Following a contested case hearing held on April 11, 1996, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. §401.001 et seq. (1989 Act), the hearing officer resolved the two disputed issues by concluding that the appellant (claimant), a long-haul truck driver, did not sustain a compensable injury (deep vein thrombosis in the right leg) on ________, and that he did not have disability because he did not have a compensable injury. Claimant, whose appeal has attached to it two documents, does not challenge any specific factual finding but rather argues the evidence and maintains that the evidence established that his deep vein thrombosis was caused by his truck driving. The respondent (carrier) first asserts that the documents attached to claimant’s appeal and various statements made in his appeal were not in evidence at the hearing and should not be considered on appeal. The carrier then contends that one of the medical opinions indicated that claimant’s truck driving was only a possible contributing factor and that the evidence is sufficient to support the hearing officer’s key finding that claimant’s deep vein thrombosis was an ordinary disease of life.
DECISION
Affirmed.
Claimant testified that after retiring from the United States Army on December 1, 1991, he worked as a motel desk clerk and car salesman before taking a truck driving course in early 1993 and thereafter commencing to drive long-haul trucks for several companies including (employer), the company that employed him on ________ (all dates are in 1995 unless otherwise indicated). Claimant indicated that sometime before _____ he felt cramping in his right calf, that on that date he noticed that his right leg was swollen from his knee to his toes, that he had not had any trauma to the leg, and that he was admitted to a hospital where an ultrasound test revealed a deep vein thrombosis. Claimant testified that while he could not log more than 10 hours per day of driving without risking fines, he basically drove 12 to 18 hours per day, seven days per week and that “the company doesn’t worry about them so long as your logs. . . look legal.” He also said that the truck he drove was cramped, that the seat was worn out and sitting on it was like sitting on the edge of a desk, that it did not have cruise control and that the only place he could rest his leg was against the engine cover, which was too hot to use for that purpose. Claimant’s “Driver’s Daily Log” showed that claimant worked 22 days in May and 22 days in June with substantial variance in the logged hours of actual driving ranging from zero hours up to 10 hours on a few occasions. The hearing officer noted that these logs showed that claimant took frequent breaks and rest periods.
Claimant further testified that he was discharged from the hospital a week later and kept on a blood-thinning medication, that he was kept off work by Dr. B until October 30th, that he was not rehired by the employer because the employer’s health insurer would not insure him, and that his efforts to obtain employment with numerous other trucking companies as well as some construction companies and an independent school district have all been unsuccessful. Claimant contended that Dr. B’s medical opinion supports his contention that his long-distance truck driving was a cause of his deep vein thrombosis and that he has had disability from ______ through the date of the hearing. The carrier contended first that neither the opinion of Dr. B nor of Dr. D, who examined claimant at the request of the carrier, amounted to an opinion on causation to a reasonable medical probability. In the alternative, the carrier contended that even if there was medical evidence of causation, the mechanism of the injury, mere sitting, cannot be the source of a compensable injury.
Dr. B wrote on November 6th that claimant’s diagnosis was Deep Venous Thrombosis of the right lower extremity. Concerning causation, Dr. B wrote: “Prolonged immobility or sedentary occupation are well-recognized risk factors for deep vein clots. It is likely that [claimant’s] occupation as a long-distance truck driver as well as an underlying medical condition (renal insufficiency/proteinuria) contributed to his medical complications.”
Dr. D wrote on December 21st that in addition to his renal insufficiency, which she characterized as his most significant risk factor for the thrombosis, claimant’s other risk factors included being overweight, a smoking history of three packs of cigarettes per day, severe hyperlipidemia, and hypertension. Dr. D, who indicated she had reviewed some literature, noted one article as stating that 3.4% of a series of 465 patients developed deep vein thrombosis after significantly prolonged travel by car or truck. She further wrote that “[t]he prolonged truck traveling that he did that preceded the thrombosis is considered to be a contributing factor, but it should not be considered sole [sic] causative, as the patient did have other risk factors, as described above.” On February 23, 1996, Dr. D wrote to a Texas Workers’ Compensation Commission benefit review officer (BRO) responding to his question as to what was “the sole cause” of claimant’s deep vein thrombosis stating she felt the answer was “already clarified” in her original report. Dr. D wrote as follows:
From what is known about the development of deep vein thrombosis, the prolonged sedentary posture was felt to be possibly a contributing factor, rather than the physical act of driving a semi-truck-trailer, pushing a clutch pedal, pushing a break [sic] pedal, and pushing and holding a throttle pedal with his legs in his truck. . . . It is impossible for anyone to determine if there was any sole cause of [claimant’s] deep vein thrombosis, particularly since he had a number of possible contributing factors, such as a prolonged sedentary posture from his driving, his renal disease, his severe hyperlipidemia, and his being a heavy smoker.
Ms. U, employer’s director of driving services, wrote that the employer’s drivers are not required to drive more than 10 hours without an eight-hour break, that all dispatches are based on a transit time figured at driving five hours at 45 m.p.h., taking an hour break, driving for five more hours and taking an eight-hour break. Ms. U further stated that no driver is permitted to drive more than 70 hours in any eight day period. Other employer personnel wrote that none of the other drivers who drove the truck driven by claimant had complained of the seat, that the truck’s maintenance records revealed no repairs to the seat, and that no reports of injuries had been filed pertaining to the seat.
The hearing officer found that claimant suffers from a deep vein thrombosis which is an ordinary disease of life to which the general public is exposed outside of employment, that claimant did not suffer damage or harm to the physical structure of his body, including the thrombosis, while engaged in or about the furtherance of the affairs or business of his employer on ______, and that his probative medical evidence did not establish a causal relationship between his employment with the employer and his thrombosis he allegedly suffered on ______.
Claimant attached to his appeal a medical article on thrombosis and an unidentified sheet apparently concerning the logging in of work other than driving. In addition to these documents, there are various statements in the appeal to which claimant did not testify at the hearing. We are provided with no basis to consider such evidence offered for the first time on appeal and decline to do so. Section 410.202(a); Texas Workers’ Compensation Commission Appeal No. 92154, decided June 4, 1992.
Claimant had the burden to prove by a preponderance of the evidence that his truck driving was a cause of his thrombosis. That proof of causation may be difficult does not excuse a claimant from meeting that burden in order to establish entitlement to workers’ compensation benefits. Texas Workers’ Compensation Commission Appeal No. 94082, decided March 4, 1994. As for sole cause, it was the carrier, not the claimant, who had the burden to prove that some cause other than the work, for example, claimant’s preexisting renal insufficiency, was the sole cause of his thrombosis. Texas Employers’ Insurance Assoc. v. Page, 553 S.W.2d 98 (Tex. 1977). However, the carrier did not rely on that defense. Claimant need only have proven that his work was a cause. Texas Workers’ Compensation Commission Appeal No. 931134, decided January 28, 1994. We have previously noted that where the matter of causation is outside common experience, expert testimony is required to establish causation, Houston General Insurance Co. v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.), and we regard this as such a case. The hearing officer could infer from the evidence, notably the logs, that claimant exaggerated the amount of time he actually spent driving and could consider that while a doctor’s recitation of the history of an injury as reported by a claimant is admissible to show the basis for the doctor’s opinion on causation, it is not competent evidence that an injury in fact occurred on the date alleged. See, e.g. Presley v. Royal Indemnity Insurance Co., 557 S.W.2d 611 (Tex. Civ. App.-Texarkana 1977, no writ); Texas Workers’ Compensation Commission Appeal No. 92067, decided April 3, 1992. The hearing officer could also consider that Dr. D’s response to the BRO characterized the relationship of claimant’s work to his thrombosis as “possibly” causative. While the exact magic words “reasonable medical probability” need not be used by the medical expert and “the testimony is sufficient if the circumstances show that this is the substance of what the expert is saying [Citations omitted.],” Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102, 105 (Tex. 1979), the hearing officer could infer that Dr. D was stating only the mere possibility of causation by claimant’s work and agree with such view.
While another fact finder may have drawn different inferences from the evidence than those drawn by the hearing officer, we cannot say the dispositive findings are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). As for disability, a compensable injury is a prerequisite for disability. Section 401.011(16). The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Elaine M. Chaney – Appeals Judge