This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On November 7, 1995, a contested case hearing (CCH) was convened (apparently in Eagle Pass, Texas). As the appellant (carrier) had not appeared at that proceeding, the hearing officer admitted certain exhibits, took testimony from the respondent (claimant), and “adjourned” the hearing, leaving the record open in order to allow the carrier to submit evidence showing good cause for its failure to appear. The proceeding was reconvened on December 6, 1995. The issues were:
Does the Claimant currently have a lower back condition as a natural result of the compensable injury on __________?
With the hearing officer’s approval for good cause, at the request of the Claimant, the following additional disputed issue was added at the initial November 7, 1995, proceeding:
Was the Carrier’s contest of compensability based on newly discovered evidence that the Carrier [sic] to reopen the issue of compensability of the lower back condition?
The hearing officer determined that claimant’s lower back condition was a natural result of a compensable injury on ___________, and that the carrier’s contest of compensability was not based on newly discovered evidence that could not reasonably have been discovered earlier.
Carrier contests the hearing officer’s determinations regarding the relationship of claimant’s low back problem to the compensable injury and for the first time on appeal contests the addition of a new issue (after having offered evidence and arguing that issue at the CCH) alleging that claimant had not met “her burden of proof in showing good cause to allow the second issue before the Hearing Officer.” Claimant did not file a response.
DECISION
Affirmed.
Because of some allegations in carrier’s appeal, it is necessary to recite some of the procedural history of this case. The benefit review conference (BRC) was held on August 11, 1993, and subsequently a CCH was set for October 10, 1995. Carrier requested a continuance due to a pending criminal case. The hearing officer, in an Order granting the continuance, dated October 6, 1995, rescheduled the hearing “to November 7, 1995 at 1:00 p.m. . . . __________, Texas.” A copy of that order was sent to carrier’s attorney and carrier’s registered Austin representative (see Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 156.1 (Rule 156.1)). Carrier, in a letter dated October 31, 1995, opposed claimant’s request, dated October 27, 1995, to add an issue of timely contest by the carrier on the grounds that it had not been discussed at the BRC and carrier would “be unable to adequately prepare for the CCH.” Nonetheless, as previously indicated, carrier did not appear at the appointed time on November 7, 1995. The hearing officer commenced the hearing, admitted certain exhibits, and, at the request of claimant, added the second issue. The hearing officer received evidence and argument from the claimant, telling claimant that she could present whatever she wanted, “knowing there will be a second round.” At the conclusion of claimant’s argument, the hearing officer “adjourned” the hearing, leaving the record open for the carrier’s show cause hearing. Carrier, by letter dated November 9, 1995, apologized for missing the hearing, stated “I did not receive written notice of the Hearing,” and said that she thought the hearing was to have taken place at 3:00 p.m. (instead of 1:00 p.m.) on November 7, 1995. The hearing officer entered an “Order Re-Docketing Contested Case Hearing” on November 22, 1995, resetting the hearing for December 6, 1995, in __________, with the claimant “to appear by teleconference.” The “re-docketed” hearing commenced, as scheduled, with carrier making no objection to the process or the announced issues, including the issue of carrier’s timely contest of compensability. Carrier waived its opening statement and called claimant as a witness. The hearing officer reminded claimant that she was still under oath from the previous hearing, making it clear that he regarded the December 6, 1995, proceeding as a continuation of the November 7, 1995, hearing. Carrier’s attorney, in her closing argument, after addressing the first issue (whether the low back condition was related to the compensable injury), stated, “[a]s to the second issue,” then restated the issue and proceeded to outline “carrier’s position.” Other than the October 31, 1995, letter, carrier nowhere objects to the addition of the second issue. Further, carrier’s October 31st letter could be read to be objecting to the inclusion of the second issue on the basis that carrier, at that time, did not have time to adequately prepare for that issue.
