This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 9, 1999. With respect to the single issue before him, the hearing officer determined that the appellant’s (claimant) compensable injury of ___________, did not extend to avascular necrosis in both hips. In his appeal, the claimant essentially argues that the extent-of-injury determination is against the great weight of the evidence. The claimant also asserts error in the hearing officer’s denial of his Request for a Subpoena of personnel records. The appeals file does not contain a response to the claimant’s appeal from the respondent (self-insured).
DECISION
Affirmed.
The parties stipulated that the claimant sustained a compensable injury on ___________, to his neck, back, and knees. The claimant testified that on December 1st, he was driving a dump truck for the self-insured, which was carrying 12 tons of asphalt, when the truck hit a hole in the road that was approximately three feet deep. He stated that he was thrown out of his seat, causing him to hit his head on the roof of the truck and his knees on the steering wheel. He testified that he had felt a “sensational sting” and “tremendous pain” in his head, through his neck, and all down the right side of his body. The claimant estimated that he was going between five and 10 miles per hour when he hit the hole in the road. He stated that the truck stayed in the hole after the incident because the drop had bent the rim and burst the tire.
The claimant initially sought treatment for his injuries on December 16, 1997, with (Dr. G). In a progress report from that visit, Dr. G noted the claimant’s chief complaints as neck pain, back pain, knee pain, and headaches. There is no reference to complaints of hip pain specifically; however, Dr. G recorded complaints of radiating pain from the back, down the right leg and into the foot. The claimant continued to treat with Dr. G with the focus of his treatment on the claimant’s cervical and lumbar spine and his right knee. In a progress note of August 5, 1998, Dr. G states that the claimant’s “lumbar spine series reveals that he not only has some mild spondylosis, but that he also has sage [sic] II-IV avascular necrosis of both femoral heads.” The claimant testified that Dr. G suggested that he seek treatment for the avascular necrosis under his group health insurance because the self-insured was denying treatment. The claimant sought treatment for the avascular necrosis with (Dr. S). In a letter of February 19, 1999, Dr. S diagnosed avascular necrosis in both hips. Dr. S noted that the claimant was injured in the ___________, incident at work and that he “is a non-drinker, non-smoker, does not scuba dive and has not been taking steroids.” Dr. S stated:
The patient has had increasing symptoms since the time of the accident and now ultimately has required a total hip arthroplasty on the right, and will require one on the left.
The man appears honest, straight forward and forthcoming. He does not have any other risk for avascular necrosis. He has no history of sickle cell disease or sickle cell trait. Therefore, his only risk factory [sic] is trauma, and his only history of trauma is the one noted above, and his symptoms began thereafter.
I believe that his hip problems are due to his injury in this dump truck accident.
(Dr. C) was retained by the self-insured to conduct a records review and did not examine the claimant. Dr. C’s report provides:
It was also noted in the record that [claimant] has been diagnosed with aseptic necrosis of his hips. There is a letter from [Dr. S] that theorized the aseptic necrosis was somehow related to the compensable injury, as there had been no other documentation of trauma. Also, the patient did not have any other risk factors for the development of an aseptic necrosis. However, the mechanism of injury that this individual experienced could not have caused any sort of hip injury and it certainly would not be the cause of aseptic necrosis.
The hearing officer determined that the claimant’s compensable injury did not extend to avascular necrosis of both hips. That question presented a question of fact for the hearing officer to resolve. The hearing officer is the sole judge of the weight and credibility of the evidence under Section 410.165(a). As such, it was his responsibility to resolve the conflicts and inconsistencies in the evidence and to determine what facts had been established. In this case, there was conflicting evidence on the question of whether the avascular necrosis was caused by the compensable injury. Dr. S opined that the trauma of the ___________, injury caused the avascular necrosis, noting that the claimant did not have any of the other risk factors for the development of the disease. However, Dr. C opined that “the mechanism of injury that this individual experienced could not have caused any sort of hip injury and it certainly would not be the cause of aseptic necrosis.” The hearing officer resolved that conflict by accepting Dr. C’s opinion over that of Dr. S and determined that the claimant had not sustained his burden of proving a causal connection between his compensable injury and the avascular necrosis. He was acting within his province as the fact finder in so doing. Our review of the record does not reveal that the hearing officer’s extent-of-injury determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Therefore, no sound basis exists for us to reverse that determination on appeal. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Although another fact finder could have drawn different inferences from the evidence in the record, which would have supported a different result, that does not provide a basis for us to disturb the hearing officer’s decision. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref’d n.r.e.).
In his appeal the claimant asserts that the hearing officer erred in denying his subpoena request for a document from his personnel file, specifically the accident report he completed on ___________. The claimant did not make any such request at the hearing or offer any evidence that the hearing officer had previously denied the request. As such, he has not preserved error related to the alleged denial of the subpoena request for appeal.
The hearing officer’s decision and order are affirmed.
Elaine M. Chaney – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Thomas A. Knapp – Appeals Judge