This appeal arises pursuant to the Texas Workers’ Compensation Act of 1989, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On December 13, 1995, a contested case hearing was held in ______, Texas, with ___________presiding. He determined that respondent (claimant) was compensably injured on _________, notified his employer over 30 days after the injury but had good cause for being late, and had disability from June 6, 1995, through October 29, 1995. Appellant (county) asserts that claimant did not injure his neck on _________, and even if he did, he did not act reasonably and therefore did not show good cause for being late in providing notice. Claimant replies that the decision should be affirmed.
DECISION
We affirm.
Claimant worked as a detective for the county sheriff. On _________, he was on call at home when he was called to report to a crime scene. Upon finishing his part of the investigation, he left his work and returned home; along the way he dozed, awoke, braked, and jerked his neck. He did not collide with anything. He felt some pain, but he had prior problems with his neck and did not consider this serious. He went to bed and several hours later awoke, stretched, felt his neck pop, felt pain, and could not turn his head. He went to a part-time job anyway but experienced difficulty with range of motion of his neck. He sought chiropractic help from Dr. W (Dr. W) on__________, telling Dr. W that he awoke with a stiff neck. After a few visits, Dr. W referred claimant to Dr. B (Dr. B) and then to Dr. S (Dr. S). Claimant had an MRI on June 23, 1995, which reported a “large extruded disc” at C5-6. Claimant was taken off work on June 6th and returned to work at the end of October 1995.
(We note that while county disputes that the injury occurred on________, saying that it occurred on ________when claimant stretched, no assertion is made that the incident of _______was not compensable because claimant was driving home from work, so Section 401.011(12) will not be discussed. See Texas Workers’ Compensation Commission Appeal No. 950361, decided April 24, 1995.)
Claimant testified that in the past his neck pain had subsided after a few days or weeks and he thought that this episode was another of his stiff necks. When the pain did not stop, he agreed that an MRI should be performed, but he testified that he was told the results thereof, a herniated disc, meant a bulging disc. He said he later learned from Dr. S on August 2, 1995, that he had a ruptured disc, which concerned him much more than a bulging disc. He asked Dr. S what could cause that; to which Dr. S replied, among other things, a car accident or whiplash. Claimant could remember none, but returned on August 9, 1995, having recalled the braking and jerking of________, and asked if that could have been the cause. Dr. S said it could; he provided a statement dated October 19, 1995, which said, “the mechanism of injury is consistent with a herniated disc. He did sustain a whiplash type injury to his cervical spine and this is a known cause of herniated discs.”
The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. In this case, the testimony of the claimant was well developed by the ombudsman. In addition, the hearing officer also questioned the claimant extensively as to his delay in giving notice, which was given on___________, and inquired why claimant did not earlier conclude that this condition was different from what he had experienced before. The claimant’s good faith belief that the cause of his condition was something other than the injury of _______may be good cause for failure to give timely notice. See Baca v Transport Ins. Co., 538 S.W.2d 814 (Tex. Civ. App.-El Paso 1976, writ ref’d n.r.e.). A determination of whether good cause exists for late notice is reviewed under an abuse of discretion standard. Texas Workers’ Compensation Commission Appeal No. 950036, decided February 17, 1995. We do not see a basis to overturn the hearing officer’s determination that claimant had good cause to delay reporting this injury. While the hearing officer did not make a finding of good cause up to the date of notice, ________, the evidence of reporting within approximately one day from the date when claimant said his doctor indicated that the _______incident could be causative, together with the determination of liability, allows an inferred finding of reasonable diligence up to the time of notice.
The determination that injury occurred on ________is sustainable based on the claimant’s testimony, coupled with the indication by Dr. S that the injury could happen in that way. See Ins. Co. of North America v. Kneten, 440 S.W.2d 52 (Tex. 1969). While the claimant apparently did not inquire of Dr. S if his disc could have been damaged by his stretching on_______, a finding, if one had been made, that such caused the injury would also be supportable based on the more severe symptoms claimant reported as compared to the relatively mild pain he noted when driving home from work. We note that the latter stretching motion was when claimant felt a popping and was then unable to turn his head. Obviously, the record does not provide a clear indication of causation. As stated, the compensability of the incident because of claimant’s driving home from work was not appealed.
Finding that the decision and order are not so against the great weight and preponderance of the evidence as to cause an unjust decision, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Gary L. Kilgore – Appeals Judge