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 May 4, 2000. The hearing officer concluded that the respondent (claimant) sustained an injury in the course and scope of employment on __________; that the appellant (self-insured employer) is not relieved from liability pursuant to Section 409.002 because of the claimant’s failure to timely notify the self-insured employer pursuant to Section 409.001; and that the claimant had disability from May 16, 1999, through June 21, 1999 and from August 8, 1999, through the date of the CCH. The self-insured employer has appealed the injury and timely notice determinations, asserting the insufficiency of the evidence to support them. The file does not contain a response from the claimant.
DECISION
Affirmed.
It was not disputed that on __________, the claimant, who was employed by the self-insured as a fireman, was out with other firemen collecting money for “Jerry’s Kids” and in the course and scope of his employment. The claimant testified that on that date, while stepping back up on the curb of the roadway median, he slipped and twisted his left knee which had been previously injured in __________ and operated on. The claimant’s medical records reflect that his left knee was injured on __________, when he slipped at work; that he underwent arthroscopic surgery in January and August 1992 for a torn meniscus; and that he was released from care as asymptomatic on March 25, 1994. The claimant further stated that coworker Mr. G was with him on __________, saw the incident, and asked him if he was all right. In his recorded statement Mr. G said he saw the claimant slip on the median curb and the claimant then mentioned having left knee pain. In another statement Mr. G stated that at the time of the incident, “everyone thought it was part of an old injury.” The claimant further stated that he completed his standard 24-hour shift; and packed his knee in ice, elevated it, and took Tylenol. Responding to a question about giving notice to the employer and apparently referring to his supervisor, Captain M, the claimant stated that “they” noticed his limping and asked about it and that he responded that he thought it was due to his “slipping out there,” referring to the curb he slipped on while collecting money. He indicated that his knee “gave out” on a step at home as he was preparing to go to work on May 16, 1999, and gave out again in June 1999, causing him to miss work.
The claimant further stated that on May 17, 1999, he first sought medical treatment from his primary care physician, Dr. JB, and that Dr. JB referred him to Dr. JPB, an orthopedic specialist, who obtained x-rays and told him his knee was weak and required exercise. Dr. JPB’s report of June 5, 1999, states that he saw the claimant on May 27, 1999, to evaluate his left knee and that the claimant, who had previously had two operations on that knee, stated that on May 23, 1999, his left knee “just gave out on him.” The claimant further stated that a group health insurance carrier representative indicated that he was experiencing a flare-up of the __________ injury and advised him to see the doctor who operated on it, Dr. CRB. He said that Dr. CRB also obtained x-rays and told him he had aggravated the knee and that exercise was required. The claimant stated that he later returned to Dr. CRB who obtained MRI studies; that on August 9, 1999, Dr. CRB told him he had two tears but “never really indicated” whether or not it was a new injury; and that on August 10, 1999, he told Captain M about the MRI results and was told to complete an accident report. Dr. JB wrote on July 29, 1999, that an MRI “shows torn medial meniscus again and tear of ACL.” Dr. CRB wrote on October 19, 1999, that the claimant’s current left knee injury occurred on __________, when he was on duty and twisted his knee, and that the claimant has had progressive symptoms since then with the knee “giving way significantly.”
The claimant also stated that while he had “not directly” told Captain M about the injury on __________, he waited until he was informed of the MRI results before telling Captain M he had a work-related injury because he thought it was just an inflammation or some aggravation of the __________ injury. The claimant introduced without objection the Employer’s First Report of Injury or Illness (TWCC-1) prepared by Captain M which reflects that the injury was reported on “04/10/99.” Section 409.005(f) provides that a report made under this section (referring to the employer’s report of injury to the carrier) may not be considered an admission by or evidence against an employer or insurance carrier in a proceeding before the Texas Workers’ Compensation Commission or a court in which the facts set out in the report are contradicted by the employer or the insurance carrier.
The claimant further testified that Dr. CRB took him off work on August 9, 1999, and that he has not yet returned to work. He said he is claiming disability from August 9, 1999, to the date of the hearing.
In evidence is the August 13, 1999, report of Dr. J who reviewed the claimant’s file. Dr. J stated that the claimant had done well until recently when his knee “gave out”; that an MRI showed a tear of the medial meniscus with a chronic complete tear of the anterior cruciate ligament; that he cannot relate the MRI evidence of a cruciate ligament tear to the incident in __________; and that he cannot relate the claimant’s current condition to the __________ incident based on the more than five-year gap in medical records and the inconsistency between the clinical exam and the MRI.
The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). The Appeals Panel, an appellate reviewing tribunal, will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. As for the claimant’s proof of the injury and disability issues, the hearing officer could consider the claimant’s unrefuted testimony, corroborated by Mr. G, and the information in the medical records. With regard to the timely notice issue, the claimant seemed to focus on the alternative theory that he did not appreciate he had sustained a new injury and trivialized the injury until he was informed by Dr. CRB about the MRI results and advised that he indeed had sustained a new work-related injury, after which he again reported the injury to the employer. However, although the hearing officer discusses this theory and the evidence relating to it in her discussion of the evidence, she makes no findings of fact on this theory of timely notice but instead finds that the claimant reported the incident at work on or about __________, and was told the problem probably stemmed from the __________ injury. Though the evidence of the claimant’s reporting the __________, injury to Captain M and, perhaps, to others, later that day was certainly not well developed, we find that the hearing officer could reasonably infer from such evidence as was adduced on the issue that the claimant did report the injury to the self-insured employer on __________. Even if the evidence of the claimant’s reporting the injury to the self-insured employer on __________, were insufficient, the hearing officer, in her discussion of the evidence, notes that good cause would have continued until August 10, 1999, when the claimant again gave the self-insured employer notice of a new injury.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Robert W. Potts – Appeals Judge