On __________, a contested case hearing (CCH) was held in _______, Texas, with ____________ presiding as the hearing officer. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issues at the CCH were whether the appellant (claimant) sustained an injury to her stomach in addition to her back on __________, and whether the respondent (carrier) timely contested compensability of the claimed stomach injury. The claimant appeals the hearing officer’s decision that her stomach condition is not a result of her fall on __________, and that the carrier timely contested compensability of the stomach condition. The carrier requests affirmance.
DECISION
Affirmed.
The claimant fell at work on __________. In Texas Workers’ Compensation Commission Appeal No. 950541, decided May 22, 1995, a copy of which was made a part of the hearing record, we affirmed a hearing officer’s decision that the claimant did not establish that her “gynecological condition resulted from her __________, injury.” In Appeal No. 950541, we noted that the claimant stated in relation to her ________ injury that she had vaginal bleeding immediately after the fall as well as abdominal pain and swelling. A September 7, 1991, medical report noted that the claimant was constipated. The claimant testified at the December 15, 1995, CCH that she was off work for her ________ injury until September 15, 1991, when she was released for light-duty work. She further testified that on _____________, she slipped on a wet floor at work and landed on her back. She said that as a result of the ____________ fall she “developed” abdominal swelling, a back injury, and rectal bleeding. She testified that prior to ___________, she did not have any problems with her stomach. The claimant referred to her claimed stomach injury as a “bloated stomach.” The claimant’s sister testified that the claimant has been bloated ever since the accident of ___________.
Dr. M (Dr. M), a neurologist, treated the claimant for her _____ and _______ injuries. In numerous medical reports following the ________ injury, Dr. M mentioned that the claimant complained of back pain and abdominal discomfort, which Dr. M referred to as “persistent abdominal distention.” In January 1992 he reported that, as a neurologist, he was not in a good position to render an opinion as to whether or not the claimant’s abdominal complaints are related to her fall on _________. He opined that the claimant should see a gynecologist. An MRI of the claimant’s lumbar spine done on October 29, 1991, showed a bulging disc at L4-5, without a herniation, fracture, slippage, hemorrhage, or intradural tumor. Dr. Chandrasekharran (Dr. C) reported in February 1992 that he could not find significant objective findings to suggest that the claimant had any orthopedic abnormality when he examined the claimant and reviewed her diagnostic tests.
In May 1992, Dr. F(Dr. F) wrote that he had initially seen the claimant on September 17, 1991, for menorrhagia and for mild-to-moderate asymptomatic pelvic relaxation. He noted that on May 12, 1992, the claimant presented to him with complaints of pelvic and abdominal discomfort. He also said that the claimant has urinary stress incontinence. He stated that “this condition is possibly a result of child birth trauma.” In June 1993, Dr. A (Dr. A), who practices internal medicine, saw the claimant for complaints of abdominal pain. He stated: “My impression diagnosis is that the patient probably has Irritable Bowel Syndrome, Gastroesophageal reflux; we need to rule out lactose intolerance.” Dr. A noted that EMG and nerve conduction studies done in November 1991 were normal. Dr. P (Dr. P) wrote in August 1992 that he examined the claimant for complaints of abdominal distention and discomfort and he stated: “On the basis of a normal gynecological examination and a normal pelvic ultrasound evaluation, I do not believe that her complaint is gynecologic or has a pelvic origin.”
The carrier represented that Dr. O (Dr. O) was a designated doctor. In a report dated October 9, 1993, Dr. O stated a date of injury of _________, and reported that the claimant had reached statutory maximum medical improvement with an 11% impairment rating. Impairment was assigned for a specific disorder of the lumbar spine and loss of lumbar range of motion. Dr. O, who stated that he was an orthopedic surgeon, noted that the claimant told him that a few hours after her fall on _________, her stomach started bloating up. Dr. O wrote that his examination of the claimant’s stomach did not reveal any abnormality and that he did not see any objective evidence of pathology with respect to the claimant’s abdomen.
