This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On December 12, 1995, a contested case hearing (CCH) was held in ___________, Texas, with ________ presiding as hearing officer. The issues at the CCH were:
1.Whether Claimant has sustained a new compensable hearing loss injury,
2.Whether Claimant timely reported such alleged injury, or had good cause for any failure to do so,
3.What is the correct date of injury,
4.Whether Carrier has waived its right to dispute the compensability of such alleged injury,
5.What is Claimant’s correct impairment rating [IR], and
6.Whether Carrier is entitled to reduce Claimant’s benefits, based on contribution from a prior compensable injury.
The hearing officer determined that the claimant had not sustained a new compensable hearing loss injury, that claimant had not timely reported his alleged injury and did not have good cause for failing to do so, that claimant’s date of injury occurred prior to ____________ (apparently on ________________, according to the documentary evidence), and that carrier has not waived its right to dispute compensability of claimant’s alleged new injury. The hearing officer explained that since no designated doctor had been appointed, the issues for the IR and contribution “are unripe for decision at this time.” We would further note that since the hearing officer determined, in effect, that there was no new injury and the only date of injury was prior to _____________, neither the hearing officer nor we have jurisdiction of the case and the appointment of a designated doctor for assignment of an IR and contribution are non-issues and need not be decided, at this time.
Claimant’s form request for review indicates disagreement with certain of the hearing officer’s determinations, and reiterates claimant’s position. We will accept claimant’s appeal as requesting review of the sufficiency of the evidence and, inferentially, a request to reverse the hearing officer’s decision and render a new decision in his favor. Respondent, carrier, responds that the decision is supported by the evidence, and in any event, claimant “failed to cite the testimony in the [CCH] transcript to support his position.” (As noted above, we will consider claimant’s appeal as challenging the sufficiency of the evidence and will not further discuss carrier’s contention on this point.) Carrier requests that we affirm the decision.
DECISION
Affirmed.
The case was not presented in a chronological sequence; consequently, some of the dates do not logically track. It is undisputed that claimant had been employed by the employer for many years as an “operator” or “senior operator” working around “compressors” (very loud equipment and machinery). For some periods of time in the 1970s, employees may have worked around this equipment without hearing protection. In the past few years, at least since 1990, hearing protectors were required to be worn, and claimant testified that he has used the hearing protectors furnished by the employer since they became available and were required. Claimant had filed an “old law” workers’ compensation claim for hearing loss in _______________. Reports of September, October and December 1991 verify the hearing loss and assign a 15.3% high frequency neurosensory bilateral hearing loss (which would apparently translate to a six percent whole body IR under the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides). In a subsequent report, dated November 15, 1994, SC (Ms. C), an audiologist, conducted new tests, and commented that claimant’s “sensorineural hearing loss has worsened since 1991, particularly his speech understanding ability bilaterally.” The report goes on to state that the test results were explained to claimant, and it was recommended that claimant “be fitted with new hearing aids binaurally to compensate for his moderately severe to profound hearing loss.” The employer wrote claimant, by letter dated December 28, 1994, stating that according to the required annual hearing examination “There has been no change in either ear since the last check.” That letter is supported by an unsigned audiogram analysis also dated December 28, 1994.
RG (Mr. G), employer’s employee relations manager, testified that in early 1995 claimant expressed dissatisfaction about a proposed compromise settlement agreement (CSA) offered by carrier because another employee (of another company) with a similar hearing loss had received a larger settlement. Mr. G testified that there was no indication that claimant was alleging a new injury, and it was Mr. G’s understanding that they were talking about claimant’s old injury. Claimant, nonetheless, entered into a CSA on May 10, 1995, for $6000 based on a “17% bilateral hearing loss.” Claimant testified about a conversation he had with carrier’s adjustor on may 10, 1995, where claimant complained about his settlement and the adjustor refused to pay for new hearing aids. Claimant testified that the adjustor told him that claimant should file a new law claim (not clear whether it was to get more money or get a new hearing aid). Claimant, at the CCH and on appeal, contends that this conversation gave carrier notice of a new injury. Mr. G testified that claimant did not give notice to the employer of an alleged new injury until August 1995, and none of claimant’s testimony specifically disputed that. Claimant, at the CCH and on appeal, alleges that _____________, is the date of his new injury, being the date that he knew or should have known that the “new” hearing loss may be related to his employment, apparently referring to Section 408.008. Claimant continued working for the employer until July 20, 1995, when he went on terminal leave prior to his retirement on September 1, 1995.
Claimant filed an Employee’s Notice of Injury or Occupational Disease & Claim for Compensation (TWCC-41) dated July 28, 1995, with the Texas Workers’ Compensation Commission (Commission) on August 3, 1995. On the TWCC-41 the date of injury is left blank, but the section asking “When did you know disease was work related?” has a date of __________. _____________, is the date given that claimant was last exposed to the cause of the disease. Carrier filed a Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) dated August 9, 1995, showing the first written notice of injury to have been on ______________, denying the claim because “claimant did not sustain a compensable injury” and noting that claimant’s claim did not indicate a date of injury. A benefit review conference (BRC) was held on September 5, 1995, where carrier clearly disputed a compensable injury, timely notice to the employer and impairment. (We note the benefit review officer, and claimant, take the position that Ms. C’s audiology report of November 15, 1994, gave carrier notice of the new alleged hearing loss injury, but we observe that if that is so, carrier would have had notice of the injury six months before the date claimant alleges to be the date of injury, ______________).
