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. The issues at the CCH were whether the ___________, compensable injury was a producing cause of the appellant/cross-respondent’s (claimant) SI joint dysfunction and facet arthropathy, whether the respondent/cross-appellant (carrier) waived the right to contest compensability of the SI joint dysfunction and facet arthropathy by not contesting compensability within 60 days of being notified of the “problem,” and whether the claimant had disability from the ___________, injury from January 22, 1999, through the present. The hearing officer determined that the ___________, compensable injury was a producing cause of the claimant’s SI joint dysfunction and facet arthropathy, and that the carrier waived the right to contest compensability of the claimant’s SI joint dysfunction and facet arthropathy by not contesting compensability within 60 days of being notified of the “problem.” With regard to the disability issue, which causes us to remand, her findings and conclusions are inherently inconsistent and have no underlying findings of fact to give any indication as to what she intended or her reasoning. The claimant has appealed the single finding of fact on disability which states “[d]ue to the claimed injury, claimant was unable to obtain or retain employment at wages equivalent to claimant’s pre-injury wage,” the basic definition of disability. Her conclusion of law and decision stating no disability are completely inconsistent with this finding. Carrier responds to the claimant’s appeal on the disability issue urging, in essence, that it was basically a clerical error. Carrier also files an appeal, urging error in a number of findings of fact and conclusions of law that go to the determinations of the hearing officer on the issue of the compensable injury being a producing cause of the claimant’s SI joint dysfunction and facet arthropathy and with her decision that the carrier waived its right to contest compensability of those injuries because it did not do so within 60 days of being notified of the “problem.” Carrier essentially argues that the findings are against the great weight of the evidence and that there is a misapplication of the law by the hearing officer on the issue of waiver.
DECISION
Affirmed in part, reversed and rendered in part, and reversed and remanded in part.
Initially, we are unable to resolve on review the inconsistency in the finding on disability and the conclusion, the former appearing to establish disability and the latter concluding that the claimant did not have disability. In the discussion of the evidence, there is some allusion to an offer of employment at some time after the claimant was released to light duty; however, there are no findings on that matter or other underlying findings regarding the disability issue. There was other evidence that the claimant was completely taken off work by several doctors she saw. It certainly is not clear to us what basis the hearing officer might have had in mind in determining the disability matter either way. We simply do not know from the inconsistency stated what the determination of the hearing officer was on this issue or the basis for whatever she intended. Thus, this issue is remanded for reconsideration, further underlying findings of fact and rationale, and a new decision and order.
Regarding the determination that the claimant’s ___________, compensable injury was a producing cause of her eventually diagnosed SI joint dysfunction and facet arthropathy, we conclude from our review of the evidence that the findings of the hearing officer on this issue and her ultimate determination that the compensable injury was a producing cause of those injuries are not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Employers Casualty Company v. Hutchinson, 814 S.W.2d 539 (Tex. App.-Austin 1991, no writ). The claimant testified that on ___________, the first day of the job, she felt a pain in her low back and buttocks while she was lifting boxes of plastic bags onto a conveyor belt. She completed her shift but had to leave work the next day because of the pain. She saw a (Dr. ST), who diagnosed a lumbar strain and released her to light duty. Subsequently she saw several other doctors and was generally diagnosed with low back pain and lumbar sprain/strain, which the carrier accepted as compensable. Her recommended treatment over the course of several months was generally medication, physical therapy, and water therapy. She was referred to (Dr. K), who became her primary physician. An MRI exam of June 24, 1998, lists mild desiccation of the intervertebral discs at L4-5 and L5-SI with no other abnormalities seen. She underwent lumbar epidural steroid block injections and in a report dated July 28, 1998, Dr. K lists an assessment of lumbar radiculopathy and degenerative disc disease, and later in an August 31, 1998, report he also lists posttraumatic myofascial pain syndrome. In a November 9, 1998, report, Dr. K also lists lumbar facet arthropathy, traumatic as a part of his diagnosis and in a February 23, 1999, report, Dr. K also includes SI joint dysfunction. A report from a (Dr. S), dated December 9, 1998, who conducted an independent medical examination, indicates his assessment, after reviewing diagnostic tests, that the claimant “injured her right sacroiliac joint with resultant spur formation in the ligamentous area” and that he did not find evidence of disc pathology or facet encroachment of the lumbar spine. Throughout this time, the claimant was receiving various lumbar injections which were apparently authorized by the carrier for the injury of ___________. Claimant testified that she was not able to work; that she continued to have significant pain; and that although she tried to go back to light duty early on, when initially released to light duty, she was not able to perform the job because of the pain. She states, with some support in medical records, that she was taken off work by (Dr. C) whom she saw on May 26, 1998.
In any event, earlier, in August 1998, the carrier filed a dispute that the ___________, injury included degenerative lumbar disc disease or lumbar radiculopathy. This case reached a CCH and in a Decision and Order dated January 26, 1999, the hearing officer determined that the compensable injury of ___________, did not extend to or include lumbar degenerative disc disease and lumbar radiculopathy. In the case under review, the claimant asserts that her injury of ___________, was a producing cause of her SI joint dysfunction and lumbar facet arthropathy. Clearly, there are evolving medical diagnoses which include these injuries to the claimant’s lumbar spine. That they are causally related to the ___________, injury could reasonably be inferred by the hearing officer from the course of the medical records and treatment and from the opinion expressed by Dr. K. He states in answer to questions propounded on July 20, 1999, that in his opinion these diagnosed conditions were either caused by the claimant’s on-the-job injury or exacerbated by her job injury. We cannot conclude that the absence of the use of the term reasonable medical probability by Dr. K was fatal to the hearing officer’s determination. Texas Workers’ Compensation Commission Appeal No. 951417, decided October 9, 1995. Accordingly, we affirm the hearing officer’s findings and conclusions regarding the issue that the ___________, compensable injury was a producing cause of the SI joint dysfunction and facet arthropathy.
The hearing officer also determined that the carrier waived the right to contest compensability of the SI joint dysfunction and facet arthropathy by not contesting compensability within 60 days of being notified of the “problem.” Initially, we note that Section 409.021(c) provides that “if an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability.” (Emphasis ours.) Use of terms such as “problem” or “condition” when applying the provisions of the statute regarding notice of injury only adds confusion to a sometimes complicated scenario as in this case. Here, the claimant appeared to have sustained some type of sprain/strain injury to her low back on ___________. From that point forward, there was an evolving and changing constellation of diagnoses for the lumbar spine. As indicated, the carrier accepted the compensability of the ___________, injury at the time and apparently authorized treatment including therapy and various injections. However, as the subsequent diagnoses of degenerative disc disease and radiculopathy surfaced, the carrier disputed the causal relationship and eventually prevailed in a CCH on the issue. Sometime preceding, during, and after the CCH, additional lumbar spine diagnoses appear in the ongoing medical and treatment records. However, the carrier did not specifically dispute these evolving diagnoses as they appeared or at least within 60 days of the first indication of a modified diagnosis in the medical record. However, an issue as to extent of injury was brought into dispute in the latter part of 1998 as modifications to the diagnosis were progressing. Although not entirely clear from the decision at the time, it appears the carrier was accepting compensability and treatment for a lumbar strain/sprain injury and denying liability for claimant’s assertion of the degenerative disc disease and radiculopathy diagnoses. As indicated, the carrier prevailed at that CCH. Diagnoses and treatment continued to evolve and medical records were sent to the carrier. Carrier asserted that it first got written notice of the injuries now in issue on April 27, 1999, when claimant’s attorney wrote about the payment of benefits and stated the carrier was on notice of the SI joint sometime in January 1999 and had not disputed it within 60 days. The carrier had been sent copies of medical records according to Dr. K. As stated, the hearing officer determined carrier waived its right to contest compensability. We disagree and find our decision in Texas Workers’ Compensation Commission Appeal No. 980177, decided March 13, 1998, dispositive of this issue under the circumstances presented. In that case we noted that notice of injury can be effected by a medical record, but in reversing the hearing officer’s determination that waiver applied where a different diagnosis concerning a back injury showed up in one of numerous medical records, “a carrier is not required to go on a treasure hunt through medical records to find some reference to possible other symptoms or pain and thereby be held to be on notice that such pain reflects specific injuries outside those specifically diagnosed and subsequently treated over a lengthy period of time.” We find the circumstance present in this case, that is, evolving diagnoses of the lumbar spine in various medical reports over a length period of time together with a successful previous dispute as to specifically asserted injuries different from the initially diagnosed injury some seven months after the incident of ___________, to be so similar in application to Appeal 980177, supra, that to hold that the carrier waived its right to contest compensability under these circumstances would be clearly wrong and a misapplication of Section 409.021(c). Accordingly, we reverse the finding, conclusion and decision on this issue and hold that the carrier did not waive its right to contest compensability under these circumstances.
Because of our holding on the disability issue, the case is remanded on that issue as stated above. 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 Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Thomas A. Knapp – Appeals Judge