On August 8, 1991, a contested case hearing was held in (city), Texas, with (hearing officer), presiding as the hearing officer. The hearing officer determined that appellant (claimant below) had failed to meet his burden to establish by a preponderance of the evidence that he suffered a compensable injury in the course and scope of his employment on (date of injury), and was not entitled to workers’ compensation benefits under the Texas Workers’ Compensation Act. TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 et seq. (Vernon Supp. 1992) (1989 Act). Appellant takes issue with Findings of Fact Nos. 4 through 9, and with Conclusion of Law No. 3. Appellant requests that we review the testimony of one of respondent’s witnesses, (Ms. V), and review Claimant’s Exhibit R-2. Appellant requests that we reverse the findings of the hearing officer and seeks the following relief: (1) full scan of the cervical and lumbar area of his spine; (2) acceptance of a compensable injury with full benefits; and, (3) attorney’s fees for appellant’s representation. We did not receive a written response to appellant’s request for review.
DECISION
The hearing officer’s decision is reversed and a new decision is rendered that appellant sustained a compensable injury on (date of injury), but that the injury did not extend to his cervical and lumbar spine.
Before discussing the merits of this case, we comment on the time lag between the date appellant’s “Request for Appeal of Decision and Order by Hearing Officer” (the “Request”) was filed with the Texas Workers’ Compensation Commission (the “Commission”) and the date of our decision on the Request. The hearing officer’s decision was sent to the parties on August 22, 1991. The Commission’s central office in (city), Texas, received the Request by certified mail on September 9, 1991. The letter transmitting the Request was dated September 5, 1991. Apparently, the central office inadvertently sent the Request to the Commission’s field office where the hearing was held, instead of delivering the Request to the Appeals Panel located at the central office. The field office personnel apparently thought that the document they received from the central office was their copy of the Request (appellant’s cover letter indicated that a copy was being sent to the field office) and, therefore, the field office did not notify the Appeals Panel of the receipt of the Request. Since no Response to the Request was filed, there was nothing to alert the Appeals Panel to any review action needed. On or about February 4, 1992, appellant’s attorney inquired as to the status of the Request. On being informed that the Appeals Panel had not received it, appellant’s attorney faxed a copy of it to the Appeals Panel the same day along with a copy of the return receipt for certified mail showing receipt by the Commission’s central office on September 9, 1991. On further inquiry by the Appeals Panel, the original Request was located at the Commission’s field office in (city). Our review of the circumstances surrounding the filing of the Request convinces us that the Request was timely filed and, therefore, the jurisdiction of the Appeals Panel to review the decision of the hearing officer was properly invoked and the appellant thereby entitled to a review of the issues on which review was requested. Article 8308-6.41; Tex. W.C. Comm’n, TEX. ADMIN. CODE § 143.3.
To begin our discussion on the merits, we find that the statement of the disputed issue in the hearing officer’s decision, “[w]hether the claimant suffered a compensable injury during the course and scope of his employment,” does not comport with the issue as reported out of the benefit review conference (“BRC”), the issue as stated by the hearing officer at the hearing, or the issue as framed by the parties at the hearing. The issue raised but not resolved after the BRC was “[e]xtent and duration of injury. Issue is whether or not cervical and lumbar are related to this injury.” At the hearing, the hearing officer said he understood the issue had to do with the extent and duration of the injury — “whether or not the injury to (appellant’s) cervical vertebra is related in any way to the apparent medical problem he has regarding his lumbar vertebra.” In his opening statement appellant’s attorney stated that the main issue was “extent of medical that should be covered on this claim” and in closing argument said that the issue boiled down to “get proper medical treatment for (appellant).” Respondent’s attorney stated in his opening statement that “[t]here is really no dispute that an occurrence did take place where (appellant) was injured and its the extent of the injury, the type of the injury that we have in dispute in the case.” In closing argument respondent’s attorney stated that “[t]here is no dispute here that there was an occurrence which resulted in an injury on (date of injury) of this year. The dispute is over the extent of the injury and whether this new reported back claim is actually a result of this occurrence that took place the (date of injury).”