On the merits, claimant testified that she had been employed in some capacity at a fast food restaurant and that in the early morning hours of ____________, as she was standing near the drive-through window, she was struck in two places by a large rock (or rocks) which were thrown into or through the window. Claimant said that either she was knocked to the floor or fell to the floor after being hit in the back twice. Claimant said that she went to a nearby clinic where she was diagnosed with a lumbar sprain with contusions and tenderness in the thoracic area. Claimant said she had physical therapy and work hardening that summer (1991) before she moved from Austin to Del Rio. In Del Rio carrier referred claimant to Dr. L (Dr. L), who became claimant’s treating doctor. The record contains progress notes from Dr. L for September and October 1991 and then again beginning in May 1992. Claimant testified that she returned to work in 1992 at a large grocery chain as a part-time cashier, working 18 hours a week. Claimant testified her back injury limited her to the 18 hours part-time employment.
The medical evidence includes a report dated September 1, 1991, from Dr. L, where he diagnosed “[t]horacolumbar strain rule out HNP.” In a September 23, 1991, progress note, Dr. L notes a lumbar MRI “is basically normal.” An October 7, 1991, progress note indicates “minor parasthesias” in her legs. A May 11, 1992, progress note indicates “recurrence” of her pain, and that claimant has lost a “TENS unit” which had been helpful. Progress notes of June, July and August 1992 reflect the same complaints. A May 17, 1993, progress note refers to a discogram which was read as showing “a degenerative herniated disk” and concludes “[t]here is without a doubt a herniation.” The note recommends epidural steroid injections and clearly references the “L5/S1” area of the back. A September 29, 1994, progress note states:
she may have to consider the possibility of a surgery. Her MRI is more impressive than the discogram proved, but I think that the MRI, itself, is diagnostic. She’s going to talk with her husband and see whether she wants to try another epidural or if she wants to go the surgical route. We have received questions from the adjustor as to whether or not her old injury is still causing the problem or the new job. The patient describes no change in her pain, really perhaps a little worsening in the last few months, but the pain has basically been the same throughout. . . . I, therefore, think it is probably all still related to her original injury. [Emphasis added.]
In an October 20, 1994, note, Dr. L states:
She’s gone through everything that can be done including therapy, work hardening, epidurals, discography. We have, at most, a borderline abnormal L5-S1 disc, but I think enough abnormality and enough response to the epidurals that this localizes her problem. . . . I would agree with the recommendation for surgery. I would probably recommend an L5-S1 laminectomy discectomy and PLIF with bilateral lateral fusions. . . . If they do require a second opinion, I have told them to tell me who it’s with so we can try to make sure they don’t get someone that doesn’t do back surgery and get her at least a legitimate opinion.
The record contains an undated Report of Medical Evaluation (TWCC-69) from Dr. L certifying maximum medical improvement (MMI) on September 23, 1991, with a zero percent impairment rating (IR). (In view of Dr. L’s other notes, an obviously very early TWCC-69.)
Claimant was referred to Dr. C (Dr. C) for a second opinion on spinal surgery. In a November 21, 1994, report, Dr. C does not agree with the proposed surgery. In that report, in the recommendation section, Dr. C remarks:
I would further add that it is difficult for me to understand why a rock that hit her in the middle of her back would cause an L5-S1 disc degeneration, particularly when the first two to three months of her treatment was marked by a lack of symptomatology related to the low back and to the leg according to all of the records available for my review.
Based on that remark, carrier denied compensability for claimant’s lumbar condition, contending Dr. C’s report is new medical evidence, in a Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) dated December 27, 1994. In another TWCC-21 dated January 24, 1995, carrier controverts liability for treatment or surgery to the herniated disc at L4-5. Dr. C’s November 21, 1994, report was sent to Dr. L, who responded in a December 29, 1994, report and letters of the same date to Dr. C and the Texas Workers’ Compensation Commission (Commission) that as a result of Dr. C’s comment, claimant is now “without coverage,” that he (Dr. L) is still of the opinion that claimant needs surgery and that a “new MRI” shows further deterioration with verified “3 mm herniations” at both the “5-1″ and 4-5” levels.
