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 February 29, 2000. The hearing officer determined that the respondent/cross-appellant’s (claimant) compensable injury includes dysphasia, but not bilateral carpal tunnel syndrome (BCTS); and that the appellant/cross-respondent (self-insured) timely contested the compensability of the BCTS and dysphasia. The claimant appeals the determinations that his compensable injury did not include BCTS and that the self-insured timely disputed the compensability of the BCTS, expressing his disagreement with these determinations. The self-insured replies that these determinations are correct and should be affirmed. The self-insured requests a clerical correction of the decision and order to reflect that the claimed injury was “dysphagia,” not “dysphasia.” It also appeals the determination that the dysphagia was compensable, contending that this determination was against the great weight of the evidence. The appeals file contains no response from the claimant. The determination that the dysphasia/dysphagia was timely disputed has not been appealed and has become final.
DECISION
Affirmed as reformed.
Clearly from the record before us, the claimant claimed that his compensable injury included “dysphagia,” or difficulty swallowing, not “dysphasia,” or difficulty speaking. Unfortunately, the report of the benefit review conference (BRC) used the wrong word and, not being noticed by the parties, this wrong word was carried over into the decision and order. For this reason, we reform the Decision and Order by replacing the word “dysphasia” wherever it appears with the word “dysphagia.”
The claimant slipped on __________, while carrying lumber. He caught his fall with his right hand. He subsequently underwent a cervical fusion in November 1996 with implantation of hardware. In April 1999 the plate was removed. His position was that the formation of scar tissue and the hardware caused the dysphagia. On January 22, 1999, Dr. M noted that x-rays showed no fracture of the plate or screws but a spur superior to the plate which may have caused a recent popping sensation in the claimant’s neck. An esophagogram on February 3, 1999, showed constant posterior impression on the proximal esophagus at the level of C4-5. On February 12, 1999, Dr. M determined that the dysphagia was significant and caused by the spur and retained plate and screws. The self-insured did not contest the claimant’s request to have the plate and screws removed.
A carrier is liable for injuries caused by medical treatment for a compensable injury. Texas Workers’ Compensation Commission Appeal No. 972079, decided November 20, 1997. Section 401.011(26) defines injury as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.” The hearing officer found that the dysphagia was an injury caused by the fusion and implantation of hardware. The self-insured appeals this determination on the grounds that dysphagia is a symptom, not damage to the body and that the question of medical treatment is not properly before the hearing officer. The esophagogram described a compression of the esophageal wall and Dr. M refers to “pharyngeal swelling.” Given this evidence and the lack of any medical evidence supporting the self-insured’s assertion that dysphagia is only a symptom, we find the evidence sufficient to support both the determinations that dysphagia is an injury and was caused by the cervical hardware implant.
The claimant appeals the hearing officer’s finding that his BCTS was not part of the compensable injury. The hearing officer’s rationale for this finding was that the diagnosis did not appear in the records until a June 22, 1995, nerve conduction study of the upper extremities disclosed “very mild evidence consistent with a mild carpal tunnel.” The claimant’s theory of causation of the BCTS was that the cervical herniation was untreated for so long that it caused the BCTS. He also admitted that he last worked in August 1995. Other evidence offered by the claimant included a December 22, 1999, statement by Dr. S, his current treating doctor, that the claimant “carries diagnoses o…..BCTS].” Dr. S does not otherwise address or explain causation. The hearing officer was not persuaded that the claimant established that his BCTS was part of the compensable injury primarily because there was no evidence of BCTS for two years after the accident. In his appeal of this determination, the claimant again contends that he has a diagnosis of BCTS and that it was caused by inattention to his cervical herniation. It was not disputed that there is objective evidence that the claimant has BCTS. What is at issue is its cause. The hearing officer concluded that the evidence did not seriously address causation, but simply assumed the BCTS was related to the original injury. Whether the claimant’s compensable injury caused the BCTS presented a question of fact for the hearing officer to decide. Section 410.165(a) further provides that the hearing officer is the sole judge of the weight and credibility of the evidence. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we find the evidence sufficient to support the determination that the compensable injury does not include BCTS.
Section 409.021(c) provides generally that a carrier must dispute the compensability of an injury by the 60th day after receiving notice of the injury. A carrier which fails to do so, absent newly discovered evidence, waives the right to contest compensability. Section 409.021(d). We have held that these dispute provisions apply to additional injuries not previously claimed. Texas Workers’ Compensation Commission Appeal No. 93491, decided August 2, 1993. But see Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.3(c) (Rule 124.3(c)), effective March 13, 2000. The time for disputing a claimed injury begins on the date the carrier received written notice of the claimed injury. Texas Workers’ Compensation Commission Appeal No. 982566, decided December 16, 1998; Texas Workers’ Compensation Commission Appeal No. 952232, decided February 8, 1996. Written notice is sufficient if it identifies the claimant and “fairly informs the insurance carrie…..f facts showing compensability.” Rule 124.1(a)(3), then in effect. A claimant has the burden of proving what the written notice consists of and when it was received by the carrier. Texas Workers’ Compensation Commission Appeal No. 941398, decided December 1, 1994.
The claimant contended at the CCH that the written notice consisted of a September 15, 1997, EMG report which was “consistent with” BCTS. He also conceded that he had no proof if or when the self-insured received this document or if the self-insured timely disputed it in a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) dated November 21, 1997. The self-insured conceded that it did not have a copy of this TWCC-21 with a file date from the Texas Workers’ Compensation Commission. The hearing officer commented in the Decision and Order that the claimant failed to prove when the self-insured received written notice of the BCTS and the self-insured failed to prove it disputed the BCTS before the BRC on January 7, 2000. She made specific findings that the self-insured did not receive written notice of the BCTS more than 60 days before January 7, 2000 (Finding of Fact No. 5) and that the self-insured timely contested the compensability of the BCTS on January 7, 2000. Finding of Fact No. 6. In his appeal, the claimant restates the same argument he made at the CCH. The record clearly shows he did not have evidence of when the self-insured received the EMG report on which he relied for written notice of this claimed injury. Under our standard of review, we find the evidence sufficient to support the determination that the self-insured did not waive its right to dispute the compensability of the claimed BCTS injury.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Tommy W. Lueders – Appeals Judge