From the BRC report and the statements and arguments made at the hearing by counsel for the respective parties, it is apparent to us that there was no dispute as to whether or not appellant sustained an injury in the course and scope of his employment. The parties agreed that he had sustained an injury; the dispute was over whether or not the injury extended to his cervical and lumbar spine. Appellant’s position at the hearing and on appeal is that the extent of his injury should be determined by his doctor, and that he was denied full access to his doctor because, from his viewpoint, his doctor had not been allowed to conduct CAT scans of his cervical and lumbar spine. Respondent’s position at the hearing was that appellant sustained only a minor cut on his neck at work, and that his claimed back injury was not related to the occurrence which resulted in the cut on his neck.
The parties stipulated that appellant was working for (employer) at the time of the incident which gave rise to his claim. The employer makes wood products. Appellant, who does not speak English, testified through a Spanish-speaking translator. He said that while he was at work cutting wood, a piece of wood hit him from behind. He didn’t see the piece of wood that hit him and was, therefore, unable to describe the size of the piece of wood. When he was hit, he said he fell sideways on top of a pile of lumber that was about as tall as he, causing the pile of wood to fall and spread out. He said that immediately after the wood struck him he felt pain in his neck. He stated that he got dizzy, saw lots of lights, felt nauseous, but did not exactly lose consciousness. Appellant further testified that the piece of wood that struck him was thrown from a co-worker’s machine. He said that one of the co-worker’s who operated the machine, (Mr. G), came over to him and pulled a wood splinter out of his neck. (Mr. G) took him to his supervisor who told him to wait for another co-worker to take him to the doctor. He said that he told the co-worker who took him to the doctor, (Ms. V), that he felt like vomiting and that she told him to go outside and get fresh air. Appellant further stated that he did not tell anyone at work about the kind of pain he was having because there was no reason to tell them and because no one asked him about it.
The doctor appellant saw on the day of his accident, (Dr. H), did not speak Spanish. According to appellant, neither the doctor nor the nurses asked him any questions. He said that the only conversation was between the doctor and the co-worker who took him to the doctor, (Ms. V), and that there was no translation of their conversation. Appellant stated that the doctor stitched him and told him to go. (Ms. V) then took him back to work where he waited in the break room for about a half an hour until quitting time.
The next day, appellant said he did not go to work because his neck and head hurt, he had a fever, and he vomited. He stated that he has not worked anywhere since his accident. About two or three days after his accident, he said he started having problems with his lower back; he could not bend over, it hurt, and he could not sit or lay down. On two subsequent visits to (Dr. H), appellant said he took a friend to translate. He said he told the doctor during these visits that his back, neck, and head hurt, but that the doctor said there was nothing wrong with him and that he was healed. Later, he was examined by (Dr. R). He said he took another person to translate for him when he visited this doctor, and that he told the doctor that he had been hit on the left side by a piece of wood and that he fell into a pile of wood. He said that (Dr. R) was the first person he told about feeling dizzy and having back problems. At the hearing, appellant said his back and neck still hurt, and that he sometimes has “pulsations” in his head.
Respondent called four witnesses and introduced into evidence the signed written statements of two of those witnesses. (Mr. H) worked for the employer on the day of appellant’s accident, but did not work for the employer at the time of the hearing. He was working with (Mr. G) cutting wood on a rip saw when he heard a “pop,” and saw appellant, who was about six feet away, reach up and grab his neck. This witness said that (Mr. G) ran over to appellant and took appellant to the office. He said that (Mr. G) told him that appellant had a splinter behind his ear. This witness stated that he did not see the piece of wood that hit appellant. He also said that there was a stack of lumber to the side and that he did not see appellant fall. But, he also testified that he did not know whether appellant fell down because he (the witness) was bending down at the time stacking his own lumber. He testified that he did not see appellant walking unsteady or looking like he was going to pass out.
(Mr. G), who speaks English and Spanish, testified that the piece of wood he and (Mr. H) were cutting on the rip saw threw a “stitch,” which he said was like a splinter, back through the machine. When Jose acted like something happened behind them, Carlos said he turned and saw appellant holding his neck and that it looked like appellant was pushing himself up against a pile of wood. He said the pile of wood was four to five feet high and had not “fallen or been disturbed.” He asked appellant if he was all right to which appellant replied, “yeah.” He saw two splinters in appellant’s neck and that appellant was bleeding. He said appellant pulled out the splinters. He further testified that after the incident, appellant walked straight and did not seem disoriented, confused, or dazed in any way. This witness said that “stitches” fly out from the rip saw pretty fast when the edges of the wood are cut. He described a “stitch” of wood as being about 1/8 inch wide and an inch long, although they can be longer. He did not know if it was a small piece or a big piece of wood that hit appellant. He only saw the splinters in appellant’s neck. He also said he did not see any pieces of wood around that might have come off his machine. About a week before the hearing, this witness was laid off from his job at the employer’s business.
(Ms. V), who has worked for employer for 25 years, testified that she saw other workers helping appellant and when she asked appellant, in Spanish, what happened to him, he told her a board hit him. Contrary to appellant’s testimony, she said appellant did not tell her he felt like vomiting and denied telling him to go outside and get fresh air. She also said appellant did not tell her he had neck or back pain. She said she took appellant to (Dr. H), the company doctor, as requested by someone at work. She also said she stayed with appellant at the doctor’s office and translated for appellant and the doctor. She told both the nurse and the doctor that appellant was hit by a board. In her signed written statement, this witness stated that appellant had one cut behind his left ear about 3/4 of an inch wide that did not look deep, and two other small cuts along his left ear lobe. She testified the doctor gave appellant shots and then stitched his wound. She said the doctor asked appellant if he was hurting anywhere else, which question she translated for appellant, and appellant answered “no.” She also said that when she asked appellant if he was all right, he said “yeah.” This witness further testified that appellant did not limp but walked straight after the incident; that he never indicated to her that he was dizzy or had been knocked out; and that she did not observe any actions by appellant that his back was hurt.
(Ms. B), respondent’s claim representative, also testified for respondent. She testified that sometime in March or April 1991, (Dr. R’s) office called and advised her that the doctor wanted to do a CAT scan of appellant’s cervical and lumbar spine. Initially, this witness testified that she advised the doctor’s office that respondent would pay reasonable and necessary medical expenses that were directly related to his injury, and that she agreed to a CAT scan of his neck. She did not recall specifically denying anything, but wanted a report from the doctor showing a relationship between the low back complaints and the original injury. She said (Dr. R) sent her a report which, in her view, gave a totally different account of the injury than was given to the first doctor, (Dr. H). She further testified that since the date of her one and only telephone call from (Dr. R’s) office, she had not heard whether or not a CAT scan of the neck was done, nor was she contacted about that procedure by appellant or his attorney since her initial approval. However, she could not recall whether she informed appellant’s attorney about the approval for a CAT scan of the neck. On questioning from the hearing officer, this witness indicated that respondent had agreed with appellant’s attorney to have appellant seen by (Dr. R), and when (Dr. R’s) office called her, she did not specifically discuss approval or denial of anything. Her testimony reflects that she wanted the doctor’s office to explain how the reported back pain related to the cut below the ear.
Medical records and reports introduced into evidence reveal that appellant was examined initially by (Dr. H), M.D., on (date of injury), returned for two follow-up visits with that doctor, and then was examined by (Dr. R) on April 10, 1991. (Dr. H’s) report reflects that when appellant came to his office on (date of injury), appellant stated he was sawing wood and a splinter came up and hit him behind his left ear. A small laceration behind his left ear was sutured with two sutures. When appellant returned on March 25th, (Dr. H) reported that the laceration had healed and noted that appellant said he had some headaches. On that visit, the doctor found “no apparent residual damage, no cerebral irritation, no loss of function, no abnormal reflexes.” On his last visit to (Dr. H) on April 2, 1991, the doctor found no lateralizing signs, no pathological reflexes, and no evidence of intracranial injury. The doctor told him he could return to work, with a re-check for a final exam in two weeks. There is no indication in the medical records that appellant returned for a final examination. In his Initial Medical Report to the Commission, (Dr. H) diagnosed only a left ear laceration. This report gave no indication of appellant’s work status.
