On July 21, 1999, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). With respect to the issues at the CCH, the hearing officer decided that respondent (claimant) sustained a compensable injury on Injury 3; that claimant had disability on February 2, 1999, and from February 8, 1999, through the date of the CCH; and that claimant is not barred from pursuing Texas workers’ compensation benefits. Appellant (carrier) requests that the hearing officer’s decision on the issues of injury, disability, and election of remedies be reversed and that a decision be rendered in its favor on those issues or, in the alternative, that the case be remanded. Claimant requests affirmance.
DECISION
Affirmed.
Section 401.011(10) defines “compensable injury” as ” an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.” Section 401.011(16) defines “disability” as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” In workers’ compensation cases, the issues of injury and disability may generally be established by the testimony of claimant alone. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e). Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980), states that the election doctrine may constitute a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice, and that one’s choice between inconsistent remedies, rights, or states of facts does not amount to an election which will bar further action unless the choice is made with a full and clear understanding of the problems, facts, and remedies essential to the exercise of an intelligent choice.
Claimant testified that on Injury 3, he was working as an electrician for Alliance Electrical, Inc. (employer), when he picked up and carried a 70- to 80-pound roll of wire and injured his lower back. He said he continued to work and had more back pain when he lifted a cart at work on January 29, 1999. Claimant went to Dr. H on February 2, 1999. Claimant said that he did not know why he used his wife’s health insurance to see Dr. H on February 2nd but that he was later told by his employer that workers’ compensation insurance would reimburse his wife’s health insurance. Dr. H’s records reflect that by February 8, 1999, claimant was seeing him under “work comp.” Claimant said that due to his severe back pain he has been unable to work since he last worked on February 5, 1999. In (injury 1), claimant had undergone a fusion at L5-S1 for a work-related back injury he sustained that year while working for a previous employer. Claimant said that he had not had back problems after his surgery and that he had last seen a doctor for his injury 1 back injury in (injury 2). Claimant’s wife testified that after claimant had his surgery in injury 1, claimant did not have back problems until he was injured at work on Injury 3, and that since then he has been unable to do many things.
Dr. H wrote on February 2, 1999, that claimant complained of ongoing lumbar pain that had begun three weeks ago and that claimant had had an L5-S1 fusion that did not cause a lot of problems. Dr. H diagnosed claimant as having severe lumbar muscle spasms, post-laminectomy syndrome, lumbar myofascitis, and facet arthrosis. Dr. H took x-rays and wrote that claimant’s fusion may have gone wrong, resulting in nerve irritation. Dr. H also wrote that claimant should be excused from work and that it was undetermined when he could return to work. On February 8, 1999, Dr. H noted that claimant was initially injured on Injury 3, when he carried the roll of wire at work. A lumbar MRI was done on February 10, 1999, and Dr. H wrote that claimant needs to be referred to a back surgeon but that that referral had been denied. Dr. H noted on February 26, 1999, that carrier had denied claimant’s Workers’ compensation claim.
Carrier presented testimony and statements from supervisors and coworkers that claimant originally blamed his back problem on failed back surgery and not on an injury sustained while working for employer. Documents in evidence reflect several different dates of injury.
The hearing officer found that claimant did not make an informed decision to take group health insurance benefits instead of workers’ compensation insurance benefits; that claimant injured his back in the course and scope of his employment on Injury 3; and that, due to the work injury of Injury 3, claimant has been unable to obtain and retain employment at wages equivalent to his preinjury wage on February 2, 1999, and from February 8, 1999, through the date of the CCH. The hearing officer concluded that claimant is not barred from pursuing Texas workers’ compensation benefits because he did not make an informed election to receive benefits under a group health insurance policy instead of workers’ compensation benefits; that claimant sustained a compensable injury on Injury 3; and that, due to the compensable injury of Injury 3, claimant had disability on February 2, 1999, and from February 8, 1999, and continuing through the date of the CCH. Carrier contends that the hearing officer’s findings and conclusions are not supported by sufficient evidence and are so against the great weight and preponderance of the evidence as to be manifestly unjust.
Claimant had the burden to prove that he was injured in the course and scope of his employment and that he had disability. Carrier had the burden to prove an election of remedies. The disputed issues presented fact questions for the hearing officer to resolve from the evidence presented. With regard to the issue of election of remedies, the carrier has failed to articulate what manifest injustice results from claimant’s having used his wife’s health insurance to see Dr. H on February 2, 1999. The 1989 Act makes the hearing officer the sole judge of the weight and credibility of the evidence. As the trier of fact, the hearing officer resolves conflicts in the evidence and may believe all, part, or none of the testimony of any witness. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. We conclude that the hearing officer’s decision is supported by sufficient evidence and that it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Judy L. Stephens – Appeals Judge