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APD 950456
May 5, 1995

APD 950456

May 5, 1995

This appeal arises under the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On February 23, 1995, a contested case hearing was held in ____________, Texas, with (hearing officer) presiding. The issues were:

1.Whether Claimant timely filed a claim for compensation with the commission and, if not, does good cause exist for failure to timely file.

2.Did Carrier waive its right to timely contest compensability based on an assertion Claimant did not file a claim.

3.Whether the compensable injury is a producing cause of Claimant's current back problems.

4.Whether the first certification of maximum medical improvement (MMI) and impairment rating (IR) assigned by [Dr. A] became final under Rule 130.5(e).

The hearing officer determined that respondent (claimant) did not timely file a claim for compensation but that she had good cause for failing to do so until the claim was filed on July 29, 1994, that the first certification of MMI and IR by Dr. A had not become final under Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)), that claimant's compensable injury is a producing cause of her current back problems and that carrier had not waived its right to contest compensability that claimant's injury was not a producing cause of her current condition.

Although the hearing officer made determinations on all the issues before him, appellant (carrier) appeals only the hearing officer's determinations that Dr. A's first IR had not become final and the determinations relating to issue 3, asserting in essence that certain car rides were the sole cause of claimant's current condition. Carrier requests that we reverse the hearing officer's decision and render a decision in its favor. The file does not contain a response from the claimant.



In that carrier has appealed only two of the issues, we will attempt to limit our recitation of the facts to those bearing on the appealed issues, the other issues not having been appealed have become final. Section 410.169. Claimant testified that on ___________, as she was unloading fabrics while in the course and scope of her employment she tripped, fell forward across the box she was carrying and injured her back. Claimant testified that she sought medical care with Dr. A who "checked [her] out thoroughly." Claimant testified Dr. A took x-rays but did not do an MRI. Claimant remained in Dr. A's care and saw him weekly until December 18, 1991. Claimant testified at that point she had no pain in her back or legs. Claimant said she received two weeks of income benefits and returned to (apparently full duty) work in January 1992 and worked until February 12 or 14, 1992, when she was laid off because of the employer's financial constraints. Claimant testified that she applied for and received unemployment benefits after she had been laid off. After being laid off, claimant testified that she accompanied her husband, who was "in construction" to "the Valley" where claimant and her husband lived in a "travel trailer." Claimant testified that during the time from late February to December she did only light housekeeping and "sew[ed] a lot." Claimant testified that in December 1992 she returned to city "for Christmas." Claimant testified that while she was in city, her "back started hurting again." Claimant said she noticed the pain while she was in the kitchen but denied any specific new injury. Claimant, in January 1993, returned to the Valley and in January 1993, consulted a chiropractor because of her back pain. Claimant testified those treatments did not help and that she "came home [to city] and went to [Dr. A]." Claimant said she consulted Dr. A about a bad cold and sore throat and also complained about her back. The dates of events became fuzzy at this point although claimant testified Dr. A "started the treatments again and they helped." In June or July 1994 claimant said that she thought she was entitled to compensation and sought an attorney. In August 1994, claimant had an MRI and myelogram which showed a herniated disc. Carrier filed a Notice of Refused/Disputed Claim (TWCC-21) dated August 15, 1994, which stated that claimant had not disputed the first IR in the file per Rule 130.5(e) and therefore carrier considers zero percent to be the final IR. Claimant testified that she was unaware of any medical report, MMI or IR until carrier's TWCC-21 denying her claim.

The medical evidence includes an undated Report of Medical Evaluation (TWCC-69) from Dr. A certifying claimant reached MMI on "01-07-92" with a statement "[t]here is no impairment." Attached is a narrative which states claimant "was last examined and treated on 12-11-91." Dr. A stated that claimant was "greatly improved" and that he did "not expect any residual disability." There is no evidence that a copy of this report was ever sent to or received by claimant. Carrier did however send claimant a TWCC-21 dated March 19, 1992, showing "indemnity" payments of $283.71 and medical payments of $86.89. In section 23 of the TWCC-21, the "Remarks" section, is the notation:


Carrier sent the TWCC-21 to claimant's last known address in city where, according to claimant's testimony, claimant's son may, or may not, have received it in that claimant was at that time in the Valley with her husband. Carrier's position throughout has been that sending the TWCC-21 with the quoted notation constituted knowledge by the claimant of the first IR assigned to claimant and that since claimant did not dispute that rating for over two years it has become final under Rule 130.5(e).

