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 June 22, 1999. The issues at the CCH were whether the appellant (claimant) sustained a compensable injury in the form of an occupational disease on ________, whether claimant had disability, and whether the respondent (carrier) was relieved from liability because of a failure to timely notify the employer of an injury. The hearing officer determined that the claimant did not sustain a compensable injury in the course and scope of her employment on ________, and thus did not have disability, and that the carrier was not relieved of liability because of a failure to give timely notice of an injury. The claimant appeals findings of fact and conclusions of law regarding the issue of no compensable injury and disability, pointing to evidence that she feels establishes that her work involved repetitive activity, that she sustained an occupational disease injury, and that she had disability. The carrier responds that there is sufficient evidence to support the findings and conclusions of the hearing officer and asks that the decision be affirmed.
DECISION
Affirmed.
The claimant’s job since September 1997 involved the handling, tagging, and pricing of (on occasion men’s clothing) and placing them on a rack. According to her testimony, she worked on Friday, ________; had no problems or symptoms on Saturday; but woke up Sunday, Alleged injuyr, with severe neck and shoulder pain. Her daughter took her to an emergency room that day the records of which indicate complaints of right shoulder pain “x 8 days” and a notation of multiple bruises as being on both shoulders with a notation of “denies spousal abuse.” The claimant also indicated her arm was bruised. She was diagnosed with right shoulder arthralgia and multiple bruises and told to see her private doctor. She subsequently saw Dr. N who, claimant stated, took her off work for two weeks. Not getting better, she saw a Dr. M, who she states told her that her condition might be job related. She reported a job- related injury at that point. She states that she was diagnosed with a shoulder and neck strain and went to physical therapy and that the physical therapist indicated that it was job related. According to Dr. N, x-rays taken of the right shoulder indicated normal joint but there was abnormal calcification present which was suspicious of enchondroma. A report of an MRI of the cervical spine indicates that there appears to be some degenerative disc disease at C3-4 but no obvious impingement of the cervical spinal cord, stenosis, or neural impingement. Prior medical records indicate that the claimant has been treated in the past for an arm injury and broken ribs.
Claimant stated that she has twice broken her ribs from leaning on a table. She also indicated that before she realized she might have a work-related injury that she applied for a leave of absence and that she checked “not work related” on the form. She also denied that she had suffered any abuse and did not know why she was bruised. She acknowledged that she had, and was treated for, tendinitis in August 1998.
The hearing officer was not convinced from the evidence that the claimant’s job consisted of repetitive traumatic activity or that there was any causal relationship between her asserted injuries and her job. While the evidence supported a degree of repetitive-type activity in sorting, tagging, and handling of clothing, the hearing officer was not convinced that it showed the claimant was engaged in repetitive traumatic activity at work giving rise to an occupational-type disease (including the term repetitive trauma injury) as defined in Section 401.011(34) and (36). See Davis v. Employers Insurance of Wausau, 694 S.W.2d 105 (Tex. App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.). He did not find the job activities to be other than ordinary. In this regard, there was evidence of breaks in the routine duties of handling the clothing through the various processes of sorting, inspecting, tagging, pricing and placing on a rack. Also, there was the evidence of the x-rays indicating a calcification problem, and the MRI showing degenerative disc disease. The hearing officer also could consider the claimant’s prior medical conditions and the described onset of symptoms in the instant situation in arriving at his finding of no compensable repetitive traumatic injury.
The claimant in a workers’ compensation case has the burden to prove by a preponderance of the evidence that he 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). Reed v. Aetna Casualty & Surety Company, 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref’d n.r.e.). The hearing officer, under the 1989 Act, is the sole judge of the relevance and materiality of the evidence and of its weight and credibility. Section 410.165(a). He or she resolves conflicts and inconsistencies in the evidence, including medical evidence, and judges the weight to be given to the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ); Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). To this end, the hearing officer as fact finder may believe all, part, or none of the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex. 1986). The testimony of a claimant as an interested party only raises an issue of fact for the hearing officer to resolve. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d
619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer’s decision, we will reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). We do not find that to be the case here and conclude there is sufficient evidence to support the findings and conclusions arrived at by the hearing officer. Accordingly, the decision and order are affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Judy L. Stephens – Appeals Judge
Dorian E. Ramirez – Appeals Judge