This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On December 3, 1998, a contested case hearing (CCH) was held. The issues concerned whether the respondent, who is the claimant, sustained an injury at work, timely reported the injury to his employer or had good cause for a failure to do so, and had disability as a result of the injury. At the outset, the parties agreed that as of October 13, 1998, although back to work, the claimant was working for lower wages as a result of his back injury.
The hearing officer found that the claimant injured his back on ______, in the course and scope of employment, that he had disability from the injury beginning October 13th and continuing to the date of the CCH, and that, although he had not given a formal report of his injury to the employer until July 17, 1998, he had good cause in that he trivialized his injury (initially diagnosed as a contusion) until seeing a doctor who diagnosed herniated lumbar discs.
The appellant (carrier) has appealed and argues that the claimant did not prove he was injured at work, that he had degenerative disc disease, and that he is trying to claim what are essentially the effects of a prior injury. The carrier argues that the claimant did not prove an aggravation. The carrier argues that the hearing officer erred by finding good cause for failure to timely report the injury. The claimant refutes these arguments and asks that the decision be affirmed.
DECISION
Affirmed.
This case presented one of conflicting evidence which it is the hearing officer’s job to reconcile. The claimant was employed as a field mechanic by (employer). The claimant said that on ______, as he worked on an engine that was half the size of a bus, he fell about 10-12 feet, striking a panel and eventually the ground. He went the next day to a clinic, paid for by his private insurance, and was told he had a contusion. The claimant said this next day, one of his co-workers asked about his fall and he described it. He said his supervisor, Mr. H, was standing there at the time, a fact which Mr. H emphatically denied. The clinic notes of May 10, 1998, corroborate the claimant’s testimony.
The claimant said his back got to feeling gradually worse, and he began to realize in mid July that he had something more than a bruise. He went to Dr. P, who ordered an MRI which showed three herniated discs. The claimant transferred his care to Dr. S, who had told him he will need surgery. The claimant reported his injury to the employer on ______ a few days before he went to the doctor. Mr. H testified that he first found out about this injury in mid-July when another worker mentioned that it happened and Mr. H asked the claimant about it, and the incident was confirmed.
The claimant said he was injured in September or October 1997, while employed at another company, and was diagnosed with knotted muscles in his back. He had physical therapy, which resolved the problem. The sole medical record presented for that injury is an August 7, 1997, x-ray (indicating that the claimant’s testimonial recollection of his injury date was not accurate) which stated that there was some disc narrowing for which MRI follow-up was recommended. Although the claimant was queried as to whether degenerative disc disease was discussed with him in connection with this injury, he said it was not. We observe that the x-ray report does not state this as a conclusion.
An investigator service hired by the carrier interviewed the coworkers and claimed witnesses and put in its report that coworker Mr. C saw the claimant fall off the engine and strike his back on the day in question. Dr. S stated on September 18, 1998, that the claimant had a large herniation that was not preexisting. The claimant testified that between ______, and the date of his MRI, there was no other incident at work or at home involving injury to his back.
We note at the outset that the carrier’s position at the benefit review conference (BRC) on the injury and disability issues was that the claimant was not injured. The carrier did not interpose any “sole cause” defense nor contend that the claimant’s reason for being off work related to a preexisting condition. This may explain why evidence elicited on this issue was fairly scant, and in any case fell far short of the burden of proof that would be required to establish that a condition unrelated to the claimant’s contended back injury was the “sole cause” of his inability to obtain and retain employment equivalent to his preinjury average weekly wage. See National Farmers Union Property and Casualty Co. v. Degollado, 844 S.W.2d 892 (Tex. App.-Austin 1992, writ denied). The hearing officer is the sole judge of the relevance, the materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). A claimant’s testimony alone may establish that an injury has occurred, and disability has resulted from it. Houston Independent School District v. Harrison, 744 S.W.2d 298, 299 (Tex. App.-Houston [1st Dist.] 1987, no writ). We consequently affirm the hearing officer’s findings and conclusion on the injury and related disability issues as sufficiently supported in the record.
On the matter of whether the claimant trivialized his injury, we find no error. This case in many respects presents a “classic” trivialization case, in which the claimant is told, by a doctor, that his initial injury is fairly minor, but it gradually worsens. The evidence elicited here was also such that the hearing officer could have found timely notice or actual knowledge on the part of the employer if he believed that Mr. H was present the day after the accident when the claimant related his account of it. The Appeals Panel has urged that liberal consideration be given in determining the sufficiency of notice, or exceptions thereto. Texas Workers’ Compensation Commission Appeal No. 941505, decided December 22, 1994, and cases cited therein.
In considering all the evidence in the record, we cannot agree that the findings of the hearing officer are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We affirm the decision and order of the hearing officer.
Susan M. Kelley – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
CONCUR IN RESULT:
Stark O. Sanders, Jr. – Chief Appeals Judge