Following a contested case hearing held on June 16, 1999, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, resolved the disputed issue by concluding that the appellant (claimant) does not have disability resulting from the injury sustained on _______. Claimant has appealed, urging that his evidence established that the work-related back injury of _______, aggravated his preexisting back condition and thus that he did have disability from the compensable injury. The respondent (carrier) urges that the evidence is sufficient to support the challenged findings and conclusion.
DECISION
Affirmed.
The parties stipulated that on _______, claimant sustained a compensable injury to his low back. Claimant testified through a Spanish-language interpreter that on that date, as he was pushing on a cart at work, he felt pain in his low back; that although he also lifted five or six packs of roof tiles on that date, “the principal pain was with the cart”; that he had worked for the employer for 12 years without previous back pain; that after first being treated by Dr. H, he received treatment from Dr. SA; that he underwent back surgery at (hospital) on September 14, 1998, by Dr. K, followed by radiation therapy; that he subsequently resumed treatment from Dr. SA; that he has not been able to work since _______, because of his back pain; and that Dr. SA, whom he sees several times a week, wants to return him to work.
Dr. H’s August 20, 1998, record of claimant’s July 16th visit reflects that claimant was 74 years of age on _______; that claimant gave a history of lifting several packs of roof tiles about two months ago and developing a sharp pain in the right lower back; that lumbar spine x-rays showed severe hypertrophic changes of the lower dorsal and lumbar spine with evidence of an old compression fracture of L1; and that he had claimant off work from July 16 to July 31, 1998.
Dr. SA’s report of claimant’s August 10, 1998, visit states that claimant complained of constant sharp pain in the lumbar spine with radiation into the left leg; and that Dr. SA’s impression was a lumbar nerve root compression injury. Dr. SA’s August 15, 1998, record has claimant off work. Dr. SA’s records further reflect that he obtained an MRI on August 20, 1998, which showed a compression fracture of the L1 vertebral body consistent with a pathologic fracture lesion and that the radiologist was concerned about intrinsic marrow disease, primary bone or marrow tumor, or an infectious process. The MRI also showed diffuse degenerative disc disease of the lumbar spine with associated discal bulging at L4-5 and L5-S1.
The September 2, 1998, report of Dr. S, to whom claimant was referred by Dr. SA, reflects that he suspected the L1 lesion was a metastasis and that a September 4, 1998, needle biopsy of the right lung revealed large cell carcinoma.
The hospital records reflect that an MRI on September 10, 1998, was read to show an L1 tumor; that claimant was admitted on September 14, 1998, with a diagnosis of metastatic tumor to the lumbar spine; that claimant underwent surgery for L1 vertebrectomy, L1-2 discectomy with removal of metastatic tumor, canal and cord decompression, and reconstruction; that claimant also has a tumor in the chest; and that Dr. M felt that the most likely explanation is primary lung cancer with metastasis to the bone.
Dr. SA wrote on December 21, 1998, that the fracture in claimant’s lumbar spine was related to his accident at work when he pushed a cart over a bump in the parking lot. Dr. K wrote Dr. S on May 13, 1999, stating that claimant’s stage IV lung cancer is being treated with chemotherapy and is stable but incurable and that claimant is released to Dr. SA for chiropractic treatment to alleviate his back pain “which is the source of his disability at present.” Dr. SA’s note of April 1, 1999, states that claimant may not return to work until further notice and remains disabled at this time. Dr. SA wrote, apparently on June 7, 1999, that claimant “remains disabled due to back pain and treatment related to back pain” and that he is “not disabled at this time due to cancer.” Dr. SA wrote on June 14, 1999, that “throughout this time he’s off of work due to back pain not cancer.”
Dr. NA, an occupational medicine specialist and an associate professor of medicine at a Texas medical school, reported to the carrier on March 25, 1999, that he reviewed claimant’s medical records; that the August 20, 1998, x-ray findings were consistent with a pathologic fracture caused by tumor; that claimant’s malignancy and its metastasis is an ordinary disease of life; that the L1 vertebral body was already compressing because of the destructive nature of the metastatic tumor; and that, in his opinion, based on reasonable medical probability, claimant’s vertebral compression was caused by the metastatic tumor and not by the trivial injury at work on _______. Dr. NA further stated the opinion that the tumor, not the injury, is responsible for any impairment claimant may presently have.
In addition to the dispositive legal conclusion, claimant disputes factual findings that there is no persuasive evidence that the claimed incident of _______, accelerated or worsened the effects of the cancer-induced tumor, and that claimant’s disabling back conditions are the result of the cancer-induced tumor and not of the compensable incident of _______. Claimant contends that the evidence shows that before _______, he had no back pain but that after that date he did and thus it is clear that the incident of pushing the cart over the bump at work aggravated his preexisting condition and resulted in his disability. The Appeals Panel has long since recognized that the aggravation of an existing condition may be a new compensable injury in its own right. Texas Workers’ Compensation Commission Appeal No. 91038, decided November 14, 1991. However, to be compensable, the aggravation must be more than a recurrence or remanifestation of symptoms of the prior injury (or condition) that have not completely resolved and there must be some enhancement, acceleration, or worsening of the underlying condition from the new injury (Texas Workers’ Compensation Commission Appeal No. 94428, decided May 26, 1994).
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). As can be seen, disability, by definition, depends upon there being a compensable injury. The parties stipulated that claimant did sustain a compensable low back injury on _______. Claimant contended that his inability to obtain and retain employment resulted from the low back pain caused by his pushing on the cart on _______, while the carrier contended that claimant’s disabling back pain was from his lung cancer which had metasticized to his lumbar spine at L1. The carrier did not overtly assert a sole cause defense in this regard, a defense for which it would have the burden of proof, but appeared to rely on claimant’s lack of evidence to prove that his disabling back pain was caused by whatever injury was caused to his lumbar spine by pushing on the cart at work. The medical evidence was in conflict in this regard with Dr. SA taking one view and Dr. NA another. The hearing officer, who is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), must resolve such conflicts and determine what facts have been established (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). The Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Dorian E. Ramirez – Appeals Judge