On August 19, 1997, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issue at the CCH was whether the cross-appellant (claimant) “had disability since July 3, 1996, through present resulting from the injury sustained on _____.” The appellant (carrier) requests review of the hearing officer’s decision that the claimant had disability as a result of her compensable injury from July 3, 1996, to October 7, 1996. The claimant requests review of the hearing officer’s decision that she has not had disability as a result of her compensable injury since October 7, 1996.
DECISION
Affirmed.
“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). The claimant’s testimony was translated by a Spanish-speaking interpreter. The claimant has been in the United States for about two years. It is undisputed that she is an undocumented worker and has not been legally able to work in the United States. She said that she assembled painting frames for the employer and that she was injured on _____, carrying frames at work. The parties stipulated that the claimant sustained a compensable injury to both arms on _____. The claimant said that she returned to work after her injury and worked until February 1996. In Texas Workers’ Compensation Commission Appeal No. 970775, decided June 12, 1997, the Appeals Panel reversed a hearing officer’s decision that the claimant in the instant case did not have disability from February 13 to July 2, 1996, and rendered a decision that the claimant had disability during that period of time (it was apparently undisputed in that appeal that the claimant had disability from July 17 to July 19, 1995, and from August 31 to September 19, 1995).
After her injury of _____, the claimant was treated by Dr. MC for bilateral arm pain. The claimant began seeing Dr. C on February 13, 1996. Dr. C initially diagnosed the claimant as having probable carpal tunnel syndrome (CTS) of the left wrist, tendinitis of the left elbow, and a cervical sprain. On February 27, 1996, Dr. C noted that the claimant had right wrist pain, right elbow pain, and neck pain. He noted that the claimant had been diagnosed with medial epicondylitis of the left elbow, ulnar nerve neuropathy of the left elbow, CTS, and neck problems. Work status reports issued by Dr. C in February, March, and April 1996, noted that the claimant was to remain off work, and his medical report of May 14, 1996, noted that the claimant’s assessment remained unchanged and that the claimant remained off work. Dr. C noted in a work status report that the claimant was to remain off work until the next appointment on July 16, 1996. As previously noted, in Appeal No. 970775, supra, the Appeals Panel held that the claimant had disability from
February 13, 1996, to July 2, 1996. July 2, 1996, was the date of the initial CCH on the disability issue considered in Appeal No. 970775.
The issue before the hearing officer in the instant case was whether the claimant had disability “since July 3, 1996, through present resulting from the injury sustained on _____.” In August 1996 Dr. C prescribed physical therapy for the claimant. The claimant attended physical therapy in September, October, and November 1996. The therapist noted that the claimant complained of moderate tenderness in both elbows. On October 7, 1996, the therapist wrote that the claimant’s elbow range of motion was good and that her strength was increasing. The therapist also wrote that the claimant “does not plan to return to work.” On October 21, 1996, the therapist noted that the claimant had minimal pain and increased strength.
A radiologist reported that an MRI of the claimant’s left elbow done on September 10, 1996, showed tendinitis of the distal biceps tendon and part of the brachialis tendon in the elbow and proximal portion of the forearm, and focal mild contusive change and tendinitis of the anterior collateral ligament at the elbow joint. On November 26, 1996, Dr. C diagnosed the claimant as having ulnar nerve entrapment of the left elbow, bilateral CTS, and “rule out internal derangement of the right elbow.” Dr. C wrote that the claimant is a “candidate for a bilateral carpal tunnel release and an ulnar release of the left elbow.” The claimant said she has not had surgery because she is afraid of having surgery. Dr. C wrote that the claimant was to remain off work until her next appointment in December. In February 1997 Dr. C wrote that the claimant had significant pain relief with acupuncture treatment and that the claimant is “off work.” A radiologist reported in February 1997 that an MRI of the claimant’s right elbow done that month showed mild medial epicondylitis and “suspicion of ulnar nerve neuritis in the ulnar suicus or possibly cubital tunnel syndrome.” On February 24, 1997, Dr. C wrote that the claimant remained a candidate for bilateral carpal tunnel releases and possible bilateral ulnar nerve releases, and that the claimant wanted to continue with conservative treatment. He also wrote that the claimant was to remain off work until her next appointment.
In March 1997 Dr. C noted that the claimant had ongoing bilateral elbow and wrist pain, that acupuncture had decreased her pain somewhat, and that the claimant’s return to work would be “post rehabilitation.” The claimant said that she began treating with Dr. G, who is associated with Dr. C, and Dr. G wrote in April 1997 that the claimant was resistant about considering any type of surgery and that acupuncture was controlling her pain. He diagnosed the claimant as having ulnar neuropathy, CTS, and an internal derangement of the elbow. In May 1997 Dr. L, who is associated with Drs. C and G, wrote that the claimant was reluctant to undergo surgery and that he would be looking into some other treatment options for her. In May 1997 Dr. G noted that the claimant was to remain off work until her next appointment in June.
