This appeal arises under the provisions of the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1992) (1989 Act). A contested case hearing was held in (city), Texas, on July 23, 1992, (hearing officer) presiding, to determine the following disputed issues: whether appellant timely disputed respondent’s claim within 60 days of notice pursuant to Article 8308-5.21(a) (1989 Act); whether respondent (claimant below) notified the employer of his injury in a timely manner; whether, if respondent did not notify the employer of his injury within 30 days, he had good cause for failing to do so, or whether the employer had actual knowledge of the injury; and whether respondent had disability resulting from his (date of injury) injury, and, if so, the duration of such disability.
The parties having stipulated that respondent sustained a back injury, the hearing officer found that appellant filed its notice disputing respondent’s claim 61 days after it was notified of the injury; that respondent told his supervisor he had fallen while at work but not that he had injured his back; that respondent was afraid he would be fired if he sustained an on-the-job injury; that respondent had not worked from February 24, 1992 to the date of the hearing and has not been released to return to work by his doctor; and that the employer was unaware of respondent’s injury resulting from his slipping on (date of injury), and became aware of such on February 26, 1992. Based on these findings, the hearing officer concluded that appellant failed to timely dispute the compensability of respondent’s injury as required by Art. 8308-5.21(a); that respondent did not timely notify employer of his injury; that respondent did not have good cause for failing to timely notify employer of his injury; that employer did not have actual notice of respondent’s injury; and that respondent is unable to obtain or retain employment at the preinjury wage due to his compensable injury of (date of injury), and that such disability began on February 24, 1992. Because appellant did not timely dispute the compensability of respondent’s injury, the hearing officer ordered that respondent is entitled to receive benefits under the 1989 Act.
In its request for review, appellant asserts two errors by the hearing officer, namely, her conclusion that its dispute of the claim was untimely, and her failure to find that respondent’s back injury did not result in his having disability for a 28-day period when he was hospitalized in a coma not shown to have been caused by his back injury. In support of such appealed issue, appellant attached certain records pertaining to respondent’s hospitalization which were not adduced at the hearing below. No request for review nor response was filed by respondent.
DECISION
Finding no reversible error and the evidence sufficient to support the challenged findings and conclusions, we affirm.
Respondent, who was employed as a foreman by (employer), testified that on (date of injury), while helping a driver wash a large truck, he slipped on soapy water and fell injuring his back. He didn’t experience much pain at the time and did not report the injury. However, two or three weeks later the pain had gradually increased and he then told the general manager, (Ms. A), that he was injured. Respondent continued working until February 24th when he voluntarily left his job. He went to see (Dr. G), the doctor who had been treating his prior back injury, an injury the subject of a workers’ compensation claim settled some three years earlier with medical coverage still open. He said he used that insurance coverage for (Dr. G) and did not complain of his injury because he feared he would be fired. According to respondent, (Dr. G) said he could not work and had not released him to return to work as of the hearing date. He said his new injury involved a different disc and that he declined the surgery (Dr. G) wanted to perform. He said he wanted to return to work and had applied to employer for reemployment three weeks before the hearing, notwithstanding that (Dr. G) had not released him.
Respondent also testified he had been hospitalized in a coma for 28 days after quitting his job. He said during that period, he could not have worked. While he did not see the relevance of that hospitalization to this case, he said the coma was caused by a mixture of the drugs given him for his back, including pain killers and muscle relaxers. He denied having used alcohol and cocaine when he lapsed into the coma.
(Ms. A) testified that respondent performed his normal duties and missed no time from work between his injury date of (date of injury) and February 24th when he left the job without explanation. He sought reemployment on July 2nd. She said that employer’s first notice of respondent’s claimed injury was provided on February 26th when a call was received from the doctor’s office inquiring as to whether employer would permit the doctor to check respondent for that injury. She was aware of his prior back problem for which he had received therapy as recently as December 1991.
When respondent completed his testimony, the hearing officer asked respondent about any documentary evidence on the issue of appellant’s untimely contest of his claim and he responded that he had none. The hearing officer briefly recessed the hearing suggesting he review the Texas Workers’ Compensation Commission (Commission) file on his claim. When the hearing resumed, respondent offered the following four documents from the Commission’s file: a Commission form entitled “Employee’s Notice of Injury or Occupational Disease and Claim for Compensation” (TWCC-41), which respondent had signed on February 25, 1992; a Commission form entitled “Specific and Subsequent Medical Report” (TWCC-64), signed by (Dr. G) on June 12th, which reflected respondent’s visit of June 8th, and which also reflected his having reported being in a coma for 28 days “apparently having an acute severe intoxication and took some of the medication given in this office for anti-anxiety and sleeping;” and two Commission forms entitled “Payment of Compensation or Notice of Refused/Disputed Claim” (TWCC-21), one form dated “4/30/92,” and the other dated “5/18/92.” Both forms stated that appellant’s first written notice of injury was received on “02/28/92,” and that the “claim is being controverted as Claimant did not notify employer within thirty (30) days of injury.” The later TWCC-21 showed that respondent was paid income benefits from February 24th to May 5th and that medical expenses were also paid for respondent’s (date of injury) back injury. Appellant explained in argument that the second TWCC-21 was a corrected form to reflect benefit payments not shown on the first form.
Appellant objected to the admission of these documents for the reasons that respondent had not exchanged them with appellant prior to the hearing, and because respondent had not answered appellant’s interrogatories, one of which (No. 11) asked him to identify documents relevant to the disputed issues and every document he intended to introduce into evidence. Respondent, when asked, stated he did not answer the interrogatories. He provided no explanation and none was sought. The hearing officer overruled appellant’s objection stating that respondent’s failure to answer the interrogatories was “an entirely different matter than the admissibility of these documents.” She also stated: “You are aware of all of these documents anyway because they are part of the claim file, so I am going to overrule your objection on that basis.”
In Texas Workers’ Compensation Commission Appeal No. 92431 (Docket No. redacted) decided October 5, 1992, we considered a similar discovery scenario where an unrepresented claimant offered an unexchanged TWCC-41 form and the carrier objected on the ground that claimant had failed to answer the carrier’s interrogatories and identify the document. We there noted the relevant discovery requirements of Article 8308-6.33 and TWCC Rule 142.13, observed that the hearing officer is required to determine whether good cause exists for a party not having previously exchanged information or documents to introduce such evidence at the hearing, and found error in the hearing officer’s failure to make such a good cause determination. We find the hearing officer in this case to have similarly erred in failing to make the required good cause determination.
In Appeal No. 92431, supra, we went on to determine that the error was not reversible since the information in the TWCC-41 form was largely cumulative of the claimant’s testimony. Compare Texas Workers’ Compensation Commission Appeal No. 92409 (Docket No. redacted) decided September 25, 1992, where we not only found error in the hearing officer’s determination that an unrepresented claimant had not shown good cause for not timely exchanging his medical records, but found such error reversible because in considering the excluded evidence together with the record as a whole, we were satisfied such exclusion reasonably could have caused an improper decision.
Respecting respondent’s TWCC-41 form, we are satisfied the information it contained was largely cumulative of his testimony. The TWCC-64 form did not contain information relevant to the issue of whether appellant timely contested the claim. It too was cumulative of respondent’s testimony to the extent it connected respondent’s coma to the back injury medications. The two TWCC-21 forms were prepared and filed by appellant itself. This situation is analogous to that in Texas Workers’ Compensation Commission Appeal No. 91088 (Docket No. redacted) decided January 15, 1992, where we stated that TWCC Rule 142.13 “was not intended to require a reverse exchange of documents as part of a party’s `disclosure’.” Accordingly, we are satisfied that the admission of respondent’s exhibits which he obtained from the Commission’s file did not, under the circumstances of this case, constitute reversible error. We would further observe that appellant’s objection to respondent’s having failed to exchange documents in the Commission’s file would have had even less merit had the hearing officer introduced them as hearing officer exhibits pursuant to her Article 8308-6.34(b) duty to “ensure the preservation of the rights of the parties and the full development of facts required for the determinations to be made.”
Appellant’s TWCC-21 forms both stated that its first written notice of the injury was received on February 28, 1992. The initial TWCC-21 form was dated April 30th and received by the Commission on May 1st. The hearing officer found that appellant filed its notice disputing the claim 61 days from the date it was notified of the injury. However, we calculate the period of time elapsing from February 28th to May 1st to be 63 days. Nonetheless, Article 8308-5.21(a) provides that “[i]f the insurance carrier does not contest the compensability of the 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.” The evidence consisting of appellant’s own forms establish on their face that appellant did not timely contest the compensability of respondent’s claim and thus the evidence supports the hearing officer’s determination of this issue. Appellant also appears to assert the notion that the hearing officer’s conclusion that it did not timely dispute the “compensability” of respondent’s injury pursuant to Article 8308-5.21(a) is flawed for the reason that appellant defended the claim based on respondent’s untimely notice to employer. We cannot agree. Article 8308-5.21(a) plainly states that if the insurance carrier does not contest the compensability of the injury on or before the 60th day after it is notified, the right to contest compensability is waived. This is precisely what the hearing officer concluded. There was no issue as to whether appellant was attempting to defend the claim on a ground not specified. See Article 8308-5.21(c).
We do not find merit in appellant’s second appealed issue that the hearing officer erred in failing to find that the 28-day period when respondent was in the hospital in a coma was not a period of time that he had disability as defined in Article 8308-1.03(16). Respondent testified his condition resulted from his taking a mixture of medications (pain killers and muscle relaxers) given him by the doctor for his back injury. The TWCC-64 form signed by (Dr. G) provided some corroboration in that it stated (Dr. G) had given respondent anti-anxiety and sleeping medications. Further, the hearing officer found that respondent has not worked since February 24th because of his injury and had not been released by (Dr. G) to return to work. There was no evidence controverting this finding, although respondent sought reemployment a few weeks before the hearing. The hearing officer could find that respondent had disability during his 28-day hospitalization because his coma involved, at least in part, his having taken his back injury medications.
Respondent’s medical records from the (Medical Center) in (city), Texas, which were attached to appellant’s request for review, were not a part of the record to which our review is limited by Article 8308-6.42(a). In Texas Workers’ Compensation Commission Appeal No. 92444 (Docket No. redacted) decided October 5, 1992, we stated that where there is a claim of newly discovered evidence, we evaluate the evidence to determine if there is a sound basis to cause a remand for further consideration and development of evidence, and in so doing we look to the Texas case law guidelines. One of those guidelines is whether the failure to earlier discover the evidence is attributable to a want of due diligence. Having read the affidavit accompanying the medical records, we are satisfied there was indeed a want of due diligence in obtaining those records. The records were located in (city), Texas, and their existence was known to appellant since April 7, 1992, some three and one-half months before the hearing.
Finding no reversible error and further finding that the challenged findings and conclusions of the hearing officer are not so against the great weight and preponderance of the evidence as to be manifestly unjust, we affirm the decision below.
Philip F. O’Neill – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Robert W. Potts – Appeals Judge