This appeal arises pursuant to the Texas Workers’ Compensation Act of 1989, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On July 2, 1996, a contested case hearing was held in [City 1], Texas, with [hearing officer] presiding. He determined that appellant (claimant) did not prove that injuries, including strains and sprains later set forth in medical records, occurred while on the job on [date of injury]. Claimant asserts, in effect, that the great weight of the evidence is against the determination that claimant did not meet his burden of proof, and claimant specifically notes that claimant’s testimony was not controverted, that no burden was placed on respondent (school) to prove a sole cause, that school’s Employer’s First Report of Injury or Illness (TWCC-1) admitted a work injury, that school is limited to the defenses set forth in its Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21), that the hearing officer shortened the notice requirement for claimant, that the hearing officer did not recite the history appearing in medical records which referred to claimant falling at work, and that venue was incorrect. School replies that the points raised should be denied and the decision should be affirmed.
DECISION
We affirm.
Claimant had worked for school as a custodian for over one month when he testified that he fell after stepping in a depression stated to be one and one-half inches to two inches in depth, twice, on [date of injury]. Claimant testified that each time he fell after stepping in the hole he then crawled on his hands and knees to a nearby fence from which he could then stand up. He further testified that both times he fell on [date of injury], he fell on his knees, but he complained of no knee injury when he reported an injury, when he sought medical care, or when he testified at the hearing. He testified that his right ankle, leg, groin, and hip plus his back were hurt by the falls.
Claimant provided a drawing of the school grounds with buildings shown thereon which showed the building claimant had exited, the building he walked toward, and the relative parking lots, fence around the building he wished to reach, and gates in the fence around the building he wished to reach. He also testified that the grass or weeds around the hole were no taller than two inches. The one and one-half to two inch hole in question was shown to be within three feet of the fence, but there was no gate through the fence nearby that led into the building he wished to reach. While the hearing officer correctly pointed out that there is no element of negligence or contributory negligence in workers’ compensation cases, the route taken was not shown to be a direct one which might possibly explain how a person could take the same route again and fall a second time the same day, in the same hole.
Claimant further testified that although he saw his supervisor later that day, he did not tell him of the falls. Claimant also testified that he was limping that day after falling. He continued to work, however, and only sought medical care one week later when he went to an emergency room. Claimant also said that the falls happened in the 3:00 and 3:30 p.m. time frame, while no one was on the grounds to see his falls.
Medical records in evidence show that claimant did report to the emergency room on February 20, 1996, complaining of having “stepped” in a hole the prior week. Leg pain of a radiating nature with no back pain was reported. A notation was made: “Imp: Pain does not follow typical radicular dist.” (Emphasis as written.) A minor sprain was diagnosed. When seen by [Dr. L] on February 25, 1996, claimant gave a history of having “stepped” in a hole at work and complained of his back, hip and ankle. This initial report indicates that studies (not identified) showed the ankle as normal and the lumbar sacral spine as having “disc space narrowing”. A wrap was placed on claimant’s thigh and a splint was placed on the right ankle. A low back strain, leg strain, and ankle sprain were assessed. On March 18, 1996, a low back strain was still noted with “right ankle strain” said to be resolved.
The x-ray report of February 23, 1996, shows, “1. Moderately severe degenerative change at L5-S1 including disc narrowing. There is no evidence of acute lumbar injury. 2. Normal right ankle.”
The MRI report of March 11, 1996, shows, “1. Midline bulging of the disc at L4-5. 2. Midline and left lateral bulging of the disc at L5-S1. There is no definite evidence of herniation, however, there does appear to be encroachment on the S1 nerve root.”
The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. While he stated that the medical records indicate treatment in the time frame of the alleged injury and that such records show injury and pain, he did not find plausible claimant’s testimony as to falling twice. He added that the hole described did not seem “deep enough to have caused the falls and the falls [sic] the claimant alleges.” (We read the previous quoted passage to indicate reference to falls and injuries, noting that there is no reason to repeat the word “falls” in that context.) While claimant complains that the hearing officer did not reference the history shown in medical records, we note also that such history never described a fall(s), but only a “stepping in”. In addition, the hearing officer could question how a claimant that fell twice in one day onto his knees from stepping in a hole could sustain so many injuries without injuring the knees that were, reportedly, the point of impact each time. While the hearing officer indicates that his reading of the medical evidence showed injury was present, studies reported were not said to show an acute injury.
The hearing officer as fact finder may believe that an injury has occurred but may also determine that it was not shown to have happened at work. See Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). The claimant’s testimony, as that of an interested party may be considered to have created fact issues to resolve. See Burelsmith v. Liberty Mutual Insurance Co., 568 S.W.2d 695 (Tex. Civ. App.-Amarillo 1978, no writ). His testimony may be believed in part, in total, or not at all. See Bullard v. Universal Underwriters Insurance Co., 609 S.W.2d 621 (Tex. Civ. App.-Amarillo 1980, no writ).
No burden needed to be placed on school to prove a sole cause because there was no issue as to disability or as to sole cause. See Texas Workers’ Compensation Commission Appeal No. 93143, decided April 9, 1993. Similarly, there was no issue that school did not state the reason for denial in its TWCC-21 which it then argued at the hearing and no motion was made at the hearing that an issue be added to that effect. See Texas Workers’ Compensation Commission Appeal No. 94425, decided May 18, 1994. The claimant must prove that the injury occurred while in the course and scope of employment. See Texas Workers’ Compensation Commission Appeal No. 91028, decided October 23, 1991.
While claimant asserted that the hearing officer shortened the 30 days given to report an injury, he did not. No ruling was made that claimant did not timely report. There was not even an issue of timeliness. Credibility is always a question to be considered by a hearing officer, however, and he may consider whether claimant was or was not credible in providing notification in the manner, time, or circumstances of a particular case. As noted, the hearing officer commented on the plausibility of the alleged injury.
In providing a Statement of Evidence and Discussion, neither of which is required under the 1989 Act of a hearing officer, the Appeals Panel has stated that the recitation does not have to include every relevant fact. See Texas Workers’ Compensation Commission Appeal No. 941105, decided September 29, 1994. The important issue, as stated in that appeal, was whether the evidence supported the findings of fact, not whether the Statement of Evidence did so.
Claimant also states that school admitted a work injury occurred by the TWCC-1 it filed. Section 409.005(f) prohibits the use of the TWCC-1 as an admission against the employer or carrier when the facts set out therein are contradicted by the employer or carrier. In this case, those facts were contradicted. The Appeals Panel has not waived this statutory limitation when a carrier introduced the form (see Texas Workers’ Compensation Commission Appeal No. 93967, decided December 9, 1993, which did allow reference to the date filed when that date was not in issue) or when a claimant was examined as to certain information contained therein.
Finally, there appears to be some question as to venue raised. The record clearly shows that claimant alleged an injury in [City 2], Texas, and that the hearing was held in the City Hall in [City 1], Texas. The hearing officer was from [City 3] and the word “[City 3]” does creep into a conclusion of law, but not the findings of fact. No objection was made at the hearing to venue; on the contrary a stipulation was made that venue was “proper” at [City 1]. This point is without merit.
The determination, in this case, turned largely on credibility. The hearing officer did not find the recitation of events plausible. These matters were rightly his to determine. The Appeals Panel will not overturn a factual decision unless against the great weight and preponderance of the evidence. In this case, the evidence sufficiently supported the determination that claimant did not prove his injuries were incurred in the course and scope of employment. Finding that the decision and order are sufficiently supported by the evidence, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Judy L. Stephens – Appeals Judge