Dr. K (Dr. K), apparently claimant’s doctor, rendered a Report of Medical Evaluation (TWCC-69) dated October 3, 1995, certified MMI, without specifying a date, and assessed an eight percent IR, based on an audiological evaluation dated August 17 1995. Claimant’s records, including the August 17th, audiological evaluation, were reviewed by Dr. C (Dr. C), who, in a report dated October 9, 1995, notes a 4.69% worsening of claimant’s hearing between December 1994 (Ms. C’s report and records) and August 1995. Dr. C comments regarding the December 1994 audiogram that claimant’s:
speech discrimination in both ears is worse than what is normally associated with noise-induced hearing loss, but is more consistent with a genetically determined, progressive sensorineural hearing loss. This is probably the most common pattern of hearing loss seen in any ear specialist’s office, and does not require any noise exposure for it to occur. [Emphasis in the original].
* * * *
the change in his hearing is most likely not noise-related at all, for the reasons discussed above.
The hearing officer explained her reasoning in a fairly extensive discussion of the evidence. The claimant appealed a number of the hearing officer’s determinations, including the finding on venue by stating “I live 78 miles from _____.” The hearing officer did not request any stipulations or information on venue but neither did claimant object at the time, raising the objection for the first time on appeal. If there was error on the part of the hearing officer in not requesting information on venue it was harmless error, as a correct factual determination would not have caused a different result in this case.
Claimant disagrees with the hearing officer’s determination that claimant’s hearing loss deterioration after ___________, was not the result of occupational noise exposure. Whether a claimant has sustained a new injury or merely continues to suffer the effects of a continuation of the original injury is a question of fact to be determined by the hearing officer, who is the sole judge of the relevance, materiality, weight and credibility of the evidence. Section 4l0.165(a). Texas Workers’ Compensation Commission Appeal No. 92681, decided February 3, 1993; Texas Workers’ Compensation Commission Appeal No. 950600, decided May 31, 1995. In this case claimant testified that he has worn hearing protectors for the last few years since they were available and Dr. C was of the opinion that claimant’s change in hearing since 1994 was not noise related. There is no medical evidence establishing that claimant’s continued decrease in hearing was due to work-related noise. Additional hearing loss, in an of itself, does not equate to a new injury. We find sufficient evidence to support the hearing officer’s determination on this point.
Claimant contends that he “tried to convey to the foreman and [Mr. G] that I had a hearing loss and greater damage to my hearing.” The undisputed evidence, even from claimant, is that claimant complained about his hearing loss and that the settlement he was getting was not enough. We find nowhere in the record that claimant told Mr. G, or the foreman, that he had sustained a new injury in addition to the 1989 hearing loss claim. Mr. G testified that he believed claimant’s complaints were associated with the 1989 injury, and nothing in claimant’s testimony contradicts that understanding. Claimant alleges, “The company was aware of a new loss and I tried to convey . . . this fact.” The hearing officer, as the sole judge of the weight and credibility of the evidence, could, and obviously did, believe that claimant’s complaints were related to his old 1989 injury and that claimant failed to give the employer notice of a new alleged injury.
The hearing officer determined the correct date of injury was prior to _____________, while the claimant alleges the date when he first knew or should have known of a new injury was _____________, at the time of the CSA when carrier’s adjustor allegedly suggested claimant file a new law injury claim. The hearing officer could, and did, find that no new injury occurred, and as noted above, is supported in that determination by sufficient evidence.
Lastly, claimant alleges that the carrier did not timely dispute the compensability of the alleged new injury and that he gave notice to carrier’s adjustor, presumably at the time of the __________, CSA. Tex. W.C. Comm’n, 28,TEX. ADMIN. CODE § 124.6(d) (Rule 124.6(d)) provides, in pertinent part, that a carrier who disputes compensability because an injury is not compensable shall file a notice of dispute, “no later than the 60th day after receipt of written notice of injury.” (Emphasis added.)
Section 409.021(a) provides in pertinent part that a carrier shall initiate the payment of compensation promptly and that not later than the seventh day after receiving written notice of any injury, the carrier shall either begin payment of benefits as required by the 1989 Act or notify the Commission and the employee in writing of its refusal to pay. Subsection (c) further provides that if the carrier does not contest compensability by the 60th day after it is “notified” of the injury, the carrier waives its right to contest compensability. Rule 124.1 defines the written notice of injury reference in Section 409.021(a) to be:
1.the employers’ first report of injury;
2.the notification [from the Commission to the carrier when the source of the information is other than the carrier and the injury may cause eight or more days of disability or has resulted in an impairment or when a death or occupational disease is reported]; or
3.any other written document, regardless or 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.
Claimant, in his appeal, does not exactly specify when he believes carrier was given written notice, but we observe that the conversation claimant had with carrier’s adjuster, apparently a Mr. O (Mr. O), does not constitute written notice which would inform the carrier of a new injury. If, on the other hand, claimant is contending that Ms. C’s audiology report of December 1994 was written notice of a new injury, then that report is six months prior to the claimant’s alleged date of injury of ___________. One cannot have notice of a new claimed injury before the date of injury, and, in any event, Ms. C’s report does not give a new date of injury nor does it indicate facts showing a new injury, as opposed to a worsening of an existing condition. Further, it appears that claimant’s CSA was based in part on Ms. C’s report. Consequently, we affirm the hearing officer’s determination that the carrier timely contested compensability.
Only were we to conclude that the hearing officer’s determinations were so against the great weight and preponderance of the evidence as to be clearly wrong or unjust would there be a sound basis to disturb the hearing officer’s determinations. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We do not so find, and consequently, the hearing officer’s decision and order are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Alan C. Ernst – Appeals Judge