This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On July 30, 1997, a contested case hearing (CCH) was held. The issues involved whether the claimant, sustained a psychiatric condition as a result of compensable injuries sustained on _____; and whether the carrier waived the right to dispute the psychiatric condition by not disputing it within 60 days after receiving written notice of injury.
The hearing officer determined that the claimant’s compensable injury was a producing cause of her subsequent psychiatric condition; and independently found that the carrier waived the right to dispute the compensability of that condition because, although it paid a bill for her condition and received a report of it in August 1996, the carrier did not file a formal dispute until after 60 days from that date, and that it did not prove that it had information for disputing the claim which could not have been discovered through due diligence within the 60 days.
The carrier has appealed this decision. First of all, carrier argues that mere payment of a bill for psychiatric care does not equate to having written notice of a work-related injury that triggered a responsibility to dispute the claim within 60 days. The carrier further disputes the hearing officer’s decision to the extent it appears to indicate that it did not have newly discovered evidence on which to dispute the compensability of the psychiatric condition. The carrier also appeals the hearing officer’s determination that claimant’s compensable injury was a producing cause of her subsequent psychiatric condition. There is no response from the claimant.
DECISION
Affirmed.
This case is essentially a necessity of medical treatment case cast as an extent of injury case. As such, it has come through the CCH process, rather than the medical review process where it would seem to more logically belong. At the heart of the matter is whether the carrier must continue to pay for psychiatric treatment which, from its perspective, appears to have gone beyond that which is related to the effects of injury itself as opposed to other stressful events in the claimant’s life, and for which it initially paid. We note that the carrier’s Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21), filed on April 2, 1997, argues that psychiatric care is not “reasonable or necessary” to treat the compensable injury, and then further argues that such care is for treatment of conditions of nonoccupational origin.
The undisputed compensable injury occurred on _____, when claimant took a severe fall by slipping on a plastic hangar while employed as a supervisor by (employer). Claimant was in her mid twenties at the time. She injured her neck, ultimately resulting in cervical fusion surgery after unsuccessful conservative treatment; herniated two lumbar discs, requiring surgery; and fractured her right foot in several places. Because her foot has not healed and osteomyelitis has developed, she had four surgeries and testified at the CCH that another was pending. We note that there was no assertion or proof of any psychiatric condition or treatment that predated the injuries in this case. It does appear from the medical records that claimant had had lumbar surgery prior to her 1993 injury, in March 1990, which was considered well healed. Surgeries are as follows:
August 22, 1994, Cervical fusion, involving removal of bone from hip
December 7, 1995, implantation of hardware in foot because of non-union of fracture
May 13, 1996, Lumbar laminectomy, 2 herniated discs
August 1, 1996, Removal of infected foot hardware
December 13, 1996, foreign body (glass) in foot, causing infection
February 19, 1997, another foot surgery relating to infection
It appears that claimant was treated immediately after her injury by a chiropractor, Dr. R, for what was diagnosed by him as cervical and lumbar strain and lumbar radiculopathy, who referred her to a podiatrist for her foot. Dr. R continued to describe claimant’s injury as cervical sprain, even after her cervical surgery. It is fair to state that prior to the spinal surgeries in question, the claimant tried extended periods of conservative treatment, including spinal injections. The medical records indicate that after each surgery, she continued to be treated for pain and radiating symptoms to her extremities. Her podiatrist noted that a contributing factor to her foot ulcerations in mid-1996 was loss of sensation in her leg which altered her gait. Claimant’s neurologist, Dr. M, prescribed numerous pain medications and Prozac.
The history of her emotional illness, according to claimant’s testimony and records, was that she was feeling depressed as early as August 1995. Claimant said she also drank because she did not want to become dependent upon pain medication. However, she began attending Alcoholics Anonymous in early 1996. In March 1996, claimant made a suicide attempt by overdosing on her pain medication. She was thereafter referred to Dr. A, a psychiatrist, who first treated her on April 3, 1996. Dr. A noted that factors leading to her attempt were continuous pain from her compensable injury as well as a breakup of a relationship. Dr. A also treated claimant twice in June 1996. He billed the carrier for all these treatments, and his bills plainly identify the claimant, the diagnosis, pertinent identifying information about the claimant, and the fact that it is work related. The carrier paid two checks on August 19 and December 23, 1996, each shown as drawn on the account of the employer. Dr. A filed a long report of claimant’s illness after his April 3, 1996, visit, and there was argument over when and if the carrier received this report, with the current adjuster asserting she had not seen it prior to the BRC. On April 11, 1996, a report to the apparent previous adjuster on the claim, from a second opinion spinal surgery doctor, noted that the claimant currently took Prozac for depression.
In any case, claimant was hospitalized for another suicide attempt in January 1997. She indicated that a factor in this was that she had gone back to work as a supervisor at a bookstore beginning in October 1996. She said that after her foot surgery in December 1996, and because she was considered a probationary employee and in that sense temporary, the employer terminated her, identifying her foot problems and absenteeism as the cause. In the hospital, claimant began treatment by Dr. S, who was her psychiatrist at the time of the CCH. Dr. S’s reports diagnose claimant as having depression secondary to her injury. Dr. S replied to the report of the carrier’s psychiatrist, Dr. C, by questioning strongly Dr. C’s assertion that the injury had no effect on her depression.
Dr. C testified at the CCH by telephone. He had never examined claimant, and had reviewed medical records forwarded to him by the carrier. He said that at the time he wrote his initial reports, he had not reviewed Dr. A’s records. He had reviewed them later, and they apparently did not alter his opinion that claimant’s depression was not related to her injury. Pressed under cross-examination at the CCH about whether a number of surgeries would effect a younger person in any way, he agreed that “any series of surgeries is going to have an effect” on a person’s life, and that it was “possible” that her injury was a contributing factor to her depression.
Although somewhat moot in light of the hearing officer’s independent finding that claimant’s compensable injury was a producing cause of her depression, we also affirm the hearing officer’s determination that the carrier did not react promptly enough to dispute the compensability of the depression. Although analyzed under the “60 day” provision in Section 409.021(c), we believe that the provision that most accurately applies to this situation is the “reopening” of the issue of compensability as provided for under Section 409.021(d), which provides a means by which the carrier seeks review of injuries whose compensability was already conceded within the original 60-day period. In this case, the evidence shows that the carrier began paying for depression which was identified as work related at least by August 19, 1996 (as found by the hearing officer and sufficiently supported in the evidence). It paid for treatment of depression in 1996, but no dispute was filed with the Texas Workers’ Compensation Commission until April 2, 1997, several months after claimant’s hospitalization for suicide in mid-January 1997. This was shortly after it asked its own consultant to review claimant’s treatment, and he responded on March 25th. The fruit of a delayed investigation does not equate to evidence that may reasonably be called “newly discovered” after this sequence of events, including initial acceptance of payment for treatment.
Whether or not timely disputed, however, the determination that the claimant’s compensable injury was a producing cause of her depression is amply supported by the evidence. The hearing officer could well believe that the number of surgeries, resultant unrelieved pain, and continuing foot problems, especially for a person of claimant’s age, progressively led to her depression, as described by Dr. S, and that other stressors, rather than being the overriding cause of claimant’s depression, took on heightened significance that would not have been there were it not for the compensable injury. There was no evidence, as noted before, of preexisting emotional illness. We affirm the hearing officer’s decision and order that the carrier is liable for treatment for claimant’s depression and hospitalizations as part of the compensable injury.
Consequently, we affirm the decision of the hearing officer on all appealed issues.
Susan M. Kelley – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
CONCUR IN THE RESULT:
Elaine M. Chaney – Appeals Judge