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.). At a contested case hearing held in (city), Texas, on October 4, 1993, the record of which was closed on October 18, 1993, the hearing officer, (hearing officer), determined that the appellant (claimant) did not on (date of injury), or at any other time, sustain an injury in the course and scope of his employment with (employer), that claimant did not timely report an injury to employer, and that claimant did not have good cause for his failure to timely report his injury to employer. In his request for review the claimant challenges the sufficiency of the evidence to support these adverse determinations while the respondent (carrier) in its response asserts that the evidence is sufficient and seeks our affirmance.
DECISION
Finding the evidence sufficient to support the pertinent findings and conclusions, we affirm.
Claimant’s request for review was timely filed as was the carrier’s response. Subsequently, claimant forwarded a rebuttal to the carrier’s response which was not timely filed and the carrier responded to the rebuttal. Accordingly, neither claimant’s rebuttal nor the carrier’s response to the rebuttal will be considered. See Texas Workers’ Compensation Commission Appeal No. 92003, decided February 12, 1992.
Claimant, the sole witness, testified that he had been a journalist for 30 years and had used computers in his work for 18 years, that when he was first employed by employer as a writer he worked on a contract basis out of his home in (city), Texas, that in early February 1992 he moved to (city) to work full time for employer, and that his job in (city) was writing articles for employer’s publication which involved his typing at a computer terminal for eight to 10 hours a day. Claimant said that in March 1992 he noticed that his forearms would get stiff periodically but said he could remedy the problem by simply shaking his arms to loosen the muscles. He said he later had three serious incidents of pain which occurred on March 29, 1992, in either September or on October 5, 1992, and on (date of injury). In an April 2, 1993, telephone interview with carrier’s adjuster, claimant described the first incident as occurring as he drove to work. However, he testified he later reconstructed the sequence of events and that the first incident happened on March 29th, a day he worked for four hours and then drove to (city), apparently on a business trip. During the drive his left arm began to bother him and the next morning it felt numb. He said it stayed numb until April 3rd when he saw (Dr. S) who, claimant said, diagnosed a pinched nerve and prescribed physical therapy (PT). According to Dr. S’s records, claimant was seen on April 6, 1992, and gave a history of three to four weeks of pain in the left shoulder with tingling in the forearm and numbness in the left hand including three fingers. Dr. S ordered a neck x-ray, prescribed medications and exercises, and told claimant to return in three weeks for a follow up. The x-rays showed degenerative cervical disc disease; however, Dr. S’s record did not state a diagnosis. Claimant further stated that he saw Dr. S only once, that neither he nor Dr. S ever discussed the work relatedness of his arm condition, and that Dr. S’s records contain no reference to the condition being work related.
Claimant said that after seeing Dr. S he continued to type an average of six to 10 hours a day, that his forearms still got tight, that his office furniture configuration was such that he was typing with his wrists six to eight inches higher than his elbows, and that his chair height was unadjustable. He said he bought a device to lower his typing keyboard about six inches and that this adjustment helped his problem. He also testified that at about this same time he became psychologically stressed by having been attacked in an editorial appearing in a sister publication.
Claimant testified, variously, that his second seriously painful incident occurred in September or on October 2nd when, after working, he went to a swimming pool “to work out the knots and aches.” While swimming a lap he “got a tremendous pain near [his] left shoulder blade in the back” and discontinued his swimming workout. Claimant said that on October 5th he saw (Dr. B) who diagnosed cumulative stress disorder and told him to stop swimming. On a follow up visit on October 14th, claimant said that Dr. B prescribed traction and more pills. Claimant stated that he experienced no further “real discomfort” until (month year). Claimant further stated he saw Dr. B three times, that the work relatedness of his condition was not discussed, that Dr. B’s records contain no mention of his injury being work related, and that “I came to that conclusion myself.” No records of Dr. B were in evidence.
Claimant stated that on (date of injury), he experienced the worst pain yet in his shoulder and said he was treated with steroids, pain killers, traction and PT. He said he bought an adjustable office chair and that “at that time [referring to January 20th] I really decided that it was a work-related injury” because it never happened to him in his office at home. He said he decided to tell his boss, (Mr. B), about it on February 2nd when he was due to come to the (city) office. On that day, however, Mr. B came to (city) and terminated his employment so claimant did not tell him about the injury deducing that “the whole thing became moot.” After Mr. B left the office, claimant said he called the (city) field office of the Texas Workers’ Compensation Commission (Commission) and was advised that his employer did not have workers’ compensation insurance coverage in Texas and that all he could do was sue the employer. Claimant surmised that this information, which proved erroneous, might have been explained by the fact that the employer changed carriers every February. Notwithstanding such erroneous information however, claimant said that after his termination he called several attorneys and attorney referral services but was advised that such attorneys were not taking workers’ compensation cases.
