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 December 4, 1998, and December 28, 1998. He (hearing officer) determined that the appellant (claimant) did not sustain a compensable injury on _____, and that claimant did not have disability. Claimant appeals, contending that he sustained a work-related hernia and that he had disability. He also asserts that the hearing officer abused his discretion in granting a continuance in this case. Respondent (carrier) replies that the Appeals Panel should affirm the hearing officer’s decision and order.
DECISION
We affirm.
Claimant contends the hearing officer erred in determining that he did not sustain a compensable hernia injury on _____. He asserts that the medical evidence establishes that he sustained a work-related hernia. The claimant in a workers’ compensation case has the burden to prove by a preponderance of the evidence that he or she sustained a compensable injury in the course and scope of employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). The 1989 Act defines “injury” as damage or harm to the physical structure of the body and as disease naturally resulting from the damage or harm. Section 401.011(26). The mere recurrence or remanifestation of symptoms of a prior injury does not equate to a compensable new aggravation injury. Texas Workers’ Compensation Commission Appeal No. 962641, decided January 29, 1997. Whether there is a new, work-related injury is a fact question for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 962183, decided December 16, 1996.
Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995.
Claimant said he was working as an accountant for (employer) Claimant testified that on _____, he was bending over his desk picking up a heavy ledger when he felt a pain and burning sensation in his abdomen. He said the pain became worse and, after notifying his supervisor, he went over to the employer’s medical facility. He testified that he did not know what was wrong with him except that he had severe pain. He said Ms. R examined him, found a knot on his abdomen, asked if it had been there before, and that he replied, Ano. He said his wife came to get him, that he went to a medical center and then to a hospital where he also underwent hernia repair surgery that night. Claimant testified that he had been stabbed in the abdomen during a convenience store robbery in 1995 and that he had undergone two hernia repair surgeries, one in 1990 and one in 1992. Claimant said he had moved to a new home recently, but denied that he had done any lifting. Claimant said he had undergone a preemployment physical in 1997. In a July 29, 1998, statement, Ms. R stated that, on _____, claimant told her he had not previously experienced the bulge in his abdomen. However, the company nurse, Ms. B, testified that the CCH that she asked claimant whether the bulge was Aalready there and that claimant replied, Ayes. One of claimant’s coworkers, Ms. T, signed a statement that said that she had noticed over time that claimant would reach down and Apush in on the area below his stomach, especially whenever claimant would sit down. When asked about whether he had a habit of doing this, claimant testified that he had been scratching himself because he has Ajock itch. Another coworker stated that she had observed claimant pushed on his abdomen where his Arib cage is. When asked whether his previous hernias in 1990 and 1992 were compensable injuries, claimant indicated that they were not and that he did not know their cause.
A preemployment physical questionnaire is contained in the record. Claimant responded to questions but did not check a box inquiring whether he had ever had hernia surgery. Under the question asking what surgeries he had had, claimant responded that he had undergone back surgery and abdominal surgery for a stab wound to his belly. A related physical examination report stated that claimant’s abdomen revealed abnormal findings in that he Ahas had major abdominal surgery. A _____, surgical report signed by Dr. B stated that claimant had a midline bulge and that A[o]n exploration of the midline hernia, the patient was noted to have multiple ventral hernias along the midline. It stated that the multiple hernias were Aall coalesced into one large hernia which was then repaired primarily and reinforced with Marlex. In an August 28, 1998, report, Dr. B stated, A[claimant] is seen back today four weeks out from repair of multiple ventral hernias along a previous upper midline incision for abdominal trauma. In a September 18, 1998, letter Dr. B said:
[Claimant] had undergone a previous hernia repair on the inferior portion of his wound, which had been reinforced with Marlex. . . . I could palpate the superior edge of the old Marlex at the time of his surgery. This inferior portion of his abdominal wall remained intact. Therefore, I do not think this injury was related to his old repair since the inferior aspect of his abdominal wall showed no palpable defects.
In a later letter, Dr. B said that, based on his exam and on the history he obtained from claimant, Athe reasonable medical probability is that his likely pre-existing incision hernia was incarcerated by his lifting at work.
The hearing officer determined that: (1) in March 1985, claimant was stabbed in the abdomen Ajust to the right of the midline; (2) in 1990 and 1992, claimant had sustained hernias Athrough the abdominal wall at the location of the original wound and under the incision made in surgery; (3) on several occasions claimant’s coworkers Aobserved the claimant pushing in an apparent bulge in this lower abdomen just to the right of his midline; (4) on _____, the claimant suffered acute symptoms from a preexisting abdominal hernia when he bent over his desk; (5) on _____, the claimant also had several small preexisting abdominal hernias, discovered in surgery, that had Agrown together to form a large hernia in addition to the one at the original wound location; (6) on _____, the claimant did not sustain a hernia injury that arose out of his employment; and (7) claimant did not sustain a compensable injury and did not have disability. In his decision and order, the hearing officer stated that he found no compensable injury due to a combination of factors, including the fact that: (1) claimant had been seen pushing in on his abdomen; (2) claimant told a medical technician that he had a knot on his abdomen, and (3) claimant had told the company nurse that the knot had already been there. The hearing officer also stated that claimant’s testimony was inconsistent and that his testimony was sometimes contradicted by other evidence.
The hearing officer was the judge of the credibility of the witnesses and medical evidence. As the fact finder, he considered the issue of whether claimant sustained a compensable hernia injury on _____, and resolved this issue against claimant. We will not substitute our judgment for his in that regard because the hearing officer’s determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain. Given our standard of review we will not overturn the hearing officer’s decision. Id.
In his appeal, claimant complains that the knife wound and hernias were to different quadrants of his abdomen. However, the hearing officer could find from the medical evidence that the hernias were near each other because Dr. M had said that he had repaired Amultiple ventral hernias along a previous upper midline incision for abdominal trauma. Claimant complains that the hearing officer stated that his coworkers had seen him push in on a Abulge, when none of them mentioned a bulge. While the coworkers did not mention seeing a bulge through claimant’s clothing, the relevant fact found by the hearing officer was that the coworkers had seen claimant pushing in on his abdomen. Due to other evidence in the record regarding a preexisting bulge and considering the record as a whole, we perceive no reversible error regarding this fact finding. Claimant complains that the hearing officer should have considered the evidence that he had not been treated for hernias recently, that he had been leading a normal lifestyle, and that he had passed his preemployment physical. However, these facts do not establish that claimant sustained his hernias at work. The hearing officer apparently did not find claimant’s testimony to be credible regarding how he sustained his hernias. Claimant contends the medical evidence shows that he sustained his hernias at work. We would note that the hearing officer determined what weight to give the medical evidence. Further, we would note that Dr. M’s opinion regarding causation was based, at least in part, on the history of the alleged injury as reported by claimant. The hearing officer could consider whether the history was accurate in making his determinations. We perceive no reversible error. Claimant complains that the hearing officer found that the hernias had Agrown together. We acknowledge that another fact finder might not have interpreted the medical records to state that the hernias had grown together. However, the hearing officer could consider the medical evidence and the evidence regarding the proximity of the hernias in making this determination. Even if this determination had been error, it would not have resulted in a reversal of the decision in this case. We conclude that any possible alleged error in this regard did not lead to an improper judgment in this case. Claimant complains that there is no evidence that the hernias occurred anywhere other than the workplace. However, carrier was not required to establish where claimant sustained his hernias. It was claimant’s burden to prove that he sustained a work-related hernia.
Claimant contends the hearing officer erred in determining that he did not have disability. 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). Because there was no compensable injury, there can be no disability.
Claimant contends the hearing officer abused his discretion in granting a continuance in this case. He asserts that he was harmed because his treating doctor was unable to testify at the second session of the CCH on December 28, 1998, and was available only at the first session.
Rule 142.10(b)(2) permits the Texas Workers’ Compensation Commission (Commission) to continue a hearing on its own motion or at the request of a party if the hearing officer determines that the party has good cause. We will not disturb the hearing officer’s determinations regarding continuances absent an abuse of discretion. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. App.–San Antonio 1981, no writ); Texas Workers’ Compensation Commission Appeal No. 91041, decided December 17, 1991.
After reviewing the evidence, we perceive no abuse of discretion in the granting of the continuance in this case. It was undisputed that this was the first continuance sought by carrier. Counsel for carrier stated that employer’s representative, Ms. B, was unable to attend the hearing and that her testimony was needed at the CCH for carrier to present its case. Counsel for carrier stated that there had been an explosion at employer’s premises, apparently the night before the CCH, and that the employees were not permitted to leave the premises while employer sought to account for all of the employees. Counsel for carrier represented that the explosion resulted in some fatalities and several injuries and that Ms. B was needed at the plant, also, because she is a nurse. We conclude that the hearing officer did not abuse his discretion in finding good cause for a continuance and in granting the continuance. We note that claimant was permitted to present medical records and written opinions regarding causation and that presentation of such evidence is contemplated at CCHs. We perceive no error.
We affirm the hearing officer’s decision and order.
Judy Stephens – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Philip F. O’Neill – Appeals Judge