to an infection in his foot that had developed independently of any injury that may have occurred on either of the previous two days. As indicated, there is a well defined history of uncontrolled or unmanaged diabetes, there is medical evidence of problems with the left leg prior to the 21st of September, there is no mention of any injury in any of the medical reports, and there is no medical report that tends to establish a causal link between the foot and leg condition and the work. Also, there is inconsistency and conflict in the testimony and evidence which had to be resolved by the hearing officer. He is by far in the better position to assess weight and credibility. As we have stated, only were we to find, which we do not in this situation, that his decision is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust would we have a sound basis to disturb his decision. Texas Workers’ Compensation Commission Appeal No. 92232, decided July 20, 1992, citing Pool v. Ford Motor Co. 715 S.W.2d 629 (Tex. 1986). Accordingly, the decision is affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge