This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On August 14, 1998, a contested case hearing (CCH) was held. With respect to the four issues before her, the hearing officer determined that: (1) the respondent (claimant) had not sustained an injury in the course and scope of employment; (2) the appellant (carrier) is relieved of liability because claimant failed to timely give notice of the alleged injury to the employer and did not have good cause for failing to do so; (3) claimant did not have disability; and (4) carrier waived the right to contest that claimant sustained an injury in the course and scope of employment by not timely contesting compensability. The hearing officer ordered that carrier was not liable for benefits.
The carrier appealed, contending that the recent appellate court decision of Continental Casualty Company v. Williamson, 971 S.W.2d 108, 110 (Tex. App.-Tyler 1998, n.w.h.), held that the carrier’s failure to contest compensability cannot create an injury as a matter of law. Carrier requests that we “reverse and render Conclusion of Law 4 and the portion of the Decision regarding the Carrier’s waiver of its right to contest compensability.” The file does not contain a response from the claimant.
DECISION
Affirmed.
The facts are not at issue here and the case is submitted on the question of law whether Williams, supra, requires some reversal of the hearing officer’s decision. Neither claimant nor carrier appeal the hearing officer’s determinations that claimant had not sustained an injury, did not give timely notice and did not have disability, and the resolution of those issues have become final pursuant to Section 410.169.
As background, claimant was driving a road maintainer for the employer on ______________, and alleged that he hit a stump and suffered an injury. Claimant alleged, but was not believed by the hearing officer, that he reported the incident at the time. Subsequently, claimant filed an accident report on __________, with the carrier receiving first written notice on __________. Carrier, in its Payment of Compensation or Notice of Refused or Disputed Claim Interim (TWCC-21) dated July 17, 1997, stated:
Carrier respectfully denied compensability of claim due to late reportingBno notice within 30 days. Therefore there is nomedical [sic] to support a work related injury. Clmt also resigned fromthw [sic] county in April, 1997. There was no lost time.
Based on the argument by the parties at the CCH, regarding the sufficiency of that language to contest compensability, the hearing officer fairly clearly determined that the language was sufficient to contest lack of timely notice to the employer, but the language did not contest an injury in the course and scope of employment.
The hearing officer comments in the Statement of the Evidence that the evidence supports the fact that some incident occurred on ______________, where the machine claimant was driving hit a stump causing the machine to stop, but that claimant was not injured as a result of that incident. The hearing officer made the following pertinent determinations:
FINDINGS OF FACT
2. Claimant was not injured on ______________, while driving a maintainer for Employer.
* * * *
6.Carrier’ first dispute of Claimant’s alleged injury did not specifically contest the injury on the basis that it was not in the course and scope of his employment.
CONCLUSIONS OF LAW
3.Claimant did not sustain an injury in the course and scope of his employment.
4.Carrier waived its right to contest that Claimant sustained an injury in the course and scope of his employment by not specifically contesting compensability on these grounds within sixty days of being notified of the injury.
5.Carrier is relieved from liability under Texas Labor Code Ann. Section 409.002 because of Claimant’s failure to timely notify his employer pursuant to Section 409.001.
DECISION
Claimant did not sustain an injury in the course and scope of his employment.
Carrier waived its right to contest that Claimant sustained an injury in the course and scope of his employment by not specifically contesting compensability on these grounds within sixty days of being notified of the injury.
Carrier is relieved from liability under Texas Labor Code Ann. Section 409.002 because of Claimant’s failure to timely notify his employer pursuant to Section 409.001.
ORDER
Carrier is not liable for benefits and it is so ORDERED.
Carrier appeals portions of the Statement of the Evidence (without telling us which or why), Finding of Fact No. 6, Conclusion of Law No. 4 “and a portion of the Decision.” Carrier cites Williamson, supra, and states that the hearing officer found no injury on ______________; that the finding is not against the great weight and preponderance of the evidence; and that the carrier’s “failure to contest compensability cannot create an injury as a matter of law.” We agree with all those statements and contentions.
The Appeals Panel has, in a number of decisions, discussed and/or applied Williamson. See Texas Workers’ Compensation Commission Appeal No. 981640, decided September 2, 1998; Texas Workers’ Compensation Commission Appeal No. 981896, decided September 28, 1998; Texas Workers’ Compensation Commission Appeal No. 981847, decided September 25, 1998; and Texas Workers’ Compensation Commission Appeal No. 982006, decided October 7, 1998. In Williamson, supra, the Court of Appeals held that where there is no injury, an issue of compensability is not reached. The Court went on to state that “if a hearing officer determines that there is no injury, and that finding is not against the great weight and preponderance of the evidence, the carrier’s failure to contest compensability cannot create an injury as a matter of law.” At the Texas Workers’ Compensation Commission’s hearing in that case and on appeal (Texas Workers’ Compensation Commission Appeal No. 94326, decided May 2, 1994) it was clear that the hearing officer found that “no injury exists” and that her determination was supported by the evidence. Similarly, in Appeal No. 981640, supra, where the Appeals Panel applied the Williamson decision, the hearing officer determined that there was no injury (reflex sympathetic dystrophy) and that determination was supported by the evidence. That being said, in this case, we do not read the hearing officer’s Conclusion of Law No. 4, or the decision, to create an injury. We read the findings merely to comment on the character and adequacy of carrier’s TWCC-21.
However, carrier apparently believes Conclusion of Law No. 4, quoted above, and portions of the decision have established that the carrier’s failure to contest compensability has established an injury, contrary to the holding in Williamson, supra. We disagree. One of the agreed-upon issues was whether carrier had waived the right to contest claimant’s injury by not specifically contesting compensability on the grounds that the claimant did not sustain an injury in the course and scope of his employment. We read the hearing officer’s findings of fact and conclusions of law to say that the carrier’s TWCC-21 did not adequately or sufficiently identify injury in the course and scope as a defense, but did sufficiently identify failure to give timely notice. Section 410.168(a) and Texas Workers’ Compensation Commission Appeal No. 981008, decided June 29, 1998, require a hearing officer to make findings on all the issues presented. The hearing officer merely made findings on the issue of carrier’s timely contest of compensability. The hearing officer found that claimant had not sustained an injury in the course and scope of employment and that carrier is not liable for benefits. We believe that the hearing officer’s ruling on the adequacy of the TWCC-21 to have been correct and, since the hearing officer did not attempt to impose liability on carrier, we read the hearing officer’s finding on lack of timely contest of compensability only to be findings on the issue before her.
The decision and order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Tommy W. Lueders – Appeals Judge