This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 14, 2000, with the recording closing on March 29, 2000. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury on __________, that the claimant did not give the employer timely notice of the injury and did not timely file a claim for compensation; that the claimant did not elect non-workers’ compensation benefits; that the respondent (carrier) timely disputed compensability; and that the claimant did not have disability. The claimant appeals, contending that timely filing was not properly an issue before the hearing officer and that the adverse determinations were otherwise contrary to the great weight and preponderance of the evidence. The respondent (carrier) replies that the decision is correct, supported by sufficient evidence, and should be affirmed. The election of remedies determination has not been appealed and has become final. Section 410.169.
DECISION
Affirmed in part and reversed and rendered in part.
The claimant worked as a forklift operator. He had a prior low back injury in __________ which was described as right herniation at L4-5 and for which he underwent an operation in August 1988. He said he had essentially recovered from this prior injury. He contended that on __________, he experienced severe and new low back and left leg pain as a result of operating a forklift over rough terrain. He was later diagnosed with a left L4-5 herniation, which he alleges is a new injury.
On October 7, 1999, Dr. P, the treating doctor, wrote that the claimant had by 1992 healed from his prior injury and that his current herniation was a new injury. However, on August 18, 1997, apparently his first visit with Dr. P after the claimed new injury, Dr. P wrote that the claimant had increasing back and leg pain over the last four or five weeks. At the clinic where the claimant first presented on August 13, 1997, the claimant is reported as giving a history of increasing pain for the prior three weeks. We also note that although the claim was filed with an __________, claimed date of injury, the claimant testified that he could not remember the exact date and the incident could have happened between August 10 and 13, 1997.
The hearing officer did not decide the compensable injury issue in terms of aggravation of a prior condition. Rather, she concluded from the evidence that the claimant did not sustain the left herniation at work on __________, but on this date only felt pain that he also had experienced prior to this. In her discussion, she pointed out the references in the evidence to complaints of pain well before __________. Whether the claimant suffered a compensable injury on this date presented a question of fact for the hearing officer to resolve. Section 410.165(a) further provides that the hearing officer is the sole judge of the weight and credibility of the evidence. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we find the medical evidence of complaints of pain before the claimed date of injury and which the hearing officer considered credible, sufficient to support the finding of no compensable injury on __________.
As to notice, the claimant testified repeatedly that on the day of the claimed injury he only told Ms. S, the safety manager, that his left leg and low back hurt, but did not volunteer that he also told her he hurt himself while riding the forklift. Ms. S in a transcribed statement said she was not at work on __________, presumably prompting the claimant to expand the window wherein he sustained his injury, but she did say he told her he hurt himself on the forklift. Clearly, this evidence was contradictory and a hearing officer could have found timely notice based on Ms. S’s statement. In this case, the hearing officer chose to find that the claimant failed to prove timely notice by taking at face value his testimony that he never related the injury to working on __________. We find no reversible error in this determination and observe that the claimant did not rely on a good cause exception to lack of timely notice.
The claimant asserts error in the hearing officer’s finding that the carrier did not waive the right to contest the claimed new low back injury. In doing so, he relies on the theory that the carrier “should have known of the injury in __________.” Presumably what is suggested is that the employer or doctor should have earlier sent some document to the carrier. We have held that the 60-day period for triggering the dispute requirement begins on the date the carrier receives written notice. Texas Workers’ Compensation Commission Appeal No. 952232, decided February 8, 1996. The claimant must establish what the written notice is and when it was received. In this case, the only writing in evidence that could serve as a candidate for written notice was an Employee’s Notice of Injury or Occupational Disease & Claim for Compensation (TWCC-41) signed by the claimant on June 18, 1999, and received by the Commission on June 21, 1999. The carrier filed a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) on June 28, 1999. Thus, the evidence was sufficient to support the finding of timely dispute by the carrier.
The claimant objected at the CCH to the addition of the timely claim filing issue. It was not reported out of the benefit review conference (BRC). Neither attorney at the CCH was present at the BRC, nor were any responses to the BRC report filed. Section 410.151 (b)(2) provides that an issue may be added under these circumstances based on a finding of good cause. The hearing officer commented at the CCH that she found good cause for adding this issue, but did not identify what the good cause consisted of and we identify none. Under these circumstances, we conclude that she abused her discretion in finding good cause. A remand for clarification would serve no useful purpose in light of our affirmance of the other dispositive issues in this case. For this reason, we reverse the determination of good cause to add a timely filing issue and render a decision that no good cause was established to add this issue. Findings of Fact and Conclusions of Law that purport to resolve this issue are reversed and a decision rendered that this issue was not properly before the hearing officer.
Finally, we also find no error in the hearing officer’s determination that the claimant did not have disability, as the 1989 Act requires a finding of the existence of a compensable injury as prerequisite to a finding of disability. Section 401.011(16).
For the foregoing reasons, we affirm the decision and order of the hearing officer in all respects but the findings and conclusions that the claimant did not timely file a claim. We reverse these and render a decision that this issue was not properly before the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Judy L. Stephens – Appeals Judge