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APD 941374
November 23, 1994

APD 941374

November 23, 1994

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 1, 1994. The issues were whether the claimant sustained a compensable injury on ________; whether the claimant timely reported such alleged injury, or had good cause for failing to do so; and whether the claimant had sustained disability. The hearing officer determined that in (incorrect date of injury) the claimant sustained thoracic outlet syndrome within the course and scope of her employment, that she timely notified her employer of such injury, and that she had disability for one and one half weeks in ________ and since February 9, 1994.

The carrier appeals, contending that the medical evidence, which includes evidence of claimant's treatment for a 1991 compensable injury, does not support a determination of a new injury nor that claimant's condition was caused by a work-related repetitive trauma. The carrier also contends that it was error for the hearing officer to find an unspecified, (incorrect date of injury) date of injury, and that the claimant's date of injury was not an issue before the hearing officer. Further, the carrier argues that claimant's contact with her employer was not sufficient to put the employer on notice that she had sustained a new injury rather than symptoms which indicated the continuation of her prior injury, and that claimant did not have a compensable injury and thus should not have been found to have disability. The claimant responds that the evidence supports the hearing officer's decision and that it should be affirmed.


We reverse the decision and order of the hearing officer and remand only to allow a determination of a specific date of injury.

It was not in dispute that the claimant, who was employed by (employer), suffered a compensable repetitive trauma injury on (prior date of injury). Claimant's work at that time involved keying of data, and she was diagnosed with and treated for right carpal tunnel syndrome (CTS). The claimant was originally treated by associates Dr. F and Dr. S, and then was referred to Dr. D, who performed a carpal tunnel release in January of 1992. Claimant said she returned to work in April 1992 in a limited duty status. Claimant denied that she was suffering from arm and neck problems prior to that time (although an October 1991 letter from Dr. F mentions some occasional aching and pain up into the shoulder, along with claimant's CTS symptoms).

Reports of Dr. D following claimant's CTS surgery note her continuing symptoms, including pain in her hand and up and down her arm, for which he administered ganglion blocks. Because of the persistence of her symptoms, Dr. D referred the claimant to Dr. E who wrote, on July 9, 1992, that claimant's situation was "very confusing" and that she should be evaluated by a diagnostic neurologist capable of doing electrodiagnostic testing and also making appropriate referral for other testing. Dr. E also wrote: "The possibility exists that she is suffering from possible thoracic outlet syndrome. Also, possibility that she has a vascular disorder in the right upper extremity and noninvasive vascular studies might be appropriate test [sic] to be obtained." However, Dr. D wrote that he did not completely agree with Dr. E's assessment and that he believed that no further testing was necessary at that time. Dr. D later opined that the claimant had chronic reflex sympathetic dystrophy. In a report dated February 10, 1993, Dr. D assigned claimant a 10% impairment rating; she said she received impairment income benefits, which concluded in (incorrect date of injury).

The claimant said she was released to regular duty later in 1992 and was transferred to accounts payable in the spring of 1993. It was claimant's testimony that in late August or early September 1993 she first began to experience symptoms of the condition that was later diagnosed as thoracic outlet syndrome, and which she said differed from the CTS symptoms. These included severe shoulder and neck pains and headaches, which she said she reported to her supervisor, Mr. L, as being caused by her work area. This involved, according to both claimant and Mr. L, a desk that was on a cracked slab which caused the desk to slant and the chair to roll forward. Mr. L said that employees other than claimant also had problems with the faulty work station, and they were accordingly moved to another area. The claimant said this job also required repetitive pulling and lifting of files.

