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 August 7, 2001. He determined that (1) respondent (claimant) sustained an injury in the form of an occupational disease while at work; (2) the date of injury is ________; (3) appellant (carrier) is not relieved from liability under Section 409.002 because of claimant’s failure to timely notify her employer pursuant to Section 409.001; (4) the employer did not tender a bona fide offer of employment (BFOE) to claimant; and (5) claimant had disability beginning on August 7, 2000, and continuing through the date of the hearing. On appeal, carrier urges that there is insufficient evidence to support these findings. Claimant urges affirmance.
DECISION
We affirm in part and reverse and render in part.
We first address carrier’s contention that the hearing officer’s statement of the evidence reflects an inaccurate summary of the facts in this case. Carrier complains that the hearing officer said claimant did not have a follow-up visit with Dr. O. However, what the hearing officer stated was that no record of a February 20, 2000, visit was provided, which was a correct statement. In her testimony, claimant had mentioned talking with Dr. O around February 20. There is a record of a follow-up visit on February 18, 2000, but not on February 20, 2000. We perceive no error.
Carrier contends the hearing officer erred in determining that claimant sustained a work-related injury. Claimant described her repetitive work activities rolling eggrolls as well as the pain and numbness she developed in her hands. There was medical evidence to support claimant’s assertion that she sustained an injury at work. We conclude that the hearing officer’s determination that claimant sustained an injury while working is not 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, 176 (Tex. 1986).
We next address carrier’s argument that the hearing officer erred in determining that claimant had good cause to delay reporting her injury to her employer because the issue of good cause was not raised by claimant at the hearing. We have held that an issue on notice subsumes the exceptions set forth in Section 409.002. Texas Workers’ Compensation Commission Appeal No. 92386, decided September 8, 1992. In this case, the issue identified Section 409.002, which includes the exceptions of actual knowledge and good cause. Therefore, if the hearing officer determined that claimant had failed to give timely notice, he could consider the applicability of good cause based on the evidence before him even if claimant did not articulate that she was asserting good cause for failure to give timely notice of the injury. The hearing officer did not err in making findings on good cause, as the issue was properly before the hearing officer.
Carrier next contends that the hearing officer erred in determining that claimant had good cause for failing to report the injury within 30 days. Carrier also contends that the hearing officer did not accurately discuss claimant’s testimony as a whole regarding the date of injury and timely reporting. Section 409.001 requires that an employee notify the employer of an injury not later than the 30th day after which the injury occurs or, if the injury is an occupational disease, the date the employee knew or should have known that the injury may be related to the employment. Failure to do so, absent a showing of good cause or actual knowledge of the injury by the employer, relieves carrier and the employer of liability for the payment of benefits for the injury. Section 409.002. The hearing officer determined that claimant knew or should have known that her condition may have been related to her employment on February 10, 2000, the date when claimant discussed with Dr. O that she experienced problems when she had an “excess of work.” Additionally, the hearing officer found that (1) Dr. O did not discuss his conclusions with claimant on February 10, 2000; (2) claimant was unsure if there was a connection between her symptoms and her work until July 15, 2000, when she discussed the situation with her coworkers; (3) a person of ordinary prudence and diligence in claimant’s circumstances would not report the type of injury alleged by claimant when its connection with work was only speculative, as it was on February 10, 2000, but would wait for further confirmation such as the information provided by coworkers on July 15, 2000; and (4) claimant had good cause to delay reporting her injury until July 15, 2000.
Carrier argues that the hearing officer’s determination that claimant knew or should have known that the injury may have been related to her employment on February 10, 2000, necessarily conflicts with the determination that a person of ordinary prudence would not have reported the injury on February 10, 2000, when the connection between claimant’s work and her symptoms was only “speculative.” Claimant testified that she noticed pain at work when she overworked her hands. Claimant took maternity leave beginning in late December 1999 and saw Dr. O regarding her upper extremity condition on February 10, 2000. Claimant testified that (1) she was told by the doctor who saw her with regard to her pregnancy that her upper extremity condition was not related to pregnancy; (2) claimant was off work for a few months after giving birth and returned to work in May 2000; (3) claimant did not experience the symptoms again until July 2000, when she noticed numbness in her arm, shoulders, and fingers; (4) on July 15, 2000, she began to have pain, and she reported a work-related injury on that same day; (5) claimant’s problems with her hands appeared when she was overworked; (6) claimant did not think her condition was serious before July 2000, rather she thought it was caused by too much work; (7) Dr. O told her in February 2000 that her condition might be caused by too much work; and (8) when she saw Dr. O on February 10, 2000, she thought her condition was caused by too much work.
Considering claimant’s testimony that Dr. O told her in February 2000 that her condition might be caused by too much work and that, when she saw Dr. O on February 10, 2000, she thought her condition was caused by too much work, we conclude that the hearing officer’s determination regarding good cause is against the great weight and preponderance of the evidence. Claimant was required to report her injury not later than the 30th day after the date she knew or should have known that the injury may be related to her employment. The hearing officer determined that a person of ordinary prudence would not have reported the injury “when the connection with work was only speculative,” noting that claimant was “unsure” of the connection to work until she talked to her coworkers. However, a claimant cannot wait until he or she is “sure” a condition is work related before reporting it. We have said that corroboration that an injury may be related to work is not required before the injury is to be reported. See, generally, Texas Workers’ Compensation Commission Appeal No. 991123, decided July 1, 1999 (Unpublished). The hearing officer appeared to have found that claimant had good cause for failing to report what she suspected was a work-related injury because her doctor and/or coworkers had not provided evidence to corroborate her suspicions. However, claimant already had the knowledge that her condition may be related to work, which then required her to report the injury. If there had been evidence that Dr. O had affirmatively told claimant that her condition was not work related, we might hold differently. See Texas Workers’ Compensation Commission Appeal No. 992245, decided November 24, 1999 (Unpublished). We note that the hearing officer found that claimant did not trivialize her injury, and that she considered it serious enough to report it as a concern to Dr. O on February 10, 2000, and that determination was not appealed by claimant. We conclude that there was error in the hearing officer’s good cause determination, and we reverse that determination and render a decision that claimant did not have good cause for failing to timely report her injury within 30 days of ________.
Carrier asserts that the hearing officer exceeded the scope of the issues before him by deciding an extent-of-injury issue. The finding of fact in question states that claimant “sustained an injury extending from her fingers, through her arms, up to her shoulders, on both sides of her body.” This finding of fact did not relate to an extent-of-injury issue and did not constitute reversible error in this case.
Last, we address the contention that the hearing officer erred in determining that the employer did not tender a BFOE to claimant. Section 408.103(e) provides that if an employee is offered a bona fide position of employment “that the employee is reasonably capable of performing, given the physical condition of the employee and the geographic accessibility of the position to the employee, the employee’s weekly earnings after the injury are equal to the weekly wage for the position offered to the employee.” Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 129.6(c) (Rule 129.6(c)) states:
(c)An employer’s offer of modified duty shall be made to the employee in writing and in the form and manner prescribed by the [Texas Workers’ Compensation] Commission. A copy of the Work Status Report on which the offer is being based shall be included with the offer as well as the following information:
(1)the location at which the employee will be working;
(2)the schedule the employee will be working;
(3)the wages that the employee will be paid;
(4)a description of the physical and time requirements that the position will entail; and
(5)a statement that the employer will only assign tasks consistent with the employee’s physical abilities, knowledge, and skills and will provide training if necessary.
The hearing officer determined that the offer of employment was not with claimant’s employer, but was with another employer, and that the offer did not provide a schedule. Because the rule requires that the offer include the schedule the employee will be working, we conclude that the hearing officer did not err in determining that there was no BFOE in this case.
Because we have rendered a decision that claimant did not have good cause for failing to timely report her injury, we conclude that carrier was relieved of liability under Section 409.002 because of claimant’s failure to timely notify her employer pursuant to Section 409.001. Therefore, we further render a decision that claimant’s injury is not compensable. Carrier also appealed the disability determination. Because there is no compensable injury, there can be no disability, and we reverse the hearing officer’s disability determination because it is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.
We affirm that part of the hearing officer’s decision and order that determined that (1) claimant sustained a work-related injury and (2) there was no BFOE. We reverse that part of the hearing officer’s decision that determined that (1) claimant had good cause for failing to timely report her injury; (2) claimant sustained a compensable injury; (3) claimant had disability; and (4) carrier is not relieved of liability under Section 409.002. We render a decision that (1) claimant did not have good cause for failing to timely report her injury; (2) claimant did not sustain a compensable injury; (3) claimant did not have disability; and (4) carrier is relieved of liability under Section 409.002.
The true corporate name of the insurance carrier is CONTINENTAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEMS
350 N. ST. PAUL STREET
DALLAS, TEXAS 75201.
Judy L. S. Barnes – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Michael B. McShane – Appeals Judge