This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 12, 1997. The issues at the CCH were:
1.Is the compensable injury of ______, a producing cause of the Claimant’s condition?
2.Should the Claimant’s impairment income benefits [IIBS] be reduced based on the Employer making voluntary differential payments?
The hearing officer determined that claimant’s compensable injury of ______, was a producing cause of claimant’s current (back) condition and that claimant’s IIBS may not be reduced by the self-insured acting in its capacity as the carrier based on the self-insured’s action as the employer making “voluntary” differential payments.
A self-insured entity, referred to as self-insured, employer or carrier, as appropriate, appeals the hearing officer’s decision on both issues. On the first issue, the self-insured contends that claimant had a fall at home which was the sole cause of claimant’s subsequent surgery and present physical injuries to his back. On the second issue, the self-insured argues that it, acting as the employer, could supplement claimant’s temporary income benefits (TIBS) under Section 408.003, pursuant to a union contract and then as the carrier could reduce IIBS pursuant to Section 408.127. The self-insured requests that we reverse the hearing officer’s decision and render a decision in its favor on both issues. Claimant urges affirmance on both issues.
DECISION
Affirmed.
On the issue of the extent of injury, it is undisputed (and stipulated) that claimant sustained a compensable back injury on ______. Claimant was diagnosed with an L2-3 herniated disc and the medical records reflect that he “underwent lumbar laminectomy and excision of the L2-3 disc” on January 3, 1995. Claimant testified that he continued to have problems and back spasms after the surgery and had an MRI in February 1996. In a letter dated February 27, 1996, Dr. N, claimant’s treating doctor, stated that claimant “had an MRI done, and the MRI fails to reveal any significant disc herniation even at the L2-3 level where he had his surgery, and he has only some mild scarring as a residual of the surgical procedure.” Claimant maintained that he continued to have pain and back spasms. Dr. H, the designated doctor for maximum medical improvement (MMI) and impairment rating (IR), in a report dated March 4, 1996, noted claimant “has no spasm,” complaints of “pulling” and “lower back discomfort.” On (subsequent date of injury), an incident occurred at claimant’s home. Claimant testified that back spasms caused him to fall. A transcribed statement claimant gave to carrier’s adjustor indicates that claimant fell stepping over “a microwave box.” Exactly what happened and how it happened is disputed. Claimant contends back spasm from his compensable injury caused a reinjury; carrier contends that “an independent intervening cause” resulted in a worsening of claimant’s condition. It is unclear whether claimant experienced another episode on April 15, 1996. Claimant subsequently was seen by Dr. N, who noted on a Specific and Subsequent Medical Report (TWCC-64) dated April 16, 1995, in a visit on that date, that claimant “c/o acute low low back [pain]” and;
Pt states he was exercising & doing other activities at home this weekend when he felt onset of low back pain. States he was taken to a local emergency room, but left due to the pain before he was seen. In today complaining of increased low back pain, with numbness and pain.
In a report dated January 17, 1997, Dr. N stated:
[Claimant’s] “subsequent fall” in (subsequent date of injury) was not the sole cause of any changes in the condition of [claimant’s] back. I would like to indicate that my records indicate that [claimant] stated he was exercising, and doing some activities when he developed low back pain which caused him to go to the emergency room. He told me that on 4/16/96.
Claimant was subsequently diagnosed with “right posterolateral and foraminal herniation at L2-3 and a slightly smaller herniation in the right foramen at L1-2.” Claimant had spinal surgery for that condition on September 6, 1996.
Carrier argues the “follow on injury” of (subsequent date of injury), is not compensable, that the injury of that date is not a “direct and natural result” of the compensable injury and that claimant’s follow-on injury did not “flow “naturally” from the compensable injury.” In any event, what occurred on (subsequent date of injury) is hotly disputed, and we note that the claimant, at various times appeared to give conflicting accounts of what occurred. However, these are factual determinations for the hearing officer, who is the sole judge of the weight and credibility of the evidence, to resolve. The hearing officer resolves inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). Although another trier of fact may have reached a different result, that alone is not sufficient to cause a reversal. The hearing officer obviously believed only so much of claimant’s testimony that supported a natural reoccurrence of his back injury as supported by Dr. N’s reports of April 16, 1996, and January 17, 1997. When reviewing a hearing officer’s decision for factual sufficiency of the evidence, we should reverse such decision only if it so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We do not so find, and consequently, affirm the hearing officer’s determination on this point.
Regarding the second issue, at some time before claimant’s injury, the union, entered into an agreement with the self-insured in its capacity as the employer. Claimant is a member of that union. Pertinent parts of the labor agreement provide that injured employees “may be entitled to State Workers’ Compensation benefits” and that employees that have five or more years of “continuous active service with the Authority” (the employer “including predecessor management companies”) “shall be entitled to receive a Worker’s Compensation Differential from the Authority.” The agreement goes on to state:
The Workers’ Compensation Differential shall be the difference between the employee’s regular (straight rate) weekly earnings and the weekly amount received in State Worker’s compensation benefits. No employee eligible to receive Workers’ Compensation Differential under this section will be entitled to receive the differential for any period of time exceeding 18 months.
Although there was no testimony on the point, claimant was apparently an employee entitled to this differential. The self-insured, as the employer, apparently paid the differential required by the labor agreement, which makes no reference to any particular section or portion of the 1989 Act. Subsequently, the self-insured, as the carrier, claimed a reimbursement for this differential pursuant to Sections 408.003 and 408.127.
Section 408.003 states:
Sec. 408.003. REIMBURSABLE EMPLOYER PAYMENTS.
(a)After an injury, an employer may:
(1)initiate benefits payments, including medical benefits; or
(2)on the written request or agreement of the employee, supplement income benefits paid by the insurance carrier by an amount that does not exceed the amount computed by subtracting the amount of the income benefit payments from the employee’s net preinjury wages.
(b)If an injury is found to be compensable and an insurance carrier initiates compensation, the insurance carrier shall reimburse the employer for the amount of benefits paid by the employer to which the employee was entitled under this subtitle. Payments that are not reimbursed or reimbursable under this section may be reimbursed under Section 408.127.
(c)The employer shall notify the commission and the insurance carrier on forms prescribed by the commission of the initiation of and amount of payments made under this section.
(d)Employer payments made under this section:
(1)may not be construed as an admission of compensability; and
(2)do not affect the payment of benefits from another source.
(e)If an employer does not notify the commission of the injury in compliance with Section 409.005, the employer waives the right to reimbursement under this section.
Claimant testified, and it is undisputed, that he did not submit a request or enter into an agreement with the employer to receive a supplement to income benefits. Carrier argues that the union had contracted for the payment of a differential, which carrier maintains is the supplement to income benefits under Section 408.003, on behalf of the claimant and should be construed as claimant’s written request. Carrier contends that claimant was a member of a class of persons entitled to the differential/supplement income benefits, and that the carrier is entitled to reimbursement under Section 408.127. There was no testimony or evidence, one way or the other, that the employer had notified the Commission “and the insurance carrier” of the initiation of and the amount of payments as prescribed in Section 408.003(c) and (e). However, this was not raised and consequently, we decline to address it further.
Section 408.127 states:
Sec. 408.127. REDUCTION OF IMPAIRMENT INCOME BENEFITS.
(a)An insurance carrier shall reduce [IIBS] to an employee by an amount equal to employer payments made under Section 408.003 that are not reimbursed or reimbursable under that section.
(b)The insurance carrier shall remit the amount of a reduction under this section to the employer who made payments.
(c)The commission shall adopt rules and forms to ensure the full reporting and the accuracy of reductions and reimbursements made under this section.
The Commission has not adopted any rules for this situation. The self-insured, as the carrier, has reduced claimant’s IIBS by an amount equal to the self-insured’s payments, as the employer, paid to claimant as the differential/supplement income benefit pursuant to the union agreement/Section 408.003. (The amount at issue appears to be about $10,000.)
Both parties and the hearing officer reference Texas Workers’ Compensation Commission Appeal No. 960532, decided April 29, 1996, which involved a remand to make pertinent findings relating to wage continuation, as well as consideration of Sections 408.003 and 408.127. In that case, the carrier argued that Sections 408.003 and 408.127 do not require “that a disclosure be made to an employee who seeks salary continuation that recoupment will be made if there are IIBS payable.” In this case, it is not clear what, if anything, claimant was told about the differential and/or supplemented income benefits. Apparently, claimant became aware of the recoupment when his IIBS were reduced by $10,000.00. The hearing officer cites Judge Kelley’s response to the carrier in Appeal No. 960532, as follows:
We agree that the statute itself does not require that the claimant be informed that requested salary continuation could be deducted from any future IIBS that might be determined to be due in the future. What is required is that any reduction be done pursuant to a written agreement or written request by the claimant. What Section 408.003 further requires is that any such supplement to TIBS may not, when combined with TIBS, exceed the net preinjury wages.
(It was agreed that the supplement in this case not exceed the net preinjury wage.) The hearing officer notes that the Commission has not adopted rules on this but references the Commission’s Question Resolution Log (QRL) 95-147. The question/problem was stated as:
Some employers are required by union contract to continue salaries. Does this constitute an agreement between the injured worker and employer under Section 408.003 to allow the Employer to be reimbursed from the injured worker’s impairment income benefits under Section 408.127?
The resolution was:
The language of the contract must be examined on a case by case basis. If the contract does not specifically include a written request or agreement of the injured worker as required by Section 408.003, it is not likely that the insurance carrier would be allowed to reimburse the employer out of the injured worker’s impairment income benefits.
We agree with the resolution as stated. In this case, the labor agreement does not even reference specific sections of the Act and certainly makes no provision for a written request or agreement by the injured worker.
In line with Appeal No. 960532, supra, and with the guidance given in QRL 95-147, we agree with the hearing officer, that the labor agreement was negotiated before claimant’s injury and therefore cannot constitute a written request or agreement by the claimant after the injury for supplemented income benefits. The corollary is that any differential income benefits that were paid, were paid pursuant to the employer’s labor agreement and not as a supplement to income benefits under Section 408.003 and any recoupment would have to be under the labor agreement over which we have no jurisdiction. The hearing officer found, and we affirm, that claimant did not request or agree in writing that the employer supplement his income benefits.
Accordingly, we affirm the hearing officer’s decision and order.
Thomas A. Knapp – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Susan M. Kelley – Appeals Judge