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At a Glance:
Title:
APD 052808
Date:
February 1, 2006

APD 052808

February 1, 2006

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 November 2, 2005. The hearing officer resolved the disputed issues by deciding that the compensable injury does not include carpal tunnel syndrome (CTS) on either side and that the respondent (carrier) has not waived the right to contest compensability of bilateral CTS (BCTS) by failing to timely contest compensability of the injury in accordance with Sections 409.021 and 409.022. The appellant (claimant) appealed, arguing that the medical records in evidence dated within the 60-day waiver time period the carrier had to investigate this claim, made clear the claimant had been diagnosed with BCTS and that it was related to her employment. The carrier responded, urging affirmance.

DECISION

Reversed and rendered.

The parties stipulated that on , the claimant sustained a compensable injury and that on February 16, 2005, the carrier received its first written notice of the claimed injury. At issue was whether the compensable injury extended to include BCTS and whether the carrier waived the right to contest compensability of the BCTS by failing to timely contest compensability of the injury in accordance with Sections 409.021 and 409.022. It was undisputed that the claimant had been diagnosed with BCTS.

Section 409.021(c), effective for a claim based on a compensable injury that occurred on or after September 1, 2003, provides that 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. In Appeals Panel Decision (APD) 041738-s, decided September 8, 2004, the Appeals Panel established that when a carrier does not timely dispute the compensability of a claim, the compensable injury is defined by the information that could have been reasonably discovered by the carrier’s investigation prior to the expiration of the waiver period. As stated above, the parties stipulated that the carrier received first written notice on February 16, 2005. There are medical records in evidence which indicate the claimant has BCTS. The hearing officer acknowledges in his discussion of the evidence notes that the carrier could have reasonably discovered the electrodiagnostic studies done on February 17, 2005, and March 31, 2005, both of which showed bilateral CTS, within the waiver period. However, the hearing officer found no waiver because he was persuaded that there was no showing that anyone, including the claimant, alleged within the waiver period that the compensable injury might include CTS.

A medical record dated March 29, 2005, noted that the claimant’s symptoms of shoulder pain and neck pain began when she was typing on January 31, 2005, and noted that she was also lifting and putting away supplies on that date. The doctor who wrote the report also noted that the claimant’s symptoms were shoulder related and recommended she have testing to rule out CTS. Further the EMG report listed the claimant’s employment activities as highly repetitive in nature, including typing. It was undisputed that the claimant had complained of wrist pain from her initial reporting of the injury. Several of the medical reports that reflect claimant’s complaints of wrist pain also note that the claimant’s job is repetitive in nature (keyboarding). The hearing officer’s finding that the carrier, through a reasonable investigation, could not have determined within 60 days following February 16, 2005, that CTS was part of the claimed injury is against the great weight and preponderance of the evidence.

The hearing officer cites APD 051040, decided June 21, 2005, for the proposition that an allegation of a causal connection between the compensable injury and the condition as well as the disputed condition must have been reasonably discoverable within the waiver period. In APD 051040, supra, medical records prior to the date of injury indicated the claimant had been diagnosed with pulmonary fibrosis. In that case no medical records in evidence dated within the waiver period even referenced pulmonary fibrosis. Under those circumstances the only way the carrier could be aware that there was a claim that the compensable injury extended to pulmonary fibrosis was a specific allegation that the previously diagnosed condition of pulmonary fibrosis was aggravated or connected in some way to the compensable injury which occurred in that case. In the instant case the claimant had not been previously diagnosed with BCTS but had consistently complained of left wrist pain and pain radiating down her right arm. Additionally, the records dated within the waiver period contain multiple references or tingling and numbness in her fingers and hands as well as a diagnosis of BCTS. The claimant is not required under these facts to allege a causal connection between the compensable injury and a condition she has not previously been diagnosed with.

We reverse the hearing officer’s determination that the carrier has not waived the right to contest compensability of BCTS by failing to timely contest compensability of the injury in accordance with Sections 409.021 and 409.022 and render a new decision that the carrier waived the right to contest compensability of BCTS by failing to timely contest compensability of the injury in accordance with Sections 409.021 and 409.022. Because the carrier waived its right to contest compensability of the BCTS it becomes compensable as a matter of law. Therefore, we reverse the hearing officer’s determination that the compensable injury does not include CTS on either side and render a new decision that the compensable injury does include BCTS.

The true corporate name of the insurance carrier is FEDERAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

GERARD BUTLER
2001 BRYAN STREET, SUITE 3400
DALLAS, TEXAS 75201-3068.

Margaret L. Turner
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

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