A contested case hearing (CCH) was held in Lufkin, Texas, on September 6, 2001, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The three disputed issues at the CCH were as follows:
(1)Did the [respondent] claimant have disability resulting from an injury sustained on __________, and if so, for what period(s)?
(2)On what date did benefits begin to accrue?
(3)As a result of the decision and order of the [CCH], held on August 11, 2001, does the Commission [Texas Workers’ Compensation Commission] have jurisdiction to address the period of disability from August 11, 1998 through January 2, 2000?
The hearing officer resolved these issues by concluding that the claimant had disability from January 2, 2000, up to and through the date of the hearing; that benefits began to accrue as of January 2, 2000; and that as a result of the Decision and Order of the CCH held on August 11, 2001, the Commission does not have jurisdiction to further address the period of disability from __________, through January 2, 2000. The appellant (carrier) has appealed these three determinations but devotes the entirety of its brief to the “jurisdiction” issue. The claimant’s response urges our affirmance.
DECISION
Affirmed as reformed.
The parties stipulated that the claimant sustained a compensable injury on __________. The claimant testified that he injured his low back at work on that date while working for a company which was trimming tree branches around power lines (employer); that he missed work from __________ to August 16, 1998; that he reported the injury on August 17, 1998, and was sent to the company doctor; that he worked light duty from August 17 to August 22, 1998; and that he was released to work full duty on August 24, 1998, but did not return to work for the employer because the job had moved to another state and he could not afford to relocate. He further testified that he did not lose time from work due to the injury from August 22 through August 31, 1998; that he was unemployed during the September-December 1998 period and, although in pain, was physically capable of working; and that in January 1999 he commenced employment as a truck driver with another company and in August 1999 left that job to drive trucks for another company. He stated that he was paid $9.10 per hour by the employer and $8.00 per hour by the two subsequent employers. The claimant indicated that while working for the two subsequent employers he missed some days of work due to his back pain, that he was not paid for those days, and that he could not recall the dates. He testified that in January 2000 his doctor took him off work altogether; that he has not been able to work since January 2, 2000, because of his back pain; that he underwent lumbar spine surgery on May 10, 2001, and recently commenced a course of physical therapy; and that he has not yet been released to return to work.
In evidence is the Decision and Order signed by the hearing officer on August 11, 2000, following the CCH held on that date. The disputed issues at that hearing were as follows: (1) Does the claimant’s compensable injury of __________, include his current back problem (herniated nucleus pulposis); (2) Is the carrier entitled to reopen the issue of compensability based on newly discovered evidence that was not discovered at an earlier time; and (3) Has the claimant established disability and, if so, for what period(s). The hearing officer resolved these issues by concluding that the claimant’s compensable injury does include his current back problems; that the carrier is not entitled to reopen the issue of compensability based on newly discovered evidence; and that the claimant had disability from January 2, 2000, up to and including the date of the hearing. The hearing officer made findings that the claimant had constant low back symptoms since the date of the compensable injury and that as a result of his current condition, he has been unable to obtain and retain employment at his preinjury wages. The parties represented that this Decision and Order was not appealed and became final. Incidentally, in his Statement of the Case, Statement of the Evidence, and Findings of Fact Nos. 3 and 4, the hearing officer refers to the date of the earlier hearing as August 11, 2001. We reform those findings to reflect the correct hearing date of August 11, 2000.
We are satisfied that the evidence is sufficient to support the challenged determinations. Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The claimant’s testimony, corroborated by his medical evidence, sufficiently establishes that he had disability from January 2, 2000, through the date of the hearing. Concerning the income benefits accrual date and “jurisdiction” issues, the latter being in reality a res judicata issue, the carrier contends that because at the earlier CCH the claimant did not seek a finding of any disability between the injury date and January 2, 2000, notwithstanding the existence of evidence that during that period he had periods of disability (which could have resulted in earlier accrual and maximum medical improvement dates), disability between the date of injury and January 2, 2000, was not previously litigated and is not therefore res judicata. The hearing officer finds that the August 11, 2000, hearing disposed of the question of the claimant’s disability between the date of injury and the hearing date of August 11, 2000. We are satisfied that this finding 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). Though not raised by the carrier, which wishes to establish an income benefits accrual date some time in August 1998, we observe that Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.7(b) (Rule 124.7(b)) provides that “[a]n injured worker’s accrual date is the worker’s eighth day of disability.” And see Texas Workers’ Compensation Commission Appeal No. 93678, decided September 15, 1993, and Texas Workers’ Compensation Commission Appeal No. 941216, decided October 27, 1994.
The decision and order of the hearing officer are affirmed as reformed.
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
C. T. CORPORATION
823 ST. PAUL
DALLAS, TEXAS 75201.
Philip F. O’Neill – Appeals Judge
CONCUR:
Michael B. McShane – Appeals Judge
Robert W. Potts – Appeals Judge