(Dr. R), M.D., F.A.C.S., reported that he examined appellant on April 10, 1991, for complaints of “head, neck, thoracic, and low back pain since (date of injury) when he was cutting wood for furniture pieces at work when he was struck on the right post-auricular region with a wooden board by a co-worker.” (Dr. R’s) report indicates that appellant told him he had loss of consciousness and fell into a pile of wood. Based on the history of the injury given to him by appellant, and physical and neurological examinations, (Dr. R) diagnosed post-concussion syndrome, cervical myelopathy, cervical sprain, and lumbosacral sprain. This doctor advised that he wanted to evaluate appellant with a CAT scan of the cervical and lumbosacral spine, and that he referred appellant to a clinic for physical therapy to his neck and back. (Dr. R’s) Initial Medical Report to the Commission, dated April 15, 1991, was essentially a summary of his April 10th medical report, except he diagnosed only cervical myelopathy and lumbar sprain in the April 15th report. This report gave no indication of appellant’s work status. However, in a Work Status Report dated April 19, 1991, (Dr. R) advised that appellant “is unable to work from 4-10-91 until 5-10-91.” In a letter dated August 8, 1991, (Dr. R’s) office advised appellant’s attorney that respondent denied payment for appellant’s treatment with (Dr. R) (Claimant’s Exh. R-2). The letter does not specify for what treatment payment was denied.
Appellant challenges the following findings of fact:
4. Claimant suffered a minor injury in the course and scope of his employment.
5. The Claimant returned to work on the same day and there was not other lost time associated with this injury.
6. Claimant did not mention dizziness or nausea at any time during the afternoon of his injury.
7. Claimant was unhurt except for small cuts to his neck.
8. Claimant did not suffer from symptoms other than those directly related to the cuts to his neck.
9. Claimant did not suffer a compensable injury, since his evidence in that regard, including the subjective findings of (Dr. R) in reliance on his representations, were not credited.
Appellant also takes issue with Conclusion of Law No. 3 which states:
Claimant did not suffer a compensable injury within the course and scope of his employment.
Under the 1989 Act, the hearing officer is the trier of fact in a contested case hearing, and is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given the evidence. Article 8308-6.34(e) and (g). As the trier of fact, the hearing officer resolves conflicts and inconsistencies in the evidence. Garza v. Commercial Insurance Co. of Newark, N.J., 508 S.W. 2d 701 (Tex. Civ. App. – Amarillo 1974, no writ). He or she is privileged to believe all or part or none of the testimony of any one witness. Taylor v. Lewis, 553 S.W. 2d 153 (Tex. Civ. App. – Amarillo 1977, writ ref’d n.r.e.). The hearing officer is not bound to accept the testimony of the claimant at face value. Garza, supra. As an interested party, the claimant’s testimony only raises an issue of fact for determination by the trier of fact. Escamilla v. Liberty Mutual Insurance Company, 499 S.W. 2d 758 (Tex. Civ. App. – Amarillo, no writ). As the trier of fact, the hearing office also judges the weight to be given expert medical testimony, and resolves conflicts and inconsistencies in the testimony of expert medical witnesses. Texas Employers Insurance Association v. Campos, 666 S.W. 2d 286 (Tex. App. – Houston [14th Dist] 1984, no writ); Atkinson v. United States Fidelity Guaranty Co., 235 S.W. 2d 509 (Tex. Civ. App. – San Antonio 1950, writ ref’d n.r.e.).
The obvious purpose of Finding of Fact No. 6 (not mention dizziness or nausea) was to point out the disparity between appellant’s reported symptoms at the time of the accident and the symptoms he reported to (Dr. R) a month after the accident. Appellant admitted that he told no one about feeling dizzy as a result of the accident until he saw (Dr. R) on April 10th. Appellant’s testimony that he told (Ms. V) that he wanted to vomit was directly contradicted by (Ms. V). This conflict in the testimony was for the hearing officer to resolve. He could choose to believe (Ms. V) over appellant.
The evidence is also conflicting as to Findings of Fact Nos. 4 (minor injury), 7 (unhurt except for small cuts), and 8 (not suffer symptoms other than those directly related to the cuts). Contrary to appellant’s testimony, respondent’s witnesses, who observed appellant immediately after the accident, did not see appellant act in any manner indicating that he was unsteady, disoriented, confused, dazed, or had anything wrong with him except for the cuts on his neck from the splinters. Also, appellant’s alleged fall on top of the pile of wood was not seen by those in close proximity to him.
While (Mr. G) stated that it looked like appellant was pushing himself up against a pile of wood, he also stated that the wood had not fallen and was not disturbed, which directly contradicted appellant’s testimony. There is also a question as to how appellant could have fallen on “top” of a pile of lumber that was as tall as he.
The reports of the doctors are also in conflict. (Dr. H), who examined appellant on three occasions, found no injury to appellant other than a small laceration behind his left ear, which was sutured. Appellant’s testimony that this doctor asked him no questions borders on the incredible. The hearing officer was entitled to believe (Ms. V) testimony on this matter. In contrast to (Dr. H’s) report, (Dr. R) diagnosed a number of conditions. However, his report was based, in part, on the history of the injury as reported to him by appellant. (Dr. R’s) report reflects that appellant told him he was struck behind the right ear with a wooden board by a co-worker, lost consciousness, and fell into a pile of wood. That version of the incident could have easily conveyed to the doctor a much more serious incident than was described at the hearing by both appellant and the witnesses for respondent. Testimony at the hearing revealed that a “stitch” or splinter came off a board but the board stayed on the machine. Appellant admitted that he had not lost consciousness. The conflict in the testimony of the witnesses and in the reports of the doctors were matters for the hearing officer to resolve. He could choose to give more weight to the testimony of respondent’s witnesses and to (Dr. H’s) report than to appellant’s testimony and (Dr. R’s) report.
We hold that Findings of Fact Nos. 4, 6, 7, and 8 are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W. 2d 660 (1951).
We are troubled by Finding of Fact No.5 (no lost time associated with this injury) in view of the fact that even (Dr. H), whose expert opinion the hearing office apparently gave more weight to, made no mention of a release to return to work until his April 5, 1991, report wherein he stated he advised appellant he could return to work when he saw appellant on April 2, 1991. The fact that appellant returned to work on (date of injury), after being treated by (Dr. H) that day, has little bearing on whether he subsequently lost time from work as a result of his injury since it appears he had little choice in the matter of returning to work. (Ms. V) drove him back to work and the co-worker who was to drive him home that day was still at work. We hold that Finding of Fact No. 5 is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, supra. However, since the only issue at the hearing was whether or not appellant’s injury extended to his cervical and lumbar spine, this finding, which related to disability (See, Article 8303-1.03(16)) was not necessary and may be disregarded. Bittick v. Ward, 448 S.W. 2d 174 (Tex. Civ. App. – Beaumont 1969, writ ref’d n.r.e.).
Appellant takes issue with Finding of Fact No. 9 and Conclusion of Law No. 3, both of which state, in part, that “[c]laimant did not suffer a compensable injury . . . .” We hold that the hearing officer erred in making Finding of Fact No. 9 and Conclusion of Law No. 3. Respondent conceded at the hearing that appellant was injured as a result of the incident at work on (date of injury). It is undisputed that appellant was working for his employer doing his normal work duties on his employer’s premises when an accident occurred resulting in a laceration behind his left ear which required immediate medical treatment. Since appellant suffered damage or harm to the physical structure of his body in the course and scope of his employment for which, at a minimum, medical benefits were payable, we hold that the hearing officer’s determination that he did not suffer a compensable injury to be in error as a matter of law and reverse that decision. See, Article 8308-1.03(10), (11), and (27). However, our holding on the matter of a compensable injury is not dispositive of this appeal because, as previously noted, the issue at the hearing was not whether appellant sustained a compensable injury, but was whether the injury extended to his cervical and lumbar spine.