Other more recent medical evidence includes a TWCC-69 dated August 31, 1994, from Dr. A certifying claimant has not reached MMI, reports of a disc herniation at L4-5, and an opinion by Dr. A that claimant ". . . has a reoccurrence of her previous injury that she sustained at work on ___________." Reports dated July 18 and August 10, 1994, from Dr. J, a neurosurgeon, confirm a "left sided paramedian disc herniation" and recommends "a lumbar discectomy L4-5 on the left" if claimant continues to have back and left leg pain.

The hearing officer's determinations which have been disputed by carrier include:


13.Dr. R [sic Dr. A] certified Claimant reached MMI on January 7, 1992 with a 0% IR which was the first such certification.

14.Claimant first had notice of [Dr. A's] certification of [sic] on or about August 9, 1994.

15.In August 1994 Claimant contacted the Commission and disputed [Dr. A's] certification.

16.On or about March 19, 1992, Carrier sent Claimant a TWCC-21 form stating in block 23 "CLMT REACHED MMI 1/7/92 WITH 0% IMP. RATING PER [DR. A]".

17.The TWCC-21 is presumed to have been received by Claimant or her agent son in March 1992.

18.The TWCC-21 information was so abbreviated it did not communicate to Claimant that she had reached MMI with an IR and was insufficient notice to begin the 90 day period for disputing [Dr. A's] certification.

19.Claimant's current back condition is a recurrence of Claimant's compensable injury to her back and not a new or subsequent injury.

Carrier, on the Rule 130.5(e) issue, contends that if the TWCC-21 "was so encrypted that it was meaningless" the claimant had a duty to call "either the TWCC, the Carrier or her treating physician . . ." if she did not understand what the form said. In the alternative carrier argues that the March 1992 TWCC-21 "is very understandable" because "it gives the claimant the date she last saw [Dr. A] as the date of MMI, the zero percent (IR) and refers to her physician [Dr. A]." Rule 130.5(e) provides that the first IR assigned to an employee is considered final if the rating is not disputed within 90 days after it is assigned.

The Appeals Panel has interpreted Rule 130.5(e) in a number of decisions including Texas Workers' Compensation Commission Appeal No. 93501, decided August 2, 1993, where the Appeals Panel stated:

We have noted before that the 90 day deadline for disputing an [IR] does not run from the date a doctor issues a report, but from the date the parties become aware of the rating. We noted that it is hard to envision that one could dispute something of which one is not aware. See Texas Workers' Compensation Commission Appeal No. 92693, decided February 8, 1993. Our decisions involving the 90 day rule have all used some form of written notice as the point at which the 90 day period began. Arguably, notice of an [IR] is best conveyed through a written report. A written report by the evaluating doctor could raise colorable disputes that a verbal notice would not.

As can be seen, the Appeals Panel has contemplated (although not absolutely necessary) that the claimant be sent a medical report. Further, the Appeals Panel has determined in Texas Workers' Compensation Commission Appeal No. 94354, decided May 10, 1994, that the certification of MMI and impairment and the communication of such to the parties under Rule 130.5(e) require a writing. Written communication of the IR to the parties was to reduce confusion and controversy over the content of the communication. Rule 130.1(c) states that all reports made under Rule 130.1 shall be on a Commission prescribed form and it enumerates the information it shall contain. As regards the use of such form, however, the Appeals Panel has previously determined that a writing which amounts to the functional equivalent of the TWCC-69 form will suffice. See, e.g. Texas Workers' Compensation Commission Appeal No. 94222, decided April 7, 1994; Texas Workers' Compensation Commission Appeal No. 94229, decided April 11, 1994. Therefore, the issue before us is whether carrier's March 19, 1992, TWCC-21 amounts to sufficient written notice to begin the 90-day period of Rule 130.5(e). The hearing officer determined it did not and that determination is supported by sufficient evidence. See Texas Workers' Compensation Commission Appeal No. 941433, decided December 8, 1994, for a case where the Appeals Panel held that a check and accompanying TWCC-21 were not the functional equivalent of a TWCC-69. In that case the Appeals Panel held that the language used "Payment of IIBS 2% Impairment rating -- paid 6 weeks $1295.82 less $330.57 TIBS overpayment = $965.25" was ambiguous and as a matter of law did not inform claimant that his treating doctor had certified IR.

Carrier argues that even if claimant was not versed in "workers' compensation jargon" claimant had some obligation to inquire "why she received the form, what it meant and what to do about it if she did not understand what information was contained on the form itself." Carrier cites no authority for its contention, and we know of none that places such a burden on claimant that a claimant is constructively held to know what might be contained in some document unless they took steps to ascertain the meaning of each form they might receive. Rather it is within the province of the hearing officer, as the sole judge of the relevance, materiality, weight and credibility of the evidence (Section 410.165(a)) to determine if claimant acted reasonably. The hearing officer determined the TWCC-21 "was so abbreviated it did not communicate to claimant that she had reached MMI with an IR" and that determination was within the province of the hearing officer to resolve.

Finally, carrier alleges that claimant "exposed herself to bumpy, lengthy, numerous car rides on several occasions . . . for prolonged periods of time . . . (and such is) a separate intervening accident." First we disagree with carrier's characterization of the evidence. There was no evidence the trip to and from the Valley was "bumpy." Secondly, carrier refers to "numerous car rides on several occasions." We read the evidence to be that claimant went to the Valley in February 1992 by car, lived in a travel trailer and returned to city in December 1992. Claimant testified that the distance between the city 2 and city 1 was 500 miles, that they (or she) got "out and eat and you get out and take a break and go to the restroom." Claimant testified that she made another trip in 1993 and perhaps a third trip when a relative died. Whether this constitutes lengthy, numerous car rides on several occasions for prolonged periods of time is a matter of interpretation. If it is carrier's contention that the December 1992 trip, or any other trip, was "a separate intervening accident" and that event was the sole cause of claimant's condition so as to relieve carrier of liability, the burden is on the carrier to prove that the car trips are the sole cause of claimant's back condition. In Texas Workers' Compensation Commission Appeal No. 94844, decided August 15, 1994, the Appeals Panel held that to prove a subsequent noncompensable event is the sole cause the burden is on the carrier to prove that the claimant's subsequent injury is the sole contributing factor to the claimant's current condition or disability. Texas Workers' Compensation Commission Appeal No. 94280, decided April 22, 1994; see also Texas Workers' Compensation Commission Appeal No. 93864, decided November 10, 1993, and decisions and cases cited therein. This is so because an injury is compensable even though aggravated by a subsequently occurring injury or condition. See Guzman v. Maryland Casualty Co., 130 Tex. 62, 107 S.W.2d 356 (1937); Hardware Mutual Casualty Co. v. Wesbrooks, 511 S.W.2d 406 (Tex. Civ. App.-Amarillo 1974, no writ); Texas Workers' Compensation Commission Appeal No. 91038, decided November 14, 1991; Texas Workers' Compensation Commission Appeal No.91085A, decided January 3, 1992; Texas Workers' Compensation Commission Appeal No. 92018, decided March 5, 1992; Texas Workers' Compensation Commission Appeal No. 92692, decided February 12, 1993. Carrier presented no medical, or any other kind of evidence, to show the car trips caused claimant's herniated disc and back condition. We are certainly not going to rule that as a matter of law riding 500 miles in a car is the sole cause of a herniated disc, without extensive medical evidence that is the case.

Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer's determinations unless they are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and consequently the decision and order of the hearing officer are affirmed.

Thomas A. Knapp
Appeals Judge


Susan M. Kelley
Appeals Judge


I concur in the result but disassociate myself from concurring in the language cited from Texas Workers' Compensation Commission Appeal No. 941433, decided December 8, 1994, to the effect that as a matter of law the language in the TWCC-21 in that case failed to inform the claimant of the assignment of an IR.

Philip F. O'Neill
Appeals Judge