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At a Glance:
Title:
APD 92713
Date:
February 15, 1993

APD 92713

February 15, 1993

This appeal arises under the Texas Workers' Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1992). On November 19, 1992, a contested case hearing was held in (city), Texas, with (hearing officer) presiding, to determine issues relating to whether an injury was sustained on (date of injury), in the course and scope of employment with (employer), by the claimant, (claimant), who is the appellant in this appeal, and whether she had given her employer timely notice of injury. The hearing officer determined that claimant was not injured in the course and scope of employment, although she had given timely notice of the alleged injury within 30 days.

The claimant has timely appealed this decision, asserting that the evidence supports occurrence of a repetitive trauma injury. The respondent (carrier) argues that the record supports the lack of causal connection between the knee condition and any activities at work, and further objects to the hearing officer's determination that notice was given by the claimant, as provided under Article 8308-5.01.

DECISION

After reviewing the record of the case, we affirm the determination of the hearing officer.

The claimant worked as a saleslady for the employer since August 1988; her service was interrupted by a leave of absence that she took from September 1990 to February 18, 1991. The claimant, who was 72 years old at the time of the alleged injury, stated that she had previous knee replacement surgery in 1986. The claimant testified that she did not experience pain from her activities at work until she returned from her leave of absence. She indicated that during the interval from her return until (date of injury), she felt some periodic pain, but was still mobile. However, on (date of injury), shortly before lunch, she was walking toward the dressing room in her department to take dresses to a customer and was suddenly unable to walk. She left work and went home, and did not come back to work after that date. On the following Monday, she consulted with her doctor, (Dr. G), who determined that she required further surgery on her knee.

The claimant stated that on or around July 15, 1991, she called her employer and spoke to (Ms. C), the Human Resource Director. She could not recall if she specifically talked about her knee, but said that she asked if her surgery would be covered by workers' compensation and was told that the employer did not have workers' compensation insurance. She eventually filed a claim for injury in March 1992, contending repetitive trauma injury to her knee. The claimant testified that activities she felt caused her knee to worsen were being on her feet and walking around her department for most of the time from 9:15 a.m. to 6:15 p.m. (except for lunch time), as well as walking to and from parking, located about a block away. She stated that she was not permitted to sit down or take breaks, and that her department was busy all the time. She indicated that she did not take vacation.

The claimant acknowledged that she had been allowed to take a leave of absence. She stated that she had been employed as a saleslady since 1971, and that she did not file a repetitive trauma claim, or any type of workers' compensation claim, for her knee condition in 1986. The claimant stated that she did not have group health insurance through her employer. She had knee replacement surgery on August 2, 1991.

(Ms. M), the store manager for the employer, testified that she had worked with the claimant at a previous employer and felt that she was an excellent worker, and hired her to work for employer although the human resources department had some reservations about her knee condition. Ms. M stated that claimant was put into the "country dress" department because its sales were declining, and indicated that claimant's salesmanship was desirable for that area. Ms. M stated that she never told claimant, nor would have told her, that she was not permitted to take breaks or sit down. She stated that a special chair had been moved into the area for the claimant, and the area also provided customer seating. Ms. M stated that the employer offered group health but that the claimant had not enrolled in it.

Ms. M acknowledged that she was aware of claimant's contact with Ms. C shortly after it occurred, but that it was her interpretation that workers' compensation would not cover the knee because it was caused by a preexisting condition. Ms. M confirmed that they had allowed a longer leave of absence than usually given, and that some of this time was claimant's vacation time in addition to regular leave.

A memo was put into evidence that had been prepared by Ms. C after her conversation with claimant. This was dated July 19, 1991, and indicates that claimant went home on (date of injury) because of severe leg pain, that her doctor informed her she had to have an existing artificial knee joint replaced because it was disintegrating, and that she called on July 15th to ask if the surgery would be covered by workers' compensation. Ms. C's memo indicates that it was her impression that the condition was caused by normal wear. A witnessed statement signed by (Ms. S), area manager for employer, basically recounts the claimant's recitation of events on (date of injury). It also states that the claimant expressed concern in June 1991 that she could no longer work a full schedule because of leg pain. The statement notes that claimant was offered a part-time position or leave of absence, but declined.

Records from Dr. G note that she developed pain and large joint effusion secondary to patella wear. Notes in October 1991 indicate that there was still some swelling in her calf and knee. Although the August 1, 1991, surgical admitting history notes that the claimant was able to walk around and was active walking, exercising, and working, until about three or four months prior to the operation, there is nothing in Dr. G's records stating the cause of the wear, or indicating that any specific activities (let alone work activities) caused the wear. A doctor hired by the carrier to evaluate the claimant's medical records (and who did not examine or treat the claimant) was (Dr. P), who had a specialty in physical and rehabilitative medicine. Dr. P opines, "under the workers' compensation guidelines for the State of Texas", that the condition is not work-related but "reflects normal effects of everyday living."

While we agree that under the 1989 Act a carrier is not absolved of liability when an injured employee aggravates a preexisting condition, and that such aggravation is an injury in its own right, see Mountain States Mutual Casualty Co. v. Redd, 397 S.W.2d 321 (Tex. Civ. App.-Amarillo 1965, writ ref'd n.r.e.), a bare assertion that an aggravation has occurred does not relieve the proponent of the burden of proving that an injury, as defined in the 1989 Act, Article 8308-1.03(27), has been sustained. See Texas Workers' Compensation Commission Appeals Panel Decision No. 92463, decided October 14, 1992. To recover for repetitive trauma, it must be proven that repetitious physical activities occurred on the job and that such activities caused an injury; the disease must be inherent in the type of employment worked, as opposed to employment generally. Davis v. Employers' Insurance of Wausau, 694 S.W.2d 105 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.).

The requirement that an occupational disease be inherent in the employment is an element of the definition of occupational disease itself, under the 1989 Act. The term does "not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is incident to a compensable injury. . . ." Article 8308- 1.03(36). A "repetitive trauma injury" is defined as an injury "as the result of repetitious, physically traumatic activities that occur over time and arise out of and in the course and scope of employment." Article 8308-1.03(39).

Unquestionably, we believe, the general public is exposed to any "hazards" inherent in walking and standing, and that such activities are an attribute of employment generally (as well as of daily living). Although the claimant testified generally that she walked around her department and stood on her feet much of the day, there is nothing in the record indicating that such walking or standing, which was broken at least by a lunch period every day, amounted to a particular stress over and above that which would be encountered by the general public, or in employment generally. There was no evidence to indicate that the wear on the patella was caused by repetitious work-related activities, as opposed to activities generally. We would note that the claimant testified that she performed the same activities for well over a year for the employer with no pain or problem in her knee, which the hearing officer could have believed would indicate that there was nothing specific to the work place (as opposed to the passage of time coupled with general use of the knee) that caused the knee condition. The fact that a flare-up of an old condition occurs at a time when a claimant is also working does not establish that a compensable aggravation occurred. See Texas Workers' Compensation Commission Appeals Panel Decision No. 92463, decided October 14, 1992; Texas Workers' Compensation Commission Appeals Panel Decision No. 92220, decided July 13, 1992.

Thus, assuming that a case could be made that a particular employment created a trauma as a result of standing or walking that was not inherent in daily life or employment generally, the hearing officer was correct in his determination that the evidence in this case fails to demonstrate that an injury was sustained in the course and scope of claimant's employment.

The carrier's objection to the notice finding was not filed as a timely appeal within fifteen days of the decision, and therefore will not be addressed by the Appeals Panel. Texas Workers' Compensation Commission Appeals Panel Decision No. 92166, decided June 8, 1992.

There is sufficient evidence in the record to support the hearing officer's findings and conclusions that a compensable injury did not occur, and his decision is affirmed.

Susan M. Kelley
Appeals Judge

CONCUR:

Stark O. Sanders, Jr.
Chief Appeals Judge

Lynda H. Nesenholtz
Appeals Judge

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