The claimant had given her date of injury as ________, because she said that was the date when she could no longer stand the pain in her neck and back and she noticed her arm turning blue. She again went to Mr. L, showed him her arm, and he referred her to Ms. K, employer's nurse. The following day claimant returned to Dr. D, who referred her to Dr. L. On December 15, 1993, Dr. L wrote that the claimant had recently noted an increase in pain, with radiation to her shoulder and swelling and discoloration of her hand, and pain over the right side of her neck extending into the suboccipital area. Dr. L wrote to Dr. D that claimant did not have a positive Adson's test (no loss of pulse during testing maneuvers) but that she had pain with any position and he believed claimant's problem to be "probably related to her occupation some how or other, receiving some tension in her musculatures in the right shoulder, arm and neck." He suggested that claimant wear a cervical collar and return for a recheck.

On February 1, 1994, Dr. L said that claimant for the first time demonstrated a positive Adson's test, demonstrating loss of pulse and pain with contraction of the pectoralis major and minor muscles, and he recommended surgery involving "possibly resection of the first rib, but definitely division of the pectoralis minor tendon." On February 21st the claimant had such surgery.

In a May 24, 1994, letter to claimant's attorney, Dr. L wrote in part as follows:

[Claimant] has been known to me since December, 1993, when she was referred by [Dr. D] who had performed surgery on her in the past. The patient works as a [sic] accounts payable specialist at [employer] and, in her job, she is constantly moving her right and left arms and shoulders in a downward and upward motion in order to perform her clerical duties. At the time of her original consultation, I did not think that the carpal tunnel syndrome that she previously had was the cause of her pain and felt that her problem was related to her occupation, with secondary muscle tension in the right shoulder, arm, and neck, causing her symptomatology. This is documented in my Consultation Report to [Dr. D] dated December 15, 1993, a copy of which is attached hereto. At that time, I recommended that [claimant] be re-evaluated in about six weeks, after wearing a cervical collar.

On February 15, 1994, [claimant] was again seen in our office, complaining of pain, numbness and tingling and I performed the usual tests for determining if there is indeed thoracic outlet syndrome. These tests were all strongly positive at that time. She exemplified a rather classical case of thoracic outlet syndrome, with compression from the roof, side walls, and base of the triangle, where the cervical plexus axillary artery and vein exited the thoracic cavity. At that time, arrangements were made for a definitive surgical procedure . . .

There is no question in my mind that the thoracic outlet syndrome was the etiological problem for her shoulder, neck and arm pain, and it was not related, at all, to the carpal tunnel syndrome which she had prior to the surgical procedure . . .

Also, in a June 14, 1994, letter Dr. L wrote the carrier that claimant's diagnosis was right thoracic outlet syndrome for which claimant continued to exhibit symptoms. He also opined that the claimant would probably never be able to return to her past employment and should seek employment in which hand and arm motions would be limited.

Dr. L also responded to a deposition upon written questions propounded by the carrier. Among other things, he reported claimant's history as "12/15/93 - Pain in right hand and arms since (prior date of injury). Carpal tunnel syndrome operated in 1992. Increase of pain in arm, neck and shoulder associated with occipital headache." When asked when claimant's symptoms of thoracic outlet syndrome first arose, Dr. L said "[p]robably 1991 in conjunction with thoracic outlet syndrome and carpal tunnel syndrome." He also said claimant had thoracic outlet syndrome symptoms prior to ________, "probably beginning in (prior date of injury) in conjunction with symptoms of carpal tunnel syndrome."

In an August 28, 1994, letter carrier's doctor, Dr. T, wrote that he had reviewed claimant's records and noted that "a suspicion of the type and nature of an upper extremity problem was raised in 1991." He went on to state his opinion that in all likelihood claimant had the first onset of thoracic outlet syndrome in 1991, and that "it is very likely the late discovery that she had a venous occlusion in the axillary subclavian vein area may have been one of the things that brought her in with her first complaints as she had been noticed to have color changes and some swelling in the involved upper extremity as long ago as October 10, 1991. The coexistence and simultaneous appearance of symptoms of thoracic outlet compression symptomatology of a neurologic nature are very similar to those of carpal tunnel. The neurologic changes, as measured by nerve conduction study, are much more likely to be positive in association with carpal tunnel than with the neuritic changes of thoracic outlet compression."

