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 September 12, 2007. The sole issue before the hearing officer was whether the appellant (claimant) sustained a compensable injury on ___________. In resolving this issue the hearing officer made determinations that the claimant’s activities on ___________, caused a right shoulder sprain/strain and that the claimant did not sustain a lumbar, thoracic, or cervical sprain/strain on ___________. The hearing officer concluded that the claimant sustained a compensable right shoulder sprain/strain on ___________.
The claimant filed a timely Request for Review, contending that her compensable injury includes cervical, thoracic and lumbar sprain/strain as well as the right shoulder sprain/strain. The claimant, through her attorney, also timely filed an amended Request for Review, contending that the hearing officer erred in limiting the compensable injury to a right shoulder sprain/strain when the issue was compensability and not extent of injury. The respondent (carrier) responded, contending among other matters, that “nature and extent [of the injury] were litigated.”
DECISION
Affirmed in part and reversed and rendered in part.
We affirm the hearing officer’s determination that the claimant sustained a compensable right shoulder sprain/strain on ___________, as being supported by sufficient evidence.
While it is appropriate for a hearing officer to indicate the nature of the injury when determining whether an injury existed, the Appeals Panel has also held that it is not appropriate for a hearing officer to make a final determination on an extent of injury when the issue of extent of injury is not before the hearing officer. Appeals Panel Decision (APD) 041899, decided September 27, 2004; APD 002898, decided January 29, 2001. In affirming the hearing officer’s decision that the claimant sustained a compensable right shoulder sprain/strain on ___________, that does not limit the compensable injury to only a right shoulder sprain/strain.
The claimant, at the CCH, contended that her food service duties caused an injury to her right shoulder, and cervical, thoracic, and lumbar spine. The carrier, both in opening and closing argument asserted that there was no extent-of-injury issue before the hearing officer. The carrier contends that the claimant had “no real injury,” citing the fact that the claimant had returned to work for over two years and did not pursue her claim until she had been terminated for cause on May 2, 2007.
The unresolved issue at the benefit review conference (BRC) was “Did the claimant sustain a compensable injury on ___________?” The claimant’s position at the BRC was that she was putting ice in large buckets and started to have pain in the right shoulder and neck, radiating down to the back. The carrier’s position at the BRC was that the claimant did not sustain a compensable injury while in the course and scope of employment. Section 410.151(b) and 28 TEX. ADMIN. CODE § 142.7 (Rule 142.7) essentially provide that issues not considered at a BRC may only be added by consent of the parties or upon a showing of good cause. While consent may be inferred if the parties actually litigated an issue not otherwise identified, we do not believe that the record in this case establishes that the parties litigated an extent-of-injury issue. As noted, the carrier specifically stated in opening and closing arguments at the CCH that there was no extent-of-injury issue before the hearing officer. We have in a number of cases considered a hearing officer’s findings concerning extent of injury to be surplusage when the issue of extent of an injury is not before the hearing officer. APD 041899, supra.
We hold that the hearing officer’s finding that the claimant did not sustain a lumbar, thoracic, or cervical sprain/strain in the course and scope of employment on ___________, exceeded the scope of the issue before him by operating to limit the compensable injury to a right shoulder sprain/strain. We reverse the hearing officer’s decision by striking Finding of Fact No. 4 which held that the claimant did not sustain a lumbar, thoracic, or cervical sprain/strain in the course and scope of employment on ___________, as surplusage.
The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is
ROBIN M. MOUNTAIN
6600 CAMPUS CIRCLE DRIVE EAST, SUITE 300
IRVING, TEXAS 75063.
Thomas A. Knapp
CONCUR:
Veronica L. Ruberto – Appeals Judge
Margaret L. Turner – Appeals Judge