This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On August 15, 2000, a contested case hearing was held. With regard to the two issues before him, the hearing officer determined that the appellant/cross-respondent (claimant) had not suffered a compensable detached retina on __________ (all dates are 1999 unless otherwise noted), and that the claimant had good cause (trivialization) for not timely reporting his injury to the employer.
The claimant appeals, contending that a blow to the head on __________ did cause the detached retina, and citing medical evidence which might support that conclusion. The claimant requests that we reverse the hearing officer’s decision on that issue. The respondent/cross-appellant (carrier), in a conditional appeal, requests review of the findings that the claimant had good cause for not reporting the alleged injury earlier and requests reversal on that issue. Both parties filed responses to the other’s appeal.
DECISION
Affirmed.
The claimant was the owner and president of EZP, which was employed by (employer), a temporary leasing company. The claimant testified that on __________ he was at a site where EZP was working and hit his forehead on a forklift that was holding a piece of equipment. The bump was unwitnessed, although two coworkers “heard ’em talking” about the incident a day or two (or a few days) later. The claimant testified that a few days later his right eye began to water and the conditions continued to get worse, until he went to see his doctor, Dr. R, on December 2. Dr. R referred the claimant to Dr. Dr. L, apparently an ophthalmologist, who diagnosed a detached retina of the right eye and performed emergency surgery on December 3. The claimant testified that he had a follow-up visit with Dr. L on December 9, where they talked about the cause of the detached retina. The claimant testified that it was at that time he was told that the bump on the forehead on October 25 could have caused the detached retina. The claimant testified that he reported the injury to the employer on December 9.
Other factors that were discussed which might have a bearing on the case are that the claimant had cataract surgery with attendant lens implant in the right eye in 1995, that there are unpaid medical bills in the amount of about $20,000.00, and that the claimant does not have group health insurance.
In a letter report dated December 17, Dr. L writes:
This letter is to provide a brief clinical history of the events leading up to the retinal detachment that was diagnosed by [Dr. R] and treated on 12/2/99. You noticed a shadow coming down from the top of the vision in the right eye for approximately two months. This was of relatively sudden onset, but you had had symptoms of flashes of light and floaters for at least a month prior to the onset of the shadow. You had recently been doing heavy lifting and had an accident where you had trauma from the tip of a forklift vehicle prior to the onset of symptoms.
The carrier argues that two months prior to December 2 would have been early October, some three weeks prior to the forklift incident, and that the claimant had flashes of light a month before that. The claimant’s medical records were reviewed by Dr. S, an ophthalmologist, who, in a report of February 7, 2000, commented that the “most significant probable contributory cause for the retinal detachment would be the previous cataract surgery.” In a follow-up report dated March 9, 2000, Dr. S commented:
The severity of a blow to the head or amount of heavy lifting required to detach a retina is not known. Minor indirect injuries to the eye, such as [the claimant’s] head injury, act not as the primary cause of a retinal detachment but merely as the precipitating event in an eye already prone to developement [sic] of a retinal detachment, i.e., previous cataract surgery. When the eye is healthy, a retinal detachment from minor trauma alone is rare.
In a report dated March 22, 2000, Dr. L writes:
In my opinion, the trauma to the forehead due to the impact with the forklift vehicle was a definite factor in the development of the retinal detachment in the right eye. I strongly believe that he should be extended any workman’s compensation benefits that he is entitled to.
In another report dated August 12, 2000, Dr. L disputes Dr. S’s opinion that the cataract surgery was the primary cause and concludes the “retinal detachment was due to the trauma and not the cataract surgery itself.” Dr. M, another ophthalmologist, in a brief report dated May 3, 2000, gives his opinion that “it is reasonable to conclude that this concussion incident at work was implicated in the development of the retinal detachment.” Dr. R, when asked to give his opinion on the cause of the retinal detachment, in a progress note dated March 6, 2000, said he “could not determine etiology, but that either situation [cataract surgery/head trauma] could increase risk.”
The hearing officer held that expert medical evidence was required in this case and that the claimant had not proven by “a reasonable medical probability that a relationship exists between the detached retina and his employment” (the bump on the head). The medical evidence was in conflict and Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). 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 decline to substitute our opinion of the credibility of the evidence for that of the hearing officer.
On the issue of good cause for failing to timely report the injury, generally, a claimant must report an injury to his employer within the requisite 30-day period, Section 409.001, unless there is good cause for the failure to timely report the injury. Section 409.002(2). The question of good cause for failure to timely report an injury is a question for the fact finder. Texas Workers’ Compensation Commission Appeal No. 93550, decided August 12, 1993. A claimant must act with diligence in notifying the employer of a claim. Texas Workers’ Compensation Commission Appeal No. 93649, decided September 8, 1993. A reasonable time should be allowed for the preparation and filing of a claim after the seriousness of the injury is suspected or determined. Appeal No. 93649. The claimant has the burden to prove good cause. Texas Workers’ Compensation Commission Appeal No. 94114, decided March 3, 1994. The test for good cause is that of ordinary prudence or “that degree of diligence that an ordinary person would have exercised under the same or similar circumstances,” and it is within the purview of the hearing officer to determine what ordinary prudence is under the circumstances. Id. A reason or excuse generally recognized as good cause for late reporting is the belief of the employee that the injury is trivial. Appeal No. 94114. We hold that the hearing officer’s finding of good cause for failing to timely report the injury based on trivialization is supported by the evidence.
Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and
order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Kenneth A. Huchton – Appeals Judge
Robert W. Potts – Appeals Judge