This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 27, 1994. Addressing the disputed issues, the hearing officer determined that the appellant (claimant herein) sustained a compensable back injury on _________; that he had disability beginning June 28, 1994, through the date of the hearing; but that he neither timely reported his injury, nor had good cause for this failure. For this reason, the hearing officer found the carrier and employer not liable for workers’ compensation benefits. The claimant appeals only the conclusion that he did not have good cause for failing to timely report his injury arguing that he met the good cause exception for an otherwise untimely notice of injury by reporting his injury within 30 days of his realization that his injury was serious. The respondent (carrier herein) replies that the decision and order of the hearing officer on the good cause issue was correct because the claimant did not establish the continued existence of good cause up to the time he reported the injury to his employer. The carrier, in its response which is timely if construed as an appeal, conditionally appeals the findings of the hearing officer that the claimant sustained a compensable injury and has disability in the event that the Appeals Panel reverses the hearing officer on the issue of good cause for failing to timely report an injury.
DECISION
Affirmed.
The essential facts of this case on the issue of good cause for failing to timely report an injury are either undisputed or conceded by the carrier in its response. The claimant contended, and the hearing officer found, that the claimant sustained a compensable back injury on _________. (All dates are 1994). The position of the claimant throughout the proceedings has been that this was a discrete injury on that day, not a repetitive trauma injury. He testified that, at first, he did not consider the injury serious and continued working. The symptoms worsened until June 27th, when his back hurt so much that he could not get out of his truck. He then for the first time sought medical treatment on June 28th from (Dr. R), a chiropractor. The claimant’s regular vacation began the next day and he had airplane tickets to visit his mother in (state) with a departure scheduled for June 29th. According to the claimant, Dr. R said he was unable to treat him and recommended he see a neurologist. The claimant also said that Dr. R advised against the vacation trip, but the claimant went ahead anyway. On his second day in (state), the pain was so bad, the claimant went to an emergency room (ER) where, he said, the treating physician wanted to hospitalize him. The claimant, however, refused and returned home on July 11th. He saw (Dr. K), a neurologist, on July 12th. An MRI was taken on July 14th which reflected lumbar herniation. Dr. K so advised the claimant at his next appointment on July 18th. On this date, the claimant said he knew something was “seriously wrong” with his back and thereafter, on July 25th, gave “official” notice of his injury.
The claimant appeals the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
6.The Claimant reported the injury to his Employer on July 28, 1994.
8.The Claimant knew or should have known his injury was serious no later than June 27, 1994.
9.The Claimant did not report his injury to his Employer within 30 days of June 27, 1994.
10.The Claimant does not have a good reason for his failure to timely report his injury to his Employer.
CONCLUSIONS OF LAW
5.The Claimant did not timely report his injury to his Employer, and does not have good cause for failure to timely report his injury.
6.The Carrier and the Employer are relieved of liability for workers’ compensation benefits on this claim.
The claimant, who was represented by counsel both at the hearing and on appeal, contends that these findings are erroneous because the evidence is undisputed that the claimant first sought treatment from Dr. R on June 28th, and that notice was on July 25th, not July 28th, thus making the notice timely because it was within 30 days of June 28th. The carrier replies that even if the dates were correct as the claimant suggests the results would be the same because the claimant did not establish good cause beyond June 28th.
The claimant did not appeal the hearing officer’s Finding of Fact No. 7 that he did not report the injury to his employer within 30 days of ________. Section 409.002 provides, in relevant part, that the failure of an employee to notify the employer of the injury by the 30th day after the injury relieves both the employer and the carrier of liability for benefits unless “good cause exists for failure to give notice in a timely manner.” The standard for good cause adopted by the Appeals Panel is one of ordinary prudence, that is, “whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.” Hawkins v. Safety Casualty Company, 146 Tex. 381, 207 S.W.2d 370 (1948). The existence of good cause is a question of fact and the test for reversal is one of abuse of discretion. Texas Workers’ Compensation Commission Appeal No. 91120, decided March 30, 1992. The Appeals Panel has also held, in harmony with Texas case law, that the existence of good cause must continue up to the time the untimely report of injury is made, Texas Workers’ Compensation Commission Appeal No. 93677, decided September 21, 1993. This does not mean that a report must immediately be made upon the termination of good cause, but rather the “totality of a claimant’s conduct must be primarily considered in determining ordinary prudence.” Texas Workers’ Compensation Commission Appeal No. 93544, decided August 17, 1993.
The trivialization of an injury, that is, the good faith belief that the injury is not serious, has been held to constitute good cause for not reporting that injury within 30 days. Texas Workers’ Compensation Commission Appeal No. 93677, decide September 21, 1993. In the discussion portion of his decision and order in this case, the hearing officer noted the appropriate test for the existence of good cause (ordinary prudence) and concluded that any trivialization of the seriousness of the injury ended when Dr. R advised the claimant that he needed to see a neurologist. Both sides concede this date to be June 28th. Disregarding Dr. R’s advice, the claimant continued with his vacation plans in (state) and remained there for approximately one more week after an ER doctor recommended hospitalization. The hearing officer found unpersuasive the claimant’s argument that trivialization extended up to the time Dr. K advised him of the results of the MRI on July 18th. He, therefore, concluded that the claimant did not pursue his claim with reasonable diligence after consulting with Dr. R and that good cause in failing to timely file his notice of injury did not extend up to the time he reported the injury, whether that be construed as July 25th or July 28th. We are satisfied that this finding of no good cause does not amount to an abuse of discretion by the hearing officer and we decline to reverse it.
We note that the theory of the claimant’s case on the good cause issue is that the 1989 Act provides for notice of an injury no later than 30 days after good cause (in this case trivialization of the injury) ends. This is incorrect. Section 409.001 establishes the 30-day requirement from the date of injury. Only when this requirement is not met does the good cause exception become possible. There is no statutory provision for a new 30-day period for filing notice of the injury to begin on the date good cause, for whatever reason, ends. The hearing officer’s Finding of Fact No. 9 that the claimant did not report his injury within 30 days of the end of trivialization is thus unnecessary to his decision and we properly disregard it on appeal. See Texas Workers’ Compensation Commission Appeal No. 94876, August 16, 1994.
The condition precedent to a consideration of the carrier’s appeal not having occurred, we do not address those matters other than to say that the existence of both a compensable injury and disability are generally factual matters for the hearing officer to decide. On appeal, under our standard of review, we would reverse such determinations only if contrary to the great weight and preponderance of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
The decision and order of the hearing officer are affirmed.
Alan C. Ernst – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Joe Sebesta – Appeals Judge