Ms. K, employer's nurse, testified that she was aware that claimant was complaining of arm and neck pain, but that she did not know claimant was reporting a new injury. She said she assumed claimant's complaints were related to her (prior date of injury) injury because the claimant had been going to doctors the whole time. Claimant's supervisor, Mr. L, said claimant's desk was moved in early September because of the structural problem and that sometime in August or September he began hearing comments about her having a problem with a pain in the neck. He could not remember, however, whether the claimant related that this was a different problem from the (prior date of injury) injury. Employer's safety manager, Mr. H, testified that claimant told him sometime in September of 1993 that she was having pain in her arm and neck and that "where she was working was causing the problem." However, he said claimant often reported discomfort and he did not understand her to say she was suffering from a new problem.

The hearing officer made the following findings of fact and conclusions of law which are challenged by the carrier:


5.In (incorrect date of injury), claimant developed symptoms of thoracic outlet syndrome, as a result of conditions claimant encountered in her employment with employer.

6.In (incorrect date of injury), claimant first realized that the symptoms described in the previous finding of fact might be attributable to her employment.

7.Within thirty days of the time claimant knew her symptoms might be attributable to her employment, she informed [Ms. K, Mr. H, and Mr. L] that she had experienced problems with her neck and shoulder, and that she attributed such problems to conditions which she encountered in her employment.


3.In (incorrect date of injury), claimant sustained thoracic outlet syndrome within the course and scope of her employment with employer.

4.Claimant timely notified employer of such injury.

5.For one and one half weeks in ________, and since February 9, 1994, claimant has experienced disability.

In its appeal the carrier contends that the evidence shows that the claimant's physical complaints relate back to her original complaints of (prior date of injury). The carrier argues that if a condition is misdiagnosed or the full extent not realized until sometime after the initial treatment, this does not give rise to a new repetitive trauma injury. Further, it contends, new and separate physical activities at work must give rise to a new injury, and sitting at an angle does not constitute a repetitive action. In addition, the carrier argues that the medical evidence does not link claimant's physical problem to a specific event at work.

We observe at the outset that the 1989 Act provides that the hearing officer is the sole judge of the relevance and materiality of the evidence and of its weight and credibility. Section 410.165(a). Further, the trier of fact may also draw reasonable inferences and deductions from the evidence presented and its findings may not be disregarded if the record discloses any evidence of probative value in support thereof. Harrison v. Harrison, 597 S.W.2d 477 (Tex. Civ. App.-Tyler 1980, writ ref'd n.r.e.).