The hearing officer, in a thorough discussion, citing several Appeals Panel decisions, concluded that carrier had “never contested compensability nor medical benefits until [Dr. C] added his one sentence in his report.” The hearing officer states that “[t]his hardly constitutes newly discovered evidence” as carrier was well aware that Dr. L considered the low back as part of the original injury as early as 1993 and that carrier “cannot bypass its lack of due diligence” by alleging information regarding claimant’s back condition was not discoverable until Dr. C wrote his spinal surgery second opinion in November 1994.
Carrier appeals the hearing officer’s determinations about the compensability of claimant’s low back injury, pointing to Dr. L’s early September 1991 report and notes and Dr. C’s November 1994 report. Carrier states that with that medical evidence “a logical and reasonable conclusion is that Claimant’s low back complaints are not related to the injury in June 1991.” The hearing officer disagreed, and we find ample evidence to support those determinations. Although initially, in the summer of 1991, the doctors believed claimant had only suffered a strain or sprain, a series of progress notes trace claimant’s worsening condition, conservative treatment and efforts to alleviate the problem. Dr. L stresses that claimant has two herniations and “a clear worsening of her condition which has been a gradual progressive deterioration since her original treatment.” At most, we view the evidence as being in conflict. Whether there is a relationship of an injury to a compensable accident is essentially a factual determination. Section 410.165(a) provides that the hearing officer, as the fact finder, is the sole judge of the weight and credibility that is to be given to the evidence. It was for the hearing officer, as the trier of fact, to resolve any inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). 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). We find the hearing officer’s determinations to be supported by the evidence, principally Dr. L’s recent reports and claimant’s testimony.
Carrier also contends that there was error on the part of the hearing officer in allowing claimant to add “a new issue not raised at the [BRC]” and that the hearing officer “did not allow the Carrier to present any evidence concerning the new issue.” The record does not disclose that carrier in any way objected to the procedure at the December 7th CCH nor was carrier in any way limited in the evidence it could present. When the hearing officer referred to the second (December 7th) session as a continuance, carrier failed to object and now, for the first time (other than in the October 31, 1995, letter), objects to the addition of a new issue. In fact, as previously noted, carrier specifically argued this point on the merits, contending that it first learned of claimant’s herniated discs from Dr. L’s December 29, 1994, report and that carrier then filed a timely controversion. No objection was made to adding the issue at the CCH. Not having objected to the addition of a new issue, carrier has failed to preserve any objection it may have had on appeal and the Appeals Panel has frequently stated that it does not consider issues raised for the first time on appeal. Texas Workers’ Compensation Commission Appeal No. 931028, decided December 23, 1993, and cases cited therein. Consequently, we find carrier’s contentions on this point without merit.
Finally, carrier, in almost an afterthought, contends that Dr. C’s report was newly discovered evidence in that the “report was the first indication that claimant’s low back complaints were not related to the claimed injury, and thus the carrier timely contested the low back injury.” We reject carrier’s contention in that the hearing officer determined that carrier was aware that claimant’s low back problems were a continuation of the original injury in ________, based on one of Dr. L’s progress notes. Once carrier became aware of claimant’s contention, carrier had an obligation to investigate that contention and dispute it or not. Carrier cannot wait months and years knowing about claimant’s contention and, when it finally obtains a favorable report, contest compensability based on newly discovered evidence. Carrier could have had claimant examined much earlier. We find that the hearing officer did not abuse his discretion in determining, in essence, that the carrier was unreasonably dilatory in pursuing information on which it could base a dispute of compensability. See Texas Workers’ Compensation Commission Appeal No. 931112, decided January 21, 1994.
The decision and order of the hearing officer are accordingly affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Judy L. Stephens – Appeals Judge