This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On May 10, 1996, June 19, 1996, November 8, 1996, November 18, 1996, and December 31, 1996, a hearing was held. He (hearing officer) determined that respondent’s (claimant) occupational disease was compensable because appellant (carrier) did not timely contest compensability; that claimant timely reported the injury; that claimant sustained a lung injury in the course of employment; that the date of injury was _____; that the carrier may not reopen the issue of compensability; and that claimant has had disability since January 12, 1996. Carrier asserts that the hearing officer erred in restricting its ability to cross-examine a witness; in his definition of the issues at the November 18, 1996, session; in not finding that the date of injury was (injury date); in finding that claimant notified employer within 30 days of the date of injury; in determining that carrier waived its right to contest compensability; in not finding that certain evidence could not have been reasonably discovered earlier; in finding that claimant sustained an occupational disease injury; and in finding that claimant had disability. Claimant replied in essence that the decision should be affirmed.
DECISION
We affirm.
Claimant worked for (employer) from August 1989 to June 1991. He described his duties as loading and unloading kilns. He added that his employer received unglazed “knobs,” called “bisques,” with “burs” thereon, which he would grind off. He said that the grinding he did produced dust containing silica. He would clean about 1,000 knobs a week. He wore no protection. He also mixed dry glaze material (powder) with water on several occasions. (Claimant estimated that he mixed such material about once a week but employer showed through its records that only approximately 12 bags of dry glaze was received between January 1991 and June 1991 when claimant ceased work.) Claimant also described dust created from other operations in the shop, not limited to just his own activities.
Claimant agreed that he had previously worked approximately 10 years in mining operations. He testified that while he thought a problem with his hands had been caused by repetitive motion in 1991, he said that he did not know that his condition may be caused by inhalation of silica dust until Dr. K provided a report to him in January 1996, after having examined him in November 1995. Dr. K’s report is undated, but reflects an examination date of (injury date). Dr. K summarized his report by stating in part, “[claimant’s] 10 year exposure history to silicate materials in mines, further aggravated with silicate exposure in his ceramic work at [employer] has led to pulmonary infiltrates which are associated with a conversion development of rheumatoid arthritis.” Dr. K then stated in “conclusions,” “rheumatoid arthritis with pulmonary infiltrates characteristic of fibrosing alveolitis seen in silica-associated rheumatoid changes.” He said the condition was “workplace-provoked” because of the 12-year history of silica exposure and disease manifestations indicated by a rheumatoid arthritis test, sedimentation rate, biopsies, and chest x-ray.
In the development of this case, possibly the most significant issue addressed was the date of injury. Carrier maintained that the date of injury was (injury date), when claimant saw Dr. K. Claimant argued that it was _____, or thereafter, when he received Dr. K’s report of the (injury date), examination. The date of injury determination significantly affected whether claimant timely notified the employer of the injury. In addition, the carrier, in its initial controversion of February 13, 1996, which showed a date it received written notice of February 8, 1996, only disputed that the injury was not timely reported. (There was no indication in that controversion that carrier began paying income benefits.) See Texas Workers’ Compensation Commission Appeal No. 960949, decided June 28, 1996, which indicated that a carrier is limited to the defenses set forth in its initial controversion.
The hearing officer found that the medical report of Dr. C, relied upon by carrier in its argument that it had newly discovered evidence, could have been reasonably discovered earlier. However, since the hearing officer had found that the initial Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) did not contest compensability, the conclusion of law limiting the carrier to the grounds set forth in the original TWCC-21 is affirmable because of the requirement discussed in Appeal No. 960949, supra, limiting the carrier to the initial controversion. The carrier showed that it received written notice on February 8, 1996; therefore, under the provisions of 409.021, which provide for 60 days to contest compensability, the carrier’s second TWCC-21, dated March 11, 1996, was also provided within 60 days. Had there been no initial controversion, the March 11, 1996, controversion of compensability was not outside the 60 days and no question of “newly discovered evidence,” as a basis for reopening, would arise. If a finding of fact nevertheless was appropriate in regard to whether Dr. C’s opinion was newly discovered evidence that could not have been reasonably discovered sooner, the finding of the hearing officer is sufficiently supported by the evidence; Dr. C never indicated when he was asked to provide the opinion or why he could not provide it earlier. There is no evidence in the record showing either of these points, only argument that the opinion could not have been discovered sooner. The burden of proof to show that the evidence was newly discovered and could not have reasonably been provided sooner was on the carrier. As a result, the carrier has waived its ability to contest compensability and would only prevail on the basic issues of injury if the claimant did not timely notify the employer of his injury.
The claimant was able to show that he reported his occupational disease to the employer by a notice of injury dated January 23, 1996, which Mr. S the president of employer, said was received on January 29, 1996. The initial notice of injury said that the date of injury was ______, whereas an amended notice of injury, dated February 4, 1996, said that the date of injury was _____. Obviously, if the date of injury is _____, then the notice to employer was timely, and the carrier would not prevail on the only ground, notice to the employer, which could still affect liability for the compensable injury.
On the issue of date of injury, the carrier showed not only claimant’s first notice of injury proclaiming ______, as the date of injury, but also records from Dr. K. Those records showed that on (injury date), claimant saw Dr. K, who diagnosed rheumatoid arthritis and noted “history workplace silica exposure.” Seven typewritten pages of “aftercare instructions” were provided to claimant, which he signed on (injury date). On the first page, a diagnosis was stated to be “rheumatoid arthritis, heart murmurs, and silica exposure” (with the last handwritten). Following that was information on arthritis, which appears to be boilerplate, stating, among other things, that the cause is “unknown”; on the third page, information on silicosis begins with boilerplate, also including causation which was said to be “20 to 30 years of exposure to small particles of silica in work such as mining, granite cutting, manufacturing pottery, metal grinding and sand blasting.” Thereafter, a boilerplate in regard to various drugs that might be appropriate was provided for several pages, at the end of which the claimant signed.
Claimant stated that he first knew that his condition was related to his work for employer when he received Dr. K’s report in January 1996. He said that Dr. K had told him of his diagnosis when he saw him in November, and that he had given Dr. K his history of working in mines and for employer. But claimant did not say that Dr. K said his work was causative in November. Dr. K, when testifying by telephone on June 19, 1996, said that he did not tell claimant in November that he had a work-related injury. He said also that in November he was not certain of the diagnosis and wanted to check further before committing himself, which he did in his report. Also admitted into evidence was a note from Dr. K dated _____, in which Dr. K said that he was enclosing his report and added that he had talked to Dr. Co that day about claimant’s treatment.
As stated, the January 1996 report of Dr. K states that claimant’s condition is “workplace-provoked,” including aggravation during the time he worked for employer. While the evidence was somewhat contradictory, there is no direct indication that Dr. K, on (injury date), tied any injury to claimant’s silica exposure while working for employer. The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. As the fact finder, he could choose to give greater credence to the testimony of Dr. K, Dr. K’s report, and the testimony of the claimant than he did to claimant’s initial notice of injury which showed a ______ date of injury or to the records of (injury date), which showed a history, diagnosis, and seven pages of instructions. The evidence sufficiently supports the determination that the date of injury was _____, as opposed to ______, as set forth by the carrier.
As previously stated, with a date of injury of _____, the notice claimant gave to employer was timely and the finding of the hearing officer of such timeliness is affirmable. Since claimant timely provided notice, there is no remaining basis for carrier to escape liability since it waived contesting compensability. Therefore, the injury set forth by claimant, exposure or intake of silica affecting the lungs, joints and either the heart (on the first notice of injury) or “other” (on the second notice of injury), became compensable. See Texas Workers’ Compensation Commission Appeal No. 960996, decided July 3, 1996.
Even though the injury is compensable because of the failure to contest compensability coupled with timely notice by claimant to employer, other issues are raised by carrier in the appeal and will be addressed.
The most disconcerting issue before us is carrier’s contention that it was restricted in its ability to cross-examine Dr. K. We have previously observed that the 1989 Act allows a hearing officer to consider evidence in statement form that would not be allowed in courts or Administrative Procedure Act hearings. As a result, a party may, in fact, be provided no opportunity to cross-examine because the evidence may not be provided in the form of testimony. We have not said, however, that when testimony is offered, a hearing officer may refuse to allow cross-examination. In this case, Dr. K testified by telephone on behalf of the claimant. While the transcript does not show what time on June 19th the hearing began, it does reflect claimant’s statement that Dr. K would be unable to testify after 2:00 p.m. When the hearing officer said that he would allow any doctor to testify out of order (although claimant could certainly choose to call Dr. K prior to any other witness) and prepared to call Dr. K’s number, the carrier asked to question claimant first. After some testimony elicited from claimant, the hearing officer interrupted carrier’s questioning of claimant and indicated concern about whether Dr. K would testify. Another call was attempted to be placed and claimant commented that Dr. K would only have “a few minutes.” When Dr. K did call back, he was questioned by the hearing officer for seven pages of transcript; thereafter, claimant questioned Dr. K for less than three pages; then carrier questioned him for six and one-half pages of transcript, at which time the hearing officer stopped the examination. The hearing officer did provide that the carrier could submit written questions to Dr. K for answering, which was later done and admitted at a subsequent session of this hearing. We observe that had the parties been allowed to question Dr. K first, their questions may have all been addressed, leaving only the hearing officer cut short. We also observe that the hearing officer was not compelled to allow carrier to call claimant prior to claimant calling any witness in whatever order claimant wanted.
We believe that, when a witness is testifying, cross-examination should not be restricted to a time less than that provided for direct examination, whether conducted by the hearing officer or a party. While cross-examination, like examination, may be restricted to questions relevant to the issues, if a finite time for testimony is imposed by any participant, be it the hearing officer or the witness, a reasonable apportionment of time should be set for each party at the inception. In this case, we will not remand because Dr. K also provided lengthy reports and the carrier was allowed to present written interrogatories to him, plus, a remand would not change the outcome of this case because the carrier has been found to be liable for the injury because it waived contesting compensability (we note that carrier’s interrogatories to Dr. K, after his abbreviated testimony, contained no questions about what Dr. K communicated to claimant on (injury date)).
Another issue raised by carrier on appeal (and objected to at the hearing) was the redefining of the issues by the hearing officer at the session of November 18, 1996. The original issue was “did the claimant sustain a pulmonary (lung) injury in the course and scope of employment?”, which was redefined to read, “did the claimant sustain an occupational disease from the inhalation of silica containing compounds while working for employer?” and “did the occupational disease cause or aggravate the following conditions: pulmonary/lung problems, rheumatoid arthritis and/or systolic heart murmur?” In noting this change, we observe that another issue present before this hearing from its inception was “what is the date of injury for the claimed occupational disease?”; therefore, there was reference to an “occupational disease” throughout the hearing. We observe also that the medical testimony, medical statements, and the claimant’s testimony all show that more than “pulmonary (lung)” was litigated throughout the hearing. In addition, both of claimant’s notices of injury specifically include either “joints” or “all joints” as injuries and one includes a reference to the heart. Finally, the hearing officer, after redefining the issue, continued the hearing to give the parties additional time to present evidence on the issues as set forth. He also discussed with the parties on the record whether they wished to return to a benefit review conference (BRC) in regard to the redefined issue. Neither party indicated a preference to return to a BRC. In these circumstances we do not find reversible error in the redefinition of issues set forth by the hearing officer.
Carrier provided abundant scientific and medical evidence that claimant’s condition was not aggravated by his employment for employer. Dr. C, Ph.D, stated that he is a toxicologist. He referred to testing done in the employer’s workplace that showed levels of silica exposure below that set forth as allowable by OSHA and said employer’s workplace did not cause or aggravate claimant’s condition. While another fact finder may have chosen to give Dr. C’s testimony and reports more weight, INA of Texas v. Adams, 793 S.W.2d 265 (Tex. App.-Beaumont 1990, no writ), affirmed a determination of hearing loss even though the established level of noise in the workplace was shown to be less than the OSHA standard allowed. While there was evidence in the Adams case that the noise incurred was much closer to the standard allowed than was the silica dust in the case under review, Adams shows that an OSHA standard is not conclusive to our review of the hearing officer’s consideration of all the evidence.
Dr. K provided a second report dated March 4, 1996, in which he said that claimant’s chest x-rays showed “a kind of fibrosing alveolitis . . . associated with the development of rheumatoid arthritis.” Dr. K also stated that claimant’s dust exposure while working for employer “likely aggravated an underlying tendency for chest x-ray changes and the secondary rheumatoid arthritis to develop.”
Carrier also provided the reports of Dr. R, a cardiologist, who said that claimant’s alleged silica exposure and rheumatoid arthritis was of no significance to any heart problem claimant has. Dr. H said in his statement that the exposure of claimant was too small to result in any aggravation while working for employer. Dr. Z, a rheumatologist, states in his letter that some studies show a possible association between silica exposure and rheumatoid arthritis and some do not. Noting no consensus, he then opined that causation was not shown.
Claimant pointed out that the studies performed on employer’s facility were accomplished after he left. As stated, the hearing officer is the sole judge of the weight and credibility of the evidence. Dr. K’s evidence is strong as to his diagnosis; his statements as to a connection between claimant’s work for employer and the lung and rheumatoid arthritis are clear and directly in conflict with Dr. C and Dr. H, but Dr. Z’s statement presented less conflict. We will only overturn the hearing officer on a fact question when the great weight of the evidence is against his decision. We do not find the great weight against his decision because of the reports of Dr. K and the testimony of the claimant. As stated, even if the evidence that claimant sustained an occupational disease were less, the carrier has still waived compensability of the disease.
Carrier’s attack on the finding of disability was tied only to the finding of a compensable disease. It is true that without a compensable injury, a claimant cannot have disability. See Section 401.011(16). Having affirmed that claimant sustained a compensable injury, the evidence supports a finding of disability from January 12, 1996, to December 31, 1996.
Finding that the decision and order are sufficiently supported by the evidence, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Gary L. Kilgore – Appeals Judge