This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 6, 1995, in ________, Texas, with ___________ presiding. The claimant appeals the hearing officer’s decision that he, claimant, suffered a new, separate, and distinct back injury on _________, which did not result from and is not causally related to his compensable back injury of _________. He contends that the evidence shows that his low back condition was related to, and a continuation of, his original injury, and states that the carrier did not meet its burden of proof to show that an alleged intervening incident was the sole cause of the current problems. The carrier responds that the decision is correct and should be affirmed.
DECISION
We affirm.
It was not disputed that the claimant injured his back on _________, when he slipped and fell when a ditch collapsed while he was carrying a pipe; he was employed at the time by ____________ (employer). He began treating with Dr. C (Dr. C) on December 22, 1993, and was also seen by Mr. B (Mr. B), Dr. C’s physician assistant.
According to a lengthy report attached to a TWCC-69 (Report of Medical Evaluation) prepared by Dr. C, claimant’s x-rays were normal and he was diagnosed with severe lumbar sprain/strain and bilateral groin strain and treated conservatively. The claimant was released to light-duty work on December 23rd but continued to complain of pain. Physical therapy was initiated, and an MRI was performed on January 11, 1994; this showed a distal bulge at L5-S1 touching the nerve roots with no evidence of compression.
Also according to Dr. C’s report, on February 3rd the claimant was sent to Dr. B (Dr. BE), an orthopedist, who said he read claimant’s MRI as normal and found claimant’s neurologic evaluation to be negative. Also in February an NCV-EMG was performed to rule out sensory nerve involvement; these tests showed mild S1 radiculopathy. A TENS unit was prescribed. On March 3rd, Dr. C reported claimant to be able to perform light-duty work without problems; on March 17th the patient reported lifting toilet bowls without any increase in symptoms. On the latter date the claimant was returned to regular duty work. After claimant reported feeling fine, and able to perform full work duties, Dr. C released him on March 21, 1994, assigning maximum medical improvement (MMI) as of that date with a zero percent impairment rating (IR). A December 4, 1995, affidavit of Dr. C states that claimant had reached MMI on the date assigned, with a zero percent IR “pursuant to my examination of him at that time” and “based upon the injury alleged at that time.”
Claimant, who stopped working for employer in April of 1994, made a return visit to Dr. C in December of that year. He stated at the hearing that he had continuing back pain made worse in cold weather. Dr. C’s notes of that visit state that he had pain in the center of his low back, but noted his straight leg raising was normal and there was no radiation of pain down his legs.
On _________, claimant was changing the oil in his car, which required him to get up and down from under the vehicle. He said he felt a “pop” in his lower back, that he discontinued changing the oil and lay down with the TENS unit on, and that his pain became more severe in the next 30 to 45 minutes. He agreed that the pain was different from the cold weather pain he had experienced in December. Dr. C’s notes state, under “How Injury Occurred,” that “Pt was changing oil from truck. He states he was laying down, as he got up he felt back pop, and states has been hurting since.” Dr. C prescribed conservative treatment and took claimant off work (although he had not returned to work as of that time). Those notes also, mistakenly, state that claimant was working for employer and that there was a witness named “Paul”; claimant stated at the hearing that he did not know the source of this information.
Dr. C’s patient notes show that claimant was seen, and treated conservatively, on March 13th, 15th, 22nd, 29th, and April 10th. Thereafter, claimant requested to change treating doctors, to Dr. V (Dr. V). Dr. V testified, and his records reflect, that he contacted Mr. B at Dr. C’s office to discuss claimant’s previous complaints and treatment. He said he was of the opinion that he treated the same injury, and the same area of the body, as had Dr. C, and his notes reflect that Mr. B stated that this was an “exacerbation of [the] original injury.” Dr. V treated claimant conservatively, diagnosing lumbar disk syndrome and secondary radiculitis/neuritis.
The claimant on appeal challenges the following findings of the hearing officer:
FINDINGS OF FACT
6.Claimant’s treating doctor, [Dr. C], found that claimant’s back injury had completely resolved by March 17, 1994 and released him to return to work without limitation on that date.
11.Claimant’s injury of _________ was not a continuation or aggravation of his _________ back injury.
12.Claimant’s back injury of _________ was a new, separate, and distinct injury suffered while claimant was not in the employment of employer.
Claimant also challenges hearing officer’s Conclusion of Law No. 3, which is substantially the same as Finding of Fact No. 12.
In his appeal the claimant contends that his own testimony, the medical documents, and Dr. V’s testimony establishes that claimant’s original injury continued and persisted thereafter; he notes that he returned to Dr. C three months before the March 1995 incident, that the fact that Dr. C had released him to work and found him at MMI is not dispositive, and that Dr. V and Mr. B were of the opinion that the problems of which claimant was complaining in 1995 were to the same body parts and a result and a continuation of the first injury. He further contends that the carrier failed to meet its burden to prove that an intervening incident had occurred and was the sole cause of claimant’s physical problems thereafter.
The carrier has the burden of proof to establish that a subsequent injury is the sole producing cause of a disability. American Surety Company of N.Y. v. Rushing, 356 S.W.2d 817 (Tex. Civ. App.-Texarkana 1962, writ ref’d n.r.e.). Whether or not this occurred is a matter of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93524, decided August 5, 1993.
Upon our review of the record, we do not agree with the claimant that the evidence is too weak or lacking to support the hearing officer’s decision. The evidence showed that Dr. C had found claimant’s problems to have resolved in March of 1994, that for some time before and after that date, the claimant was able to perform his previous duties, that he returned to Dr. C on only one occasion after being released and found to be at MMI, that while at home on _________, he felt a distinct “pop” in his back and shortly thereafter experienced severe pain that led him to return to Dr. C, and that he agreed that this pain was different from the pain he had felt in____________. Compare Texas Workers’ Compensation Commission Appeal No. 94212, decided April 4, 1994, which noted a lack of evidence of a specific subsequent event or repetitive trauma. Despite Dr. V’s opinion to the contrary, other medical evidence indicates that the claimant’s original injury had resolved, and the hearing officer could have reconciled this conflicting evidence as he did. It is for the hearing officer, as trier of fact, to resolve conflicts and inconsistencies in the evidence, including medical evidence. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ); Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ).
An appeals level body is not a fact finder, and does not normally pass upon the credibility of witnesses or substitute its judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). We will not reverse the hearing officer’s decision where it is supported by the evidence and not so against the great weight of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The hearing officer’s decision and order are affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Tommy W. Lueders – Appeals Judge