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 May 27, 1997. The issues at the CCH were whether the respondent’s (claimant) current left shoulder problems are a direct result of his compensable injury of ______, and whether the claimant has had disability and, if so, for what periods of time. The hearing officer found the current left shoulder problems are a direct result of the ______, compensable injury and that the claimant had disability from February 1, 1997, continuing through April 15, 1997. The appellant (carrier) appeals only the determination that the claimant sustained disability from February 1, 1997, through April 15, 1997, urging that the evidence does not support the hearing officer’s finding and decision on this issue. The claimant responds, reflecting his agreement with the hearing officer’s findings and decision.
DECISION
Reversed and a new decision rendered.
Very briefly, the claimant claims he sustained a shoulder injury on ______, from driving a pick-up truck that did not have power steering. The parties stipulated to a compensable injury on or about ______, although medical records indicate earlier treatment for claimant’s shoulder (cortisone injections) and no specific incident was related to ______. In any event, the claimant continued working his regular job and medical records indicate he was treated for the pain in his shoulder, including steroid injections with an impression of bursitis and tendinitis. A medical record dated November 11, 1995, states that the claimant returned to the doctor that date, was feeling “markedly better and voices no complaints” and “demonstrated near normal range of motion.” The claimant denies the accuracy of this report. Subsequent medical records (aside from other unrelated medical problems) in August 1996, show intermittent steroid injections and an impression of possible impingement type syndrome. In January 1997, an MRI was performed with an impression of “subtle increase signal in the distal supraspinatus tendon at most represents some mild tendinous degeneration. Otherwise normal MRI of the left shoulder.” The claimant’s treating doctor referred the claimant to another doctor who recommended arthroscopy of the shoulder and arthroscopic decompression. Apparently, this was scheduled for January 31, 1997, but, according to the claimant, was disapproved two days before it was to be performed. (Although several peer review doctors opined that the current condition was not related to the ______, injury, the claimant’s treating doctor gave his opinion that it was and the hearing officer’s finding on that issue is not on appeal.) In any event, the claimant testified that he worked until January 20, 1997, and took several days of sick leave and vacation time to prepare for surgery. A note from his doctor dated January 20, 1997, stated that the “Patient will miss 4-6 weeks of duty from day of his surgery 1-31-97.” There is no other work release in evidence. The claimant also testified that he applied for 12-weeks leave of absence to begin February 3, 1997.
Although the surgery did not take place, the claimant did not return to work or inquire about employment. He states that he had the same problems and that his arm hurt him bad and that he was under the impression that “they wouldn’t let you go back to work light duty.” It is not clear what transpired from that point forward, however, on or about April 14th, the claimant sought light-duty work with the employer and although, according to him, they initially indicated no light duty could be arranged, he was subsequently given light duty, at his full pay, and started work on April 16, 1997. He indicated that he requested to go back to work because he needed the money. There was nothing in evidence to indicate that the claimant was unable to perform his current light-duty job.
As stated, the hearing officer found that due to the compensable injury, from February 1, 1997, through April 15, 1997, the claimant was unable to obtain and retain employment at wages equivalent to his preinjury wage i.e. he had disability. From our review of the evidence, we do not conclude that this finding is supported by the evidence. To the contrary, the findings is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 961679, decided October 7, 1996. Compare Texas Workers’ Compensation Commission Appeal No. 962634, decided February 5, 1997. As the hearing officer notes in her discussion, disability may be established through the testimony of a claimant, and all things being equal, a determination so based would not be disturbed on an evidentiary sufficiency challenge. Texas Workers’ Compensation Commission Appeal No. 931002, decided December 13, 1993. However, where other relevant and admitted evidence that refutes and contradicts mere assertions of disability is present, such evidence should be given appropriate consideration. In reviewing such evidentiary issues, we look to all the evidence on the issue and only if we conclude that the particular determination is so against the great weight and preponderance of the evidence as to be clearly wrong or unjust do we disturb the determination. Texas Workers’ Compensation Commission Appeal No. 92083, decided April 16, 1992. We find that to be the situation here. While the compensability of the injury is not in issue, disability does not necessarily follow. Here, it is clear that the claimant has continued to work from the date of injury, ______, to January 20, 1997, when he used some sick leave and vacation leave to prepare for the scheduled arthroscopic surgery. There is no evidence that he was ever taken off work and the only medical matter related to work was the doctor’s notes that following surgery he would be off work for 4 to 6 weeks. Clearly, the surgery upon which a no-work status was predicated did not take place. Neither the medical record nor the testimony of the claimant indicated that he had a worsening condition culminating in his leaving work because of disability; rather he states it was to prepare for his surgery. The medical records tended to show only a continuation of shoulder pain and a recommendation for the arthroscopic surgery. Although not further developed, the claimant arranged for a leave of absence of 12 weeks. When the surgery did not take place, the claimant apparently did not seek to return to any type of employment with the employer until mid-April 1997, at which time he was provided light duty at his same wage. He states that he did so at the time because he needed the money. There was no indication that he was in anyway incapable of performing the job he was provided once he informed the employer. Under these circumstances, the claimant’s assertion of disability, and a finding based on such assertion, is so against the great weight and preponderance of the other evidence as to be clearly unsustainable. Accordingly, the decision and order regarding disability are reversed and a new decision on this issue is rendered that the claimant did not have disability for the period from February 1, 1997, through April 15, 1997.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Christopher L. Rhodes – Appeals Judge