Claimant also testified that on February 9th he began chiropractic treatment three times a week with (Dr. A) who told him his condition “might be work related,” though claimant said Dr. A’s records do not state such. Claimant offered an unsigned report dated August 25, 1993, by (Dr. P) to whom he had apparently been referred for an examination. This report stated a history of the three pain episodes in April and September 1992, and in (month year), arising when claimant was typing, and said all the pain had resolved with chiropractic treatment but that the numbness remained. Dr. P’s initial impression was cervical spondylosis and carpal tunnel syndrome. However, upon his review of an EMG report which showed C6 radiculopathy, Dr. P stated in his “9/22/93” report the diagnosis of cervical radiculopathy and said that “[t]his is consistent with his physical exam as he really showed no positive signs of carpal tunnel.”
In early March 1993, a friend told claimant he did not need an attorney but simply needed to report the injury to his employer. After this conversation, claimant said he called his employer’s (city) office, spoke to (Ms. M), a person he described as a bookkeeper and not his supervisor, and requested an injury report. A “Supervisor’s Accident Investigation Report,” signed by Ms. M on (date), was introduced by the carrier and it stated the injury date as March 1992 and the date reported as “3/8/92.” Claimant testified that he reported his injury to his former employer “within a day or two of March 8th.”
Claimant’s theory regarding his having a compensable injury was that his inadequate office furniture configuration for his hours of typing caused his occupational disease which he described as a cumulative stress disorder or repetitive strain injury. He described his injury as his left index finger being numb, as having periodic pain and muscle tightness in his forearms, and as having severe pain in his shoulder blade area in the back radiating down his arm to the elbow. He did not state that he had carpal tunnel syndrome. The 1989 Act defines injury to include occupational disease and the latter term to include repetitive trauma injury. Sections 401.011(26) and 401.011(34). The latter section, which defines occupational disease, also provides that the term does not include “an ordinary disease of life to which the general public is exposed outside of employment unless that disease is an incident to a compensable injury or occupational disease.” Carpal tunnel syndrome has been held to be a compensable occupational disease under the 1989 Act. Texas Workers’ Compensation Commission Appeal No. 92032, decided March 26, 1992.
Respecting the injury issue the hearing officer found both that claimant did not on (date of injury), or at any other time while working for employer sustain an injury or occupational disease, and that any carpal tunnel syndrome, cervical radiculopathy, cumulative or repetitive stress disorder, or other injury or occupational disease that claimant asserted he sustained while working for employer was an ordinary disease of life. In appealing the finding that he did not sustain a compensable injury claimant asserts first that at the August 5, 1993, Benefit Review Conference (BRC) he was told he would be advised when to report for a required medical examination and that such examination was never scheduled. This assertion has no merit in that there was no disputed issue concerning such allegation before the hearing officer nor did claimant bring any such allegation up at the hearing. There is no mention of such examination in the BRC report. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.7 (Rule 142.7) provides a mechanism for responding to BRC reports and raising additional disputed issues at the contested case hearing and the record contains no evidence that claimant availed himself of such mechanism. The Appeals Panel does not consider issues raised for the first time on appeal. See Texas Workers’ Compensation Commission Appeal No. 91057, decided December 2, 1991, and Texas Workers’ Compensation Commission Appeal No. 91100, decided January 22, 1992.
Claimant further asserts with respect to this adverse finding that “history is of paramount importance” in occupational diseases and he complains that his doctors failed to take histories. Claimant had the burden to prove by a preponderance of the evidence that he sustained a compensable injury. Texas Workers’ Compensation Commission Appeal No. 92044, decided March 23, 1992. In Texas Workers’ Compensation Commission Appeal No. 92025, decided March 16, 1992, the Appeals Panel observed that the Texas courts have stated the element of causation in repetitive trauma cases as follows: “To recover for an injury or disease of this type, one must not only prove that repetitious physical traumatic activities occurred on the job, but must also show that a causal link existed between the traumatic activity and the incapacity; that is, the disease must be inherent in the type of employment as compared with employment generally. (Citations omitted.)” See our discussion of proof of repetitive trauma injuries in Texas Workers’ Compensation Commission Appeal No. 92272, decided August 6, 1992, and in Texas Workers’ Compensation Commission Appeal No. 92220, decided July 13, 1992. The quantity and quality of his evidence, medical and non-medical, adduced to meet his burden of proof was a matter for the claimant. The carrier had no obligation to disprove that claimant had the occupational disease he alleged he had. Texas Workers’ Compensation Commission Appeal No. 91012, decided September 13, 1991.
Claimant’s testimony that he typed six to ten hours per day for the employer during the time he was employed full time in employer’s (city) office was unrefuted. Also unrefuted was his testimony that the arrangement of his office furniture was such that he had to type with his wrists raised six to eight inches above his elbows until he bought the device to lower the keyboard. However, not only did claimant’s medical records not clearly indicate that claimant was diagnosed with a repetitive trauma injury, but they also did not, as he conceded, link his medical condition to his employment. Dr. S’s records stated no diagnosis but the x-ray showed degenerative disc disease; claimant said Dr. B diagnosed cumulative stress disorder; Dr. A’s records did not state a diagnosis; and Dr. P diagnosed cervical radiculopathy. In addition to his own lay testimony that his condition was caused by his work, claimant’s only other evidence that his condition was caused by his employment consisted of two articles which discussed a condition variously described as cumulative trauma disorder, repetitive motion syndrome, and repetitive stress injury, and which observed, generically, that such a condition can occur in persons whose job duties consist of repetitive motions such as typing.
Section 410.165(a) provides that the hearing officer, the trier of fact at the contested case hearing, is the sole judge of the relevance and materiality of the evidence offered as well as of the weight and credibility it is to be given. As the trier of fact, the hearing officer resolves conflicts and inconsistencies in the evidence. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The hearing officer may believe all, part, or none of the testimony of a witness (Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.)) and may believe one witness and disbelieve others (Cobb v. Dunlap, 656 S.W.2d 550 (Tex. App.-Corpus Christi 1983, writ ref’d n.r.e.)). Though not obligated to accept the testimony of a claimant, an interested witness, at face value (Garza, supra), issues of injury and disability may be established by the testimony of a claimant alone. See e.g. Texas Workers Compensation Commission Appeal No. 91083, decided January 6, 1992, and Texas Workers’ Compensation Commission Appeal No. 92069, decided April 1, 1992. As an interested party, the claimant’s testimony only raises an issue of fact for determination by the fact finder. Escamilla v. Liberty Mutual Insurance Company, 499 S.W.2d 758 (Tex. Civ. App.-Amarillo, no writ). We are satisfied that the hearing officer’s finding that claimant did not sustain an injury or occupational disease while working for employer on (date of injury), or at any other time, is sufficiently supported by the evidence.
In Texas Workers’ Compensation Commission Appeal No. 93057, decided February 25, 1993, we reiterated that the definition of occupational disease does not require a finding as to whether an ordinary disease of life exists and we disassociated ourselves from any implication that a herniated disc is, per se, an ordinary disease of life. In this case, we similarly disassociate ourselves from any implication that carpal tunnel syndrome, cervical radiculopathy, and cumulative or repetitive stress disorders are, per se, ordinary diseases of life. Though superfluous, the hearing officer’s finding that claimant’s medical condition was an ordinary disease of life is not so against the great weight and preponderance of the evidence as to be manifestly unjust under the particular circumstances of this case where the claimant failed to establish a causal connection between the claimed injuries and his employment. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not substitute our judgment for that of the hearing officer where, as here, the challenged findings are supported by sufficient evidence. Texas Employers Insurance Association v. Alcantara, 764 S.W.2d 865 (Tex. App.-Texarkana 1989, no writ).
As for the issue of the timely reporting of the injury, Section 408.007 provides that the date of injury for an occupational disease is the date on which the employee knew or should have known that the disease may be related to the employment. Section 409.001(a) requires the employee to give notice to the employer within 30 days of that date. Section 409.002(2) provides that failure to notify an employer as required by Section 409.001(a) relieves the employer and the carrier of liability unless the Commission determines that good cause exists for failure to provide notice in a timely manner. The notice must be given to the employer or to a person holding a management or supervisory position with employer. Section 409.001(b).
Near the end of the hearing when he responded to questions from the hearing officer, claimant asserted that he knew on (date of injury), that his occupational disease injury was job related, that he did not report it until (date), or a day or two earlier, and he seemed to rely on the good cause exception to the 30 day notice requirement because when the carrier asserted that ignorance of the law concerning the 30 day notice requirement was not good cause, claimant asked about the provision of erroneous information to him by the Commission regarding his employer not having had insurance coverage in Texas. The test for the existence of good cause is that of ordinary prudence, that is, whether the claimant prosecuted his claim with the degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances, which is ordinarily a fact question for the trier of fact. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948).
We find the evidence sufficient to support the hearing officer’s findings that (date of injury), was the date claimant knew his injury or occupational disease was work related, that he did not notify his employer of such injury or disease on or before February 19th, and that employer had no actual knowledge of such injury or disease on or before February 19th. Further, we find no abuse of discretion in the hearing officer’s finding that in delaying the reporting of his injury for a period in excess of 30 days claimant did not exercise the degree of diligence which an ordinary prudent person would have exercised under the same or similar circumstances. Claimant said he decided not to report his injury after he was terminated concluding the matter was moot. He said he next called the Commission and was told the employer had no coverage. Not only did claimant not contend that the information he received from the Commission on February 2, 1993, resulted in his not pursuing a claim, but he said he thereafter called lawyers and talked to a friend knowledgeable about workers’ compensation when he returned to (city) after that date. As was observed in Texas Workers’ Compensation Commission Appeal No. 92657, decided January 15, 1993, “the test, well established by precedents, is not whether the insurer was harmed by the delay, but rather whether or not the injured worker was prudent in his beliefs that caused the delays. . . .”
The decision of the hearing officer is affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Susan M. Kelley – Appeals Judge