This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On August 25, 1999, a contested case hearing (CCH) was held. With regard to the issues before him, the hearing officer determined that appellant (claimant) had not sustained a compensable back injury on __________(all dates are 1999 unless otherwise stated), and that claimant did not have disability.
Claimant appealed, requesting we review certain findings of fact and conclusions of law and appeals the hearing officer’s ruling excluding claimant’s exhibit. Although not specifically stated, we will infer that claimant is requesting that we reverse the hearing officer’s decision and render a decision in her favor. Respondent (carrier) responds, generally urging affirmance.
DECISION
Affirmed.
The hearing officer, in his Statement of the Evidence, recites the evidence and testimony in some detail and we will repeat only so much as is necessary for this opinion. It is undisputed that claimant sustained a compensable low back injury, not at issue in this case, in (prior date of injury) and had spinal surgery in the form of a lumbar laminectomy in 1993, while working for another employer. Claimant’s treating doctor at that time and currently is (Dr. P). Dr. P’s medical records in evidence show almost monthly treatment and medication for back pain from August 1995 through April 1999.
Claimant testified that she had been employed as a lab technician at a hospital (employer) for about four months when on __________, as she was carrying a box of tissue samples she felt a pulling or snap in her back accompanied by a “burning sensation.” Claimant did not report her injury to the employer at that time (notice is not an issue) and continued to work. Claimant did miss some work around the middle of March because her 15-year-old son was in the hospital for surgery. Claimant also describes an incident where she reached out to keep her son from falling on March 23rd and a “nerve caught.” An “[o]ffice [n]ote” dated March 24th from Dr. P relates that claimant called him “at home last night.” The note goes on to say:
Is having severe back pain. It turns out that with her new job, she has been lifting boxes for some time and has had a gradually increasing back problem. Now is having severe low back pain and left lower extremity symptoms. She is asked to come in today to discuss this.
It sounds like she [possibly (possible)] has had a new injury at work and this needs to be reported?
Will see her again Monday as a New Injury case. [if accepted as such.] (Bracketed material is in doctor’s handwriting.)
Dr. P apparently took claimant off work on March 24th. The hearing officer notes that that office note makes clear that claimant “had not yet reported the claimed [__________] injury.” Handwritten notes in Dr. P’s records show claimant had not reported the injury as of March 26th but that she apparently did so on or about March 29th, with the employer contending that claimant’s back condition was related to the March 23rd incident when she kept her son from falling. A handwritten note of April 7th says claimant is in “horrible pain” and to use “work comp” or “her personal insurance if she has to.”
Apparently another incident occurred on April 14th where claimant felt a popping sensation followed by a burning sensation while changing some paper in a printer at work. This is apparently the subject of another workers’ compensation claim not at issue in this case. Claimant saw Dr. P again on April 21st and Dr. P has an impression that this is for a flare up “of old [(year)] back injury with surgery.” After briefly discussing that injury Dr. P goes on to say:
In the recent months she has had some symptoms, occasional medications, but she relates a history of a recent significant flareup at work on April 14, 1999. States she was changing some paper in a printer as she been [sic, bent] over, and she felt a popping in her low back and onset of an increased burning sensation. Also some symptoms down the left lower extremity with some aching and burning which have bothered her more since that time.
The hearing officer finds this report particularly significant because he mentions it in his Statement of the Evidence and in disputed Finding of Fact No. 15, where he states:
15.The incident of April 14 is significant in that the description of the problem is almost exactly the same as the description of the claimed injury of March 17, but there was no mention in the report of the claimed injury of March 17! [Emphasis in the original.]
Radiological studies were done on April 30th with an impression of “[d]egenerative change…..ost marked at L4-5.” That report states that there “are no prior films for comparison”; however, the hearing officer notes that the records contain an October 12, 1995, lumbar MRI which shows “[d]egenerative disc disease and mild annular bulging L4-5 with previous left laminectomy noted.” The hearing officer concludes that these reports “were exactly the same.” In evidence is an Employee’s Notice of Injury or Occupational Disease & Claim for Compensation (TWCC-41) listing an (date of injury) filed on May 6th.
At the CCH on August 25th, claimant offered a “Narrative Summary” dated August 5th, from Dr. P entitled “Establishment of New Injury.” Claimant represented that this narrative summary was not received until the date of the CCH “despite numerous attempts to obtain [Dr. P’s] clarification regarding causation.” Carrier objected to the offered exhibit as not having been timely exchanged and the hearing officer sustained the objection and excluded the report. Generally, claimant contends that Dr. P’s reports, notes and records diagnosed a flare-up/strain; however, the hearing officer determined:
FINDINGS OF FACT
17.There is no objective evidence of any new physical injury to the Claimant’s body at [sic] a result of a claimed injury of __________.
18.[Dr. P] diagnosed a lumbar pain flareup/strain in the report of April 21, but [Dr. P] never associated the possible strain with the claimed injury of March 17.
19.The Claimant has not shown by a preponderance of the evidence that she sustained an injury on __________.
Claimant requests that we review those and other findings of fact and conclusions of law. We have done so and hold that the appealed determinations are sufficiently supported by the evidence.
The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). While a claimant’s testimony alone may be sufficient to prove an injury, the testimony of a claimant is not conclusive but only raises a factual issue for the trier of fact. Texas Workers’ Compensation Commission Appeal No. 91065, decided December 16, 1991. The trier of fact may believe all, part, or none of any witness’s testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). In a case such as the one before us where both parties presented evidence on the disputed issues, the hearing officer must look at all of the relevant evidence to make factual determinations and the Appeals Panel must consider all of the relevant evidence to determine whether the factual determinations of the hearing officer are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Texas Workers’ Compensation Commission Appeal No. 941291, decided November 8, 1994. An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its own judgement for that of the trier of fact even if the evidence could support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). Only were we to conclude, which we do not in this case, that the hearing officer’s determinations were so against the great weight and preponderance of the evidence as to be manifestly unjust would there be a sound basis to disturb those determinations. In re King’s Estate, 150 Tex. 662, 224 S.W.2d 660 (1951); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Since we find the evidence sufficient to support the determinations of the hearing officer, we will not substitute our judgement for his. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.
Regarding claimant’s appeal of the hearing officer’s ruling excluding Dr. P’s August 5th report we have held that to obtain reversal of a judgment based on the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was, in fact, an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers’ Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). Section 410.161 permits introduction of documents not exchanged only if good cause is shown for not having disclosed the documents. The determination of good cause is within the sound discretion of the hearing officer and that determination can only be set aside if that discretion was abused. See Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). Section 410.160 of the 1989 Act and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.13 (Rule 142.13) require the exchange of information that may be used at the CCH. While we are cognizant that it is claimant’s contention that she only received the report the day of the CCH and had been diligent in attempting to obtain it earlier, we note the report is dated August 5th, almost three weeks prior to the CCH, and, further, it is the party’s responsibility to obtain any reports to be used at the CCH. In any event, we do not find that the exclusion of that exhibit was reasonably calculated to cause or probably did cause the rendition of an improper decision. Appeal No. 92241, supra.
Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. King, supra. We do not so find and, consequently, the decision and order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Elaine M. Chaney – Appeals Judge