This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 1.01 through 11.10 (Vernon Supp 1993). On April 30, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. He determined that appellant (claimant) injured his back at work, did not give timely notice of the injury and did not have good cause to delay giving immediate notice of the injury to his employer once he discovered the nature of his condition; he also found that no disability resulted therefrom. Appellant (claimant) asserts that notice was given at the time of the accident and that it was given within a short time of learning of his condition in 1992; he adds in effect, that he does have disability. Respondent (carrier) also raised an issue on appeal, timely filed, that the finding of injury in course of employment is against the great weight of the evidence.
DECISION
Finding that the decision as to injury and disability are supported by sufficient evidence, we affirm that part of the decision that addresses those points; we reverse and remand in regard to whether claimant had good cause for delay in notification because the hearing officer applied an incorrect standard to that issue.
At the hearing the issues were defined to be: (1) was the claimant injured in course and scope of employment; (2) did the claimant have good cause for failing to report his injury; and (3) does the claimant have disability after June 10, 1992?
Article 8308-6.42(c) of the 1989 Act states that the Appeals Panel “shall determine each issue on which review was requested.” The claimant asserts two issues on appeal: notice and disability; the carrier asserts only an issue as to injury.
The Appeals Panel determines:
That the hearing officer’s determination that the injury occurred in the course and scope of employment was sufficiently supported by the evidence.
That the hearing officer applied an incorrect standard in determining whether claimant had good cause to delay giving notice of his injury; this is the basis for remand.
That the hearing officer’s determination that claimant’s inability to obtain and retain employment at wages equivalent to the preinjury wage was not related to his injury was not against the great weight and preponderance of the evidence.
Claimant worked as a laborer for (employer). At the time he was working with a paper compactor that made bales of wastepaper. He testified that he bent over to extract a plastic bag and felt pain in his back. Later in his testimony when answering questions of the hearing officer, he stated that lifting a bag of paper on (date of injury), caused his back to hurt. He stated that he told his supervisor, (JG), that he felt “bad and exhausted.” The hearing officer did not have to consider that such a declaration amounted to notice of an injury on the job. The finding that claimant did not report his injury prior to leaving employment with employer in June 1992 is not against the great weight and preponderance of the evidence. While claimant’s assertion of injury provides only minimal evidence of injury in this case, it does amount to more than a statement of pain without relationship to the work being done. The determination of injury, as stated in Findings of Fact Nos. 4 and 5, was not against the great weight and preponderance of the evidence; they read:
FINDINGS OF FACT
4.The Claimant suffered back pain on (date of injury), when his spondylolisthetic L-5 vertebrae rubbed down over his sacrum, S-1.
5.The Claimant’s spondylolisthetic condition, L5 on S1, was aggravated by his bending, twisting motion and throwing a garbage bag of paper on (date of injury).
These findings were ones for the hearing officer, as finder of fact, to make. See Article 8308-6.34(e) of the 1989 Act.
Claimant testified that he continued to work with discomfort but considered it part of being tired. He worked until he left employment with employer on June 10, 1992. He sought employment elsewhere and underwent a physical examination on June 29, 1992, which indicated spondylolysis at L-5 (dissolution of a vertebra) and early spondylolisthesis in the L-5, S-1 area of the back (forward displacement of one vertebra). He was then denied employment because of a lifting maximum recommended by the medical examiner for the prospective employer. The record reflects very little information as to why claimant then waited until (date of injury), to give notice through the filing of a claim. This lack of evidence, which should be addressed on remand, would not have caused a remand in itself, but the hearing officer, without any clarifying finding of fact relating to good cause for delay in notification, applied an incorrect standard to the issue of good cause in his conclusion of law. That conclusion said:
The claimant did not report his injury immediately after discovering his spondylolisthetic condition on June 29, 1992; therefore, the claimant did not have good cause for failing to report an injury to his employer from (date of injury), the date of his injury, until (date of injury).
The Appeals Panel in Texas Workers’ Compensation Commission Appeal No 91030, dated October 30, 1991, has adopted the standard, set forth in Hawkins v. Safety Cas. Co., 146 TEX. 381, 207 S.W.2d 370 (1948), for considering good cause for failure to timely report injury. The standard for good cause is “whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.” Hawkins then describes the facts of that case as indicating that the injury appeared to be trivial and not serious. That court then said that after Hawkins learned of the seriousness of the injury, it could not say he was “imprudent” in delaying his claim for eight or nine days. “These delays subsequent to the visitation of knowledge of the true facts, and the delays prior thereto, are ordinarily elements of prudence to be considered by the jury or the trier of facts . . .” (emphasis added.) The Appeals Panel does not know what the finder of fact would determine as to good cause under a standard of “prudence” or “ordinary prudent person” applied from the time of injury to the date of notice (date of claim in this case). The Appeals Panel has not set down a standard that a claimant, upon learning of the seriousness of an injury, must then give notice “immediately” in order to perfect a finding of good cause for delay in giving timely notice.
Finally, the hearing officer found that claimant was “refused employment related to his spondylolisthetic condition.” He then concluded that claimant’s inability to obtain employment was not related to his injury of (date of injury). This finding and conclusion raise a question as to possible conflict because the hearing officer also found that claimant’s spondylolisthetic condition was aggravated by his work on (date of injury). An MRI dated August 18, 1992, however, showed that the vertebra then were of normal height, shape, and alignment. While the MRI gave some indication of desiccation (drying) in the L2-L3 and L3-L4 discs, this point was not raised by the prospective employer as a basis for not employing claimant. Claimant was not employed based on medical evidence (correct or not) relating to his vertebra, not his discs. Consistent with this medical evidence, the evidence of claimant’s uninterrupted work for seven months after the injury of (date of injury), and the conclusion of law that the injury was not a factor in claimant’s failure to get a job, we interpret the hearing officer’s finding that claimant was “refused employment related to his spondylolisthetic condition” as referring to the underlying condition. In this case the absence of a finding that the refused employment was based on the condition “as aggravated” also supports our interpretation. See generally, Boone v. T.E.I.A., 790 S.W.2d 683 (Tex. App.-Tyler 1990, no writ). The conclusion of law that claimant does not have disability is actually a factual determination that will not be reversed unless against the great weight and preponderance of the evidence. The determination of disability is not so against the great weight and preponderance of the evidence as to be unjust.
The decision and order are reversed and remanded in regard to the conclusions of law that relate to whether claimant had good cause for failing to timely notify his employer of his injury, as discussed in this opinion. Reconsideration and development of the evidence, together with additional or different findings and/or a different decision, may be appropriate as determined by the hearing officer. Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Article 8308-5.41. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge