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) convened on January 12, 2000; the CCH was not completed on that date; and another session of the CCH was held on April 5, 2000. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury on __________, and that he did not have disability. The claimant appealed, contended that the hearing officer erred in not admitting exhibits he offered, urged that the determinations of the hearing officer are against the great weight and preponderance of the evidence, and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision that he sustained a compensable injury and had disability. In the alternative, the claimant requested that the Appeals Panel reverse the decision of the hearing officer and remand for further development of the evidence. The respondent (carrier) replied; argued that the hearing officer did not err in not admitting the excluded exhibits, contended that if it was error not to admit the exhibits, it was not reversible error; urged that the evidence is sufficient to support the decision of the hearing officer, and requested that it be affirmed.
DECISION
We reverse and remand.
We first address the hearing officer’s not admitting two medical records offered into evidence. At the first session of the CCH, both parties had exhibits admitted into evidence and the claimant testified. He stated that he had an MRI performed the day before the CCH was convened and that he had not received a report of the MRI. The first session of the CCH was recessed at 11:55 a.m., apparently because the hearing officer had another CCH scheduled for the afternoon. At the second session of the CCH, the claimant offered into evidence a report of the MRI dated January 14, 2000. That report is attached to the record and states that the MRI was performed on January 11, 2000, and that the claimant has a disc tear, herniation, and bulge at L4-5; a disc bulge at L3-4; and a disc bulge at L5-S1. The attorney representing the claimant stated that the report of the MRI was sent to the carrier. The attorney representing the carrier stated that the first exchange after the first session of the CCH was received on January 22, 2000, and that other things were received later. A report from Dr. G that was offered but not admitted into evidence, is attached to the record. It is dated January 14, 2000, and states that the report of the MRI had not been received. Other than the statements of the attorneys, the record does not indicate when documents were sent by the claimant or received by the carrier. The claimant contended that he complied with Texas Workers’ Compensation Commission (Commission) rules by exchanging medical documents soon after they were received. The carrier argued Athat the evidence should be closed as of the first hearing. The hearing officer stated A[b]ut I don’t believe that a proceeding that’s continued opens the door for evidence to be admitted. By either side. She did not admit the medical records dated after the first session of the CCH.
Section 410.160 provides that the Commission shall prescribe by rule the times for exchanging information. Section 410.161 states that a party who fails to disclose information as required may not introduce the evidence at any subsequent proceeding before the Commission or in court unless good cause is shown for the failure. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.13(c)(1) (Rule 142.13(c)(1)) provides that no later than 15 days after the benefit review conference the parties shall exchange certain information, including medical reports and medical records. Rule 142.13(c)(2) provides A[t]hereafter, parties shall exchange additional documentary evidence as it becomes available. Rule 142.13(c)(3) states that parties shall bring all documentary evidence not previously exchanged to the hearing in sufficient copies for exchange and that a hearing officer shall make a determination on whether good cause exists for a party’s not having previously exchanged such documents. Section 410.155 and Rule 142.10 address continuances. Nothing in the 1989 Act or Commission rules prohibits admitting documents after the first session of a CCH. The testimony of the witnesses called by the carrier is clearly evidence. If the requirements concerning exchange of information and good cause, if appropriate, are met; there is nothing in the 1989 Act or Commission rules to indicate that documents and testimony of witnesses should be treated differently. It would have been preferable for the claimant to have offered additional documents concerning the exchange of information into the record. However, based on the record, we find that it was error for the hearing officer to sustain objections to the offered medical records and report.
To obtain reversal of a decision of a hearing officer based upon error in the admission or exclusion of evidence, the party appealing must show that the determination was in error and that the error was reasonably calculated to cause and probably did cause the rendition of an improper decision. Texas Workers’ Compensation Commission Appeal No. 92241, decided July 24, 1992. In her Decision and Order, the hearing officer states that in the September 23, 1999, report there is no history of a specific injury on __________. She also stated that the claimant’s testimony regarding a specific injury and notification to the employer on __________, was not credible and was not supported by the medical evidence. The hearing officer made a finding of fact that the claimant did not sustain physical injury or harm to his back in the course and scope of his employment on __________. The claimant testified that his duties included transporting items in a van and going to several stores to deliver and pick up items. He said that on __________, he sustained the injury at a specific store; that he unloaded and loaded items at that store; that he felt back pain when he lifted a heavy compressor; and that he completed the route. The history in the report of Dr. G does indicate that the claimant did repetitive lifting of heavy objects. In a report dated October 7, 1999, Dr. G diagnosed “lumbar sprain/strain, rule out HNP [herniated nucleus pulposus]” and requested x-rays, MRI, and EMG/nerve conduction studies. The comments of the hearing officer are subject to more than one interpretation. She did not find some of the claimant’s testimony to be credible. She also said that part of his testimony was not supported by medical evidence. The medical evidence that was not admitted indicates that the claimant has disc bulges and herniations in his lumbar spine and to some extent supports the testimony of the claimant. We reverse the decision of the hearing officer and remand for her to admit the medical reports and records that were offered but not admitted, to consider all of the evidence, and to make findings of fact and conclusions of law that resolve the disputed issues and to render a decision and order based upon those findings and conclusions.
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 Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Tommy W. Lueders – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Dorian E. Ramirez – Appeals Judge