Where the trial court renders an improper judgment on the issues found by the jury, the appellate court may render judgment according to the findings. See, 6 TEX. JUR. 3d Appellate Review § 839 (1980); Rubio v. First Nat. Bank of Fort Worth, 270 S.W. 1037 (Tex. Civ. App. – Fort Worth 1925, no writ); Texas & N.O.R. Co. v. Harris, 101 S.W. 2d 640 (Tex. Civ. App, – El Paso 1937, writ dism. w.o.j.). In this case, the issue before the hearing officer was whether or not appellant’s injury extended to his cervical and lumbar spine. Based on Finding of Fact No. 7 (claimant was unhurt except for small cuts to his neck), which we have determined was supported by sufficient evidence, the hearing officer should have determined that appellant’s injury did not extend to his cervical and lumbar spine. However, he made no determination on that issue. Accordingly, we render a decision that appellant’s injury did not extend to his cervical and lumbar spine.
Appellant’s assertion that Finding of Fact No. 7 could not be made in the absence of “proper testing” is without merit under the circumstances presented in this case. The conflicting medical reports of the doctors who treated appellant were in evidence. (Dr. R’s) impressions included, among other things, cervical sprain and lumbosacral sprain, whereas (Dr. H), who examined appellant on three occasions, found appellant’s injury to be confined to a small laceration behind his left ear. The hearing officer gave more weight and credibility to (Dr. H’s) medical evaluation than to (Dr. R’s) evaluation as he was entitled to do as the trier of fact. Atkinson, supra. The hearing officer could also consider the testimony of the lay witnesses as to their observations of appellant’s physical condition after the incident.
There is one more matter we wish to discuss and that is the benefit review officer’s Interlocutory Order dated June 21, 1991, which ordered respondent to pay appellant temporary income benefits from (date of injury), and to pay medical benefits described as “reasonable and necessary treatment determined or at the direction of (Dr. R).” Appellant insisted at the hearing, as he does on appeal, that (Dr. R’s) office requested authorization to do a CAT scan of the cervical and lumbar areas and that his request was denied by respondent. However, the BRC report reflects that respondent offered a CAT scan of the neck, which offer is confirmed by appellant in his request for review. The testimony of respondent’s claim representative was somewhat inconsistent on this matter. At one point she said the CAT scan of the neck had been approved before the BRC, and that it was her understanding that (Dr. R) was going to have that test performed. In later testimony she said she did not discuss approval or denial of anything with (Dr. R’s) office, and that she told his office respondent would pay in “relation to the reported injury.” In any event, the BRC was held after the date of the claim representative’s conversation with (Dr. R’s) office and, therefore, it appears from the BRC report that the CAT scan of the neck was authorized by respondent. It is not clear why that CAT scan was not performed. The letter from (Dr. R’s) office to appellant’s attorney dated August 8, 1991, the day of the hearing, advised that respondent was denying payment for appellant’s treatment with (Dr. R), but it does not mention whether that treatment included a CAT scan of the cervical spine. It is apparent from the BRC report and the testimony of respondent’s claim representative that respondent resisted authorization of a CAT scan of the lumbar spine. Whether there was ever an outright denial of payment for that test is unclear.
Pursuant to Article 8308-10.07(b)(19), a carrier’s willful or intentional failure to pay an order awarding compensation constitutes an administrative violation subjecting the violator to an administrative penalty under the provisions of Article 8308-10.21. The term “compensation” includes payment of medical benefits. Article 8308-1.03(11). The letter from (Dr. R’s) office dated August 8, 1991, certainly raises the possibility that respondent may have violated the benefit review officer’s interlocutory order for payment of medical benefits. However, administrative violations are matters to be resolved in a proceeding conducted in accordance with Articles 8308-10.31 through 8308-10.35 and under the Administrative Procedure and Texas Register Act (TEX. REV. CIV. STAT. ANN. art. 6252-13a). Therefore, we decline to say more on that matter.
The decision of the hearing officer is reversed and a new decision is rendered that appellant sustained a compensable injury on (date of injury); that appellant is entitled to workers’ compensation benefits in accordance with the provisions of the 1989 Act; and, based on the hearing officer’s findings of fact, that appellant’s compensable injury does not extend to his cervical and lumbar spine.
Appellant’s request regarding attorney’s fees is considered in a separate decision.
Robert W. Potts – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Joe Sebesta – Appeals Judge