On April 25, 2000, a contested case hearing (CCH) was held. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The hearing officer resolved the disputed issues by deciding that although appellant/cross-respondent (claimant) did not sustain a compensable injury on __________, claimant’s injury is compensable because respondent/cross-appellant (carrier) did not timely contest compensability of the injury, and that claimant had disability from April 15, 1999, to April 6, 2000. Claimant requests that the hearing officer’s decision that he did not sustain a compensable injury on __________, be reversed and that a decision be rendered in his favor on that issue and that the hearing officer’s decision that he had disability from April 15, 1999, through April 6, 2000, be reversed and that a decision be rendered that he had disability from April 15, 1999, through the date of the CCH. Carrier requests that the hearing officer’s decision that it did not timely contest compensability of the injury be reversed and that a decision be rendered in its favor on that issue. Both parties filed responses.
DECISION
Affirmed in part and reversed and rendered in part.
WHETHER CLAIMANT SUSTAINED AN INJURY IN THE
COURSE AND SCOPE OF HIS EMPLOYMENT
Claimant, who is 63 years of age, testified that on __________, he was making his safety round at employer’s plant when he missed stepping on two rungs of a ladder and fell on his left side; that he went to a hospital on April 15, 1999; that he then began seeing Dr. K, his treating doctor; that he retired in June 1999 because he was unable to work; that he had back surgery on October 8, 1999; and that he is unable to work.
The hospital report of April 15, 1999, noted that claimant had been doing some work eight days ago when he started developing low back pain that went down his left leg, that he has a history of a prior herniated lumbar disc dating back to 1978, that he had not had back surgery, and that he denied any new trauma to his lower back. The April 15, 1999, hospital report stated a diagnosis of low back pain with sciatica and noted that claimant is to be off work until Monday. Dr. R took claimant off work on April 21, 1999.
Dr. K wrote on April 27, 1999, that claimant’s back and leg problems dated back to a fall claimant had in the 1970’s, that claimant said that he has had intermittent numbness and weakness in his leg since that time, that the claimant had fallen on a couple of occasions, that claimant had been unable to work for the past three weeks, and that Athere is no obvious one single precipitating cause. Dr. K noted that a lumbar MRI done on April 26, 1999, showed multilevel spondylotic changes, a disc protrusion at L5-S1, and lumbar stenosis. Dr. K further wrote that claimant has a long history of back and radicular symptomatology, that he has multiple-level degenerative changes in his lumbar spine, and that he was having more symptoms than he had had in the recent past Awithout any obvious significant precipitating cause. Dr. K wrote that claimant was to remain off work.
In a May 27, 1999, record, Dr. K noted a date of accident of __________, and that claimant had been accepted under Workers’ compensation. On August 10, 1999, Dr. K wrote that claimant is under his care for an on-the-job injury he sustained on __________, and that claimant requires lumbar surgery. Dr. P, a second opinion doctor on spinal surgery, noted in his report of August 25, 1999, that claimant told him that on __________, he fell off a ladder onto his left side. Dr. P opined that claimant has degenerative disc disease of the lumbar spine and that claimant may benefit from surgery. On October 8, 1999, claimant underwent lumbar surgery.
After surgery, claimant began seeing Dr. J, apparently for pain management, and Dr. J wrote in December 1999, that claimant fell off a ladder at work on __________, and had an immediate onset of low back pain. Dr. J issued several off-work slips. Dr. J noted that an EMG done on February 5, 2000, showed bilateral L5 radiculopathy. On February 5, 2000, Dr. J noted that claimant’s off-work status was expected to last until April 6, 2000, and that it was expected that claimant would be able to return to work without restrictions by April 6, 2000. On April 24, 2000, Dr. J noted that claimant’s off-work status was expected to last until May 12, 2000, at which time claimant would be expected to return to work with restrictions.
Claimant appeals the hearing officer’s finding that he did not sustain an injury on or about __________, while in the course and scope of his employment. It is clear from the hearing officer’s decision that she gave more weight to the earlier medical reports that did not note any new trauma to claimant’s back than she did to the later medical reports that recorded an __________, work-related injury. The hearing officer is the judge of the weight and credibility of the evidence. Section 410.165(a). We conclude that the hearing officer’s finding that claimant did not sustain an injury on or about __________, while in the course and scope of his employment is supported by sufficient evidence and that it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We affirm the hearing officer’s finding that claimant did not sustain an injury on or about __________, while in the course and scope of his employment.
WHETHER CARRIER WAIVED ITS RIGHT TO CONTEST
COMPENSABILITY OF CLAIMANT’s INJURY
Section 409.021 provides as follows:
Sec. 409.021. INITIATION OF BENEFITS; INSURANCE CARRIER’s REFUSAL; ADMINISTRATIVE VIOLATION. (a) An insurance carrier shall initiate compensation under this subtitle promptly. Not later than the seventh day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall:
(1)begin the payment of benefits as required by this subtitle; or
(2)notify the commission [Texas Workers’ Compensation Commission] and the employee in writing of its refusal to pay and advise the employee of:
(A)the right to request a benefit review conference; and
(B)the means to obtain additional information from the commission.
(b)An insurance carrier shall notify the commission in writing of the initiation of income or death benefit payments in the manner prescribed by commission rules.
(c)If an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability. The initiation of payments by an insurance carrier does not affect the right of the insurance carrier to continue to investigate or deny the compensability of an injury during the 60-day period.
(d)An insurance carrier may reopen the issue of the compensability of an injury if there is a finding of evidence that could not reasonably have been discovered earlier.
(e)An insurance carrier commits a violation if the insurance carrier does not initiate payments or file a notice of refusal as required by this section. A violation under this subsection is a Class B administrative violation. Each day of noncompliance constitutes a separate violation.
It is undisputed that carrier received notice of claimant’s injury on May 21, 1999. That is the date carrier received the Employer’s First Report of Injury or Illness (TWCC-1). It is also undisputed that the carrier filed a Payment of Compensation or Notice of Refused/ Disputed Claim (TWCC-21) with the Commission on October 4, 1999. In the TWCC-21, carrier stated that, based on recently discovered medical evidence received from Dr. K, carrier denies that claimant sustained a compensable injury in the course and scope of his employment, and that the medical report of Dr. K that was received on August 10, 1999, indicates that claimant’s alleged problems are an ordinary disease of life, unrelated to a compensable on-the-job incident or injury. Carrier represented at the CCH that it initiated medical benefits but that it did not initiate temporary income benefits (TIBs) because claimant retired from employment. There is no appeal of the hearing officer’s findings that carrier began paying claimant’s medical bills immediately following May 21, 1999, but that carrier refused to pay income benefits in the form of TIBs. The only TWCC-21 in evidence is the one filed with the Commission on October 4, 1999.
Carrier represented at the CCH that the newly discovered evidence upon which it based its October 4, 1999, denial of compensability, was Dr. K’s report of April 27, 1999, in which Dr. K noted that claimant has lumbar stenosis and that claimant’s symptoms were without any obvious significant precipitating cause. Carrier represented at the CCH that it received Dr. K’s report of April 27, 1999, on July 13, 1999 (there is a July 13, 1999, fax date on the report), and that, although the report states claimant’s name and date of birth, carrier did not relate that report to claimant’s claim until it received another fax from Dr. K on August 10, 1999, that contained a claim number. Carrier contended at the CCH that Dr. K’s report of April 27, 1999, constituted newly discovered evidence and that it had 60 days from August 10, 1999, to dispute the compensability of claimant’s injury and thus the TWCC-21 that was filed on October 4, 1999, was a timely contest of compensability.
The Appeals Panel, citing several prior Appeals Panel decisions, stated in Texas Workers’ Compensation Commission Appeal No. 972511, decided January 16, 1998, that the Appeals Panel had decided that Athe carrier’s failure to pay benefits or to contest compensability within seven days can, by the very language of the statute, constitute an administrative violation and provide for fines; however, it does not preclude a carrier from contesting compensability within sixty days as set forth in Section 409.021(c).
In Downs v. Continental Casualty Co., No. __________ (Tex. App.-San Antonio January 26, 2000, motion for rehearing pending), the court held that a carrier waives its right to deny compensability if it fails to comply with Section 409.021(a) of the Texas Labor Code by either beginning the payment of benefits or giving written notice of its refusal to pay within seven days after receiving written notice of an injury.
In Texas Workers’ Compensation Commission Appeal No. 000433, decided April 12, 2000, and Texas Workers’ Compensation Commission Appeal No. 000879, decided June 12, 2000, the Appeals Panel applied the Downs case in rendering decisions that the carriers in those cases waived their right to contest compensability because they did not file a dispute or initiate benefits within seven days of receiving written notice of injury. Appeal Nos. 000433 and 000879 were appeals of hearing officers’ decisions issued from the Commission’s San Antonio field office.
In the instant case, the hearing officer cited the Downs case and then cited Appeal No. 000433 for the proposition that the Downs case is controlling in __________ County. The hearing officer noted in her decision that claimant’s disability began on April 15, 1999, and found that carrier failed to file a TWCC-21 disputing claimant’s entitlement to TIBs within seven days of May 21, 1999, the date it received written notice of injury. Carrier contends on appeal that the Downs case should not be applied retroactively. To the extent that the hearing officer’s decision that carrier did not timely contest compensability after being notified of the injury may be based on the Downs case, the Appeals Panel notes that the Director of the Hearings Division has recently informed the Hearings Division, including the Appeals Panel, that the Commission’s position is that a carrier has 60 days to contest compensability and that hearings staff are to follow the Commission’s position statewide pending the Downs case’s final resolution. Consequently, the carrier in this case had 60 days to contest compensability from its receipt of written notice of injury. There are administrative penalties for failure to comply with the seven-day provision.
Carrier contends that its dispute was timely under the law as it existed at the time of its dispute. The carrier received written notice of claimant’s injury on May 21, 1999, and did not file its TWCC-21 disputing the compensability of claimant’s injury until October 4, 1999, which was in excess of 60 days from its receipt of written notice of injury. Thus, its contest of compensability was not timely.
At the CCH, carrier’s contention regarding timely contest of compensability was based on what it contended was newly discovered evidence. The hearing officer found that carrier Areceived medical documentation which would give rise to a dispute of the Claimant’s injury on July 13, 1999. Apparently, this finding relates to carrier’s receipt of Dr. K’s report of April 27, 1999. July 13, 1999, was within 60 days of May 21, 1999, thus carrier could have filed its contest of compensability within 60 days of May 21, 1999, yet carrier did not contest compensability until October 4, 1999, which was not within 60 days of May 21, 1999. Again, carrier’s contest of compensability was not timely.
Carrier argued to the effect that Dr. K’s April 27, 1999, report was newly discovered evidence and that while it received that report on July 13, 1999, it could not tie that report to claimant’s claim until August 10, 1999, and that it had 60 days from August 10, 1999, to contest compensability. We do not consider Dr. K’s report of July 27, 1999, to be evidence that could not reasonably have been discovered earlier because carrier made no showing that it could not reasonably have discovered that report at an earlier date if it had properly investigated the claim and because it received the report within the 60-day period for disputing compensability. As stated in Texas Workers’ Compensation Commission Appeal No. 971949, decided November 5, 1997, a carrier may reopen inquiry into compensability where facts previously unknown, and which could not have been reasonably discovered within the initial 60-day period, come forward.
If carrier had received newly discovered evidence that it could not reasonably have discovered within the 60-day period for disputing compensability, carrier would not have had another 60-day period to contest compensability. In Texas Workers’ Compensation Commission Appeal No. 992584, decided January 3, 2000, the Appeals Panel stated that Section 409.021(d) provides that a carrier may reopen the issue of compensability of an injury if there is a finding of evidence that could not reasonably have been discovered earlier, that discovery of evidence that could not have been discovered earlier does not start a new 60-day period in which to contest compensability of an injury, and that once evidence is newly discovered, the carrier must act with due diligence to contest compensability. Thus, even if carrier had newly discovered evidence on August 10, 1999, as it claimed at the CCH, waiting until October 4, 1999, to file its contest of compensability lacked due diligence.
We affirm the hearing officer’s decision that carrier did not timely contest compensability after being notified of the injury; however, our affirmance is based on carrier’s failure to contest compensability within 60 days of its receipt of written notice of injury on May 21, 1999.
WHETHER CLAIMANT SUSTAINED A COMPENSABLE INJURY
The hearing officer found that claimant did not sustain an injury on or about __________, while in the course and scope of his employment; concluded that claimant did not sustain a compensable injury; and decided that, although claimant did not sustain a compensable injury on __________, claimant’s injury is compensable because carrier did not timely contest compensability. Claimant appeals the hearing officer’s conclusion that claimant did not sustain a compensable injury. The hearing officer’s finding on the disability issue finds that claimant has a back injury. Claimant’s claim is for a back injury. Since carrier did not timely contest the compensability of claimant’s claimed back injury of __________, claimant’s back injury is a compensable injury. Texas Workers’ Compensation Commission Appeal No. 962596, decided March 27, 1997.
Carrier contends that under the decision in Continental Casualty Company v. Williamson, 971 S.W.2d 108 (Tex. App.-Tyler 1998, no pet. h.), its failure to contest compensability within 60 days is irrelevant. In Williamson, the court held that if a hearing officer determines that there is no injury, and that finding is not against the great weight and preponderance of the evidence, the carrier’s failure to contest compensability cannot create an injury as a matter of law. The Appeals Panel has held that Williamson is limited to situations where there is a determination that the claimant did not have an injury, that is no damage or harm to the physical structure of the body. In the instant case, claimant claimed a back injury and the hearing officer found that claimant has a back injury, although she determined that the injury did not occur in the course and scope of employment. Because there was a finding of injury, Williamson is not applicable. Appeal No. 992584, supra.
We reverse the hearing officer’s conclusion of law that claimant did not sustain a compensable injury on __________, and that portion of her decision that determines that claimant did not sustain a compensable injury on __________, and we render a decision that claimant’s back injury is compensable as a matter of law because carrier waived its right to contest compensability of the back injury. We affirm that portion of the hearing officer’s decision that determines that claimant’s injury is compensable because carrier did not timely contest compensability.
WHETHER CLAIMANT HAD DISABILITY AFTER APRIL 6, 2000
Disability means Athe inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. Section 401.011(16). Claimant has a compensable injury because carrier waived its right to contest compensability. Claimant appeals the hearing officer’s finding that claimant was unable to obtain and retain employment at his preinjury wages from April 15, 1999, through April 6, 2000, due to his back injury, and that claimant was released to return to full-duty employment on April 6, 2000. Claimant also appeals the hearing officer’s conclusion that claimant had disability from April 15, 1999, through April 6, 2000. Claimant contends that he has had disability from April 15, 1999, through the present and continuing.
The hearing officer’s finding that claimant was released to return to full-duty on April 6, 2000, is apparently based on Dr. J’s work status report of February 5, 2000, wherein Dr. J noted that claimant’s off-work status was expected to last until April 6, 2000, and that it was expected that claimant would be able to return to work without restrictions by April 6, 2000. Thus, Dr. J’s work status report of February 5, 2000, gave only an anticipated date that claimant would be able to return to work without restrictions and did not actually release claimant to return to full duty on April 6, 2000, as found by the hearing officer. Dr. J’s subsequent work-status report of April 24, 2000, continued claimant in his off-work status with an anticipated date of returning to restricted work on May 12, 2000. The CCH was held on April 25, 2000.
We conclude that the hearing officer’s finding that claimant was released to full-duty employment on April 6, 2000, is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We reverse the hearing officer’s finding that claimant was released to full-duty employment on April 6, 2000, and her finding, conclusion, and decision that claimant had disability from April 15, 1999, through April 6, 2000, and we render a decision that claimant had disability as a result of his compensable back injury from April 15, 1999, through the date of the CCH, April 25, 2000.
SUMMARY
We affirm the hearing officer’s finding that claimant did not sustain an injury on or about __________, while in the course and scope of his employment. We affirm the hearing officer’s decision that carrier did not timely contest compensability of claimant’s injury; however, our affirmance of the hearing officer’s decision on the waiver issue is based on carrier’s failure to contest compensability of the injury within 60 days of its receipt of written notice of injury. We reverse the hearing officer’s conclusion of law that claimant did not sustain a compensable injury on __________, and that portion of her decision that determines that claimant did not sustain a compensable injury on __________, and we render a decision that claimant’s back injury is compensable as a matter of law because carrier waived its right to contest compensability of the back injury. We affirm that portion of the hearing officer’s decision that determines that claimant’s injury is compensable because carrier did not timely contest compensability. We reverse the hearing officer’s
finding that claimant was released to full-duty employment on April 6, 2000, and her finding, conclusion, and decision that claimant had disability from April 15, 1999, through April 6, 2000, and we render a decision that claimant had disability as a result of his
compensable back injury from April 15, 1999, through the date of the CCH, April 25, 2000.
Robert W. Potts – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Susan M. Kelley – Appeals Judge