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 held on November 15, 2001. The hearing officer determined that the respondent/cross-appellant’s (claimant) compensable (“at leas…..ight shoulder”) injury of _______________ (all dates are 2001 unless otherwise noted) extends to and includes an injury to the cervical spine; that the claimant had not proven a lumbar injury; and that the claimant “made a knowing election of remedies to have her surgical [sic, cervical] surgery covered under her health insurance policy rather than workers’ compensation.”
The appellant/cross-respondent (self-insured) appeals the extent-of-injury issue, arguing that “[t]here is absolutely no evidence to support the hearing officer’s finding that the claimant’s cervical problem extends from her _______________, shoulder injury.” The claimant appeals the hearing officer’s determination on the election-of-remedies issue on several grounds. There was no appeal of the determination that the compensable injury did not include the lumbar spine. Both parties responded to the other’s appeal, urging affirmance on the issues in their favor.
DECISION
The hearing officer’s decision on the extent of the injury is affirmed and the decision on the election-of-remedies issue is reversed and a new decision rendered.
The claimant was employed as a custodian at one of the self-insured’s schools when she sustained a compensable right shoulder injury on _______________ while emptying a garbage can into a dumpster. The claimant saw a doctor the next day and complaints of neck pain were noted. The claimant continued to work the rest of the school year, eventually seeing a chiropractor and then getting referred to a surgeon, who ordered an MRI. The MRI showed a “combination of disc herniation and osteophyte formation.” The surgeon recommended surgery, which was performed on June 12. The day prior to surgery, the claimant mentioned to the surgeon that this was a workers’ compensation case; the nurse explained to the claimant that she would have to wait six weeks or so for the second opinion, special surgery approval process or the claimant could have surgery the next day, using her group health benefits. The claimant chose to proceed with the surgery using her group health benefits.
EXTENT OF INJURY
The hearing officer’s decision on the extent-of-injury issue is supported by the evidence, namely the claimant’s testimony and medical documentation. The hearing officer’s determinations on this issue are not 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).
ELECTION OF REMEDIES
In the past, the Appeals Panel has cited the test in Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980) as controlling in the analysis of election-of-remedies issues. However, the Court of Appeals for the Fifth District of Texas at Dallas in Valley Forge Insurance Company v. Austin, Ct. App.-Dallas, 05-00-01915-CV, opinion issued December 20, 2001 (not yet published) held, citing Bocanegra, supra, that the common-law, election-of-remedies affirmative defense is not applicable to present workers’ compensation cases because of the addition of language in Section 409.009 of the 1989 Act. We are applying the Austin, supra, case in reversing the hearing officer’s decision and we render a new decision that the claimant is not barred from pursuing workers’ compensation benefits because of an election to receive benefits under a group health insurance policy.
The hearing officer’s decision on extent of injury is affirmed and the decision on election of remedies is reversed and a new decision is rendered that the claimant is not barred from workers’ compensation benefits because of an election to receive group health benefits.
The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is
SL
SUPERINTENDENT
(ADDRESS)
(CITY), TEXAS (ZIP CODE).
Thomas A. Knapp – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
CONCUR IN THE RESULT:
This decision is affirmable based on both Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980) and the subclaimant theory stated in Valley Forge Insurance Company v. Austin, Ct. App.-Dallas, 05-00-01915-CV. Austin should not be considered controlling because the potential appeals process is not complete.
Robert E. Lang
Appeals Panel
Manager/Judge