This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act) (formerly V.A.C.S., Article 8308-1.01 et seq.). A contested case hearing was held on November 2, 1993, in (city), Texas, with the record closing on November 9, 1993. (hearing officer) presided as hearing officer. The issues at the hearing were:
1.Whether the appellant (claimant) sustained a compensable back injury in the course and scope of his employment on or about (date of injury);
2.Whether the claimant timely reported this injury within 30 days, and if not, whether good cause existed for this failure;
3.Whether the claimant had disability resulting from the injury;
4.What was the claimant’s average weekly wage (AWW);
5.Whether the claimant timely filed a claim for compensation within one year of the injury and, if not, whether good cause existed for this failure; and
6.Whether the requirement to file a claim for compensation within one year of the injury was extended because the employer or carrier failed to file a written report of the injury after having been given notice of or having actual knowledge of the injury.
The hearing officer determined that the claimant did not sustain a compensable back injury in the course and scope of his employment on or about (date of injury), and that he did not timely notify his employer of the injury. There being no compensable injury, the hearing officer found no disability. She further determined that the period for filing a claim for compensation did not extend beyond one year from the date of the alleged injury and that the evidence did not establish good cause for the claimant’s failure to timely file a claim. In his appeal of these determinations, the appellant (claimant) expresses disagreement with the decision of the hearing officer.[1] The respondent (carrier) replies that the decision is supported by sufficient evidence and should be affirmed.
DECISION
The decision and order of the hearing officer are affirmed.
As the hearing officer noted, this decision turned largely on an assessment of the credibility of the evidence. The claimant testified that he had been working for approximately three months as an industrial electrician for Amber, Incorporated (employer). He stated that at approximately 10:00 a.m. on (date of injury), he injured his back while working with his foreman, (Mr. S), and two other unidentified workers to position a “print shack” (not further described) so that it could be moved by a forklift. While pushing on the print shack, he felt his back give way and pain shoot down his legs. He testified that he “immediately” told Mr. S that he had injured himself. He said he began work that day at 7:00 a.m. and continued working until quitting time at 5:30 p.m. He initially believed he re-injured a herniated disk that he sustained in an elevator accident in January 1989 for which he underwent a lumbar discectomy in April 1989 and which he said was the subject of a still-pending workers’ compensation claim.
The claimant worked for another two weeks after the alleged injury on (date of injury), until his motion became so restricted that he sought medical attention. An MRI of his lumbosacral spine on February 27, 1992, disclosed a “very tiny disc bulge” at L5-S1; scar tissue involving the thecal sac and possibly the exiting root on the left in L5-S1 interspace; and scar tissue into the L4-5 interspace on the left. On March 4, 1992, (Dr. G) claimant’s treating physician performed a laminectomy at L4-5 and L5-S1 right with a discectomy at L5-S1 and lysis of extensive nerve root adhesions. The post-operative diagnosis was nerve root fibrosis L5 right with acute disc extrusion L5-S1 right. In a September 28, 1993, summary of his treatment of the claimant, Dr. G states:
The exact onset of this right lower extremity pain, in early February of 1992, is not recorded. It was assumed at the time to be related to the original elevator accident.
The patient now reports that the recurrence of right lower extremity pain was precipitated by a specific incident at work early in (month year).
. . . I believe that the right lower extremity symptoms were of recent onset, as indicated by his history.
At some point after the surgery, claimant testified that he went to the employer to pick up his paycheck and had a discussion with a “M” (Mr. Y), whom claimant described as “second or third level” management. Claimant admitted telling Mr. Y that after discussing the matter with a lawyer he thought he could not file a workers’ compensation claim for his new injury because “it would complicate” his still pending 1989 claim. Mr. Y reportedly just nodded and told the claimant to do what he had to do. Claimant also testified that he thought all he had to do was report his injury to Mr. S who would in turn report it to the employer and all necessary claims for benefits would be filed. He stated that he only found out from a lawyer in January 1993 that he had to file a claim with the Texas Workers’ Compensation Commission (Commission) and was told on January 21, 1993, by a Commission employee that the one year deadline for filing a claim was approaching. He did not file a claim earlier because he thought this was his employer’s responsibility. On February 1, 1993, the claimant signed an “Employee’s Notice of Injury or Occupational Disease and Claim for Compensation” (TWCC-41) which was received by the Commission of February 5, 1993. The “Employer’s First Report of Injury or Illness” (TWCC-1) was signed on March 12, 1993, and received by the Commission on March 16, 1993. The Carrier’s “Payment of Compensation or Notice of Refused/Disputed Claim” (TWCC-21) was signed on March 17, 1993, and received by the Commission on March 23, 1993.
