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 13, 2001. The following issue was presented to the hearing officer: Did the appellant/cross-respondent (claimant) suffer a compensable repetitive trauma injury with a date of injury of ___________? The hearing officer made the following findings of fact:
FINDINGS OF FACT
2.The Claimant sustained harm to her cervical and thoracic spine due to repetitive activities that originated in and had to do with [employer] business and that were performed by the Claimant in furtherance of the business or affairs of [employer].
3.The Claimant first knew or should have known in ___________ that the harm she sustained, as referred to in Finding of Fact No. 2 above, may have been connected to her work.
4.___________ is the date that the Claimant reported an injury to [employer], but she had known since ___________ that she had been experiencing symptoms that she suspected were related to her workplace conditions. The Claimant sought treatment from Dr. S between ___________ and August 1999 for these symptoms.
Because the hearing officer found that the claimant knew or should have known that her injuries may be related to her employment on a date other than that set forth in the issue before her, the hearing officer reached the following conclusion of law:
CONCLUSIONS OF LAW
4.The Claimant did not sustain a compensable repetitive trauma injury with a date of injury of ___________.
The claimant appeals the hearing officer’s date of injury determination on sufficiency grounds and appeals the injury determination as contrary to the Finding of Fact No. 2. Additionally, the claimant asserts that the hearing officer erred in addressing the matter of notice (Finding of Fact No. 4), as that issue was not properly before the hearing officer. The carrier cross-appeals, asserting that Finding of Fact No. 2 is contrary to the evidence and that the hearing officer erred in making a finding with regard to the date of injury (Finding of Fact No. 3) as that issue was not properly before the hearing officer. The carrier urges affirmance of the hearing officer’s ultimate determination that the claimant did not sustain a compensable repetitive trauma injury with a date of injury of ___________.
DECISION
Reversed and remanded in part, reversed and rendered in part.
Date of Injury
Because the hearing officer’s ultimate determination in this case turns on her finding with regard to date of injury, we first address the hearing officer’s finding on this issue. As stated above, the carrier asserts that the date of injury issue was not properly before the hearing officer and the hearing officer erred in making a finding with regard to this issue. The claimant asserts that the hearing officer’s determination is not supported by the evidence.
We have 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, 1995, 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. Similarly, we recognize that a hearing officer may decide an issue actually litigated at the CCH, even if it is not among the certified issues in dispute. Texas Workers’ Compensation Commission Appeal No. 962596, decided March 27, 1997. Our review of the record indicates that the claimant was questioned, at the hearing, with regard to when she first knew that her injuries may be work-related. In view of the claimant’s testimony, the hearing officer could find, as she did, that the claimant first knew or should have known that her injuries may be related to her work in ___________. The hearing officer’s finding on this matter was not improper, nor was it 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 (Tex. 1986).
Notwithstanding, we observe that the hearing officer failed to find a specific date of injury. Because the date of injury is significant in determining when benefits are due, the hearing officer was required find a specific date of injury. See Texas Workers’ Compensation Commission Appeal No. 962650, decided April 13, 1999. Accordingly, we remand the hearing officer’s decision for further findings of fact and conclusions of law with regard to the precise date of injury in ___________.
Compensable Repetitive Trauma Injury
The carrier contends that the hearing officer’s Finding of Fact No. 2, above, is not supported by sufficient evidence and asserts that the claimant’s condition was, instead, preexisting and unrelated to her employment. Whether the claimant’s condition was the result of repetitious, physically traumatic activities that occurred over time and arose out of and in the course and scope of her employment was a question of fact for the hearing officer. See Texas Workers’ Compensation Commission Appeal No. 991722 (unpublished), decided September 24, 1999. There was conflicting evidence presented with regard to this issue. In view of the claimant’s testimony and medical records, the hearing officer could find that the claimant sustained harm to her cervical and thoracic spine due to repetitive activities which arose out of and in the course and scope of her employment. The hearing officer’s finding is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.
The claimant requests reversal of the hearing officer’s decision to the extent it is inconsistent with Finding of Fact No. 2. As stated above with regard to the date of injury issue, the hearing officer was not bound to determine only whether an injury had occurred on ___________, but could expand the inquiry and conclude that the claimant sustained a compensable repetitive trauma injury with a date of injury in ___________. Such a determination would have been proper in this case, in view of the hearing officer’s findings with regard to injury and date of injury. To be clear, the hearing officer erred in failing to determine whether the claimant sustained a compensable repetitive trauma injury albeit on a date other than ___________. Accordingly, we reverse the hearing officer’s decision to the extent it is inconsistent with Finding of Fact No. 2 and render a decision that the claimant did sustain a compensable repetitive trauma injury.
Notice
The claimant asserts that the hearing officer erred in making a finding with regard to notice, as that issue was not before the hearing officer. We agree. Whether the claimant timely reported her injury to her employer was not was not in dispute or actually litigated by either party in this proceeding. Because there was no controversy with regard to notice, the hearing officer need not have addressed the issue. Accordingly, Finding of Fact No. 4 is stricken from the decision.
The decision and order of the hearing officer is reversed and a new decision rendered that the claimant sustained a compensable injury. The decision is remanded for further findings of fact and conclusions of law with regard to the precise date of injury in ___________.
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 Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202 (amended June 17, 2001). See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
The true corporate name of the carrier is WAUSAU BUSINESS INSURANCE COMPANY and the name and address of its registered agent for service of process is
C.T. CORPORATION SYSTEMS
350 NORTH ST. PAUL, SUITE 2900
DALLAS, TEXAS 75201.
Edward Vilano – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Gary L. Kilgore – Appeals Judge