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 September 4, 2008. With regard to the two issues before him the hearing officer determined that the compensable injury of ___________, includes a cervical sprain/strain but does not include cervical radiculitis and left shoulder impingement syndrome. The hearing officer also determined that the respondent (carrier) did not waive the right to contest compensability of the cervical radiculitis by not timely contesting the cervical radiculitis in accordance with Sections 409.021 and 409.022.
The appellant (claimant) appeals that portion of the hearing officer’s decision that the compensable injury does not include cervical radiculitis and left shoulder impingement syndrome and also appeals the determination on the carrier waiver issue. The carrier responds, urging affirmance. The determination that the compensable injury of ___________, includes a cervical sprain/strain has not been appealed and has become final under Section 410.169.
DECISION
Affirmed in part and reversed and rendered in part.
It is undisputed that the claimant fell forward onto her hands and knees while working on ___________. The parties stipulated that the claimant sustained a compensable injury on ___________.
WAIVER
Section 409.021(a) provides that for claims based on a compensable injury that occurred on or after September 1, 2003, that no later than the 15th day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall: (1) begin the payment of benefits as required by the 1989 Act; or (2) notify the Texas Department of Insurance, Division of Workers’ Compensation and the employee in writing of its refusal to pay. Section 409.021(c) 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 an injury, 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.
The hearing officer in the Background Information portion of his decision commented that the evidence established that the carrier received first written notice of the claimed injury on October 12, 2007. Also, in an unappealed finding the hearing officer found the “Carrier received written notice of the claimed injury on October 12, 2007.” Consequently, the 60-day waiver period would have expired on December 11, 2007. It is undisputed that the carrier has not contested that the claimant sustained a compensable injury and that it did not dispute compensability of the cervical radiculitis prior to the expiration of the 60-day waiver period. The hearing officer commented in the Background Information “that insufficient evidence existed to demonstrate that the [c]arrier waived the right to contest the compensability of the cervical radiculitis by not timely contesting such diagnosis in accordance with [Sections] 409.021 and 409.022.”
In evidence is a Work Status Report (DWC-73), dated November 29, 2007, from Dr. A, the treating doctor, which has in Box 21, “Work Injury Diagnosis Information” what could be interpreted to be cervical radiculitis, and in Box 22, there is a checked box for “Referral to/Consult with [(Dr. P)].” Also in evidence is a Patient Referral Form dated November 29, 2007, signed by Dr. A, referring the claimant to Dr. P and giving a diagnosis of “cervical radiculitis,” and asking for an evaluation. The carrier contends that Dr. A’s DWC-73, dated November 29, 2007, did not give the carrier notice of a cervical radiculitis injury because Dr. A “simply scribbled something at the bottom of the [DWC-73] in Box 21.” That contention disregards the notation of a referral to Dr. P on the DWC-73 and the Patient Referral Form, referring the claimant to Dr. P and clearly listing cervical radiculitis as a diagnosis, which could have been reasonably discovered by the carrier’s investigation prior to the expiration of the 60-day waiver period.
Accordingly, we hold that the hearing officer’s decision on the carrier waiver issue is against the great weight and preponderance of the evidence and we reverse the hearing officer’s determination that the carrier did not waive the right to contest the compensability of the cervical radiculitis by not timely contesting the cervical radiculitis in accordance with Section 409.021. We render a new decision that the carrier waived the right to contest compensability of the cervical radiculitis by not timely contesting the cervical radiculitis pursuant to Section 409.021.
EXTENT OF INJURY
That portion of the hearing officer’s decision that the compensable injury of ___________, does not include a left shoulder impingement syndrome is supported by sufficient evidence and is affirmed.
In that we have reversed the hearing officer’s determination that the carrier did not waive the right to contest compensability of the cervical radiculitis and have rendered a new decision that the carrier waived the right to contest compensability of the cervical radiculitis by not timely contesting that injury, the cervical radiculitis has become compensable by operation of law. APD 041738-s, supra. We therefore reverse that portion of the hearing officer’s decision that determined the compensable injury of ___________, does not include cervical radiculitis and we render a new decision that the compensable injury of ___________, includes cervical radiculitis by virtue of carrier waiver.
SUMMARY
We affirm the hearing officer’s determination that the compensable injury of ___________, does not include a left shoulder impingement syndrome. We reverse that portion of the hearing officer’s determination that the carrier did not waive the right to contest compensability of the cervical radiculitis by not timely contesting the cervical radiculitis pursuant to Section 409.021 and that the compensable injury of ___________, does not include cervical radiculitis. We render a new decision that the carrier waived the right to contest compensability of cervical radiculitis by not timely contesting cervical radiculitis pursuant to Section 409.021 and that the compensable injury of ___________, includes cervical radiculitis by virtue of carrier waiver.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
RUSSELL R. OLIVER, PRESIDENT
6210 HIGHWAY 290 EAST
AUSTIN, TEXAS 78723.
Thomas A. Knapp
CONCUR:
Veronica L. Ruberto – Appeals Judge
Margaret L. Turner – Appeals Judge