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 November 30, 1995, in _______, Texas, with _______ presiding as hearing officer. In response to the two issues at the CCH, the hearing officer determined that appellant (claimant) did not sustain a compensable mental trauma injury and that he did not have disability. On appeal, claimant contends the hearing officer abused his discretion in admitting the evidence of several witnesses and erred in determining that claimant did not sustain a compensable injury and did not have disability. Respondent (carrier) responds that the evidence in the record supports the hearing officer’s determinations.
DECISION
We affirm the hearing officer’s decision and order.
The facts of this case are set forth in detail in the decision and order. Briefly, claimant’s supervisor, Mr. W (Mr. W), testified that he told claimant he was a sorry “son of a bitch” after claimant refused to do a project as Mr. W had directed. Claimant testified that he told Mr. W that he would not send anyone to do the project because of the asbestos in the building where the work was to be done. Claimant indicated that, when Mr. W cursed at him and he had to deal with the situation about the asbestos, it was an extremely traumatic event in his life. Claimant testified that he had been treated by Dr. P (Dr. P) for job-related stress. In a December 8, 1994, letter, Dr. P stated, “I have advised [claimant] that he should leave his present job due to the high level of stress. I believe it is medically necessary that he discontinue working at his present job.”
Claimant contends that the hearing officer abused his discretion in admitting the testimony of GW, MP, JS, and RC. However, the record does not reflect that claimant objected to the testimony from these witnesses. By failing to object, claimant waived any possible error. See Texas Workers’ Compensation Commission Appeal No. 94560, decided June 16, 1994.
Claimant contends the hearing officer erred in determining that he did not sustain a compensable mental trauma injury on ________. Claimant lists various facts that he contends show he suffered a compensable mental trauma injury.
The 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence, Section 410.165(a), including the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). Where there is conflict in the evidence, the hearing officer resolves the conflicts and determines what facts have been established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995.
The claimant in a worker’s compensation case has the burden to prove by a preponderance of the evidence that he or she sustained a compensable injury in the course and scope of his employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). A mental trauma can produce a compensable injury, even in the absence of an underlying physical injury, if it occurs in the course and scope of employment and is traceable to a definite time, place, and cause. Bailey v. American General Insurance Co., 279 S.W.2d 315 (Tex. 1955). Damage or harm caused by repetitious, mentally traumatic activity, as opposed to physical activity, cannot constitute an occupational disease. Transportation Insurance Co. v. Maksyn, 580 S.W.2d 334 (Tex. 1979).
In this case, the evidence conflicted regarding whether claimant sustained a compensable mental trauma injury. The hearing officer determined that claimant failed to prove by a preponderance of the evidence that his alleged mental trauma was traceable to a specific time, place, and cause. The hearing officer also determined that claimant’s mental trauma was caused by the “gradual build up of stress over time.” The hearing officer, as the sole judge of the credibility of the evidence and the witnesses’ testimony, weighed the evidence and made his determinations. After a review of the record, we conclude that the hearing officer’s determinations are not against the great weight and preponderance of the evidence. Cain, supra.
Claimant next contends the hearing officer erred in determining that he did not have disability. Disability means the “inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). Disability, by definition, depends upon there being a compensable injury. Id. Because the hearing officer determined that claimant did not sustain a compensable injury, he did not err in determining that claimant did not have disability.
We affirm the hearing officer’s decision and order.
Judy L. Stephens – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge