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 December 12, 1997, with hearing officer. The issues at the CCH were whether the compensable injury sustained by the respondent (claimant) extended to the lumbar and thoracic area and whether the appellant (carrier) waived the right to contest the compensability by not contesting within 60 days of being notified of the injury. The hearing officer determined that the compensable injury extended to an injury to the thoracic and lumbar spine and that the carrier waived the right to contest the compensability of the injury since it failed to do so within 60 days after being notified of the injury. The carrier appeals urging that the determinations are contrary to the great weight and preponderance of the evidence and are manifestly unjust. No response has been filed.
DECISION
Affirmed in part, reversed and rendered in part.
On _______, the claimant was involved an motor vehicle accident (MVA) when he was hit from the rear. It is undisputed that he sustained injury to his cervical area and shoulder, and according to his testimony, was seen in an emergency room the same day for about an hour, was released, and told to contact his doctor. He had had previous low-back surgery in (year) for a work-related injury and went to that same doctor (Dr. W), on January 16, 1995. Dr. W’s first report dated January 17, 1995, indicates a diagnosis of “questionable left C5-C6 radiculopathy” and “acute cervical strain.” Under history of injury, Dr. W set out “auto accident – struck from behind. Onset instant headache and a knot right posterior neck; later interscapular pain, also some low back pain.” Claimant testified that when he saw Dr. W he told Dr. W that his low back was “a little stiff” and the main problem was in the neck and shoulder. Records from Dr. W indicate that the claimant was treated by him for the (year) back injury, that it resolved, and that he, Dr. W, had not seen the claimant again until January 16, 1995. Dr. W treated the claimant conservatively for his cervical condition and has continued to manage the claimant’s care. A medical report dated December 28, 1995, stated that “for past 2 wks. neck has ‘been feeling fine’; no further headaches and no cervical radicular symptoms” and “wants to return to work.” The report goes on to state the claimant is released to work with no restrictions on January 3, 1996. A note from Dr. W dated February 26, 1996, states that the claimant called the office complaining of neck, left trapezius, and interscapular pain. Another medical record from Dr. W dated March 21, 1996, discusses the claimant’s initial visit on January 16, 1995, and the complaints regarding the cervical area, and states that the claimant returned to the office on February 21, 1995, stating that he was doing quite well and desired to return to work without restrictions. Dr. W did not see him again until August 21, 1995, when the claimant returned complaining of posterior neck pain and left trapezius pain. The claimant was subsequently referred to another doctor who eventually diagnosed chronic left subacromial impingement syndrome with rotator cuff tear and performed surgery on the claimant on September 23, 1996.
Although the claimant stated that they concentrated on the cervical/shoulder area because that was where the biggest problem was, he also kept mentioning his back pain to his doctor. Dr. W states in a report dated December 2, 1996, that during his last visit to his office, the claimant “as he had done for the past several months, has continued to complain of intermittent low back pain and a burning and stinging and cold feeling in his left leg . . . all of this seems to have been aggravated by the automobile accident. . . .” Dr. W also states in a report dated May 30, 1997, that “[r]egarding his low back pain, he did not make any mention of that to me until his visit of July 22, 1996,” although it was mentioned in the history of the initial medical report set out above. Dr. W subsequently, and after the shoulder surgery, recommended diagnostic studies for the on-going low-back complaints which studies have apparently been denied. He stated in his reports regarding the low-back pain that it is “conceivable” and “quite easy to accept the fact that (claimant’s) low back problem is a result of his accident of [(date)] . . . .”
The claimant was sent to a (Dr. S) by Dr. W in February 1996 for an impairment rating. The report refers to thoracic strain injury and a part of the rating was for thoracic range of motion (ROM). The carrier subsequently filed a dispute of any liability for all medical conditions “other than the cervical spine and intrascapular [sic] regions.” A subsequent impairment evaluation by Dr. S in February 1997 included ROM ratings for deficits in both the thoracic and lumbar spine areas. Dr. S also discussed apportionment/contribution which is not pertinent to the issues under review. Also in evidence was an Employee’s Notice of Injury or Occupational Disease and Claim for Compensation (TWCC-41) filled out by claimant’s attorney and signed by the claimant on July 17, 1997, which lists parts of body affected “[n]eck, shoulder” and describes the injury as “[s]prain/strain.”
The hearing officer determined that the carrier waived its right to contest the compensability of the thoracic and lumbar aspects of the injury since it failed to do so within 60 days of being notified of the these injuries. The notification to the carrier found sufficient by the hearing officer was the initial medical report of Dr. W dated January 17, 1995, not from the diagnosis section of the report but apparently from the history section which mentioned “later interscapular pain” and “some low back pain.” Of course, the medical records show that the treatment of the claimant over the next year or two concerned a cervical and shoulder injury, injuries not disputed by the carrier.
To waive the right to contest an injury, a carrier has to be notified of the injury. In this regard, Section 409.021 generally provides that if a carrier does not contest the compensability of an injury on or before the 60th day after written notification of injury, it waives the right to contest compensability. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.1(a)(3) (Rule 124,1(a)(3)) provides that written notification can be satisfied by “any other notification regardless of source, which fairly informs the insurance carrier of the name of the injured employee, the identity of the employer, the approximate date of the injury, and facts showing compensability.” Notification in this regard can be satisfied by a medical report. Texas Workers’ Compensation Commission Appeal No. 952010, decided January 16, 1996. And while a concrete diagnosis is not necessary for good notice to be effected by a medical report (Texas Workers’ Compensation Commission Appeal No. 950522, decided May 11, 1995), 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 of those specifically diagnosed and subsequently treated over a lengthy period of time. To invoke waiver, the “other notification” must “fairly” inform the carrier of facts showing compensability. Texas Workers’ Compensation Commission Appeal No. 960584, decided May 6, 1996. Under the circumstances presented and from the evidence of record, we cannot conclude that there is sufficient evidence to support the determination that the carrier waived its right to contest compensability of the thoracic and lumbar injuries. Texas Workers’ Compensation Commission Appeal No. 971634, decided October 6, 1997; Texas Workers’ Compensation Commission Appeal No. 970675, decided June 2, 1997; and Texas Workers’ Compensation Commission Appeal No. 962569, decided February 5, 1997. Compare Texas Workers’ Compensation Commission Appeal No. 950954, decided July 26, 1995. The finding and resulting conclusion that Dr. W’s report of January 17, 1995, was sufficient written notice of a thoracic and lumbar injury and that the carrier waived its right to contest compensability since it did not do so within 60 days from Dr. W’s January 17, 1995, report, is reversed as being so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We render a new decision on this issue that the carrier did not waive the right to contest the compensability of the thoracic and lumbar spine injury.
Regarding the finding and resulting conclusion that the claimant’s current lumbar and thoracic spine condition was caused by or naturally resulted from the _______, injury and is therefore compensable, we recognize that there is evidence that may give rise to inferences different from those found most reasonable by the hearing officer. However, this is not a sound basis to disturb the findings of the hearing officer unless the findings are concluded to be so against the great weight and preponderance of the evidence a to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986); Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). We do not find that to be the case as the hearing officer could give preponderant weight to the testimony of the claimant concerning the pain and symptoms he continued to experience in these areas, to the references to thoracic and lumbar conditions particularly in the later medical evaluations and records, to the opinions set forth in Dr. W’s reports, and to the overall circumstances of the MVA and progression of symptoms and treatment during the next several years.
Accordingly, we affirm only so much of the decision and order that provides that the claimant’s compensable _______, injury includes and/or extends to an injury to the claimant’s thoracic and lumbar spine and orders that the carrier pay medical and/or income benefits in accordance with the decision, the 1989 Act, and Rules.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Alan C. Ernst – Appeals Judge