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 September 2, 1999, in_____, Texas, with ___________presiding as hearing officer. The issues involved whether the appellant (claimant) sustained a compensable injury on ____________; whether she had disability from this injury; and whether the respondent (carrier) waived the right to dispute compensability of the injury because a dispute was not filed within 60 days.
The hearing officer held that the claimant did not sustain a new injury on ____________, and that her inability to work after ____________, was not the result of a compensable injury so there was no disability. The hearing officer further held that the carrier timely filed a dispute.
The claimant has appealed, arguing that she injured her right wrist, arm, and shoulder on ____________, while performing a job that was against her medical restrictions. General disagreements are filed to findings against the claimant on disability and carrier waiver. The carrier responds that the claimant’s pain was a continuation of her ____________, injury. The carrier asserts that its Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) was filed on January 8, 1998, within 60 days after it received notice that the claimant was asserting a ___________injury.
DECISION
Affirmed.
The claimant was employed by Trane Unitary Products Group (employer). By way of background, it was established that she injured her right wrist on ____________; she was diagnosed with De Quervain’s syndrome. She was treated conservatively and released with restrictions. As a result, the claimant was assigned to a different job. That particular job ended and she was then sent to work on another machine, which ended on ____________, when she was laid off.
The claimant said that on ____________, as she was unloading some pressure shells, she felt a shooting pain up her right arm. She said she had been working on this machine, a continental washer, for three hours that day when this occurred. She said she reported to her boss that she had a new injury. According to the claimant, she was laid off when she complained of pain and was told there was no other job available to accommodate her pain.
The claimant had surgery on April 28, 1998, for De Quervain’s syndrome and TMC joint pain. When asked if anyone had told her that she had a new injury after ____________, separate and apart from her previous condition, the claimant was somewhat nonresponsive, replying about her doctor’s recommendation for surgery. The claimant returned to work on July 5, 1999. She said that prior to that time, her employer did not have a job for her. However, she generally testified that she also searched for, but could not find, other employment. The record includes various releases, with a few restrictions, prior to_______.
The claimant could not identify the record she stated constituted written notice of the ____________, injury to the carrier, responding generally that the carrier was receiving her medical reports. She filed an Employee’s Notice of Injury or Occupational Disease & Claim for Compensation (TWCC-41) in mid-December 1997 that claimed an injury had occurred on_____________.
Medical records show that before the claimed ___________injury, the claimant was being regularly treated by Dr. S (Dr. S) for her De Quervain’s syndrome. On___________, Dr. S recorded that the claimant was very upset with her supervisor, who she felt was deliberately placing her in hard jobs. Dr. S noted she was having discomfort in her wrist.
Two fitness-for-duty summaries, dated November 6th and 13th, show that the claimant was to continue under a full-duty release, wearing a thumb splint. On November 19, 1997, the claimant signed a form stating that she believed she could perform the essential functions of her job. This form identified the date of injury as _____. On ____________, her response on the same type of form was that she could not perform her job due to wrist pain.
The surgery that the claimant had was performed by Dr. L (Dr. L). Dr. L’s report of February 10, 1998, records a date of injury of ____________; however, his report states that on ____________, she reinjured her wrist and had severe pain and discomfort. Essentially, all of Dr. L’s records show the date of injury as ____________, as do the records of the claimant’s chiropractor, Dr. C (Dr. C).
The employer’s clinic records show just that the claimant, on ____________, was routinely evaluated for her work status. On November 13th, the claimant complained that wearing her thumb splint was causing hand pain, but was told that she was required to wear this while working.
The carrier put into evidence a TWCC-21 form that was dated January 8, 1998, but the copy in evidence was not date-stamped by the Texas Workers’ Compensation Commission. On January 8, 1998, the claimant filed a request for change of treating doctor to Dr. C, away from Dr. S; this form stated that her date of injury was ____________, and this assertion is also made in the text of the reasons why she sought a change. The claimant testified that she knew before her surgery that the carrier was disputing, and continuing to pay medical benefits under her ____________ injury date.
When there is an earlier injury than the one asserted and it impacts the same area of the body, the hearing officer will be faced, if a dispute arises, with determining whether the recurrence of pain is a continuation of the previous injury or results from a new injury. In this case, we cannot agree with the claimant that the hearing officer’s determination of these issues was against the great weight and preponderance of the evidence. The records show a continuing sequence of pain and treatment of a ____________ injury. As the hearing officer noted in his decision, the claimant’s request to change her treating doctor makes no mention of the asserted new injury.
On the matter of timely dispute, the hearing officer stated a few times at the CCH that he wanted the claimant to clearly identify a document earlier than her TWCC-41 which clearly identified that a new injury had occurred and would constitute written notice of injury. She could not do so. Whether the TWCC-21 was date-stamped or not, the hearing officer could still choose to believe that it had been filed proximate to the date it was completed and that this was well within 60 days after the TWCC-41 was received by the carrier.
The hearing officer is the sole judge of the relevance, the materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza. This is equally true of medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). An appeals level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would 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); American Motorists Insurance Co. v. Volentine, 867 S.W.2d 170 (Tex. App.- Beaumont 1993, no writ).
For these reasons, we affirm the decision and order of the hearing officer.
Susan M. Kelley – Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
Judy L. Stephens – Appeals Judge