In Texas Workers’ Compensation Commission Appeal No. 93018, decided February 22, 1993, we reversed the hearing officer’s decision which was issued after a hearing held on November 3, 1992, and remanded the case for further development of evidence, as appropriate, and for findings of fact and conclusions of law relating to the issues of whether the appellant (carrier herein) contested the compensability of the claimant’s injury in accordance with the requirements of the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-5.21 (Vernon Supp. 1993) (1989 Act) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.6 (Rule 124.6), and whether the claimant’s eye problems are causally connected to the injury of (date of injury).
A hearing on remand was held on March 23, 1993, in (city), Texas, with (hearing officer) presiding as the hearing officer. The hearing record was closed on March 23, 1993; however, the hearing was reopened on April 26, 1993, to take additional evidence and the hearing record was closed on May 5, 1993. Among other things, the hearing officer found that the claimant’s eye problems are not causally connected to the “incident” of (date of injury); that there is no causal relationship between the “incident” of (date of injury), and any medical condition or problems that the claimant has related; and that the carrier has not filed any Form TWCC-21 to contest the compensability of any of the claimant’s reported injuries. The hearing officer concluded that the carrier did not contest the compensability of the “various ailments, i.e., injuries,” that the claimant reported as an outgrowth of the “compensable injury” of (date of injury), in accordance with the requirements of Article 8308-5.21 and Tex. Rule 124.6. The hearing officer further concluded that the carrier has waived its right to contest compensability for claimant’s claims for her (date of injury), injury even though the medical conditions she claims are not causally related to the (date of injury), injury. The hearing officer decided that the claimant was injured in the course and scope of her employment; that the carrier has waived its right to contest the compensability of claimant’s injuries of (date of injury), and that temporary income benefits (TIBS) continue until maximum medical improvement (MMI) is reached or disability ends. The hearing officer further determined that the claimant is entitled to medical and income benefits in accordance with his decision and the provisions of the 1989 Act. In its request for review, the carrier asserts a number of grounds of error and requests that we reverse that portion of the decision of the hearing officer which determines that it waived its right to contest compensability.
DECISION
The decision of the hearing officer is affirmed.
The issues raised but not resolved at the benefit review conference (BRC) held on September 9, 1992, were: 1) whether the carrier had properly contested the compensability of the injury within 60 days or if they have waived their right to dispute the injury; and 2) whether the claimant’s current complaints and problems are causally related to the (date of injury), injury. The claimant’s position on the waiver issue was that the carrier had not filed any “dispute” regarding her claim. The carrier’s position on the waiver issue was that it disputed the “extent and duration” of the injury, and that such is not a compensability issue, thus the “limitations” regarding the filing of a Notice of Refused or Disputed Claim (TWCC-21) do not apply. The benefit review officer (BRO) recommended that the carrier had waived its right to contest the compensability of the claimant’s claim, because the carrier had yet to dispute the claim in accordance with the provisions of the 1989 Act. On the second issue, the claimant’s position was that her “current problems” are directly related to her on-the-job injury of (date of injury), and the carrier’s position was that it was disputing the “extent and duration of the injury,” asserting that “if” the claimant suffered a noxious fume exposure, it was a short time exposure which should have been resolved by this point in time. The BRO recommended that “it appears that [the claimant] has met her burden of proof that her current problems are related to her (date of injury) injury.”
At the first contested case hearing held on November 3, 1992, the hearing officer said that he understood that the issues were: 1) did the carrier properly contest the compensability of the injury within 60 days or did the carrier waive its right to dispute the injury; and 2) are the claimant’s current complaints and problems causally related to the (date of injury), injury. The hearing officer then stated “the carrier has disputed the question of compensability. In that regard does the carrier stipulate that the claimant was injured in the course and scope of her employment on December 5th, 1991?” The carrier replied “yes, we do.” The hearing officer then stated that “Okay. So the question is not whether that injury was compensable, but the nature and extent of that injury?” To which the carrier replied “yes, sir.” The hearing officer then said that “I will have to reform the issues to show whether or not – – so the issue is nature and extent of the claimant’s injury as a result of the injury in the course and scope on December 5th, 1991.” The hearing officer said that the second issue would be “whether the claimant’s current complaints are related to the December 5th, 1991 issue.” The hearing officer then asked the claimant “is that your understanding?” To which the claimant replied “yes.” The hearing officer also asked the claimant “are you in agreement with what I said there?” To which the claimant replied “yes.” The carrier indicated that it was in agreement with the issues as reformed by the hearing officer. The hearing officer next stated that “those are the issues we will proceed on,” and also said that it would not be necessary for the claimant to show an injury in the “course and scope,” although it would be helpful for him to “know what the injury was, the nature of it” for background purposes.
The evidence at the first contested case hearing held on November 3, 1992, showed the following: On (date of injury), the claimant worked as a forms control clerk for the employer, Farmers Insurance Company, and was in the supply room with a coemployee, (Ms. H), when they smelled an odor the claimant described as a “real bad smoky, burning smell.” The claimant said that her head started pounding real bad and she felt sick and faint. The claimant said that the office manager told her that building services personnel had “shut down the chiller and they were putting a sanitizer through.” After lunch that day, she said she was nauseous, her head was pounding, and she was weak. She reported to her boss “what happened,” he filled out an accident report, and she went home. The claimant added that another office worker got sick that day but stayed at work.
The claimant said she was sick that night, went to (Dr. G) the next day, and told the doctor about smelling the odor the previous day and getting sick. She said that Dr. G gave her pills for nausea and headaches and did blood and urine tests. She said she attempted to work over the next week or so but had headaches, felt nauseous, had no energy, and her body was shaky, so she returned home after only a few hours of work each day. She said she almost fainted at work on two of the days she attempted to work. She went back to Dr. G who referred her to (Dr. P). She said that Dr. P told her that the air needed to be tested in her office building and that if she went back to work she should work on a different floor. She returned to Dr. G who referred her to (Dr. J), a neurologist. She said that all tests run by Dr. J were negative, so he sent her back to Dr. G. At the carrier’s request, the claimant went to (Dr. H), an allergy specialist, who she said, suggested she go to an ear, nose, and throat specialist because her problems were not related to an allergy. She went to (Dr. M), an ear, nose, and throat doctor, was examined by Mr. HU), P.A., Mitchell’s assistant, and was given an electronystagmography (ENG) which she said revealed a peripheral lesion in her right ear. The claimant testified that Mr. HU explained to her that she had an inflammation in a nerve of her right ear which makes her dizzy with a feeling of vertigo, and that she was told it would take six to eight months to get better. She said that she asked Mr. HU if her problem could be related to her “chemical exposure” and that he told her that it could be, or that it could be Meniere’s disease, or that it could be an ear infection. The claimant added that Mr. HU told her not to go back to work until her ear cleared up. She said that “the dizziness and the vertigo was all attributed to the nerve in my ear,” and explained that there was nothing wrong with her ear before the incident at work on (date of injury). The claimant said that she still experiences dizziness and vertigo because her ear is not “cleared up.”
In March 1992, the claimant said she started having problems with her eyes so in April 1992, she went to (Dr. MA) who she said found abrasions in her right eye, infections in both eyes, and who told her to throw her contact lenses away. The claimant said she next went to (Dr. B) at the request of the carrier to determine whether there was a relationship between her problems and her “exposure.”
The claimant testified that her bouts of dizziness and feeling of vertigo are not confined to her office building. She testified that she can feel dizzy at any time and at any place, including department stores, other buildings besides her office building, her car, and outdoors. When the claimant was asked “[a]re you claiming that all of the current problems that you are having with your eyes and with the neurological problem in your ear are all related to the original exposure in December 1991?”, the claimant answered “yes.”
(DH), the coworker who was in the supply room with the claimant on (date of injury), testified that on that day there was a foul odor in the supply room that smelled like smoke. Three coworkers of the claimant stated in written statements that they also smelled an odor in the office building on (date of injury). The odor was described as a “weird smell,” a smell like “wires burning,” and an “electrical smell burning.” One coworker stated that she got a headache from the odor, another said she got a headache and was nauseous, and the third said she was not affected.
(JB), a human resources specialist for the employer, testified that there was no dispute that there was some sort of exposure that occurred to the claimant on (date of injury). He said that he checked with the maintenance department to see what work was being done on that day and was informed that the only maintenance work being done was the replacement of electrical switches on the air conditioner unit located on top of the building.
Numerous medical documents were in evidence. In an Initial Medical Report (TWCC-61), Dr. G reported that on December 6, 1991, the claimant said she had a severe headache, vomiting, and abdominal pain after she noticed a smoky smell in a room at work on December 5th. Dr. G’s clinical assessment was diffuse abdominal pain. In July 1992, Dr. G reported that the claimant did not have headaches or ear problems, nor did she have any abnormality on examination of head and ears until December 1991. In another July 1992 report, Dr. G stated that “[the claimant’s] symptoms that she has been followed for over the last few months could have been caused by a chemical exposure at her place of employment.” She added that it was unknown what the exposure may have been since the employer did not investigate for possible chemical leakage, and stated that “[i]t is, however, well known that many chemicals can cause, with sufficient exposure, symptoms such as [the claimant] has had.”
Dr. J reported on January 2, 1992, that the claimant complained of headaches, dizziness, nausea, and vomiting which the claimant told him started on (date of injury), when she smelled an odor of “burning smoke” at work. Dr. J said his impression of the claimant’s condition was possible migraine and possible chemical sensitivity.
In a letter to the carrier’s claims examiner dated March 11, 1992, (Dr. H), reported that he had examined the claimant on March 9, 1992, for evaluation of symptoms she experienced since a “work place exposure.” He said that the claimant reported to him that on (date of injury), she noted a smoky odor at work and then had a sensation of pounding in her head and felt dizzy. He said she also reported vomiting on that day. Dr. H said that the claimant found out later that the smoky smell may have been related to a sanitizer which was being put through a “chiller.” Dr. H reported that the claimant had no previous history of chronic headache, nor problems with vertigo, dizziness, or weakness. Dr. H gave his impression of the claimant’s condition as “positional vertigo — likely related to labyrinthitis — possibly due to toxic exposure versus Meniere’s disease versus idiopathic.” Dr. H added that here are no objective diagnostic tests for idiosyncratic or toxic exposures to chemicals, fumes, etc.; that often time the cause of vertigo remains unknown; that he did not think the claimant was completely disabled from working, but recommended that she not return to her work. He recommended an ear, nose, and throat evaluation.
Records from the Associates in Otolaryngology, where the claimant went for her ENT evaluation, revealed that the claimant was evaluated for persistent vertigo on April 30, 1992, and had an ENG performed. A chart note dated May 28, 1992, indicated, in connection with her right ear, “a unilateral weakness in the right indicating a right peripheral vestibular, i.e., nerve or end organ, pathology.” Mr. HU reported that Dr. M reviewed the results of the ENG and the lab and agreed with his assessment of “labyrinthitis.” The hearing officer took official notice of Dorland’s Illustrated Medical Dictionary, 27th Edition, for the purpose of obtaining certain definitions. “Labyrinthitis” is defined as an inflammation of the labyrinth (i.e., a system of intercommunicating cavities or canals, especially that constituting the internal ear); otitis interna. “Otitis interna” is defined as an inflammation of the internal ear; labyrinthitis.
In a report dated May 13, 1992, Dr. B reviewed the evaluations of the other doctors the claimant had seen and stated that “there has been an insufficient emphasis relating to the patient’s sinusitis which was occurring concomitant with her episode of vertigo. The etiology of this patient’s vertigo is unknown, but it is unlikely that this patient has vertigo related to exposure, per se.” Dr. B’s findings were sent to the carrier’s claims examiner in a letter dated May 27, 1992.
In a letter to the carrier’s claims examiner dated June 30, 1992, Dr. MA reported that he had examined the claimant for irritated eyes in April 1992, and that his examination revealed corneal abrasions and multiple infiltrates in both eyes as a result of wearing infected contact lens. He further stated that “as you already know, she was exposed to an unknown chemical substance through the air vents at her place of employment on December 5, 1992 (sic) and had complained of migraine headaches, vertigo, and pain in both of her eyes. It is impossible to speculate whether or not this exposure has caused her eye infection. However, she was wearing her contacts at the time of the incidence (sic) and they more than likely became infected with the chemical substance. This in turn could have caused the eye infection.”
In closing argument at the first hearing the claimant argued that her current complaints and problems are a result of exposure to unknown chemicals at work and specifically asked the hearing officer to find that the carrier had waived its right to contest compensability by not timely filing a notice of refused or disputed claim. The carrier argued that the claimant failed to prove that exposure to chemicals or fumes at work led to the “labyrinthitis and the neurologic problem that the claimant has currently been diagnosed as having.” The carrier said that it was not sure at what point in time any “injury or any condition that resulted from the injury of December 5th ended” but that it was clear there had been a recovery from these “problems” sometime in February (1992). The carrier added that “some of these may never have been related in the first place. This might be a circumstance where she developed some problem with her ear around the same time as the exposure to this odor, and they just happened to develop at the same time, and nobody caught them till later.” The carrier argued in the alternative that “it could be a situation where the current problems she has with labyrinthitis developed after this particular exposure.” The carrier also said that “I just think it’s clear though that there is just no medical evidence that shows the relationship between the problem that she’s having and exposure of any kind at work.” The carrier further urged that “any dispute as to extent and duration” is not covered by Article 8308-5.21(a), and requested that the hearing officer find that “since this is not a dispute as to compensability that there has been no waiver of the right to challenge the extent and duration simply because no TWCC-21 was filed within 60 days.”
In the decision following the first hearing the hearing officer made the following findings of fact and conclusions of law:
FINDINGS OF FACT
4.The claimant sustained an injury in the course and scope of her employment on (date of injury).
5.The claimant has experienced nausea, dizziness, vertigo, and associated ailments.
6.The claimant has undergone extensive medical tests which provide no causal relationship between the incident of (date of injury), and the claimant’s present symptoms.
7.The claimant has been diagnosed as having an inner ear inflammation, which is the source of the claimant’s present symptoms.
8.There is no causal relationship between the incident of (date of injury), and the claimant’s inner ear inflammation.
CONCLUSION OF LAW
2.The claimant’s present symptoms are not related to the claimant’s compensable injury of (date of injury).
The hearing officer decided that the claimant’s “present symptoms” are not related to the claimant’s compensable injury of (date of injury), and that the carrier is not obligated to provide workers’ compensation benefits for the claimant’s “present symptoms.” The hearing officer made no findings or conclusions concerning whether or not the carrier had timely contested the compensability of the claimant’s injury. The claimant filed her appeal by herself and asked us to carefully review the files and reverse the hearing officer’s decision. She did not specifically complain about the absence of findings and conclusions concerning whether the carrier timely contested her injury.
In Appeal No. 93018 we held that the evidence supported the hearing officer’s finding that the claimant’s vertigo was caused by her inner ear inflammation and the finding that there was no causal relationship between the incident at work on (date of injury), and the claimant’s inner ear inflammation. However, we stated that “our determination that the evidence was sufficient to support the hearing officer’s findings of fact and conclusion of law does not, however, mean that we agree with the hearing officer’s decision denying benefits to the claimant, because the hearing officer failed to address the issue of whether the carrier timely contested the compensability of the injury. We pointed out that Article 8308-5.21(a) provides in pertinent part that if the carrier does not contest the compensability of the injury on or before the 60th day after the date on which the carrier is notified of the injury, the carrier waives its right to contest compensability, and further provides that the carrier shall be allowed to reopen the issue of compensability if there is a finding of evidence that could not have been reasonably discovered earlier. It was our opinion that the issue of whether the carrier timely contested compensability of the claimant’s injury was properly before the hearing officer in the first contested case hearing. We reversed and remanded the case to the hearing officer for further consideration and development of the evidence, as appropriate, and for findings of fact and conclusions of law on the disputed issue of whether the carrier timely contested compensability of the injury. We also stated that on remand the hearing officer should address the claimant’s claim that her eye problems are related to her injury of (date of injury).
There were two hearings on remand. The first was held on March 22, 1993, and the second was held on April 26, 1993. The second hearing was held pursuant to the hearing officer’s “Order to Reopen Record For Remanded Contested Case Hearing,” which order was apparently made on the hearing officer’s own motion. At the March 22, 1993, hearing the parties agreed that the issues on remand were: 1) did the carrier timely contest compensability of the claimant’s injury; and 2) whether the claimant’s eye problems are related to her claim. It was the carrier’s position that “the issue” did not revolve around compensability, but rather revolved around “extent of the injury” therefore whether the carrier timely contested compensability was not relevant. The carrier said that its argument was that it was not contesting compensability and that “we have always accepted that there was a compensable injury.” The carrier further stated that an “extent and duration” issue could arise at any time. The claimant gave testimony concerning her eye problem and said she still has “dizziness and vertigo.” She further testified that she didn’t know if her eye problem was related to “any exposure that occurred on (date of injury),” and that she was unable to state whether her eye problem was related to “that exposure.”
At the hearing held on April 26, 1993, the carrier objected to the hearing officer’s action in reopening the case on the ground that Rule 142.18(a) requires a hearing on remand within 30 days. The hearing officer pointed out that the rule does not require the remanded hearing to be completed in 30 days. In closing argument the claimant pointed out that the carrier’s “extent and duration” question appeared to be a question of the “cause” of her problems and that since the carrier had not contested the injury within 60 days, the issue of causation was moot.
At the April 26, 1993, hearing the claimant introduced into evidence four “Payment of Compensation Or Notice Of Refused/Disputed Claim” forms (TWCC-21) which showed as follows:
1.The first notice is dated December 31, 1991, indicates that the “nature of injury” is “stomach and head,” shows the date of injury as “(date of injury),” and reports an initial payment of compensation. There is no indication in the box for giving reasons for refusing or disputing a claim that the claimant’s claim is being refused or disputed.
2.The second notice is dated March 10, 1992, indicates that the “nature of injury” is “stomach/head dizziness/nausea,” shows the date of injury as “(date of injury),” and reports further payments of compensation. There is no indication in the box for giving reasons for refusing or disputing a claim that the claimant’s claim is being refused or disputed.
3.The third notice is dated June 19, 1992, indicates that the “nature of injury” is “stomach & head,” shows the date of injury as “(date of injury),” and reports that the claimant’s compensation is being reduced for two weeks. There is no indication in the box for giving reasons for refusing or disputing claims that the claimant’s claim is being refused or disputed.
4.The fourth notice is dated February 5, 1993, indicates that the “nature of injury” is “chemical exposure,” shows the date of injury as “(date of injury),” and reports that the claimant’s compensation is being terminated and that the reason for termination is “CCH Decision.” There is no indication in the box for giving reasons for refusing or disputing claims that the claimant’s claim is being refused or disputed.
The carrier introduced into evidence (at the 4/26/93 hearing) a “Request For Setting A Benefit Review Conference” (TWCC-45) which shows that the carrier requested a BRC and that the request was received by the Commission on May 21, 1992. The reason given in the request for a BRC is “we have questions to whether all of claimant’s problems are related to work. Peer review physician does not believe that the carrier should be responsible for further evaluation and/or treatment.”
In his decision following the hearings on remand the hearing officer made the same findings of fact as he had in the first decision and added the following findings of fact:
FINDINGS OF FACT
9.The claimant’s eye problems are not causally connected to the incident of (date of injury).
10.There is no causal relationship between the incident of (date of injury), and any medical condition or problem that the claimant has related.
11.The carrier has not filed any Form TWCC-21 to contest the compensability of any of the claimant’s reported injuries.
12.The claimant has been unable to obtain and retain employment equivalent to her pre-injury wage due to the subsequent medical conditions that were not causally related to her (date of injury), injury.
The hearing officer concluded as follows:
CONCLUSIONS OF LAW
2.The carrier did not contest the compensability of the various ailments, i.e., injuries, that the claimant reported as an outgrowth of the compensable injury of (date of injury), in accordance with the requirements of Article 8308-5.21 and Rule 124.6.
3.The carrier has waived its right to contest compensability for claimant’s claims for her (date of injury), injury even though the medical conditions she claims are not causally related to the (date of injury), injury.
4.Those medical conditions which were not caused by the (date of injury), injury, but are compensable due to the carrier’s waiver, are the sole basis of claimant’s disability.
The hearing officer decided that the claimant was injured in the course and scope of her employment, that the carrier waived its right to contest compensability of claimant’s injuries of (date of injury), and that there was no indication that the claimant has reached MMI or that disability had ended. The hearing officer decided that TIBS continue until MMI is reached or disability ends.
In its appeal of the hearing officer’s decision on remand, the carrier contends that the hearing officer committed reversible error in making Finding of Fact No. 11 and Conclusions of Law Nos. 2, 3, and 4. We disagree with the carrier’s contention and find that the complained of finding and conclusions are supported by sufficient evidence and are in accordance with the provisions of the 1989 Act and Commission Rules.
The carrier contends that the parties agreed at the first contested case hearing that there was no disputed issue as to whether the carrier timely contested the compensability of the claim. We disagree with this contention. As we read the record, timely contest of compensability was an issue at the BRC and was announced as an unresolved issue from the BRC at the first hearing. Although the hearing officer “reformed” the issues without mentioning timely contest of compensability, we cannot agree that the claimant agreed to waive her right to have that issue resolved at the hearing as is evidenced by her closing argument at the first hearing wherein she specifically asked the hearing officer to make a finding concerning the issue of timely contest of compensability. Although the claimant was assisted by an ombudsman at the hearing, she was not represented by an attorney. It appears to us that, at most, the claimant thought that the issue of timely contest of compensability was subsumed in one or more of the “reformed” issues.
The carrier asserts that the Appeals Panel had no jurisdiction to remand the first contested case decision to the hearing officer because the claimant did not complain about the carrier’s failure to timely contest compensability, or the agreement to exclude this issue from the first hearing in her appeal. We do not agree that the parties agreed to “exclude” the issue of timely contest of compensability at the first hearing. Article 8308-6.41(b) provides that a request for appeal or a response must clearly and concisely rebut or support the decision of the hearing officer on each issue on which review is sought. The claimant filed her appeal by herself without the benefit of legal counsel. We have interpreted this provision broadly to give effect to a party’s right to review, and have been mindful of the general rule that where pleadings are required in administrative proceedings, their validity should not be tested by the technical niceties of pleadings and practice require in court trials. See Texas Workers’ Compensation Commission Appeal No. 91131, decided February 12, 1992. See also Texas Workers’ Compensation Commission Appeal No. 92292, decided August 17, 1992, where we held that a pro se claimant’s request for review which merely stated “I hereby appeal the decision of the hearing officer” was an adequate enough appeal to allow a review of the hearing record. The claimant in this case was also pro se on her appeal of the hearing officer’s first decision and although she did not specifically complain of the carrier’s failure to timely contest compensability, she did request a review and reversal of the decision. In reviewing the hearing officer’s first decision we found that the hearing officer had failed to address the timely contest of compensability issue which was raised at the BRC. Article 8308-6.34(b) provides in part that the hearing officer shall ensure the preservation of the rights of the parties. The BRO had recommended that the carrier was liable for the claimant’s injuries because of its failure to timely contest the compensability of those injuries. We do not believe that the hearing officer is free to “reform” issues brought forward from the BRC to such an extent as to preclude a critical issue from being resolved at the hearing. To do so would not be in accordance with the hearing officer’s duties to ensure the preservation of the rights of the parties. Considering the broad interpretation we have given to Article 8308-6.41(b) in respect to the adequacy of an appeal, especially from a pro se claimant, and the gravity of the error made by the hearing officer in failing to determine an issue that had been squarely raised at the BRC, we are of the opinion that we had jurisdiction to remand the first hearing decision to the hearing officer for further consideration and development of evidence on the issue of timely contest of compensability.
The carrier contends that at the first remand hearing the parties agreed that the carrier’s timely contest of compensability was not an issue at the first hearing. The carrier’s contention is without merit, because the record from the first remand hearing affirmatively demonstrates that the parties agreed that one of the issues on remand was whether the carrier timely contested compensability of the claimant’s injury. The hearing officer also read the “reformed” issues from the transcript of the first contested case hearing, but the claimant did not give any indication that it was her understanding that the hearing officer would not consider the timely contest of compensability issue at the first hearing or at the hearing on remand.
The carrier contends that the second hearing on remand held on April 26, 1993, was conducted in violation of Rule 142.18(a) which provides that “When the appeals panel reverses a hearing officer’s decision and remands the case for further consideration, the commission shall set the hearing to be held within 30 days of the date of the appeal’s panel decision.” Appeal No. 93018, which remanded the first decision to the hearing officer, was decided on February 22, 1993. The remand hearing was held on March 22, 1993, which was within 30 days of the date of the Appeals Panel’s decision. Accordingly, the 30-day provision of Rule 142.18(a) was met. The hearing officer, apparently on his own motion, issued an order to reopen the record of the hearing on remand and the remanded hearing record was reopened at a hearing on April 26, 1993. The hearing officer stated in his order to reopen that it was necessary to reopen the record for further review of the evidence and testimony and to receive further evidence, as appropriate. We have previously held that the hearing officer has discretion to reopen the record of a contested case hearing. See Texas Workers’ Compensation Commission Appeal No. 91056, decided December 2, 1991. We have also observed that the hearing officer’s discretion in determining whether or not to reopen proceedings will not be disturbed on appeal unless it appears that a clear abuse of discretion has occurred. See Texas Workers’ Compensation Commission Appeal No. 92029, decided March 11, 1992. Furthermore, the hearing officer may reopen the hearing record on his or her own motion. See Texas Workers’ Compensation Commission Appeal No. 92617, decided January 14, 1993. From a review of the record and the hearing officer’s order to reopen, we are satisfied that the hearing officer did not abuse his discretion in reopening the hearing record of the hearing on remand. The hearing officer is charged with the responsibility to fully develop the facts required for the determinations to be made. Article 8308-6.34(b). It is clear to us that the hearing officer was discharging his responsibility to develop the facts in reopening the hearing record. We observe that Rule 142.18(a) does not require that the hearing on remand be completed with 30 days of the date of the Appeal’s Panel decision; rather, it only requires that the Commission set the hearing to be held within 30 days of the date of the Appeal’s Panel decision, which was done in this case.
The carrier contends that the hearing officer relied on an unpublished Appeals Panel Decision to support his finding that the carrier failed to timely contest compensability of the claim, and that the use of “secret law” in adjudicating the rights of the parties in the hearing has no support in the 1989 Act or the Commission Rules. We first point out that both published and unpublished decisions of the Appeals Panel are available to the public in redacted form. In the “Statement of Evidence” portion of the hearing officer’s decision following the hearing on remand, the hearing officer stated to the effect that unpublished Texas Workers’ Compensation Commission Appeal No. 93198, decided April 22, 1993, provided guidance and direction on the issue of whether the carrier timely contested the claimant’s injury. In Appeal No. 93198 we held that the evidence was sufficient to support the hearing officer’s determination that the carrier was notified of and aware of the injured employee’s claimed additional back and internal injuries assertedly flowing for an accident of February 14, 1992, and that such notification and awareness was well before the expiration of the 60 days for contesting compensability as set forth in Article 8308-5.21. We stated that “[w]e can not read Article 8308-5.21 to provide that a carrier need not contest such additional or follow-on injuries within 60 days once on notice of such injuries and that it can contest the compensability of such additional or follow-on injuries at any time into the indefinite future.” We also stated in Appeal No. 93198 that we had previously held In Texas Workers’ Compensation Commission Appeal No. 92437, decided September 28, 1992, (a published decision) that it was error for a hearing officer not to address and make appropriate findings concerning the timeliness of a carrier’s contest of compensability of a neck injury which manifested itself some 10 months after an original lumbar injury which had not been contested and for which benefits were being paid. We said that published Appeal No. 92437 was dispositive of the issue presented in Appeal No. 93198. In Appeal No. 92437, we stated that “were the hearing officer to have found respondent’s contest of the neck injury untimely, thus waiving its right to contest compensability, he may have then concluded that appellant had sustained a compensable injury.” Thus, the issue of the need to contest additional injuries or follow-on injuries was settled in Appeal No. 92437, a published decision, some five months before the hearing on remand in this case. We cannot conclude that the hearing officer relied on “secret law” in arriving at his decision, because Appeal No. 93198, the unpublished decision cited by the hearing officer, simply applies the decision in Appeal No. 92437, a published decision, to the facts of that case. We also observe that the record shows that the carrier was aware of the decision in Appeal No. 92437 at the hearing on remand because the carrier cited that decision to the hearing officer as an example of a case where the Appeals Panel remanded a case to a hearing officer for failure to address a timely contest of compensability issue. Consequently, we find no merit in the carrier’s contention that the hearing officer relied on “secret law” in making his decision.
The carrier contends that the decision in Appeal No. 93198, and the hearing officer’s reliance on that decision in determining that the carrier had failed to timely contest compensability, is an exercise in illegal ad hoc rule making in violation of the due process of law guaranteed by the Texas and United States Constitutions. We disagree. Appeal No. 93198 simply follows the decision in published Appeal No. 92437, which, in turn, applies the provisions of Article 8308-5.21(a) and Rule 124.6.
The carrier contends that the report of a “new medical symptom” is not the equivalent of a report of a “new injury” for which a carrier must deny compensability within 60 days as required by Article 8308-5.21. What the evidence of record reflects is that the claimant complained of headaches, nausea, and dizziness to her health care providers within days of her alleged work-related injury of (date of injury), and her complaints of vertigo followed shortly thereafter. She complained of these same symptoms continuously and is still complaining of these symptoms. The carrier described these complaints as stomach and head injuries in the TWCC-21s it filed with the Commission. The first TWCC-21 shows that the carrier had written notice of the claimant’s complaints it described as stomach and head injuries by December 17, 1991, but has yet to file a TWCC-21 in which it disputes the compensability of the stomach and head injuries. Rule 124.6 specifically provides that, if 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. The carrier chose to treat the claimant’s complaints as work-related head and stomach injuries until it determined that an inner ear inflammation, and not an injury at work, was the cause of her complaints. Still it did not file a TWCC-21 contesting the compensability of the claimant’s complaints nor did it assert that it should be allowed to reopen the issue of compensability based on a finding of evidence that could not have been reasonably discovered earlier. These were not “new medical symptoms” as asserted by the carrier. These same symptoms had been reported by the claimant within days of her alleged work-related injury. In addition, the claimant’s eye abrasions were reported to the carrier by Dr. MA by letter dated June 30, 1992. Dr. MA specifically advised the carrier that the claimant was wearing contacts at work, that it was likely that the contacts became infected with chemicals at work, and that the infected contacts could have caused the claimant’s eye infections. We believe that this was sufficient notice to the carrier that the claimant was attributing her eye abrasions and infections, which are not mere symptoms, to her alleged work-related injury. Yet, the carrier did not ever file a TWCC-21 to dispute the compensability of the claimant’s eye injury. The claimant’s eye injury is an additional injury from the alleged work-related injury of (date of injury), and the carrier should have disputed it within 60 days of notice, but did not. We find no merit in the carrier’s contention concerning “new medical symptoms” under the facts presented in this case.
The carrier contends that the hearing officer misapplied the holding in Appeal No. 93198 to the facts of this case. We disagree. Under Article 8308-5.21(a) the carrier is required to contest the compensability of the injury on or before the 60th day after the date on which it is notified of the injury or it waives its right to contest compensability, unless it is allowed to reopen the issue of compensability upon a finding of evidence that could not have been reasonably discovered earlier. Rule 124.6(c) provides that the carrier shall file a notice of refused or disputed claim to dispute compensability. The carrier never filed a notice of refused or disputed claim contesting any of the claimant’s claimed work-related injuries, and did not seek to have the issue of compensability reopened based on new evidence. The carrier did not claim at the hearing nor does it claim on appeal that its request for a BRC was a notice of refused or disputed claim required by Rule 124.6. We observe that the request simply says that the carrier questions whether all of the claimant’s problems are related to work. It does not contest the compensability of the claimant’s head and stomach injuries as reported by the carrier in its TWCC-21s.
In summary, we are of the opinion that the hearing record contains ample evidence to support the hearing officer’s conclusion that the carrier failed to contest the compensability of the claimant’s injuries in accordance with the requirements of Article 8308-5.21 and Rule 124.6, and his conclusion that the carrier has waived its right to contest compensability. The carrier attempted to circumvent the requirements of the cited statute and rule by claiming that it accepted the compensability of the (date of injury), injury (without indicating what “injury” it had accepted), and was only disputing the “extent and duration” of the injury, thereby making the issue of timely contest of the compensability of the injury irrelevant. However, the record clearly demonstrates that the carrier was claiming that the claimant’s complaints of vertigo, dizziness, and nausea, complaints that it had classified as head and stomach injuries as early as December 31, 1991, were not caused by the claimant’s work, but were instead caused by an inner ear inflammation. In the context of the facts of this case, the carrier’s contention of “extent and duration” of the injury was nothing more than an assertion that the claimant’s injuries were not caused by her work as claimed by the claimant. As we observed in Texas Workers’ Compensation Commission Appeal No. 92122, decided May 4, 1992, “[a]s for the timeliness of respondent’s contest of compensability, if appellant were correct that respondent did not timely contest the compensability of his occupational disease, then the remaining issue concerning the causation of the occupational disease would become moot.” See also Texas Workers’ Compensation Commission Appeal No. 91035, decided November 7, 1991; Texas Workers’ Compensation Commission Appeal No. 92022, decided March 11, 1992; Texas Workers’ Compensation Commission Appeal No. 92038, decided March 20, 1992; Texas Workers’ Compensation Commission Appeal No. 92060, decided April 1, 1992; Texas Workers’ Compensation Commission Appeal No. 92278, decided August 10, 1992; Appeal No. 92437, supra.
The decision of the hearing officer is affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Thomas A. Knapp – Appeals Judge