This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on December 4, 1995. She determined that the respondent (claimant) had disability from an injury sustained on ___________, from ____________, through _____________, and from ___________, through the date of the contested case hearing and that the employer did not tender a written or oral bona fide officer of employment. The appellant (carrier) appeals as against the great weight of the credible evidence the determination of disability covering the period from ___________, to the date of the hearing and the determination that a bona fide offer of employment had not been tendered by the employer. The claimant responds that there is sufficient evidence to support the determinations of the hearing officer and asks that we affirm the decision.
DECISION
Affirmed.
The claimant sustained a crushing injury to his left leg on ____________, and underwent surgery. On ____________, the claimant’s then treating doctor released him to return to “light duty, no walking, standing, or lifting, sitting only.” (Emphasis in original). The claimant stated that he was told to keep his foot elevated. Although the claimant did not feel he was able to go back to work, he testified that he made a good faith effort to perform a light duty position provided by the employer from July 1 to July 8, 1995. He stated the light duty position involved walking, standing, and lifting and that his leg swelled and he had pain. He also experienced palpitations and dizziness while performing the light duty position and indicated that it was extremely hot. He saw his treating doctor who went over the results of an EMG report indicating nerve damage and who, in a “7/7/95” letter, recommended that the claimant refrain from returning to work until the issue of the palpitations and dizziness was resolved. Claimant later decided to change treating doctors, seeking “better medical care.” He was taken off all work by this doctor and remains in that status but indicated he thought he could now perform light duty and would do so as soon as he is released. He testified that he still does not have full function of his leg.
An employer’s representative testified that the employer has a policy of providing light duty and a light duty position was continuously offered and available to the claimant. He indicated that the position the claimant worked in early July was within the restrictions initially imposed by the claimant’s treating doctor. The claimant acknowledged that he understood what duties were involved and the reduced pay rate for the light duty position and that although he felt he was now ready for the light duty position, he was not able to perform the duties he attempted to do in July.
The hearing officer did not find a bona fide job offer, either written or oral, and found that the claimant had disability for the periods set out above. In discussing the bona fide job offer issue, the hearing officer noted “[p]articularly, the job offered was not within the physical limitations under which the claimant’s treating doctor authorized.” While there was some conflict between the claimant’s testimony and that of the employer’s representative on this point, the hearing officer indicated that she found the claimant’s testimony to be “quite credible” and that of the employer’s representative to be “less than persuasive.” We have held that disability is a factual issue and can be established by the testimony of a claimant. Texas Workers’ Compensation Commission Appeal No. 94198, decided April 1, 1994; Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993. The claimant testified that the light duty job required activity outside the restrictions imposed and that he could not perform the work as a result of his compensable injury. While the employer representative described his version of the position, he acknowledged that he had never gone to the particular work site or observed the work. In any event, the hearing officer found the claimant’s testimony persuasive on both issues and determined that there was no bona fide job offer and that the claimant had disability. 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. Section 410.165(a). Our review of the evidence does not lead us to conclude that her determinations were so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). This is so even though the evidence might well give rise to inferences different from those found must reasonable by the fact finder.
Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). Accordingly, the decision and order are affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Gary L. Kilgore – Appeals Judge