Dr. T (Dr. T) reported that a gallbladder ultrasound examination the claimant had in July 1994 did not demonstrate sonographic evidence of cholelithiasis or cholecystitis, but the findings of the visualized portions of the liver may represent mild diffuse fatty infiltration. Dr. T also reported that the findings of a barium enema examination the claimant underwent in July 1994 were normal, and that the findings of a gastrointestinal examination the claimant also underwent in July 1994 were within normal limits. The claimant underwent an esophagogastroduodenoscopy examination in March 1995 and Dr. R (Dr. R), who performed that examination, diagnosed gastritis, duodenitis, and esophagitis. In a letter dated April 25, 1995, Dr. R wrote that he evaluated the claimant for abdominal discomfort, that “her symptom complex is believed to be secondary to irritable bowel syndrome and increasing constipation,” that the claimant claimed to have had a fall at work and injured her back, that the claimant “noted increasing constipation with bloating discomfort since that time,” and that “the patient’s symptoms are probably related to the injury due to her pain, as well as medications she requires.” In a letter dated July 24, 1995, Dr. M wrote that he has seen the claimant for “her back injury and this has been associated with abdominal distention and G.I. problems which I believe are related to the same injury, which she suffered while working for [employer].” He stated that “the above has also been supported by [Dr. R] who is a gastroenterologist.”
With respect to the issue of whether the claimant sustained an injury to her stomach, in addition to her back, on _________, the hearing officer found that the claimant did not suffer a stomach injury on _________, and concluded that the claimant’s stomach condition was not the result of a fall on _________. The claimant had the burden to prove the extent of her injury. Texas Workers’ Compensation Commission Appeal No. 951378, decided September 29, 1995. The hearing officer is the judge of the weight and credibility of the evidence, resolves conflicts in the evidence, and is free to believe all, part, or none of the testimony of any witness. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. Whether the claimant’s bloated stomach condition, which appears to have finally been diagnosed as being secondary to irritable bowel syndrome and constipation, resulted from her injury of _________, was a fact question to be resolved by the hearing officer from the evidence presented at the CCH. Generally, opinion evidence of expert medical witnesses is but evidentiary and is not binding on the trier of fact. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.). There is conflicting evidence on the issue regarding the claimant’s stomach condition. While the claimant testified that she did not have any problems with her stomach prior to _________, we noted in Appeal No. 950541, supra, that the claimant stated at the CCH on her _________, injury that she had abdominal pain and swelling after that accident. In 1995, Dr. R diagnosed the claimant as having constipation, but the claimant was also diagnosed as having constipation a few weeks before her accident on _________. Dr. R’s letter of April 25, 1995, states that “the patient’s symptoms are probably related to the injury due to her pain, as well as medications she requires.” However, in considering the weight to be given to Dr. R’s opinion, as well as Dr. M’s opinion of July 24, 1995, which appears to rely on Dr. R’s opinion, the hearing officer could consider that nowhere in his April 24, 1995, letter does Dr. R state whether he is referring to the injury of _________, or the injury of _________. In addition, in referring to medications the claimant requires, Dr. R does not state what the medications are nor does he state for what condition or conditions the medications are taken. As the trier of fact the hearing officer judges the weight and credibility to be given to the expert medical testimony. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). We conclude that the hearing officer’s decision that the claimant’s stomach condition is not the result of her fall on _________, is supported by sufficient evidence and is not against the great weight and preponderance of the evidence.
With respect to the issue of whether the carrier timely contested compensability of the claimed stomach injury, the hearing officer decided that the carrier timely contested the stomach condition. Section 409.021(c) provides in part that “[i]f an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability.” Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.6(c) (Rule 124.6(c)) provides in part that “[i]f a carrier disputes compensability after payment of benefits has begun, the carrier shall file a notice of refused or disputed claim, on or before the 60th day after the carrier received written notice of the injury or death.” Rule 124.1(a)(3) provides that written notice of injury may consist of “any other document, regardless of source, which fairly informs the insurance carrier of the name of the injured employee, the identity of the employer, the approximate date of the injury, and facts showing compensability.” We have held that whether a written notice “fairly informs” the carrier of facts showing compensability is a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 950151, decided March 15, 1995.
The claimant relies on a letter dated September 23, 1991, from Dr. M to the carrier as the first written notice to the carrier of her claim of a stomach injury. In that letter Dr. M wrote that he saw the claimant on September 23, 1991, for a neurological consultation, that the claimant told him that she had suffered a second injury on _________, when she slipped and fell on a wet floor at work and landed on her back, that the claimant told him that she had been complaining of increased pain in her neck, mid back, and low back since the accident, and that the claimant is feeling bad because of the intensity of the pain. Dr. M then stated that “[t]he patient states she has also developed a bloated abdomen.” Dr. M did not refer again to the claimant’s stomach in his letter. He stated his impression of the claimant’s condition as “[claimant] has developed neck, mid and lower back pain secondary to the work related injury yesterday.” The hearing officer found that Dr. M’s letter of September 23, 1991, did not contain facts showing compensability for a bloated abdomen. Since Dr. M did not relate the claimant’s complaints of a bloated stomach to her injury of _________, in his letter of September 23, 1991, we conclude that the hearing officer’s finding is supported by the evidence and is not against the great weight and preponderance of the evidence. Thus, Dr. M’s letter of September 23, 1991, would not constitute written notice of a stomach injury as contemplated under Rule 124.1(a)(3).
The September 23, 1991, letter of Dr. M bears a date stamp of September 27, 1991; however, the name of the person or entity which date stamped the letter is not evident from the date stamp, and no evidence was presented as to who date stamped the letter. In a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) dated November 26, 1991, which stated a date of injury of _________, the carrier stated that its first written notice of injury was received on September 30, 1991. The hearing officer found that the carrier received Dr. M’s letter of September 23, 1991, on September 30, 1991. The carrier wrote on the TWCC-21 that it does not contest the compensability of the back injury, but that it refused to pay for the claimant’s abdominal and gynecological problems and that it did not see any relationship between the workers’ compensation injury and those problems. According to a Commission record which was in evidence, the TWCC-21 was received by the Commission on December 2, 1991.
The hearing officer correctly determined that the 60th day after September 30, 1991, was Friday, November 29, 1991, and that November 29, 1991, was a state holiday, the day after Thanksgiving Day. Rule 102.3(a) relates to due dates and time periods for filings and notices required under the 1989 Act, and paragraph (3) provides that, if the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to include the next day that is not a Saturday, Sunday, or legal holiday. We have held that Rule 102.3(a)(3) applies to the filing of a TWCC-21. See Texas Workers’ Compensation Commission Appeal No. 94798, decided July 26, 1994. Thus, under Rule 102.3(a)(3) the time period for filing the TWCC-21 was extended to Monday, December 2, 1991, which was the day the TWCC-21 was filed with the Commission.
We conclude that the hearing officer’s findings that the carrier received Dr. M’s letter of September 23, 1991, on September 30, 1991, and that the carrier disputed compensability of the stomach condition on December 2, 1991, are supported by sufficient evidence and are not against the great weight and preponderance of the evidence. Consequently, even if Dr. M’s letter of September 23rd gave written notice of a stomach injury related to the claimant’s accident of September 21st, which we conclude it did not, the carrier’s contest of the compensability of the abdominal problem on December 2, 1991, would have been timely filed with the Commission. We conclude that the hearing officer’ conclusion that the carrier timely contested the compensability of the claimant’s stomach condition is supported by sufficient evidence and is not against the great weight and preponderance of the evidence.
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Philip F. O’Neill – Appeals Judge