Following a contested case hearing held on September 28, 1998, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer resolved the disputed issues by making certain findings of fact and by concluding that the appellant (claimant) is not entitled to lifetime income benefits (LIBS) since his skull injury has not resulted in incurable imbecility. Claimant filed a request for review stating that he believes he is entitled to LIBS based on his skull injury which resulted in incurable imbecility and rendered him totally and permanently disabled. The respondent (carrier) has filed a response first asserting that claimant’s appeal should be dismissed because it did not contain a certificate of service and is insufficient to constitute an appeal under Section 410.202(b). In the alternative, the carrier urges that the evidence is sufficient to support the hearing officer’s determination.
DECISION
Affirmed.
We first address the sufficiency of claimant’s appeal to invoke our jurisdiction. Section 410.202(c) provides that a request for appeal or a response must clearly and concisely rebut or support the decision of the hearing officer on each issue on which review is sought. We have not infrequently received general appeals from unrepresented claimants and have determined them to be sufficient to invoke our jurisdiction and have interpreted them as challenging the sufficiency of the evidence. See e.g., Texas Workers’ Compensation Commission Appeal No. 951016, decided August 7, 1995, and Texas Workers’ Compensation Commission Appeal No. 980048, decided February 26, 1998. Much less frequently do we see, and would we expect to see, such general appeals from represented claimants. In Texas Workers’ Compensation Commission Appeal No. 92081, decided April 14, 1992, the represented claimant filed an appeal seeking our review of two findings of fact and one conclusion of law, apparently on a sufficiency of the evidence basis, and the respondent urged that the appeal was inadequate and failed to comply with the statute. While finding that the request for review met the minimum requirements, the Appeals Panel appreciated “the difficulty in responding to such a brief and generalized statement in a request for review” but nonetheless interpreted the request as one addressing the sufficiency of the evidence. While claimant’s appeal in this case does not specifically address, as it should, any of the eight findings of fact, we will treat it as a challenge to the sufficiency of the evidence to support the ultimate decision of the hearing officer because there was only one disputed issue. Had there been multiple issues, there is Appeals Panel authority which would support finding the appeal inadequate to invoke our jurisdiction.
As for the failure of claimant’s request for review to contain a certificate of service, as provided for in Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(b) (Rule 143.3(b)), we have held that failure to serve a respondent does not affect the timeliness of the appeal but does extend the time for response until 15 days after service is made. Appeal No. 951016, supra. In this case, we note that claimant’s appeal does reflect, albeit not by a certification of service, that a copy was sent to both the carrier and the employer. Accordingly, we determine that claimant filed a request for review that is sufficient to invoke the jurisdiction of the Appeals Panel.
This is a LIBS case. For compensable injuries occurring on or before September 1, 1997, Section 408.161(a)(6) provides that LIBS are paid until the death of the employee for “an injury to the skull resulting in incurable insanity or imbecility.” See generally Texas Workers’ Compensation Commission Appeal No. 951336, decided September 20, 1995.
The parties stipulated that claimant sustained a compensable injury on ___________, and, as the hearing officer states in her summary of the evidence, the facts are generally not in dispute. The appeal takes no issue with the hearing officer’s summary of the evidence which states that while cleaning the ceiling of a tunnel on ___________, claimant fell from a scaffold, struck his head on a truck, sustained a skull injury, was diagnosed with a traumatic brain injury, was comatose for several weeks, slowly recovered from the coma, and by March 1992 was ambulating independently.
Claimant testified by telephone from (country A) through an interpreter. He stated his name, his address, his wife’s name, and the names of his 12 children, but did not remember his age. He first said that his wife does not help him throughout the day but later said she does cook for him and help him bathe and dress. He further testified that he never attended school; that he was injured when he fell in (city A) but did not recall the name of the employer; that the rehabilitation in city A helped him; that he takes medicine for his head from time to time but does not recall the name of the medicine; that he has been receiving benefit checks since the injury; that he is happy to be back in country A living with his family; that he can walk unaided “a little bit” and feed himself “a very little bit”; that he has grandchildren nearby whom he visits and plays with; and that he sees the doctor once a month.
Claimant introduced medical records from the June 19 through September 11, 1991, period. A June 19th record reflected that claimant underwent a craniotomy in the emergency room to evacuate a hematoma on ___________, which was reevacuated two days later, and that his assessment included a temporal bone fracture, basal skull fracture, right temporoparietal epidural hematoma, and a T5 compression fracture. A September 11, 1991, assessment stated organic brain syndrome secondary to traumatic brain injury with significant right hemispheric and some bihemispheric damage and multiple cognitive deficits. A September 4, 1991, report stated that claimant accurately answered “yes” or “no” questions with an accuracy of about 70%, was able to follow one-step commands with about 70% accuracy, gave the opposite of words with about 70% accuracy, and was able to name action pictures with 100% accuracy.
A consultation report by Mr. L, apparently on the staff at the rehabilitation facility, dated March 5, 1992, states that claimant, a former sharecropper, wants to return to country A to begin farming; that he complains of no pain or discomfort except for occasional headaches; that he is tired of staying in the hospital and feels nothing more can be done for him; that his wife concurs, stating that claimant looks fine and gets around normally; that on a recent weekend pass, they went to church where he recognized friends and behaved normally in all respects; that claimant’s wife says he is caring for himself but just won’t let her leave his side; and that he can dress, tie his shoes, go the restroom, and feed himself. Mr. L further reported that, when counseled about the consequences of leaving the rehabilitation facility to return to country A, claimant said he is “ready to go” and can care for himself and is confident he can go back and assume a normal life with his family. Mr. L stated that claimant appears to clearly understand the meaning of his release from the care facility and is ready to leave the facility permanently. Mr. L reported on March 6, 1992, that claimant repeated his desire to return home and that his final concern was about the financial situation and not knowing if his checks would be sent to country A or whether he would have to make arrangements to have the checks cashed in this country and the money forwarded to him in country A.
The August 28, 1995, report of Dr. R, an orthopedic surgeon with offices on both sides of the border with country A, stated that he examined claimant; that he reviewed a CT scan of the skull and brain obtained in (city B) which showed extensive damage to the brain and changes related to the previous surgery; and that the diagnosis is post-cranial cephalic trauma with right side skull fracture, sequellae of brain injury consistent with dysarthria (imperfect articulation of speech) and alteration of the memory, and locomotive changes related to brain injury. Dr. R further stated that he felt claimant was permanently and totally disabled from performing any type of work; that claimant requires constant assistance since he is disoriented in time, space and place; and that claimant does not presently require any medical work up except a neurological evaluation for a possible course of future treatment.
Dr. Y, Ph.D. (Dr. Y), reported on July 19, 1997, that he saw claimant for an independent neuropsychological evaluation; that he reviewed the 1991 medical records and Dr. R’s August 28, 1995, report; that he concluded that claimant is functioning in the severely deficient range in most cognitive domains; and that claimant appears to have experienced severe diffuse brain damage from the fall as manifested by severe impairment in memory and attention, language skills, visual-spatial skills, motor skills, sensory skills, and higher cognitive functions. Asked whether claimant’s injury “resulted in incurable insanity or imbecility” related to an effort to determine entitlement to LIBS, Dr. Y stated that insanity is a legal term and is determined by courts and that imbecility is an archaic term formerly used to mean profound mental retardation; that while claimant scored within the borderline range of general intelligence, he has experienced severe neuropsychological impairment due to his brain injury; that claimant is currently dependent on others for basic activities of daily living; that claimant is unable to engage in productive employment due to his many cognitive deficits; and that in Dr. Y’s opinion, this disability is total and permanent and a consequence of his injury.
In Texas Workers’ Compensation Commission Appeal No. 961340, decided August 21, 1996, a case involving entitlement to LIBS based on incurable imbecility, the Appeals Panel noted that neither party had directed the Appeals Panel to any court case or Appeals Panel decision under the 1989 Act which defined the term “imbecility,” as used in Section 408.161(a), nor directed the Appeals Panel to any court case defining that term under the predecessor statute, TEX. REV. CIV. STAT. ANN. Art. 8306 ’11a, and that the panel deciding that case had not located any Texas Workers’ compensation cases which defined that term. Our decision stated that BLACK’s LAW DICTIONARY 749 (6th ed. 1990) refers the reader to the definition of insanity for a definition of imbecility; that DORLAND’s ILLUSTRATED MEDICAL DICTIONARY 105 (28th ed. 1994) at 820 defines imbecility as the condition of being an imbecile; moderate or severe mental retardation; and that WEBSTER’s NINTH NEW COLLEGIATE DICTIONARY (1991) defines the term “imbecile” to mean “a mentally deficient person, especially a feeble-minded person having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself.” We note that in National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950, 956, (Tex. App.-Texarkana 1998, n.w.h.) a case dealing with the issue of whether depression fell within the definition of insanity, the Texarkana Court of Appeals mentioned Appeal No. 961340, noting its definition of imbecility from WEBSTER’s.
The hearing officer found that claimant has had a severe skull injury resulting in brain damage; that Dr. Y examined claimant and performed testing which showed claimant had borderline general intelligence; that no doctor has diagnosed that claimant was mentally insane from the skull injury; that no doctor has diagnosed that claimant was an incurable imbecile as a result of the skull injury; and that the medical evidence does not establish that claimant is incurably insane or an imbecile from the skull injury. None of these findings is specifically challenged by claimant nor does claimant even attempt to tell us what medical evidence he regards as having established his incurable imbecility from his skull injury.
The hearing officer is the sole judge of the relevance, materiality, weight and credibility of the evidence. Section 410.165(a). As an appellate reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
In her discussion, the hearing officer states that there was no medical evidence from any of the treating doctors that “came close” to stating that claimant’s injury resulted in mental insanity or imbecility, and that while there are no “magic words” to describe the claimant’s condition, there was not enough evidence to establish that the skull injury rose to the level required by Section 408.161(a)(6). We have no basis with this record to find reversible error in the hearing officer’s analysis of the statute and the evidence. The decision in Appeal No. 961340, which affirmed a hearing officer’s determination that the evidence had not made out incurable insanity or imbecility from the injured employee’s skull injury, observed that “we do not view it as necessary that a doctor use particular words to describe the claimant’s condition, . . . ” We do not regard the reports of Dr. R and Dr. Y as compelling the conclusion that claimant is incurably imbecilic, notwithstanding their assessments of substantial and severe neurological impairment. Further, the hearing officer could consider claimant’s ability to respond to the questions asked of him during his testimony.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Gary L. Kilgore – Appeals Judge