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 3, 1999. The issues at the CCH involved a claim for an occupational disease, carpal tunnel syndrome (CTS), that the respondent (claimant) said was an extension of his back injury occurring on _______. In addition to the extent-of-injury issue, there was a second issue involving whether the appellant (carrier) had filed a timely dispute to the compensability of that condition or whether the carrier’s contest was based upon evidence that could not have been discovered earlier.
The hearing officer held that the claimant’s CTS was neither a natural result of his compensable injury, nor did it occur on _______. The hearing officer identified several written documents that fairly informed the carrier that claimant considered the CTS he had to be related to his employment, but that it did not dispute within 60 days after the earliest of these written notices. The hearing officer found that carrier’s contest eventually filed was not based upon newly discovered evidence that it could not reasonably have discovered at an earlier date.
The carrier has appealed. The carrier argues that the earlier notices recited by the hearing officer do not contain “facts showing compensability.” There is no response from the claimant. There is no appeal of the adverse finding that the claimant’s upper extremity problems are not an extension or natural result of his back injury.
DECISION
Affirmed.
There was no testimony to develop the nature of the original injury or any background as to the development of CTS. Therefore, the medical records must be consulted to provide this. On _______, the claimant was employed by (employer), and he injured his back on that date while lifting some heavy pipes off a coworker. Apparently, he was employed as a truck driver by the employer. The back injury was stipulated. He was found to have a large herniation. His treating doctor was Dr. GV.
A March 31, 1997, report does not give any notice of CTS, but merely of a rash on the hands. However, the hearing officer did not identify this report as giving notice of upper extremity injury to the carrier. The claimant had back surgery the next month. The hearing officer expressly mentions the reports of July 7 and August 7, 1997, and February 16, 1998, as fairly informing the carrier in writing of the upper extremity problems.
On July 7, 1997, Dr. GV noted that claimant was complaining bitterly about his left elbow, and Dr. GV recommended an EMG of the upper extremities. This report notes that claimant has elbow pads. Nothing in this report expressly describes the relationship of this pain to claimant’s subsequent back surgery. Dr. GV stated that claimant should have an EMG of his upper extremities. The adjuster on the claim testified that she went ahead and approved payment for the EMG due to her understanding that claimant had elbow pain relating to pulling himself up after his back surgery.
The initial neurological evaluation performed on claimant on August 5, 1997, details his back injury in _______. (This report is date stamped August 7, 1997, and appears to be the report referred to by the hearing officer on that date.) The report is entitled a “Workers’ Compensation Initial Medical Report” and plainly refers to the back injury while conveying the results of the EMG. On September 30, 1997, an unsigned letter from Dr. R to Dr. GV stated that there was “no evidence” of a common cause of peripheral neuropathy. Dr. R states, “[i]n view of the negative results of the lab, the possibility that this could have been traumatic injuries is raised.” There was no evidence when a copy of this letter was received by the carrier.
On January 29, 1998, Dr. GV filed a report (date stamped by the carrier as having been received on February 16, 1998), which described the claimant’s back condition, and then ended with the observation that claimant should see a hand specialist for a variety of hand and elbow problems. This report itself does not expressly link those problems to the injury. The carrier reacted after receipt of this notice to file a Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) disputing compensability of upper extremity problems, on March 20, 1998.
The adjuster testified about what was occurring when the EMG was done:
It was probably about July of ’97, or it may have been a little earlier, that [claimant] contacted me about problems that he was having with his elbows from pulling himself up with his elbows after his surgery.
The Appeals Panel has held that where the assertion is made that the injury has evolved to a new region not heretofore included in any claim of injury, the carrier will have another 60-day period to dispute compensability of that region. The duty to react is triggered by written notice. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.6(c) (Rule 124.6(c)). The conversation the adjuster says she had with the claimant arguably establishes the context wherein subsequent written reports were reviewed although verbal notice alone will not trigger the 60 days. In any case, the July 1997 EMG report, attached to a “Workers’ Compensation Initial Medical Report,” conveys, in our opinion, the requisite
facts showing compensability as set forth in Rule 124.1(a)(3). The January 1998 report that triggered the carrier’s TWCC-21 frankly contains no more information than this earlier report, nor was the receipt of anything new proven by the carrier. The evidence sufficiently supports the hearing officer’s determination that the carrier waived a dispute to compensability of the upper extremity conditions and that it did not have newly discovered evidence for reopening compensability when it did. We accordingly affirm the hearing officer’s decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Tommy W. Lueders – Appeals Judge