The evidence in this case, both medical and lay, shows that in 1991 the claimant suffered symptoms involving her hand, fingers, and wrist which resulted in the CTS diagnosis. Because her problems continued post-surgery, her treating doctor, Dr. D, referred her for a second opinion to Dr. E who proposed that further testing be done to determine whether or not she had thoracic outlet syndrome. However, as the evidence further indicates, that was not done at that time, upon the advice of Dr. D. The evidence is in conflict as to whether the claimant actually suffered from thoracic outlet syndrome at that time, or whether that condition arose, as claimant testified, sometime around (incorrect date of injury) when the claimant said she began to suffer pain in a different part of her body as the result of her physical activities at work. It is clear that claimant's thoracic outlet syndrome was positively identified in February 1994, when claimant's Adson's test was first positive. In addition, while Dr. L states (and carrier does not appear to disagree) that it is a separate condition from CTS, there is conflicting evidence as to when the thoracic outlet syndrome arose. Dr. L states in his deposition that the thoracic outlet syndrome "probably" arose in 1991; claimant testified that new and distinct symptoms arose as a result of repetitive activities she was performing that differed from her job functions in 1991. Along those lines, the carrier contends that the claimant did not experience new, repetitively traumatic activities to cause a new injury. While it is true that claimant testified that she told her employer that the chair and desk were the source of her neck and shoulder pain, and while this panel has held that mere sitting, without more, is insufficient to cause a repetitive trauma injury, see Texas Workers' Compensation Commission Appeal No. 92272, decided August 6, 1992, the record also contained evidence that claimant's job required her to perform repetitive lifting and pulling, which is sufficient to support the hearing officer's determination. The fact that no medical report specifically links this to claimant's injury is not fatal; at any rate, we note that Dr. L opined that her problem was probably related to her employment. In sum, whether there is continuation of the effects of an old injury or whether there is a new and distinct injury, either as the result of a separate specific incident or because of the aggravation of a prior injury, as a question of fact for the hearing officer. Texas Workers' Compensation Commission Appeal No. 92681, decided February 3, 1993. Upon our review of the evidence bearing on the issue of existence of injury, we do not find the hearing officer's decision was so against the great weight of the evidence to be clearly wrong or manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The 1989 Act 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 408.007, and that an employee must notify his or her employer of the injury no later than the 30th day thereafter, Section 409.001(a)(2). The concept of an identifiable date of injury for such disease has been held to be "flexible" in the sense that the limitation period for timely notice begins to run when a claimant, as a reasonable person, recognized the nature, seriousness, and work-related nature of the disease. Commercial Insurance Co. of Newark, N.J. v. Smith, 596 S.W.2d 661 (Tex. App.-Fort Worth 1980, writ ref'd n.r.e.). In addition, this panel has held that it is possible that an employee may know that a physical problem or condition could be work related without verification from a doctor. Texas Workers' Compensation Commission Appeal No. 92559, decided December 3, 1992. Whether and when an employee knew or should have known that a physical problem was work related is a question of fact. Moreover, contrary to the carrier's assertion, pleadings, as such, are not required by the 1989 Act and the date of injury alleged does not have to be the date found by the hearing officer, who is charged with considering all the evidence to determine when injury occurs. Texas Workers' Compensation Commission Appeal No. 92022, decided March 11, 1992. Further, the carrier does not allege surprise or prejudice in the fact that the hearing officer found a date of injury other than ________, the date originally alleged by the claimant.

What troubles us is the fact that the hearing officer did not find a date certain as the date of injury, stating the latter to be "(incorrect date of injury)." Under the Act, a date certain is the triggering point for the running of several time periods, including notice of injury (which, as noted earlier, must be no later than the 30th day after the date of injury, Section 409.001) and the calculation of average weekly wage (determined basically with reference to the 13 weeks immediately preceding the date of injury, Section 408.041). Depending upon the circumstances, temporary income benefits (TIBS) may be paid with reference to a date of injury (if disability continues for longer than one week, weekly income benefits begin to accrue on the eighth day after the date of the injury, Section 408.082(b)), and an employee's eligibility for TIBS, impairment income benefits, and supplemental income benefits terminates on the expiration of 401 weeks after the date of injury (Section 408.083). Calculation of the foregoing time periods with certainty would be impossible with reference only to a month and year.

We accordingly reverse the hearing officer's decision and remand to allow for a specific date of injury to be determined. We recognize that this is a frequently difficult task in cases such as this one, in which only generalized time periods were discussed by the witnesses. We will leave it to the hearing officer's discretion to determine whether to re-open the record for additional evidence, or whether a date can be found by inference from the evidence as a whole.

Finally, carrier argues that the claimant does not have disability because she did not suffer a compensable injury. However, we have already determined that the hearing officer's decision that claimant did sustain an injury in the course and scope of her employment was supported by sufficient evidence, and the 1989 Act provides that disability is the inability because of a compensable injury to obtain and retain employment at wages equivalent to the pre-injury wage. Section 401.011(16). The carrier does not advance any other argument as to why claimant did not have disability for the periods found by the hearing officer, so we will not address this issue further.

The decision and order of the hearing officer are reversed and remanded, as provided herein.

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 Section 410.202. See Texas Workers' Compensation Commission Appeal No. 92642, decided January 20, 1993.

Lynda H. Nesenholtz
Appeals Judge


Joe Sebesta
Appeals Judge

Gary L. Kilgore
Appeals Judge