This appeal is brought 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 March 24, 1997. The disputed issues reported from the benefit review conference (BRC) were: whether the respondent (carrier) was relieved of liability because the appellant (claimant) failed to give his employer timely notice of the claimed injury; whether the claimant sustained a compensable injury on ____________; and whether the claimant had disability from an injury sustained on ____________. A dispute over the claimant’s average weekly wage (AWW) was resolved by agreement of the parties. The hearing officer advised the parties that she would consider only a claimed injury on or about ____________, as stated in the BRC report, and would not extend the concept of “on or about” to the claimant’s assertion at the CCH that the date of injury was on or about _______. She also refused to allow the claimant to present evidence that at the BRC the parties agreed that the date of the claimed injury was on or about _______________, regardless of what was said in the BRC report about the date of the claimed injury. The hearing officer, in separate findings of fact, determined that the claimant sustained an injury (temporal lobe epilepsy) in the course and scope of his employment on _______, and gave the employer timely notice of this injury and that the claimant did not sustain a compensable injury on ____________, or give timely notice of a ____________, injury. She also found that _______, was not “on or about” ____________. From these findings of fact, the hearing officer made conclusions of law which addressed only a claimed ____________, injury, specifically, that the claimant did not sustain a compensable injury on ____________, that he did not timely report a ____________, injury, and that he did not have disability because he did not sustain a compensable injury on ____________.
The claimant appeals the decision of the hearing officer not to consider a claimed injury on _______, and her finding that _______, was not “on or about” ____________, contending that the “date discrepancy” was resolved by the parties at the BRC by both agreeing that the claimed date of injury was _______, and that the phrase “on or about” was intended by the parties to extend to _______. Neither party has appealed the findings of no compensable injury on ____________, and no timely notice of a ____________, injury and of an injury in the course an scope of employment on _______, and timely notice of a claimed _______, injury. Such findings have now become final. Section 410.169. The appeals file contains no response from the carrier.
DECISION
Reversed and rendered in part and reversed and remanded in part.
The claimant worked as an environmental technician. It was not disputed that during _______ his employer sent him to a customer location in (State A) to repair a piece of equipment and to help disassemble the equipment toward to the end of _______. While trouble-shooting the equipment, the claimant suffered an electrical shock which threw him to the ground. He suffered burns to the arms and hands, but these have apparently resolved and are not the subject of this claim. In its opening statement at the CCH, through its attorney, the carrier admitted that an electric shock occurred at the State A site.
The claimant testified that shortly after the shock he began experiencing seizure-like symptoms, which progressed from disassociative thinking to periods of unconsciousness. Eventually, he was diagnosed with temporal lobe epilepsy, which, in unappealed findings, the hearing officer determined was caused by an electrical shock sustained in the course and scope of employment on _______. The hearing officer, also in an unappealed finding, determined that the claimant reported this electrical shock injury to his supervisor on _______.
Given the largely undisputed background facts of this claim and the critical unappealed findings regarding a _______, injury in the course and scope of employment and timely notice of this injury, the resolution of this appeal hinges on whether the hearing officer committed prejudicial legal error in not allowing the claimant to proceed on a theory of a _______, compensable injury or to develop evidence of whether and, if so, how the parties addressed a _______, injury at the BRC.
The Appeals Panel has observed that the resolution of disputed issues is not governed by the strict rules of pleading as practiced at common law or in the district courts of the state of Texas. See Texas Workers’ Compensation Commission Appeal No. 951848, decided December 18, 1994, and cases discussed therein. Thus, some leeway, consistent with express provisions of the 1989 Act and implementing rules, is to be given to the parties to resolve substantive issues as expeditiously as possible provided that due process principles of fundamental fairness are observed in the joining of issues at each stage of the adjudicatory process. We have also stressed that the inclusion of a date of injury is “essential” to resolving the compensability of an injury. Texas Workers’ Compensation Commission Appeal No. 94713, decided July 12, 1994. Consistent with these principles, we have not required that the date of injury found by a hearing officer be the same as the date alleged by the claimant when the evidence indicates otherwise. Texas Workers’ Compensation Commission Appeal No. 941029, decided September 16, 1994. Nor must a claimant in all cases “pinpoint” a date of injury. See Texas Workers’ Compensation Commission Appeal No. 960997, July 10, 1996. This is particularly true in claimed repetitive trauma injury cases where the date of injury is always somewhat of a moving target. See Texas Workers’ Compensation Commission Appeal No. 94894, decided August 25, 1994. It is also true in cases of discrete trauma injuries. See Texas Workers’ Compensation Commission Appeal No. 941398, decided December 1, 1994, where the Appeals Panel affirmed a finding of a hearing officer that the date of a discrete injury was June 15th, not August 17th as initially claimed. Similarly, in Texas Workers’ Compensation Commission Appeal No. 91123, decided February 7, 1992, the Appeals Panel wrote that the 1989 Act “does not require that an issue as to time of injury be restricted to the date on the notice of injury when examined in the adjudication process.” This is not to say that a claimant may be so vague about a date of injury or otherwise so confuse the question that the carrier is not given a fair opportunity to defend the claim or that a party should be allowed to benefit from such confusion or intentional obfuscation by making no attempt to clarify the matter either at a BRC or in response to a report of a BRC. See the discussion of estoppel in Texas Workers’ Compensation Commission Appeal No. 960166, decided March 8, 1996.
In the case we now consider, we hold that the hearing officer erred in refusing to allow the claimant to present evidence, through his own testimony, about what transpired at the BRC regarding the date of injury. Indeed, his proffer of evidence, that is, that the parties agreed to dispute a _______, injury, if believed, presented a compelling reason to expand consideration of the date of injury to _______, and the claimant should have been permitted to give this testimony from his personal knowledge subject to cross-examination and presentation of contrary evidence by the carrier. Equally important, we believe, is the lack of any evidence from which to conclude or infer that the carrier would have been prejudiced by allowing the consideration of a date of injury on _______. The carrier admitted that the claimant did experience an electrical shock in the course and scope of his employment. The only duties addressed by either party that could have caused the shock occurred on a specific job at a specific location during the fairly limited period of time in _______. See Appeal No. 941029, supra. Indeed, the cause of injury alleged was never claimed to be anything other than an electric shock during the equipment repair at a customer’s plant in State A. Thus, the parties appear to have been disputing an injury which arose out of one reasonably identified set of circumstances. Compare Texas Workers’ Compensation Commission Appeal No. 961757, decided October 21, 1996, a case involving two distinct injuries to different parts of the body on two succeeding days.
Consistent with our previous decisions and refusal to adopt strict rules of pleading in the adjudication of disputes, we reverse the determination of the hearing officer which limited the carrier’s liability in this case only to a claimed injury on ____________. The unappealed findings of fact that the claimant sustained a compensable injury on _______, and gave timely notice of this injury, have become final. The carrier is liable for benefits for this _______, injury (temporal lobe epilepsy). Given this resolution, we need not address the findings of the hearing officer that _______, is not “on or about” ____________.
Because the hearing officer based her finding of no disability on the absence of a compensable injury, we reverse this determination and remand this issue for further consideration and resolution in light of our determination that the claimant did sustain an injury in the course and scope of employment on _______, for which timely notice was given.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Commission’s division of hearings pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Alan C. Ernst – Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
Judy L. Stephens – Appeals Judge