The claimant testified that she has not been able to work since July 3, 1996; that Dr. G has not released her to return to work; that she has not worked since she last worked for the employer; that she wears “braces” on her wrists and elbows; that she is able to do household chores slowly, but it causes her pain; and that she has problems lifting things. Ms. NZ testified that she lives in the same house as the claimant; that the claimant has not been able to work since July 3, 1996; that she has seen the claimant do housework; that everyone in the house knows that the claimant is not supposed to lift things and so they do the lifting for her; and that the claimant wears “braces” on her wrists and arms.
The carrier appeals the hearing officer’s finding that the claimant was unable to obtain and retain employment at wages equivalent to her preinjury wage from July 3 to October 7, 1996, as a result of her injury of _____, and her conclusion that the claimant had disability as a result of her compensable injury of _____, from July 3 to October 7, 1996. The carrier contends that the evidence compels a conclusion that the claimant failed to prove any period of disability and that there is insufficient evidence to support the period of disability found by the hearing officer. The hearing officer is the judge of the weight and credibility of the evidence. Section 410.165(a). When reviewing a hearing officer’s decision to determine the factual sufficiency of the evidence, we should set aside the decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. We conclude that the hearing officer’s finding that the claimant had disability from July 3 to October 7, 1996, is supported by sufficient evidence and that it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The carrier contends that as a matter of law the claimant’s status as an undocumented worker prevents her from proving disability. In Texas Workers’ Compensation Commission Appeal No. 94211, decided April 6, 1994, the Appeals Panel stated:
We agree that under Section 406.092(a) an employee’s status as an alien whose entry into the United States may have been contrary to immigration laws does not in itself preclude the receipt of benefits under the 1989 Act that the alien otherwise qualifies for. This is consistent with prior Texas workers’ compensation law, see Commercial Standard Fire and Marine Company v. Galindo, 484 S.W.2d 635 (Tex. Civ. App.-El Paso 1972, writ ref’d n.r.e.). See also 1A LARSON, WORKMEN’S COMPENSATION LAW Sec. 35.20, for the general proposition that “. . . illegal entry into this country does not deprive an alien of compensation rights.”
In Appeal No. 94211 the Appeals Panel noted that the claimant has the burden of proving that she has disability; that we had held that a claimant need not prove that the injury was the sole cause, as opposed to a cause, of the disability; that a carrier who desires to show that some other condition was the sole cause of the disability has the burden of proof; and that whether disability exists is a fact question for the hearing officer to decide. In that decision, which involved an undocumented worker, the Appeals Panel held that the overwhelming weight of the evidence, including the claimant’s own testimony, compelled the conclusion that the claimant in that case did not seek work after June 24, 1993, solely because she did not have the correct documentation, not because she was unable to work due to her injury. The claimant in Appeal No. 94211 testified that she did not return to work after her doctor released her to return to work because she did not have legal documents. No such testimony was presented in the case currently under consideration.
However, in Appeal No. 970775, supra, which involved the same claimant as in the instant case, the Appeals Panel, after noting that alien status or the legal right to work in the United States is a proper consideration for a hearing officer in determining whether the compensable injury was a producing cause of the claimed disability, reversed a hearing officer’s decision that the claimant’s inability to legally obtain and retain employment at wages equivalent to the preinjury wage from February 12 to July 2, 1996, was because of her “illegal alien” status and not because of her compensable injury, and the Appeals Panel rendered a decision in favor of the claimant on the disability issue. In the instant case, having determined that sufficient evidence supports the hearing officer’s decision that the claimant had disability from July 3 to October 7, 1996, we decline to hold that as a matter of law the claimant’s status as an undocumented worker precludes her from establishing disability as defined by the 1989 Act. The carrier’s citations to Appeals Panel decisions addressing incarceration and disability are not controlling because the claimant in the present case was not incarcerated during the period of disability found by the hearing officer.
The claimant contends that the hearing officer erred in finding that she did not have disability as a result of her compensable injury since October 7, 1996. The claimant states that the hearing officer placed too much emphasis on the therapist’s note of October 7th wherein the therapist noted that the claimant “does not plan to return to work.” The claimant asserts that the therapist may have misconstrued what she said and that it is unknown whether the therapist speaks Spanish. The claimant points to other evidence of record to establish her disability after October 7th and asserts that the great weight of the evidence supports her claim that she had disability until the date of the CCH. As the finder of fact the hearing officer determines the weight to be given to the evidence. An appellate level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. Appeal No. 950084, supra. We conclude that the hearing officer’s decision that the claimant did not have disability after October 7, 1996, is supported by sufficient evidence and that it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, supra.
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Tommy W. Lueders – Appeals Judge