This appeal arises 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 July 24, 1997, with (hearing officer) presiding as hearing officer. With regard to the issues at the CCH, he determined that the appellant/cross-respondent’s (claimant) _____, compensable injury extends to “pain in the right hand up to the elbow, edema in the hands and feet, rib pain, difficulty walking, feeling cold all over the body in upper extremities, hand tremors on the right hand, pain in both hips, neck pain radiating down to upper lumbar spine, headaches, vision, memory, concentration, ears, incontinence in bowel and bladder, spinal cord, back to include cervical, thoracic and lumbar areas, circulatory problems, chest pain due to RSD [reflex sympathetic dystrophy] right leg pain, and internal organs” (symptoms or manifestations); that the respondent/cross-appellant (carrier) “waived the right to contest the claimed complaints of [manifestations] by not contesting compensability within 60 days of being notified of the injuries” and that the claimant is not barred from pursuing a remedy under the 1989 Act due to an election of remedies.
The claimant appeals the decision regarding its exact wording, arguing that even more problems (some 94 of them) are related to her compensable injury and should have been specifically mentioned therein. The carrier appeals the determinations, arguing that the decision should be reversed, that the claim should have been referred to the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division and that the hearing officer erred in not making specific findings of fact and conclusions of law on each of claimant’s symptoms. The claimant responds, arguing that the determinations regarding the problems should be affirmed. The election of remedies determination is not appealed and, therefore, became final by operation of law. Section 410.169.
DECISION
We reverse and render.
The claimant was employed by (employer), of city 1, state 1, as public housing director. There is no dispute that on _____, the claimant sustained a compensable injury after eating food at a city 2, state 2 convention. She was taken to the hospital in city 2 for food poisoning and was given an intravenous antiemetic medication. The needle used to administer the medication was inserted in her wrist and she developed pain in her wrist from insertion.
The claimant’s treating doctor, Dr. HA, of city 1, referred her to Dr. HO, of city 3, state 3. On December 12, 1995, Dr. HO diagnosed “ectopic (ephaptic nerve damage over the dorsum of the right hand,” and “frozen shoulder.” On March 25, 1996, he diagnosed “right C3-4, C5-6, C7-T1 and C5-6 paravertebral nerve irritation” noted that “examination and thermography shows persistence of damage and severity of sympathetic dysfunction due to venipuncture.” On April 2, 1996, he diagnosed causalgia and on December 3, 1996, noted right T3-4, T4-5, T8-9 and left T5-6 and T6-7 thoracic spine paravertebral pain and spasms, and right L4-5 and L5-S1 paravertebral nerve irritation. Dr. HO’s December 20, 1995, “Complex Detailed Neurological Report” states that she complained of each of the above-referenced symptoms or manifestations: “pain in the right hand up to the elbow, edema in the hands and feet, rib pain, difficulty walking, feeling cold all over the body in upper extremities, hand tremors on the right hand, pain in both hips, neck pain radiating down to upper lumbar spine, headaches, vision, memory, concentration, ears, incontinence in bowel and bladder, spinal cord, back to include cervical, thoracic and lumbar areas, circulatory problems, chest pain due to RSD [reflex sympathetic dystrophy] right leg pain, and internal organs.” Dr. HO opined that her treatment should include epsom salt, upper extremity exercises, using a heating pad, using gripping devices, undergoing nerve blocks and taking various prescriptive medications.
Dr. HA also referred the claimant to Dr. HS, of city 4, state 1, who examined her on September 11, 1996. He noted on physical examination decreased temperature and discoloration of the right hand and evidence of allodynia and decreased sensation of the right hand and wrist. He stated that she “definitely has RSD or by its new name complex regional pain syndrome (CRPS).” On April 11, 1997, the carrier-selected required medical examination doctor, Dr. B, of city 4, certified that the claimant reached maximum medical improvement (MMI) with a zero impairment rating (IR), according to the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides). According to Dr. B, the criteria for an RSD diagnosis are “pain and tenderness in an extremity, signs and symptoms of vasomotor instability, swelling of the extremity and dystrophic skin and nails.” He opined that she only met the “pain and tenderness” criterion and, therefore, had a doubtful RSD diagnosis. He acknowledged Dr. HO’s RSD diagnosis nevertheless, but noted that the AMA Guides do not recognize RSD as a specific diagnosis. On May 8, 1997, the Commission-appointed designated doctor, Dr. E, of city 4, certified that she reached MMI with an eight percent IR. He opined that the only area of the claimant’s body that should be considered for an IR calculation is the right upper extremity “based on the mechanism of injury and the current accepted knowledge regarding [CRPS].”
Prior to an October 18, 1996, CCH, the parties entered into an agreement regarding the disputed issues to be considered. That agreement was entered on the record and is memorialized in that decision and order, which was not appealed and, therefore, became final by operation of law. Section 410.169. It contains conclusions of law that the claimant’s “[RSD] and right extremity pain is a result of the compensable injury. . . .”; and that her “psychiatric condition is not a result of the compensable injur…..” On May 27, 1997, a benefit review conference (BRC) was held on the issues in the case in review and on May 28, 1997, the benefit review officer issued his BRC report. The issues were framed as whether the compensable injury extended to the above-referenced symptoms or manifestations, whether the carrier timely contested the compensability of the symptoms or manifestations and whether the claimant made an election of remedies. There are no responses to the BRC report in the record. See Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.7(c) (Rule 142.7(c)). At the CCH, the parties agreed to the hearing officer’s statement of disputes, as contained in the BRC report. See Rule 142.7(b)(1). Therefore, we do not entertain claimant’s appeal regarding the addition of certain symptoms or manifestations to the list contained in the compensability and contest of compensability issues.
An employee has the burden of proving, by a preponderance of the evidence, that she sustained a compensable injury. Texas Workers’ Compensation Commission Appeal No. 94248, decided April 12, 1994. The issue of the extent of an injury is a fact question for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 92653, decided January 21, 1993; Texas Workers’ Compensation Commission Appeal No. 92654, decided January 22, 1993. However, a mere symptom or manifestation of a compensable injury is generally not a separate injury, particularly where the matter involves necessary treatment for a previously determined compensable injury. Texas Workers’ Compensation Commission Appeal No. 951258, decided September 13, 1995; Texas Workers’ Compensation Commission Appeal No. 94326, decided May 2, 1994; Texas Workers’ Compensation Commission Appeal No. 970488, decided April 28, 1997 (Unpublished). In this case, the previously determined compensable injury extends to the RSD injury.
We conclude that the compensability of the claimant’s injury extending to RSD was previously determined and there is a final determination regarding that issue.[1] The symptoms or manifestations of the RSD injury, as identified in Dr. HO’s records, involve treatment reasonably required by the nature of the RSD injury. The determination that the claimant’s _____, compensable injury does extend to “pain in the right hand up to the elbow, edema in the hands and feet, rib pain, difficulty walking, feeling cold all over the body in upper extremities, hand tremors on the right hand, pain in both hips, neck pain radiating down to upper lumbar spine, headaches, vision, memory, concentration, ears, incontinence in bowel and bladder, spinal cord, back to include cervical, thoracic and lumbar areas, circulatory problems, chest pain due to RSD right leg pain, and internal organs” is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Our decision does not affect the claimant’s right to lifetime medical benefits under the 1989 Act. Section 406.021(a); Texas Workers’ Compensation Commission Appeal No. 92649, decided January 6, 1993. The determination of “benefit disputes” are adjudicated by the Commission’s Hearings Division. Rule 140.1. A “benefit dispute” is one “regarding compensability or eligibility for, or the amount of, income or death benefits.” Id. However, the determination of what “health care is reasonably required by the nature of the injury” is a matter for the Commission’s Medical Review Division. Sections 406.021(a) and 413.031(a); Rule 133.305; see also Appeal No. 951258, supra; Appeal No. 94326, supra; and Appeal No. 970488, supra.
A carrier must contest compensability of an “injury” on or before the 60th day after it is notified of the injury or else it waives its right to contest compensability and is liable for payment of benefits. Section 409.021(c); Rule 124.6(c). A carrier must timely contest the compensability of additional “injuries,” or it waives its right to do so. Texas Workers’ Compensation Commission Appeal No. 950183, decided March 22, 1995. Notices that claim “injuries” to additional “parts of the body” not previously claimed will start a new 60-day time period for contesting compensability for those injuries. Texas Workers’ Compensation Commission Appeal No. 950522, decided May 11, 1995; Texas Workers’ Compensation Commission Appeal No. 93491, decided August 2, 1993.
The determination as to whether a carrier timely contested compensability presents a fact question of the hearing officer to determine. McElhaney v. City of Tyler, 926 S.W.2d 527, 532 (Tex. App.-Tyler 1996, no writ) (a judicial review of Texas Workers’ Compensation Commission Appeal No. 92278, decided August 10, 1992). The symptoms or manifestations listed in the contest of compensability issue are, according to the claimant, borne out of the compensable RSD injury. The RSD injury is compensable by way of a final determination and the carrier did not have an obligation to dispute its compensability. Therefore, the determination that the carrier waived its right to contest the compensability of the claimant’s symptoms or manifestations of the RSD injury is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.
We reverse the decision and render a new decision that the claimant’s _____, compensable injury does not extend to the above-referenced symptoms or manifestations and that the carrier did not waive its right to contest the compensability of the symptoms or manifestations.
Christopher L. Rhodes – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Judy L. Stephens – Appeals Judge
- While the symptoms may or may not require certain medical treatment, the issue of whether specific treatment is reasonably required by the nature of the injury is not within our jurisdiction. Appeal No. 951258, supra. ↑