This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1993). On May 28, 1993, the Texas Workers’ Compensation Commission (Commission) held a contested case hearing in (city), Texas, with (Hearing officer) presiding as the hearing officer. The hearing officer continued this case on his own motion until June 15, 1993, on which date he accepted into the record more medical evidence and further testimony from PA, the claimant. The hearing officer determined that claimant was not injured on (date of injury), in the course and scope of her employment for (employer) and that the claimant did not give timely notice of a work-related back injury. He also determined that the claimant did not suffer a disability from a compensable injury. The hearing officer ordered that Employers Insurance of Wausau, the carrier, is not liable for workers’ compensation benefits on this claim.
The claimant asserts several issues on appeal: (1) she gave timely notice to her employer of the injury; (2) she injured herself in the course and scope of her employment; and (3) she did suffer a disability because of her compensable injury. She complains that the hearing officer did not consider at all Exhibit Nos. 4 through 7 that she offered at the reconvened hearing. The carrier did not file a timely response to the claimant’s appeal.
DECISION
As it does not appear that the hearing officer considered all of the evidence tendered by the claimant, specifically those documents put into the record at the June 15, 1993, reconvened hearing, we reverse and remand the decision of the hearing officer for further consideration of evidence in accordance with this decision. We further note that on the issue of notice, claimant’s testimony concerning contact with the carrier’s adjuster, (Mr. G), raised a fact issue on the “actual notice” exception to the 30-day notice requirement that has not been determined by the hearing officer.
The claimant began working for the employer on June 1, 1992, as an office secretary. She stated that there was at first not a lot of work but that it greatly increased. Claimant testified that she injured herself on (date of injury), while sitting behind her desk which was her assigned work station. When she heard the telephone ring, the claimant testified that she quickly turned and pushed her chair back, and it almost turned over. Claimant stated that she did not have a plexiglass mat below her chair. She testified that she felt a sharp pain in her lower back. The claimant stated that she continued working and that she did not report this incident to her employer on the 24th of July. The record reveals that the claimant went to a medical clinic on the next day, which was Saturday, (date). She stated that she thought, because of her lower back pain, that she had a kidney infection but was told that she was having muscle spasms.
Claimant stated that she took medication over the weekend and went in to work on Monday, and reported her injury at that time to “M” Es (Mr. M), the son of the manager. Claimant said she also told a woman named “R” about her Friday injury. She stated that on Tuesday, July 28, 1992, she also reported the accident to (Mr. E), the office manager.
When her pain did not get better, she returned to the clinic on Thursday, July 30, 1992. (Dr. T), a chiropractor, examined and treated the claimant a series of times from August 5, 1992, through October 26, 1992. Dr. T diagnosed the claimant with an acute muscle strain in her lower back and with radicular neuralgia. Bills and reports from Dr. T that are in the record are dated in October 1992 (but not mentioned in the evidence). Claimant stated that she was paying for treatment out of her own pocket but that she then approached Mr. E about whether her bills could be paid for either under workers’ compensation or regular insurance, and that he said he would think about it. The claimant testified that the employer did not post notices at the workplace that it had workers’ compensation or who the carrier was.
On November 6, 1992, an MRI was performed which indicated degenerative disc disease as well as a bulging disc in the lumbar spine. On May 8, 1993, (Dr. P), an orthopaedic surgeon, whom the record indicated was brought into the case by the Commission around the time of the benefit review conference, interpreted the MRI to show a degenerative disc disease, with a superimposed traumatic event. The report of the doctor indicated that he was told by claimant about her 1986 related neck pain but that she did not relate that this occurred from an automobile accident. A letter of clarification from Dr. P dated June 9, 1993, and entered into the record stated that the pain she felt after (date of injury), could have resulted from the incident she described along with the age-related degenerative disease. However, this letter is not recited in the summary of evidence nor listed as an exhibit in the decision. Other evidence omitted from both the list of exhibits and discussion contains information about claimant’s treatment by her chiropractor along with his statements concerning her ability to work.[1]
The claimant, upon cross-examination by the carrier, admitted to having had an automobile accident in June 1986 which she said injured her cervical spinal area. In part because of the effects of this accident, she left her previous employer of 18 years because she could not perform all of her job duties as she wanted.
Claimant stated that she was terminated by her employer on August 24, 1992. She denied that she had resigned. She denied that she complained about the work but did say that she complained about cigarette smoking at the office, and that after she was injured she complained about being expected to vacuum the office. Claimant stated that prior to the injury, she did not miss work but may have been late on occasion. She stated that she had not worked, and had not applied for a job or for unemployment benefits since leaving the employer. The claimant said she thought she was able to work as of the date of the first session of the hearing.
Claimant stated that she called the Commission about filing a claim; the Commission employee stated that a claim form would be sent for her to complete. The benefit review conference report, entered as a hearing officer exhibit, indicated that the claim form was filed on August 27, 1992. Claimant stated that she also contacted the carrier at this time as well and spoke to “Mr. G” before she filed her claim. The benefit review conference report identifies a Mr. G as representative for the carrier.
Mr. E testified that claimant quit at about the time he was prepared to do a “90- day” performance review which would have resulted in her termination. He stated that she was unable to perform certain accounting functions. He stated that claimant resigned on August 24, 1992. Mr. E stated that claimant never asserted that she had been hurt on the job, and that the first notice he had that she was claiming an on-the-job injury was when she filed a workers’ compensation claim. While he was unable to recall the date, he stated that it was after she was separated from the employer.[2]
Mr. E did agree that claimant had complained of back problems both before and after (date of injury), and that she asked for permission to take time off to go to a chiropractor, which he allowed. He recalled she went approximately once a week. He stated that she appeared to be physically capable of performing her tasks between (date of injury) and August 24, 1992. He acknowledged, however, that he traveled as part of his job and consequently would not have seen claimant when he was not in the office, which would be about two days a week. Mr. E stated that his son, Mr. M, was not in a supervisory capacity at all.
Mr. M testified he was an estimator. He stated that he also traveled frequently in his job, on day trips. Mr. M recalled that claimant complained frequently about back problems but was unable to say for certain if this was from the inception of her employment. Mr. M said that claimant never told him she had been hurt on the job. However, he confirmed that he had purchased a new chair for her because she complained that her back hurt in the other chair. He did not recall if this was before or after (date of injury).
We have noted above that the decision does not mention or list as exhibits any of the evidence brought in at the June 15, 1993, reconvened hearing. Of equal concern is the fact that the hearing officer states that there is “no” tangible evidence that Dr. T gave claimant a light duty release, although such is clearly indicated in the exhibits tendered at the June 15th reconvened hearing. This leads us to the conclusion that the hearing officer overlooked and did not consider such evidence when he deliberated the case. The omitted evidence is directly relevant to two issues in the case.
We respectfully note that in spite of observations contained in the discussion, claimant’s theory on the notice issue was not ambiguous–she asserted that she actually told the office manager. Because she did not concede that she gave a later notice, a “good cause” excuse was not asserted. However, claimant also testified that, prior to filing her claim for compensation she talked with the Commission about doing so, and at the same time talked with an adjuster for the carrier. The benefit review conference report indicates that her claim for compensation was filed with the Commission on August 27, 1992. Consequently, although the hearing officer’s findings on giving of notice to the employer are sufficiently supported in the evidence[3], claimant’s testimony therefore raised a fact issue about whether the carrier had actual knowledge of injury within the exception set forth in Art. 8308-5.02(1), and about which the hearing officer made no findings. We have noted before that the exceptions are subsumed in a 30-day notice issue and need not be separately asserted. See Texas Workers’ Compensation Commission Appeal No. 92386, decided September 8, 1992.
As backdrop for further consideration of the evidence, it is worth repeating that the burden is on the claimant to prove, by a preponderance of the evidence, that an injury occurred within the course and scope of employment. Texas Employers’ Insurance Co. v. Page, 553 S.W.2d 98 (Tex. 1977). A trier of fact is not required to accept a claimant’s testimony at face value, even if not specifically contradicted by other evidence. Bullard v. Universal Underwriters’ Insurance Co., 609 S.W.2d 621 (Tex. Civ. App.-Amarillo 1980, no writ). However, medical evidence is generally not required to prove the occurrence of a compensable injury, which may be established on the claimant’s testimony alone. Gee v. Liberty Mutual Insurance Co., 765 S.W.2d 394 (Tex. 1989). An aggravation of a pre-existing condition is an injury in its own right. INA of Texas v. Howeth, 755 S.W.2d 534 (Tex. App.-Houston [1st Dist] 1988, no writ). If an injury is determined to have occurred, liability for the claim may still depend upon whether notice was given in accordance with Article 8308-5.01(a), which requires that the employee or a person acting on the employee’s behalf must notify the employer not later than the 30th day after the date on which the injury occurs. “[T]he purpose of this statute is to give the insurer an opportunity immediately to investigate the facts surrounding an injury. . . . [T]his purpose can be fulfilled without the need of any particular form or manner of notice.” DeAnda v. Home Insurance Co., 618 S.W.2d 529, 532 (Tex. 1980), citing Booth v. Texas Employers’ Insurance Ass’n, 132 Tex. 237, 123 S.W.2d 322 (1938). Certain exceptions to notice obviate the 30-day requirement, and those exceptions are set out in Art. 8308-5.02. Although a finding against claimant on any of the issues presented could result in denial of all or some compensation, none of the issues are “moot” with respect to burdens of proof on a judicial review of this case, Art. 8308-6.62(c)(1), and we commend the hearing officer for undertaking a decision on each issue raised.
Finding reversible error in the omission of certain evidence relating to injury and disability issues from the decision, and in the failure to make findings on the whether there was actual knowledge by the carrier of the injury within 30 days, we reverse and remand the case for further consideration of evidence in the record, as well as development of further evidence if deemed appropriate by the hearing officer.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Article 8308-5.41. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Susan M. Kelley – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
CONCURRING OPINION:
The remanding opinion questions whether certain evidence was considered, and this question may be rightfully asked because the record shows that four of claimant’s exhibits (4 through 7) were admitted at the June 15 hearing, but are not listed as admitted in the list of claimant’s exhibits under “Evidence Presented” in the decision. I would not remand on the basis of whether the hearing officer chose to discuss particular evidence in a summary of evidence.
By concurring in the remand I do not comment whether the exhibits, not listed as admitted, contain evidence that could affect the hearing officer’s decision as to whether claimant was injured in the course and scope of employment.
The question of addressing whether the carrier had actual knowledge of a claim may be developed since the case is being remanded for other reasons. The date of claim, August 27th, which gives rise to this question, does not show without further development of the evidence, whether or not an issue of actual knowledge arose within 30 days of (date), the day of the incident. Had a finding been made that an injury occurred in the scope of employment, this point would be of more significance.
Joe Sebesta – Appeals Judge
- In an exhibit which was included in the decision, Dr. P noted that claimant reached maximum medical improvement (MMI) on May 6, 1993, with an impairment rating of five percent. The impairment was ascribed entirely to her lumbar spine (and not her cervical spine). Claimant announced at the June 15, 1993, hearing that she did not dispute this MMI date. ↑
- At the June 15, 1993, hearing, the carrier stated that its position was that the first knowledge of claimant’s injury was received in a September 8, 1992, letter from an attorney who previously represented claimant. The letter is not in the record nor is there testimony to this effect, however, although it is mentioned in the benefit review conference report. ↑
- The hearing officer found that the claimant did not timely report the injury within the statutorily required 30 days of the alleged injury on (date of injury); although there was testimony supporting claimant’s complaints of back pain, the hearing officer apparently believed that the incident and work-related aspect of the injury were not communicated. ↑