This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN § 401.001 et seq. (1989 Act) (formerly V.A.C.S., Article 8308-1.01 et seq.). On October 19, 1993, a contested case hearing (CCH) was held in (city), Texas, with (hearing officer) presiding as hearing officer. The issues to be decided at the CCH were:
a.was the Claimant intoxicated at the time of the injury;
b.if so, did the Carrier timely contest the compensability of the injury, or did the Carrier waive its right to contest the injury on the issue of intoxication;
c.did the Claimant have disability after (date of injury); and,
d.if so, what temporary income benefits are due the Claimant.
The hearing officer determined that the appellant, claimant herein, was intoxicated at the time of the injury, that carrier had waived its right to contest compensability by failing to timely dispute the injury and that claimant did not have disability after (date of injury). Claimant contends that the hearing officer erred in finding claimant did not have disability after (date of injury), and that the hearing officer erred in ruling on claimant’s whole
body impairment rating and eligibility for impairment income benefits. Respondent, carrier herein, did not file a response.
DECISION
The decision of the hearing officer is affirmed.
Claimant did not testify at the hearing and consequently background information and facts are gleaned from the documentary evidence. Claimant worked as a laborer for (employer)., employer herein. Claimant had been sent to (city), Texas, to work on a golf course on July 18, 1992 (all dates are for 1992 unless otherwise noted). Claimant, and other employees, finished at approximately 8:00 p.m. Because of a severe thunderstorm, claimant did not leave (city) until about 9:30. While traveling back to (city) in a company vehicle driven by claimant’s cousin, who was also an employee of the employer, the driver lost control of the vehicle while driving at a high speed. The vehicle overturned, the occupants were thrown out and the vehicle caught fire and burned. The driver was killed in the accident and claimant suffered “severe injuries, multiple rib fractures, a small tear of the spleen, liver and kidney” as well as a fractured clavicle, and “a badly comminuted fracture of his right scapula.”
Claimant was interviewed in the hospital by carrier’s adjustor on July 30th. In that claimant spoke little English, a bilingual nurse served as an interpreter. The issue of whether claimant had been drinking was raised, but the statement reflects, “he denies same.” Later, during the interview claimant “was questioned closely again as to whether or not any beer or intoxicating beverages were purchased and again he denied same.” In spite of the denials the adjustor notes in the report: “I also am a little skeptical on the issue of intoxication, because the charge nurse . . . questioned him in Spanish in rather stern terms, concerning drinking beer and he denied same.” The carrier made no effort to obtain blood alcohol test results. In the meantime, the property and casualty insurance company (P&C carrier), another insurance company, had obtained the results of a blood alcohol test showing claimant had a .155 blood alcohol content. Carrier apparently did not become aware of this test until (date) Carrier had received first written notice of the accident and injury on July 21st and had proceeded to pay benefits. After learning of the blood alcohol test carrier filed an amended notice of dispute dated January 22, 1993, some six months after receiving the first written notice of the injury. Although intoxication and whether carrier had timely contested compensability were issues in the case and were litigated at the CCH, the hearing officer determined that carrier had not timely contested compensability and that determination has not been appealed. Consequently that issue will not be considered further in this decision.
Medical notations by (Dr. W), an orthopaedic surgeon who treated claimant, are in evidence. Dr. W’s progress notes begin on 14 August where he notes “Patient has a fractured clavicle moderately displaced . . . . I do not believe he will have any major problems with it.” By note of 31 August “follow on his fractured clavicle. I noticed that he does have a badly comminuted fracture of his right scapula also . . . . I do not think it will be a problem . . . .” By note of 23 September “[f]ractured clavicle. Doing better. Pain is receding.” By note of 23 October “[s]houlder is doing better … . We will continue aggressive PT and rehabilitation.” By note of 4 December:
He is doing better with his shoulder. Less pain and better ROM. Decreasing discomfort. We will continue on aggressive PT and rehabilitation.
And by note dated:
(date of injury)
He is a followup on his fractured clavicle and ribs. He seems to be doing better. He is having decreasing pain and better ROM. I would recommend a return to work at this point.
The medical records in evidence are silent when claimant was released from the “aggressive PT and rehabilitation” or from the doctor’s care. There are no further medical records until a Report of Medical Evaluation (TWCC-69) dated 5/26/93, from (Dr. K), certifying claimant reached maximum medical improvement (MMI) on 5-26-93 with a seven percent whole body impairment rating. Dr. K only saw claimant one time on May 26, 1993, and it does not appear that he was a treating doctor, referral doctor, medical examination order (MEO) doctor or a designated doctor, hence Dr. K’s status is unclear.
The hearing officer in the CCH stated that “MMI and disability are not equal,” explaining the difference and specifically asked claimant’s attorney if, on (date of injury): “Did the claimant return to work then?” Claimant’s attorney answered: “He wasn’t employed – the company had not communicated with him . . . he believes they are no longer in existence . . . .” The hearing officer again asks, “[w]as he able to return to work?” Claimant’s response was, “[w]ell – that’s an issue that, that the doctor said he would recommend a return to work – whether or not that is in fact a return to work from the doctor I don’t know – given the surrounding language – that he is still feeling pain.”
Neither claimant, nor his attorney, ever directly stated that claimant was unable to work after (date of injury) because of the compensable injury.
A portion of the CCH was consumed by a discussion of Dr. K’s TWCC-69 and how the doctor arrived at the impairment rating. The hearing officer stated, in his decision, that Dr. K’s “findings are dubious” because he was basing his rating on the spine rather than shoulder and ribs, and that Dr. K had apparently used AMA Guides other than the statutorily mandated version in arriving at the impairment rating.
The hearing officer found in pertinent part, that is, those portions on which claimant’s appeal is based:
FINDINGS OF FACT
16.On (date of injury), [Dr. W] said that the Claimant was doing better and recommended that the Claimant return to work, i.e., he released the Claimant to return to work.
17.The Claimant introduced no evidence to show that he had any continuing disability after (date of injury).
18.The Claimant received no further medical treatment after (date of injury), until the Claimant saw [Dr. K], on May 26, 1993.
20.[Dr. K] completed a From TWCC-69 in which he found that the Claimant had reached maximum medical improvement on May 26, 1993, the same day he saw the Claimant, with a whole body impairment rating of 7%.
21.[Dr. K’s] findings were not reliable.
CONCLUSIONS OF LAW
4.The Claimant did not have disability after (date of injury).
DECISION AND ORDER
The Claimant is entitled to receive temporary income benefits from (date), through (date of injury). The Claimant may be entitled to receive additional temporary income benefits in the future if he can show that he had disability.
Claimant contends two points of error: (1) The hearing officer erred in finding the claimant did not have disability after (date of injury), and (2) the hearing officer erred in ruling on claimant’s whole body impairment rating and eligibility for impairment income benefits.
As to the first contention of error, claimant cites Article 8308-4.23(b) (since codified as Section 408.102), and stated that he is entitled to temporary income benefits (TIBS) because TIBS “continue until the employee has reached maximum medical improvement (MMI)” and the only medical evidence of MMI was Dr. K’s TWCC-69. (As noted below, Section 408.102 must be read in conjunction with Section 408.101). Quite clearly claimant is equating MMI with an end to disability, in spite of the hearing officer’s caution that the two are “not equal.” First we note that the claimant has the burden to prove disability. Texas Employers’ Insurance Ass’n v. Jenkins, 357 S.W.2d 475 (Tex. Civ. App. – Amarillo 1962, writ ref’d n.r.e); Dueberry v. Texas Pacific Indemnity Company, 478 S.W.2d 606, 609 (Tex. Civ. App.-Fort Worth 1972, writ ref’s n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93953, decided December 7, 1993; Texas Workers’ Compensation Commission Appeal No. 92021, decided March 9, 1992. Disability is defined in the 1989 Act as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16).
