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 May 18, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. At that hearing, evidence on three separate claims by appellant (claimant) was heard. In Docket Number 93-036249, the hearing officer determined that claimant was not injured at work on (date of injury), did not give notice of injury of that date, did not have good cause for untimely notice, and did not have disability. Claimant asserts that he was injured, tried to report the injury, and has disability. Respondent (carrier) replies that the hearing officer should be affirmed.
DECISION
We reverse and remand.
At the hearing the parties agreed that the issues were: (1) whether claimant reported an injury within 30 days, and if not, was there good cause for the delay, and (2) whether claimant had disability as a result of an injury on (date of injury).
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 on appeal that he was injured, that he tried to tell his supervisor, and that he has disability.
The Appeals Panel determines:
That there was no issue as to injury so that the hearing officer’s finding that no injury was sustained was in error.
That the determination that the claimant did not give timely notice of the injury on (date of injury), did not address whether carrier had actual knowledge of the injury.
That since there was no issue as to compensable injury, the basis for the finding of no disability is not clear, and the hearing officer should review the evidence as to disability.
Claimant had worked for (employer) approximately two years when, on (date of injury), he injured himself. Claimant described his work that day as working with tickets (their use or nature was not described). He testified that as he went to ask a question concerning cutting the tickets, he tripped and (PR) tried to catch him. He added that PR helped him “just a little bit.” PR testified that claimant at that time was working on labels that identified carpet cushion roles, and PR’s office was next to that area. In questioning PR, the ombudsman referred to the incident as “not a fall. He said he slipped or tripped.” PR has no recollection of any trip or help he gave claimant from a trip. He never saw him having an injury.
Claimant stated that he tried to tell his supervisor of the (date of injury) injury but, “Nothing–nothing would come out. He said he got angry before he was able to say anything. He’s saying he told everybody at the clinic. He told the same thing to Ms. D, a lady from the insurance.” Later testimony showed that the statement claimant gave was dated November 11, 1992. That statement is Claimant’s Exhibit No. 6. The hearing officer, in a question to the claimant on page 85 of the transcript, referred to the November 11, 1992, statement as being made to an agent of the “insurance carrier.” The carrier did not attempt to refute that statement by the hearing officer, but it did describe the (date of injury) incident as not being a new injury. While claimant’s answers are at times very hard to follow, the November 11th statement shows that the claimant described a separate allegation of injury. The November 11th statement also shows that the focus
of the questions to claimant were on the October 20th injury. A series of questions arose that related to claimant’s visit to the doctor on October 26th. The claimant had also referred to having been returned for two days to light duty after the October 20th accident. Page 24 of Claimant’s Exhibit No. 6 shows the following:
Q.First you tell me that you never returned to work, and now you’re telling me that . . .
A.What do you mean I never returned to work? I’m telling you that, that the doctor send me–that the company to give me a light job. I worked two days cutting some tickets.
Q.And that’s when you hurt yourself again?
A.I–again, I started to fall. There was Mr. P, that he can tell you. There was when I started to fall. That’s when I felt that, that something here had run up my leg.
Article 8308-5.02 of the 1989 Act provides that the employee’s failure to notify the employer according to the 1989 Act relieves the carrier from liability unless the carrier had actual knowledge. Texas Workers’ Compensation Commission Appeal No. 93379, decided July 1, 1993, provided that the carrier had actual knowledge from a medical bill provided to it by the doctor who treated a claimant. In this instance, the line of communication appears to be more direct; the claimant notified the carrier within 30 days. The date of the second injury in October that claimant reported to the carrier is not specifically shown, but Texas Workers’ Compensation Commission Appeal No. 91123, decided February 7, 1992, indicated that a date of injury that was identifiable through another specific period, such as the time of a coworker’s vacation, was sufficient to provide notice. In this case the notice was of an injury incurred while doing two days of light duty for the same employer; those days should be readily identifiable. While the carrier indicates that the (date of injury), incident merely reflected the effect of the prior injury and was not a new injury, that point may be valid as to a question of whether there was a compensable injury (had there been such an issue), but whether it negates that actual knowledge was received from the claimant on November 11, 1992, is a different question. See generally Texas Workers’ Compensation Commission Appeal No. 92154, decided June 4, 1992.
As noted previously, there was no issue at this hearing as to whether an injury was incurred on (date of injury), in the course of employment. Texas Workers’ Compensation Commission Appeal No. 92071, decided April 9, 1992, pointed out that the hearing officer should not make a finding on an issue that had not been raised through the dispute resolution process, or on which there was not stipulation or agreement of undisputed facts. In addition, Texas Workers’ Compensation Commission Appeal No. 92330, decided August 31, 1992, called for a remand when, “the issue upon which the hearing officer’s decision appears to be principally predicated was not an issue properly before her.” The finding of disability should be reconsidered, consistent with Appeal No. 92330, since it is impossible to tell the basis for a finding of no disability when a threshold issue of injury was incorrectly addressed, adverse to the claim. See Texas Workers’ Compensation Commission Appeal No. 92217, decided July 13, 1992. We note that the only medical evidence that addresses work status took claimant off work on October 29th based on a visit to the doctor by claimant on October 26th. This doctor’s note refers only to the (date), injury, but was subsequent to the (date of injury), injury.
The case is returned on remand for consideration and development of the evidence as to whether actual knowledge was obtained by the carrier within 30 days of the (date of injury), injury. In addition, disability should be addressed if it were previously found not to have been incurred based on the lack of a requisite compensable injury. If the basis for the finding of no disability was otherwise, that basis should be indicated.
The decision and order are reversed and remanded for the development of evidence and findings as discussed in this opinion. Reconsideration and additional or different findings 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:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge