This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On February 6, 1997, a hearing was held. The Hearing Officer determined that the claimant compensably injured his left knee on ___________, but not his low back or neck; he also found that claimant’s psychological condition was not shown to have been caused by the compensable injury; claimant did have disability from the date of the injury to the date of the hearing. The hearing officer also found that the receiving employer was the employer, but carrier 1, who insured the lending employer, was liable for benefits because it waived contesting compensability. Appellant (claimant) asserts his injury should include his neck, back, and psychological problems. Carrier 1 asserts that carrier 2 did not timely controvert compensability, that it (carrier 1) did not waive its ability to controvert compensability, and that the claimant did not have disability. Carrier 2 asserts only that claimant did not have a compensable injury, that there was no disability, and that claimant’s employer was not receiving employer. One employer who attended the hearing and presented evidence attempted to appeal, but that employer has no standing to appeal. Both carrier 1 and carrier 2 filed replies consistent with their appeals; carrier 1 raised a jurisdictional question as to the time of claimant’s appeal, and carrier 2 raised a jurisdictional question as to the time of carrier 1’s appeal.
DECISION
We affirm.
All appeals were timely filed. Service to another party by an appellant may extend that party’s time to respond but does not affect timeliness of the appeal. An employer may only appeal the decision of the hearing officer if it is a party to the dispute. See Section 409.011 and Texas Workers’ Compensation Commission Appeal No. 92110, decided May 11, 1992.
Claimant worked for receiving employer two days when he slipped and fell at work. He testified that the fall hurt his knee. He worked the remainder of the day but later complained of his left knee. He subsequently had arthroscopic surgery on November 3, 1994, and more extensive knee surgery on July 12, 1995. Claimant acknowledged that he had a prior knee injury, but also testified that after the fall of ___________, his knee swelled and popped. On October 13, 1994, claimant saw Dr. S, who noted “impressive effusion” in the left knee with limited flexion; his impression was a torn meniscus. The evidence sufficiently supports the determination that claimant’s knee was injured and was compensable.
Claimant’s appeal states that the injury caused psychological problems and that he also injured his neck and low back. Dr. H, in 1992 while treating claimant for heart trouble, noted depression. In January 1994, prior to the __________, injury, Dr. H noted “significant depression.” Dr. I performed an impairment rating (IR) in March 1996 on claimant; in that evaluation and a subsequent letter related thereto, he noted that claimant reported many symptoms, including neck pain, low back pain, memory loss, dizziness, and impaired sleep, but said that these were not the “natural result” of the injury. Claimant testified that he was on anti-depressants on the day of injury, __________. The first medical note of claimant’s low back pain was made on April 5, 1995, by Dr. P. On November 13, 1996, Dr. P said that it was “not inconceivable” that there had been some back injury caused by the fall. However, Dr. I notes that Dr. P had indicated that claimant’s soreness in the low back was associated with a swollen lymph node (for whatever weight the hearing officer wished to give that comment by Dr. I). Dr. Ho, a psychologist, noted nightmares and flashbacks and diagnosed posttraumatic stress disorder (PTSD) in late 1995. Dr. S in late 1995 commented that claimant had had panic attacks related to the injury. But Dr. S, in January 1996, noted that degenerative changes shown in the low back were consistent with claimant’s age, and he said that claimant had cervical degeneration also. Claimant, when asked if some of his depression stemmed from a third party suit he had, answered, “No. My depression, my main depression is because of [carrier 1] and [lending employer].”
The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. When medical evidence is provided showing treatment of the compensable injury, but that evidence shows no complaint, treatment, or reference to, the alleged other injuries for an extended period, the question of extent of injury is one of fact for the hearing officer to decide. In this case, there was evidence of PTSD by a psychologist diagnosed over a year after the injury, but claimant’s depression was shown to have preexisted the injury, and claimant tied it to the legal process after the injury, not to the injury. The medical evidence did not address claimant’s low back for approximately six months, and then there was evidence that it was a degenerative condition. Claimant’s wife testified that she did not know claimant was depressed prior to the injury 1 injury and that when she went with him on his visits to the doctor, she heard him tell Dr. P of his back pain on his second visit. The evidence was sufficient to support the determination that claimant did not show that his compensable injury extended to psychological problems, the neck, and the low back.
Claimant also testified that in the approximate two days he was at work for receiving employer after being sent there by lending employer, he was under the supervision of Mr. T, who worked for receiving employer. Claimant said that Mr. T was the person who stated what had to be done and how to do it. His tools were received from receiving employer. Ms. C testified that she worked for lending employer. She said there was no written contract with receiving employer. She had no experience in construction and never supervised the work at the site of receiving employer. Lending employer paid wages to claimant and withheld taxes. Claimant’s injury was reported to her on October 13, 1994. Lending employer interviewed both claimant and Mr. T on October 14, 1994. In another statement Mr. T gave in August 1995, he said that claimant operated a small air hammer for chipping which he showed claimant how to operate. The evidence sufficiently supports the determination that claimant was the employee of receiving employer at the time of the injury.
The issue as to contest of compensability was framed as follows:
Was the carrier’s contest of compensability based on newly discovered evidence that could not have been discovered at an earlier date, thus allowing the carrier to reopen the issue of compensability?
Carrier 1 maintained that the question of borrowed servant came up when claimant filed a third party lawsuit against receiving employer. A Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) from carrier 1 showed receipt of written notice on October 14, 1994, and that income benefits were begun on October 20, 1994. Another TWCC-21 by carrier 1 on September 17, 1996, indicated that impairment income benefits had been paid in full. Then on October 28, 1996, a TWCC-21 stated that carrier 1 disputed liability based on claimant’s not being an employee of its insured, lending employer, on the date of injury. It added, “this dispute is based on summary judgment dated October 1, 1996 whereby it was determined that [claimant] was the borrowed servant of [receiving employer].” (We note that there was no allegation that carrier 1 did not cover lending employer on the date of the accident; compare to Texas Workers’ Compensation Commission Appeal No. 951489, decided October 17, 1995 and Texas Workers’ Compensation Commission Appeal No. 950042, decided February 23, 1995.) The hearing officer made findings of fact that carrier 1 received written notice on October 14, 1994, paid income benefits until September 16, 1996, and first disputed liability on October 28, 1996. These findings of fact are sufficiently supported by the evidence.
The hearing officer then concluded that the dispute of compensability by carrier 1 was not based on newly discovered evidence that could not have been previously discovered. The evidence sufficiently supports that lending employer had knowledge of Mr. T because it had questioned him about the accident on October 13, 1994; he could have been questioned about his supervision of claimant. Carrier 1 then received written notification of the injury on October 14, 1994. Lending employer knew that it did not provide the tools that claimant used, such as the air hammer, when he was injured. Lending employer acknowledged that there was no written contract between lending and receiving employer. In order to reasonably dispute that its insured’s employee became the borrowed servant of another employer, carrier 1 did not have to wait for a court decision. The determination that the dispute was not based on newly discovered evidence that could not have been discovered earlier is sufficiently supported by the evidence.
The hearing officer made no findings as to whether carrier 2 timely controverted compensability. The first indication of any notice to carrier 2 was a summary of a statement by Mr. T that appears to have been taken by carrier 2. The date of that statement was October 24, 1994; it indicates claimant was supplied through lending employer. It does state that Mr. T “was considered to be claimant’s supervisor” but gives no additional facts about control; it relates to whether an accident/injury occurred. The evidence shows no other written notification prior to January 1995, and that notice appears to be to receiving employer (when claimant filed suit). Carrier 2 was not named in that petition or notice. Other than the statement of Mr. T, the earliest indication of written notice to carrier 2 was in February 1995 when it received a copy of the petition and summons. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE 124.1 (Rule 124.1) says that written notice to a carrier can be in any form (in addition to an employer’s first report or a Texas Workers’ Compensation Commission (Commission) report) as long as certain information is provided including “facts showing compensability.” In the petition claimant made, he alleged that his employer was lending employer, not receiving employer, and sought damages from receiving employer because of its “negligence and/or gross negligence.” Section 417.001 specifically provides for third party actions in addition to a claim for workers’ compensation benefits. The evidence indicates that carrier 1 received written notice of claimant’s injury on October 14, 1994, and that carrier 2 received a written statement from Mr. T on October 24, 1994, plus written notice in February 1995 indicating claimant was not pursuing its insured (receiving employer) under any theory that even implied “facts showing compensability” (the petition did not allege that Mr. T exercised control over claimant or that receiving employer provided tools to claimant). While the hearing officer made no finding as to when carrier 2 received written notice under Rule 124.1, the facts do not indicate that he had to find that carrier 2 received notice of facts showing compensability.
At any rate, with the conclusion of law that carrier 1 did not show newly discovered evidence that could not have been reasonably discovered at an earlier date, carrier 1 only had 60 days to contest compensability based on borrowed servant or any other compensability issue. See Section 409.021. Therefore, liability attached based on carrier 1’s failure to dispute no later than December 15, 1994, which was prior to the time that carrier 2 would have had to dispute compensability if any document in evidence was sufficient to put carrier 2 on notice.
The claimant testified that he has not worked since the injury. While he also testified that the surgery in 1995 was successful, the surgeries performed along with the narrative provided by Dr. I in March 1996, which was directed at claimant’s injury to his knee, in which claimant was restricted to “light” work with no squatting, climbing, “walking over uneven ground” or lifting in excess of 25 pounds, sufficiently support the determination of disability. The evidence sufficiently supports the determination that claimant had disability.
Finding that the decision and order found at the conclusion of the hearing officer’s opinion 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:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge