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 July 20, 1999. Addressing the disputed issues, he determined that the respondent’s (claimant) compensable injury of ________, included the low back, and that she had disability from July 21, 1998, through July 20, 1999. The appellant (carrier) appeals these determinations, contending that they are against the great weight and preponderance of the evidence. The claimant replies that the decision is correct, supported by sufficient evidence, and should be affirmed.
DECISION
Affirmed.
The claimant worked in the shoe department of a retail store. She testified that the job involved repetitive stocking of shelves over her head and claims that she sustained a compensable repetitive trauma injury to her thoracic and lumbar spine on ________. The carrier does not dispute a thoracic spine injury. The claimant received medical care at a clinic on the date of injury and began physical therapy. The first reference to lumbar pain was in a medical record of September 17, 1998. On February 10, 1999, Dr. H wrote that “[t]he low back problem is probably secondary to the neck problem, but I feel both are related to the same basic injury. The neck problem was the worst when she had it at first, and therefore masked the low back pain.” On June 1, 1999, Dr. H suggested “a strong probability of a ruptured herniated disc on the right. . . .” In a Report of Medical Evaluation (TWCC-69) of November 30, 1998, (Dr. W), the designated doctor, wrote that the “etiology of her symptoms is chronic deconditioning especially with regards to her lower back.” In an interview on September 17, 1998, with the carrier, the claimant stated that at that time, the only areas of her body affected by the injury were her neck, shoulders, and left arm. She also said that she did not initially report a lumbar spine injury because at the time of the report it was not a “severe symptom.”
The claimant had the burden of proving she sustained a compensable lumbar injury as claimed. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Whether she did so was a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. The hearing officer considered the conflicting evidence and found that the claimant did sustain a compensable lumbar spine injury. In its appeal, the carrier stresses the late appearance of a lumbar spine injury in the medical records and Dr. W’s opinion, and argues that the decision of the hearing officer was “incorrect.” The hearing officer was the sole judge of the weight and credibility of the evidence. Section 410.165(a). We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance 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). Applying this standard of review to the record of this case, we find the testimony of the claimant and the opinion of Dr. H, deemed credible and persuasive by the hearing officer, sufficient to support his determination of this issue.
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.” Since the injury, the claimant has been placed in a light-duty status by various doctors. She said she continued working in this status until October 26, 1998, when the employer would no longer continue it. On this date, Dr. N, apparently a carrier-selected doctor, placed her in a full-duty status. In a report of October 9, 1998, Dr. T, at the clinic, also returned the claimant to full duty effective October 12, 1998. According to the claimant, this was done because an MRI was denied and Dr. T felt there was nothing else he could do. Other evidence from the clinic where Dr. T practiced reflects that the claimant was continued off work after October 12, 1998.
The carrier noted that the significance of disability after October 26, 1998, was minimal because Dr. W certified this as the date of maximum medical improvement. It argued that she essentially quit her job after October 23, 1998. It is clear that the claimant did some work after her injury, but did not earn the equivalent of her preinjury wage. The existence of disability is a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93560, decided August 19, 1993. He determined that her inability to earn her preinjury wage was from July 21, 1998, to July 20, 1999.[1] We find the evidence sufficient to support this determination.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Elaine M. Chaney – Appeals Judge
- The claimant has not appealed the ending date of disability. ↑