This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was conducted on August 8, 2001,
The issues before the hearing officer were:
1.Did the [appellant/cross-respondent] Claimant sustain a compensable injury in the form of an occupational disease?
2.What is the date of injury?
3.Did the Claimant give timely notice of the injury to her Employer, and if not, does good cause or other legal excuse exist for her failure to do so?
4.Has the [respondent/cross-appellant] Carrier waived its right to dispute the compensability of the claimed injury by not contesting the injury in accordance with Texas Labor Code Sections 409.021 and 409.022?
5.Did the Claimant have disability, and if so, for what period(s)?
With regard to the issues, the hearing officer determined that the claimant sustained an injury in the form of an occupational disease, carpal tunnel syndrome (CTS), caused by the repetitive trauma suffered by the claimant in the course and scope of her employment, mainly data entry services. However, because the hearing officer determined that the claimant knew or should have known that her CTS may have been related to her employment on ________ (the date of injury per Section 408.007), he decided that the claimant’s notification to her employer of her injury on __________ was not timely, and that the claimant did not have good cause or other legal excuse for her failure to give timely notice. Because the hearing officer thus determined that the claimant’s injury was not compensable, he also determined that she had no disability. Further, the hearing officer determined that the carrier did not waive its right to dispute the compensability of the claimed injury.
The claimant appealed, emphasizing that she confused early symptoms of her CTS with those from a long-standing injury from a motor vehicle accident (MVA) in 1989, and therefore did not report her CTS to her employer until the day after it was diagnosed on September 7, 2000. The claimant also asserted that she notified her employer about her injury on __________, but the hearing officer had not considered that testimony. The claimant also urged that the carrier’s failure to dispute her claim within seven days of its receipt of written notice caused it to legally waive its right to do so under Downs v. Continental Casualty Company, 32 S.W.3d 260 (Tex. App.-San Antonio 2000, pet. granted).
The carrier also appealed, contesting the hearing officer’s finding of the claimant’s occupational disease and the alleged date of reporting, __________. The carrier urged that the evidence was insufficient to support a nexus between the claimant’s alleged injury and her employment, and that she did not report her injury as work related until __________. With respect to the other issues appealed by the claimant, the carrier responds and urges affirmance.
DECISION
Affirmed.
The claimant sustained unrelated neck and shoulder injuries in 1989 and apparently continued to have pain and stiffness from those injuries. In early 2000, the claimant went to work for a temporary staffing agency and was assigned to work for the employer typing and performing data entry. The claimant testified that by May 2000 she noticed pain in her arms, and that she told her supervisor of problems with her forearms/hands as early as __________. However, the hearing officer appears to have believed that when the claimant informed her supervisor of the forearm/hand pain, the claimant attributed her May 2000 pain to her previous MVA, made more noticeable by her duties and hours at work. The hearing officer found that while the claimant did sustain a repetitive trauma injury, she knew or should have known that her CTS injury may have been related to her employment on __________, and that the claimant’s reporting of the injury on __________, was not timely. See Section 408.007 (date of injury for occupational disease) and Sections 409.001 and 409.002 (notice requirements to employer). The hearing officer’s determinations are supported by the evidence.
Following his determination of no compensable injury due to the lack of timely notice to the employer, the hearing officer did not err in determining that the claimant had no disability. In as much as we are affirming the hearing officer’s decision that the claimant had not sustained a compensable injury, the claimant cannot, by definition in Section 401.011(16), have disability.
Regarding the timely contest of compensability issue, the Employer’s First Report of Injury or Illness (TWCC-1) indicates that the date of the carrier’s first written notice of injury was __________; and in evidence is the carrier’s Payment of Compensation or Notice of Refused or Disputed Claim Interim (TWCC-21) filed with the Texas Workers’ Compensation Commission (Commission) on April 10, 2001. The claimant contends that the carrier’s contest of compensability, pursuant to Downs, supra, was not timely. The Commission has declined to follow Downs until it becomes final upon the completion of the judicial process. TWCC Advisory No. 2000-07 issued August 28, 2000; Texas Workers’ Compensation Commission Appeal No. 010003, decided February 12, 2001. Therefore, the hearing officer did not err in not following Downs in accordance with Commission policy.
The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.).
The Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
We affirm the hearing officer’s decision and order.
The true corporate name of the insurance carrier is RELIANCE NATIONAL INSURANCE and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Thomas A. Knapp
CONCUR:
Gary L. Kilgore – Appeals Judge
Robert E. Lang
Appeals Panel
Manager/Judge