The claimant admitted that on March 3, 1992, when he completed a pre-operative information form for Dr. G that he checked the block “self” for the person responsible for payment, not the “workers’ comp” block. The form also bears a handwritten injury date of “1-89.” He denied ever telling anyone that his latest back injury was the result of horseplay at home with his son.
The claimant also introduced into evidence a sworn statement signed by Mr. S on June 8, 1993. In the statement, Mr. S confirms that the claimant attempted to move a “work building” on or about February 1, 1992, (a Saturday), and that he reported to him that this effort caused back and leg injury. Mr. S no longer worked for the employer and his whereabouts after signing this statement were unknown. He did not testify.
(Mr. J) testified that he was the field supervisor on site on (date of injury), and that Mr. S was the job foreman. According to Mr. J, it rained that day and the employees were only on site for the customary two hours. Under these conditions, there was “no chance” that the claimant could have worked beyond 9:00 a.m. Time sheets introduced into evidence reflect that the claimant worked two hours on February 3, 1993, and that he did not work at all on February 1, 1992. Mr. J. also recalled a telephone conversation (believed to be on March 11, 1992) with the claimant in which the claimant said he could not work because he hurt his leg at home playing with his child. Mr. J advised him that he could not return to work unless he could get a full release within three days because the injury was not on the job. On hearing this, the claimant “went ahead and quit.” Mr. J also testified about company safety meeting which regularly discussed the requirement for immediate reporting of injuries no matter how minor and that in each case mandatory forms had to be filled out. To his knowledge there was no injury, first aid or safety report ever filed on this alleged injury. He was confident that since he was on site, he would have known of the accident and injury. Mr. S, according to Mr. J, left the employer sometime after (date of injury), on unfavorable terms after being demoted to a lower position.
(Mr. G), employer’s current health and safety coordinator, also testified that accident reporting procedures were mandatory. In his view, if an employee had a back injury of the kind claimant alleges, the employer would not allow him to continue working in the same job until cleared by a doctor. He confirmed that Mr. S was considered to have had a demotion after (but not expressly related to) this incident.
The claimant has the burden of proving by a preponderance of the evidence that he sustained a compensable injury in the course and scope of employment, Martinez v. Travelers Insurance Company, 543 S.W.2d 911 (Tex. Civ. App.-Waco 1976 no writ), and that the employer knew the general nature of the injury and that it was job related. DeAnda v. Home Insurance Company, 618 S.W.2d 529 (Tex. 1980). These are questions of fact to be determined by the hearing officer based on his or her evaluation of the evidence. See Texas Workers’ Compensation Commission Appeal No. 93761, decided October 4, 1993, and Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. Here the claimant sought through his own testimony and a sworn statement of his supervisor at the time, Mr. S, to establish that he injured his back. Time sheets introduced by the carrier showed that the claimant worked only two hours on (date of injury), not a full day as he claimed. In addition, management personnel testified that the employer had a strict safety and injury reporting policy. There was no explanation why, if in fact an injury occurred, these procedures were not followed in this case. Questions were also raised about the credibility of Mr. S, the supervisor, who said nothing about the reported injury at the time, but some fifteen months later, after his own termination based on what was described as “unfavorable circumstances,” gave a sworn statement to the claimant supporting the claimant’s position. The hearing officer is the judge of the weight and credibility to be given this evidence. Section 410.165. In the face of these conflicts and contradictions in the evidence, it was her duty to determine what facts have been established. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio, 1964, writ ref’d n.r.e.). She found that the claimant did not sustain a back injury in the course and scope of his employment on (date of injury), and that the claimant’s evidence that he reported this injury on the date it allegedly occurred was not credible. She further found that the employer did not have actual knowledge of an injury within 30 days of its alleged occurrence. Where, as here, these findings and conclusions of the hearing officer are supported by the evidence and are not so against the overwhelming weight of the evidence as to be clearly wrong and unjust, the decision will not be disturbed on appeal. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). Because the threshold requirement of compensable injury was not established by the claimant, the disability issue is moot. Texas Workers’ Compensation Commission Appeal No. 93791, decided October 18, 1993.
The claimant also contends in his appeal that he had good cause for failing to file his claim for benefits within one year of the injury as required by Section 409.003. The test for good cause is whether the claimant acted as a reasonably prudent person in not filing his claim until it was filed. Texas General Indemnity Company v. McIlvain, 424 S.W.2d 56 (Tex. Civ. App.-Houston [14th Dist.] 1968, writ ref’d); see also Torres v. Western Casualty & Surety Company, 457 S.W.2d 50 (Tex. 1970). He offered two bases for good cause. The first was his belief that all he had to do was orally report his injury to his supervisor (in this case, Mr. S) and the “rest” would be taken care. The second was, according to his own testimony, his misplaced reliance on the advice of an unnamed attorney who told him he could not file another workers’ compensation claim while his other 1989 claim was still pending. This evidence supports a conclusion that the claimant intentionally, albeit in reliance on an inaccurate understanding of the 1989 Act and bad legal advice, decided not to file a claim. The Appeals Panel has held that ignorance of the law does not constitute good cause to excuse an untimely filing. Texas Workers’ Compensation Commission Appeal No. 93423, decided July 12, 1993; see also St. Paul Fire and Marine Insurance Company v. Lake Livingston Properties, Incorporated, 546 S.W.2d 404 (Tex. Civ. App.-Beaumont 1977, writ ref’d, n.r.e) which held as a matter of law that bad advice from one’s attorney as to the time for filing a claim does not constitute good cause. In any event, the claimant further testified that on January 21, 1993, an official of the Commission told him that he had to submit a claim form and that he was “getting close” to the deadline. He nonetheless did not complete his TWCC-41 until February 1, 1993, or apparently take any steps to insure its receipt by the Commission within a year of his alleged injury. This delay was not explained by the claimant. Under the circumstances of this case, we do not believe the claimant acted with reasonable prudence or due diligence in not timely submitting his claim. The decision of the hearing officer that the claimant did not show good cause for failure to timely file his claim for compensation is supported by sufficient evidence and we will not disturb that decision on appeal. Cain v. Bain, supra.
Finally, the claimant asserts that pursuant to Section 409.008, the period for filing a claim for compensation should be extended in his case because the employer did not timely file the required TWCC-1. As implemented by Tex. W. C. Comm’n, 28 TEX. ADMIN. CODE § 120.2 (Rule 120.2), a TWCC-1 was required no later that the eighth day after the employee’s first day of absence from work due to an injury. The hearing officer found that the employer and carrier were first notified, and had knowledge of the claimed (date of injury), work-related injury in March 1993 – more than one year after the injury and after the claimant no longer worked for the employer – and that the period for filing a claim for compensation for this injury was not extended by Section 409.008. Such findings are supported by sufficient evidence. Any absence of the employee from work could not have been attributable by the carrier or the employer to the alleged (date of injury), injury. As a result, by their terms, neither Section 409.008 and Rule 120.2 were applicable and the claimant’s appeal on this issue is without merit. See Texas Workers’ Compensation Commission Appeal No. 93858, decided November 11, 1993, and Texas Workers’ Compensation Commission Appeal No. 93225, decided May 12, 1993.
The decision and order of the hearing officer are affirmed.
Alan C. Ernst – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Gary L. Kilgore – Appeals Judge
- The claimant does not appeal the hearing officer’s conclusion that his AWW was $630.19. ↑