Claimant appears to argue that he is entitled to TIBS until he reaches MMI, which according to claimant, was not until May 26, 1993. Section 408.101, however states “(a) An employee is entitled to temporary income benefits if the employee has a disability and has not attained maximum medical improvement.” (Emphasis added.) Clearly then, an employee must be unable to obtain and retain employment at the preinjury wage due to a compensable injury (have disability) and not have reached MMI in order to draw TIBS. The claimant’s argument confuses the issues of disability and MMI. Disability and MMI are distinct concepts under the 1989 Act, and we have held that disability may cease before one reaches MMI. See Texas Workers’ Compensation Commission Appeal No. 91060, decided December 12, 1991. The issue in the present case, as announced by the hearing officer, was whether claimant had disability after (date of injury). The issue was not when did MMI occur. It is entirely conceivable that claimant may not have reached MMI until sometime in 1993, however, the issue before the hearing officer was whether claimant was able to obtain and retain employment at the pre-injury wage after (date of injury). We have held in a number of cases that the claimant’s own testimony can establish disability even in the absence of supporting medical evidence. See Texas Workers’ Compensation Commission Appeal No. 93850, decided November 5, 1993; Texas Workers’ Compensation Commission Appeal No. 93811, decided October 25, 1993; Texas Workers’ Compensation Commission Appeal No. 92285, decided August 14, 1992; Texas Workers’ Compensation Commission Appeal No. 92167, decided June 11, 1992. To this end the hearing officer asked claimant’s attorney (in the absence of claimant’s testimony) on at least two occasions whether claimant could work after (date of injury). The response was only to refer to Dr. W’s recommendation that claimant return to work and that perhaps the employer was no longer in business. (Parenthetically we would note that the attorney’s assertions do not constitute evidence). Claimant states in his appeal that he “did not have a job to return to after the accident.” We have also held that when an employee is no longer employed by the employer, the employee has the burden to show disability continues after the termination of employment. Texas Workers’ Compensation Commission Appeal No. 92030, decided March 12, 1993. An unconditional medical release to return to full duty does not, in and of itself, end disability. See Section 408.004(e). If an employee cannot obtain and retain employment because of a compensable injury, disability continues. Where the evidence sufficiently establishes an unconditional medical release to return to full duty status of the employee, the employee has the burden to show that disability is continuing. Evidence such as reasonable efforts made to secure employment, suitable to a person in his circumstances, the availability or unavailability of such employment, and the acceptance or rejection of any employment offer or opportunity, may be probative evidence in proving a case for continued temporary income benefits. Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991; Texas Workers’ Compensation Commission Appeal No. 93953, supra. It is not clear whether Dr. W’s progress note recommending claimant return to work was or was not an unconditional return to work however, as the hearing officer notes in his statement of evidence:
Once the Claimant’s treating doctor released him to work, the claimant becomes responsible to show that he no longer has disability, i.e, that he has an inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. This the Claimant utterly failed to do introducing no evidence to show that he had any continuing disability.
We do not disagree with the hearing officer’s statement and find that there was sufficient evidence to support the determination that claimant had failed to prove that he had disability after (date of injury).
On claimant’s second contention of error regarding Dr. K’s impairment rating and the hearing officer’s determination that Dr. K’s findings “were not reliable,” we agree with claimant’s contentions that impairment was not an issue at the CCH. The issues announced and agreed upon were quoted verbatim at the beginning of this decision. They did not include impairment. Claimant correctly notes that Tex. W. C. Comm’n, 28 TEX. ADMIN. CODE § 142.7 (Rule 142.7) specifies what a dispute is, how disputes may be added and how requests for the addition of disputes may be handled. We note that Rule 142.7 contains no provision for a hearing officer’s adding a disputed issue sua sponte, particularly where it was never announced or agreed upon. In Texas Workers’ Compensation Commission Appeal No. 92071, decided April 9, 1992, the Appeals Panel reviewed the process by which disputed issues come before the Texas Workers’ Compensation Commission (Commission). In the instant case the hearing officer resolved the disputed issues before him but simply added determinations regarding Dr. K’s impairment rating which were not necessary to resolve the stated issues. The record clearly shows that claimant had offered Dr. K’s report solely for the “purpose of determining the extent of claimant’s disability and what (TIBS)” were due (i.e. for the MMI date).
Although the hearing officer discussed at some length how Dr. K ‘s findings, and particularly the impairment rating, was faulty, we do not find that discussion, or the determination that Dr. K’s finding was not reliable, to constitute reversible error. We view the evidence and discussion regarding Dr. K’s allegedly faulty impairment rating, as well as the Findings of Fact 20 and 21, as merely being superfluous and excess to the issues under consideration. In that the hearing officer resolved the issues before him, merely adding surplusage information on the impairment rating, we find no prejudicial or reversible error that was reasonably calculated to cause and probably did cause the rendition of an improper decision. See Hernandez v. Hernandez, 611 S.W.2d 732, 737 (Tex. Civ. App. -San Antonio 1981, no writ).
After carefully reviewing the record, we are satisfied that no reversible error was committed by the hearing officer under the particular circumstances of this case, and that the findings were not based upon insufficient evidence nor were they so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 662, (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
The decision of the hearing officer is affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Philip F. O’Neill – Appeals Judge