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 June 30, 2009. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury sustained on _________, does extend to disc herniations at L3-4 and L4-5 and right hand tendonitis; (2) the appellant (carrier) waived the right to contest compensability of disc herniations at L3-4 and L4-5 but has not waived the right to contest compensability of right hand tendonitis; and (3) the respondent (claimant) has had disability resulting from the _________, compensable injury from December 2, 2008, continuing through the date of the CCH.
The carrier appealed, disputing that portion of the hearing officer’s carrier waiver determination that the carrier waived the right to dispute compensability of disc herniations at L3-4 and L4-5; the determination that the compensable injury extends to disc herniations at L3-4 and L4-5 and right hand tendonitis; and the determination that the claimant has had disability resulting from the _________, compensable injury from December 2, 2008, continuing through the date of the CCH. The appeal file does not contain a response from the claimant to the carrier’s appeal. That portion of the hearing officer’s determination that the carrier has not waived the right to contest compensability of the claimant’s right hand tendonitis was not appealed and has become final pursuant to Section 410.169.
DECISION
Affirmed in part and reversed and rendered in part.
It was undisputed that the claimant sustained a compensable injury on _________, when he fell approximately 10 feet while in the course and scope of employment. At the CCH, the carrier acknowledged that it accepted the compensable injury of _________, which included a concussion, head laceration, and contusions.
CARRIER WAIVER
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Section 409.021(a) provides that for claims based on a compensable injury that occurred on or after September 1, 2003, that not 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.
In State Office of Risk Mgmt. v. Lawton,[1] 2009 Tex. LEXIS 629 (Tex. August 28, 2009), the Texas Supreme Court held that the interpretation given in APD 041738-s, supra, would eliminate the distinction between compensability and extent of injury. In Lawton, the carrier agreed the claimant had a compensable injury. Similarly, in the instant case, the carrier agreed the claimant had a compensable injury and later disputed the extent of that injury. We find the reasoning set forth in the Lawton decision applicable to the facts in the case at issue. Accordingly, we reverse the hearing officer’s decision that the carrier waived the right to contest compensability of disc herniations at L3-4 and L4-5 and render a new decision that the carrier did not waive its right to contest compensability of disc herniations at L3-4 and L4-5.
EXTENT OF INJURY
The hearing officer found that the “[c]laimant’s diagnosed disc herniation[s] at L3-L4 and L4-L5 and right hand tendonitis are causally related to the _________ work-related incident/injury.” That finding is supported by sufficient evidence. The hearing officer’s determination that the compensable injury of _________, extends to disc herniations at L3-4 and L4-5 and right hand tendonitis is supported by sufficient evidence and is affirmed.
DISABILITY
The hearing officer’s determination that the claimant has had disability resulting from the _________, compensable injury from December 2, 2008, continuing through the date of the CCH is supported by sufficient evidence and is affirmed.
SUMMARY
We reverse that portion of the hearing officer’s determination that the carrier waived the right to contest compensability of disc herniations at L3-4 and L4-5 and render a new decision that the carrier did not waive its right to contest compensability of disc herniations at L3-4 and L4-5.
We affirm the hearing officer’s determination that the compensable injury of _________, extends to disc herniations at L3-4 and L4-5 and right hand tendonitis.
We affirm the hearing officer’s determination that the claimant has had disability resulting from the _________, compensable injury from December 2, 2008, continuing through the date of the CCH.
The true corporate name of the insurance carrier is AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY and the name and address of its registered agent for service of process is
LEO F. MALO
12222 MERIT DRIVE, SUITE 700
DALLAS, TEXAS 75251-2237.
Margaret L. Turner
Appeals Judge
CONCUR:
Thomas A. Knapp
Appeals Judge
Veronica L. Ruberto
Appeals Judge
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We note that the decision in Lawton, supra, is not yet final until opportunities for rehearing have been exhausted.