This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On January 26, 1999, a hearing was held. He determined that the appellant (claimant) did not sustain a compensable injury on ______, and had no disability. Claimant asserts that “the weight of the evidence establishes that he sustained a compensable injury” and that an opinion by Dr. H that mentioned “drug related charges” should not be relied upon sisnce there is no evidence of “drug use” without proof of a conviction. Respondent (carrier) replied that the decision should be upheld.
DECISION
We affirm.
Claimant worked for (employer) on ______, when, he stated, he hurt his low back when he was unloading tires from a truck. He said that the tires were big truck tires weighing over 100 pounds and that he had to “pick them up and sling them.” With about five tires to go, he said that he felt a pop in his back. There was no question of notice in this case. The next night, (day after injury), he went to an emergency room (ER), giving a history of unloading tires the day before; he added that he went to work on (day after injury) but had to leave with pain. Claimant returned to the ER on January 5, 1998, saying he had not slept in three days. On January 5th, an “outpatient MRI” was ordered. It appears as if two MRI’s were performed, one on January 10th and another on January 12th “with contrast.”
The MRI of January 10, 1998, reported “infectious discitis” at the L5-S1 level. The January 12th MRI showed “the vertebral bodies, disc space, and surrounding intermediate signal material all enhance, compatible with phlegmon and osteomyelitis.” Surgery was performed on January 13, 1998. The operative report read, in part, “[d]isc herniation as well as yellow liquid was returned from the disc space . . . . The disc space did appear to be infected . . . . The dura and nerve root were completely free from any compression and the root could be easily followed out the foramen.”
Other medical records showed claimant was still hospitalized at (hospital) on January 19, 1998, when a note was made that claimant’s “organism” was susceptible to a particular antibiotic. It was also noted, “grossly peridontally involved teeth. Definitely a possible source of seeding to spine osteo.” On January 20, 1998, a note states, “patient relates he had had a PPD (this could relate to a dental partial plate) 1 year ago in jailBwhen he was incarcerated for drug related charges.” This note also commented that (apparently orthopedics) had little experience treating “strep osteo” and asked to be allowed to follow claimant in the infectious disease clinic. “Suspect his dentistry was portal of entry.” It also spoke of having dental work to “avoid re-seeding.” The discharge note spoke of, what appears to be, “group A.B – hemolitic strep” with the claimant on antibiotics.
Carrier had Dr. H review the records. He concluded that osteomyelitis and disc space infection do not naturally result from a “simple lifting incident.” He said the teeth were a “possible source” of the osteomyelitis. He also referred to the note that showed a history of being in jail for “drug related charges” and said that “IV drug users and those with compromised immune systems are certainly more prone to be at risk . . . .” After speaking of the possible causation because of the teeth and the general statement about drug users and people with immune system problems, he said that the lifting incident was not as probable as the other possibilities to have caused the osteomyelitis and infection.
The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. He could give significant weight to the medical records whether Dr. H provided an opinion or not. He could also give weight to Dr. H’s opinion even though he did not examine the claimant. Claimant’s assertion that reference to drug use without evidence of a conviction should obviate any reliance on Dr. H’s opinion was disputed by carrier as not relevant since that reference was provided in the medical records in discussing etiology and was not being used to attack someone’s character for truth and veracity. In addition, we note that Dr. H did quote from the medical record and made no conclusion that claimant had used drugs, but stated that “drug users” are more prone to get such infections in the spine. The determination that claimant did not sustain a compensable injury on ______, is sufficiently supported by the evidence. With no compensable injury there can be no disability. See Section 401.011(16).
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
Elaine M. Chaney – Appeals Judge