This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act) (formerly TEX. REV. CIV. STAT. ANN. art. 8308- 1.01 et seq.). On September 15, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. The issues determined at the contested case hearing were whether claimant, CB, sustained an injury in the course and scope of employment, whether he had disability as a result of his injury, whether he notified his employer of his injury within 30 days, and whether claimant elected to pursue instead a remedy under his regular health insurance benefits.
The hearing officer determined that the claimant injured the left side of his body and arm on (date of injury). The hearing officer also determined that claimant “knew or should have known” as of (date of injury), that he had a herniated disc at C6-7 that was a result of his (date of injury) “work incident,” and that he timely notified his employer within 30 days from that date, by a letter mailed to the employer’s headquarters. The hearing officer determined that claimant had not made an election of remedies. Finally, the hearing officer concluded that claimant had disability from his injury for the period from March 20 through June 16, 1993.
The carrier has appealed, arguing that the hearing officer erred in finding that claimant timely notified his employer of injury within 30 days. The carrier argued that an imprecise legal premise was used, in that the hearing officer determined, for an accidental injury, that the 30 days ran from the date claimant “knew or should have known” that he had a herniated disc. The carrier argues that the notice that was sent was not received by the employer, nor did it constitute sufficient notice of injury even if received. The carrier also argues that, even if the decision makes implied findings on good cause, there was no good cause. The carrier argues that the hearing officer erred in finding that claimant was injured in the course and scope of his employment, or that he had disability therefrom. Finally, the carrier argues that the hearing officer erred in concluding that claimant had not made an election of remedies.
The claimant has also filed an appeal arguing that the period of disability should not be found to have ended on June 16, 1993.
DECISION
We affirm the hearing officer’s decision on all points. We note that while the hearing officer has erred in her legal premise as to timely notice, it was harmless error in light of evidence that timely notice was given, based upon the evidence, to a supervisor on April 13, 1993, which was within 30 days after claimant was injured on (date of injury). We also affirm her determination that disability ended June 16, 1993, as sufficiently supported by the evidence.
The claimant worked for (employer) for three years. He stated that on (date of injury), as he was making a product delivery at a grocery store in the early morning hours, he slipped on the wet bumper on the back of the truck, and, as he slipped, grabbed with his right hand and twisted. The handle of one of the doors of the truck hit him in the middle of the back, around the upper shoulder and neck area.
Claimant said he continued to work, and by the end of the day his pain was gone. He worked the next day, but by (date of injury), had a “knot” in his neck. On the morning of the 20th, he awoke with a pain in his neck that felt like a “crick” from sleeping the wrong way. This day was going to be his last day of work; he had given two weeks notice, due to conflicts with management and his feeling he had no future with the company. Claimant testified he did not have another job but was thinking of going back to school to take another career direction.
Claimant called in “sick” on the 20th and talked to a supervisor, (Mr. M). He did not tell him he was injured on the job. On March 22nd, claimant woke up with extreme pain in his left arm and side, and he thought that he was having a heart attack. He saw his doctor, (Dr. P) that day; Dr. P’s notes state “no known injury; started Friday in the a.m. . . . .” At that time, Dr. P diagnosed cervical strain with possible muscle spasm. He saw Dr. P again on the 26th as the pain continued, and was scheduled for an MRI, which was taken March 30. He was referred by Dr. P to (Dr. M). According to claimant, Dr. M diagnosed a herniated disc at C6-7 after reviewing the MRI, on (date of injury). A letter from Dr. M to Dr. P of that date states that claimant did not recall any significant traumatic event.
Claimant was prepared for surgery on April 8th which did not go through due to a problem with his blood. He thereafter had a spinal fusion operation on April 22, 1993, under the oversight of Dr. M.
The claimant stated that he did not connect up his herniated disc with the slip on the 17th until sometime around April 9th or 10th. Claimant stated that he called the employer on April 13, 1993, asked to speak to the person who would know about workers’ compensation, and was referred to (Mr. K). Claimant’s testimony about what he did or did not say was somewhat conflicting. On one hand, claimant asserted that he asked how to file a workers’ compensation claim for his neck and was told by Mr. K that there was nothing he could do for him because he was no longer employed by the company, and Mr. K suggested that he would get more benefits from his regular health insurance. On the other hand, claimant also stated that he told Mr. K that he had a neck injury but not that it was work-related, as he did not want to argue the details with him.
A sworn transcript of a telephone interview by the adjuster with Mr. K, the zone sales manager, on June 3, 1993, includes the following statements relating to the April 13th conversation (the various “uh” words have been deleted here for ease of reading):
I believe about a week after [claimant] terminated his employment with us he called and inquired about his last check . . . . At that time he informed me that he had had some type of injury to his neck . . . . I inquired about it and said we have no record of it here I even asked him if he felt that it was done on the job and he informed me at that time that he says: ‘I don’t really know if I did it when I was working, not sure how it happened, I just happen (sic) to wake up one day and I had this problem.’ I thought it was unusual that he never reported the incident to anybody at work . . . .
Later in the statement Mr. K opined that he was surprised that claimant had not informed anyone in light of his familiarity with the employer’s reporting procedures:
In fact when I told him that when he initially mentioned it to me and I said, ‘Why did you not report it?’ It was like, well, maybe I didn’t really hurt myself on the job.
Q.What was his response?
A.. . . I think at that time I told him I said, ‘I would probably dispute it due to the fact that it was never reported and now you’ve left us, you suddenly are reporting it.’ And at that time he was like well, what are my options, I said, ‘Do you have medical benefits- that may be an option for you’ and at that time he felt or I had sensed from him that he was in agreement for filing that way.[1]
In Mr. K’s statement, he indicated that he had only one other conversation with claimant about his check several weeks after this but that claimant’s injury was not discussed at that time.
Mr. M testified that so far as he knew, claimant had never reported a work-related injury until approximately eight weeks after March 20, 1993. Mr. M stated that he had talked with Mr. K, who indicated to Mr. M that he had a conversation on April 13th with claimant that “he was confused about.”
On June 16, 1993, Dr. M wrote a letter reporting on claimant’s post-surgical treatment in which he noted that claimant had complete resolution of his arm pain, marked improvement in his arm weakness, and some occasional stiffness in his neck. Dr. M essentially discharged him from treatment unless his symptoms recurred. Claimant testified that he had since been diagnosed with his C5 vertebrae out of line, that his left arm and right shoulder still hurt, and that he had left arm weakness. Claimant testified that he had been told by his doctor that he was released to light duty desk work, but not bending or lifting.
Claimant filed a claim with the Texas Workers’ Compensation Commission (Commission) which was received on April 23, 1993. He attached to the claim a letter that he said he mailed around April 15th to the employer’s headquarters in (city). This letter stated that claimant was injured on (date of injury) at work, although the precise incident is not described.[2] Mr. M testified that such a letter would have been sent to claimant’s personnel file by headquarters, but that no such letter was in the file. Mr. M testified that company policy required reporting of an accident within 24 hours.
The hearing officer is the sole judge of the relevance, the materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Co. of Newark, N.J., 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). A claimant’s testimony alone is sufficient to establish that an injury has occurred. Gee v. Liberty Mutual Fire Insurance Co., 765 S.W.2d 394 (Tex. 1989). The decision of the hearing officer will be set aside only if the evidence supporting the hearing officer’s determination is so weak or against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). We have before held that filing medical treatment under regular health insurance is not an election of remedies per se. Texas Workers’ Compensation Commission Appeal No. 92273, decided August 7, 1992. Evidence here indicates that claimant was pursuing a claim with the Commission contemporaneously with receiving surgery, rendering weak a contention that he even made an “election” as such.
The hearing officer specifically found claimant to be credible, even though the evidence was conflicting. We affirm her determinations on all issues appealed other than notice by observing that there was sufficient evidence to support her findings and conclusions.
Where the hearing officer has gone somewhat astray is in finding that claimant “knew or should have known” on (date of injury), that he had a herniated cervical disc. Were such injury an occupational disease, this would be tantamount to a finding of a second date of injury. See Section 408.007. The claimant did not contend, however, nor is there support for, a finding that the disc injury was not an accidental injury. As there are no findings from the hearing officer as to coverage or claimant’s residence on (date of injury), further support is lent to an implied finding of a sole (and accidental) injury date of (date of injury) for the herniated disc. Although inartfully stated, the hearing officer obviously believed that claimant sustained his herniated disc on (date of injury), by finding that it resulted from the “work incident” of that date.
The carrier quite correctly points out that the timely notice provisions for an accidental injury run 30 days from the date of injury, not when the injured worker has a complete diagnosis of the consequences of that injury. Section 409.001(a). By discussing whether claimant believed his injury to be trivial, the hearing officer appears to be venturing into the area of good cause; however, we do not agree with carrier that this means there are implied findings on “good cause” for late notice because the hearing officer has expressly found that claimant gave timely notice, rendering good cause inapplicable. See Section 409.002(a)(2). We think the discussion of triviality is further indication that the hearing officer used the wrong legal analysis on notice.
However, this is harmless error because the testimony of claimant and the statement of Mr. K clearly indicate that claimant’s neck injury, and the work-relatedness of it, was discussed on April 13th. Although both parties agree that claimant was equivocal about whether “it” happened on the job, Mr. K quotes himself as stating that he would “dispute” such a claim because claimant did not report an accident right away and he no longer worked for the company. Mr. K’s statement, quoted herein, makes sense only in the context of a discussion that claimant had a work-related neck injury.
As we have noted, an injured employee must give notice of the general nature of the injury and the fact that it is work-related; the specific time, place, and extent of injury are not required for valid notice to be found. DeAnda v. Home Insurance Co., 618 S.W.2d 529 (Tex. 1980).
We reform the hearing officer’s Finding of Fact No. 9 to match the great weight and preponderance of the evidence, as follows: “On April 13, 1993, claimant notified one of his supervisors, Mike Konakowitz, that he had a neck injury that he believed was work related, but that Mr. Konakowitz told him he would dispute it and suggested that medical
insurance was an option for him” and Conclusion of Law No. 4 likewise, as follows: “Claimant timely notified his employer within 30 days from (date of injury), the date of his injury.”
Susan M. Kelley – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Gary L. Kilgore – Appeals Judge