This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On July 10, 1997, a contested case hearing (CCH) was held. The issues were whether the respondent (claimant) sustained an occupational disease as a result of her employment, the date of her injury, and whether she had disability. The hearing officer determined that the date of claimant’s injury was ___________; that she sustained an occupational disease (her vocal cord nodes were “caused by” her use of her voice at work), and that she had disability from her injury beginning December 10, 1996. The appellant (carrier) claims error in the hearing officer’s determinations on all three issues urging that an aggravation injury is not established by the evidence, that the claimant’s condition is an ordinary disease of life, that the evidence proves that she knew that her condition was related to her employment back in 1985, and that because there is no compensable injury, there is no disability. There is no response from the claimant.
DECISION
Reversed and a new decision rendered.
Claimant worked as a reservations agent in various divisions of the airline employer since 1984. Claimant testified that she first developed vocal cord nodes sometime in 1985 and subsequently in 1989. Each time, these nodes were surgically removed and she was given speech therapy in an effort to alter apparently faulty speech patterns (the nodules were stated to be “closely related to dysfunctional vocal habits” by her treating doctor). Claimant said this was focused on getting her to speak from the diaphragm instead of from her throat. Although not clear from the record, the claimant apparently saw her doctor in January 1996 regarding her condition, stated that around June of 1996 she had a problem with nodules at work, and that the nodes were surgically removed on December 10, 1996. She stopped work on December 10, 1996, and testified that the nodes occurred again in February 1997, some two months after she stopped working.
The claimant’s job duties were shown through the testimony of Mr. G, a supervisor, who had not directly supervised the claimant but had performed similar work for a year himself. Basically, claimant wore a headset, used a computer terminal, and was responsible for fielding telephone calls during the day. The number of calls ranged between 50 and 80. There was testimony that the break time between calls ranged from 13 to 40 seconds and that an agent would talk about 50% of the time on a call, the remainder of the time listening to a client and obtaining information on the computer. Agents are also provided a lunch break and two 15-minute breaks during the duty day. There were no voice or speaking requirements to the position other than using a “courteous and friendly voice” or polite voice.
Claimant indicated that she discussed with her mother, who had registered nurse’s training, as well as with her doctors, the fact that her nodes could be aggravated by the use of her voice on the job in 1985. The earlier spells were not the subject of any workers’ compensation claim, and treatment was paid through her regular health insurance. There was no evidence indicating whether or not the nodes that were present in 1985 and 1989 had not been removed completely. Claimant said that while she had periodic hoarseness and more throat infections from 1989 through 1996, it was not until January 1996 that she sought medical treatment again. Her doctor, Dr. P, told her at that time that she should change her occupation. She also was examined by Dr. S on a consulting basis.
In a letter dated March 17, 1997, Dr. P wrote his opinion concerning the relationship of claimant’s vocal cord nodes and her work:
The presence and natural course of laryngeal nodules is closely related to dysfunctional vocal habits, and may be severely aggravated by continual unrelenting use of the voice. It is therefore my medical opinion that in all reasonable medical probability [claimant’s] laryngeal nodules, and associated hoarseness, were significantly aggravated by her work as an airline reservationist. Additionally, she has been advised that she is at some risk of recurrence of laryngeal nodules and that this risk would be significantly increased by her return to work in the capacity of reservationist, or similar occupation that requires the continual unrelenting use of her voice.
Dr. P said he had treated claimant since “January 1996.” On March 25, 1997, Dr. S observed that he had concerns about the recurrence of her nodules being related to abusive vocal habits.
The hearing officer determined that the claimant sustained a compensable injury in the form of an occupational disease on January 31, 1996, finding the claimant had two prior surgeries to remove nodules and polyps and that her 1996 condition was an aggravation and therefore a new injury. Carrier cites our holding in Texas Workers’ Compensation Commission Appeal No. 92525, decided November 19, 1992, in urging that the evidence established no more than an ordinary disease of life. That case, involved a telephone operator who claimed a compensable injury to her throat and voice from talking on the telephone “all the time” and reports from her doctor that related her “talking eight hours continuously every day” to her work. In reversing and rendering a new decision, the Appeals Panel, citing among other cases Bewley v. Texas Employers Insurance Association, 568 S.W.2d 208 (Tex. Civ. App.-Waco 1978, writ ref’d n.r.e.), indicated that the hoarseness and throat condition of the claimant resulting from talking at a normal level of voice at work is an ordinary disease as a matter of law and was not compensable. We conclude the facts and circumstances of Appeal No. 92525, supra, are analogous to the situation under review. There was no evidence that the claimant spoke or was required to speak in other than a normal voice (compare Texas Workers’ Compensation Commission Appeal No. 931149, decided February 4, 1994), and the evidence showed that the claimant, while her job entailed regular use of her normal voice, about half of the time she was listening or obtaining information from a computer. Additionally, there were short intervals between the calls in addition to two breaks and a lunch period. Too, the evidence does not support the history or information apparently relied on by Dr. P in opining that the nodules “were significantly aggravated” by the work wherein he relates the condition to work citing the “continual unrelenting use” of the voice.
Occupational disease, by definition, does not include an ordinary disease of life to which the general public is exposed outside of employment. Section 401.011(34). The evidence here is clearly insufficient to take this case out of the category of ordinary disease of life to which the general public is exposed outside employment. Appeal No. 92525, supra.
We further conclude that under the facts of this case, the hearing officer’s finding that “[c]laimant’s 1996 condition is an aggravation and therefore a new injury,” is not supported by the evidence and is a misapplication of law. Clearly, the claimant’s nodule condition is long-standing, having resulted in two prior surgeries. The claimant indicated the recurrent nature of her condition and acknowledged experiencing hoarseness and infections from the second surgery to the time she decided to return to the doctor in January 1996. And, there was evidence that even after she stopped working she again developed nodes. Clearly, an aggravation to constitute a new injury requires more than a mere recurrence of a previous injury. Texas Workers’ Compensation Commission Appeal No. 970716, decided May 29, 1997. The evidence here supports no more than a continuation, recurrence or remanifestation of the previous injury or condition. Texas Workers’ Compensation Commission Appeal No. 962183, decided December 16, 1996; Texas Workers’ Compensation Commission Appeal No. 94168, decided March 25, 1994. Accordingly, applying the proper legal standard, a new injury through aggravation has not been established.
Regarding the assertion of error in the hearing officer’s determination that the date of injury was January 31, 1996, Section 408.007 provides that the date of injury of an occupational disease is “the date on which the employee knew or should have known that the disease may be related to the employment.” The claimant proceeded on the theory that she sustained a compensable aggravation of an occupational disease. The date of injury is normally a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 941374, decided November 23, 1994. Thus, the critical question was when the claimant knew or should have known that the claimed new aggravation injury may have been work related. The hearing officer made no express findings of fact of a date of injury. In her discussion, she noted that the claimant had surgery to remove the nodules in 1985 and again in 1989, presumably after which “Claimant was told by her treating doctors that her condition was related to using her voice and perhaps she should consider different work.” The claimant, responding to this advice, testified that she did consider becoming a flight attendant. Nothing came of this suggestion because she continued working as a reservationist, as stated by the hearing officer, “without problem for several years until 1996.” The hearing officer then reaches a conclusion of law that the compensable injury in the form of an occupational disease was sustained on __________. The only connection between this date of injury and the evidence appears to be Dr. P’s statement of March 17, 1997, in which he recorded that he had been seeing the claimant since January 1996, and previously discussed the work relationship of her injury. Such a vague reference is, we believe, on its face not consistent with a _______, date of injury.
The timing of claimant’s knowledge that her injury may be work related must be judged against the background of two prior surgeries for a similar condition and her own testimony that her doctor suggested a job change. Other evidence, relevant but excluded by the hearing officer, dealt with the claimant’s conversations with her mother at some time well before__________, about precisely this question of the relationship between her new experience of laryngitis and hoarseness and her now 10-year record of being a reservationist. We will reverse a factual determination of a hearing officer only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly 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). Given the posture of the evidence and the limited discussion in the decision and order, we cannot conclude that the determination of a date of injury by the hearing officer was supported by sufficient evidence. For this reason, we reverse the determination of the hearing officer that the date of injury was January 31, 1996.
A compensable injury not having been established, there can be no disability and that determination is reversed. Texas Workers’ Compensation Commission Appeal No. 931006, decided December 17, 1993.
For the foregoing reason, the decision and order of the hearing officer are reversed and a new decision rendered that the claimant is not entitled to benefits under the 1989 Act.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
DISSENTING OPINION:
I would have affirmed the decision in this case. While the evidence may not be as strong as was the case in Texas Workers’ Compensation Commission Appeal No. 931149, decided February 4, 1994, I do not agree that it is wholly insufficient to support the hearing officer’s decision. Speaking in a “polite” voice over half of the work day is not without stress and claimant has medical support in her favor. It is clear that she discussed with her doctor the aspects of her job and that he concluded from this that her nodes were aggravated by her work. What removes this condition from ordinary disease of life is that the activity in which claimant was engaged is not one that the general public is required to do (or so the hearing officer could believe). The hearing officer could choose to believe that breaks between calls have been reduced down to 13 seconds as stated by the claimant (the testimony about the interval between calls which the majority decision describes as a “range” was, in fact, conflicting evidence about the duration). The “lunch period” referred to in the majority decision was not the standard hour, but half an hour. Likewise, evidence that only 50% of a phone call required claimant to speak came from the testimony of another, and claimant’s evaluations indicate she received high marks for being proactive in asking questions and in supplying information. Finally, the date of injury finding is sufficiently supported by testimony indicating that claimant went to her doctor in January 1996. The hearing officer is required to find a date of injury even if the parties are not as precise about specifying the day as they could be. The fact that similar nodes were experienced years before does not establish a date of injury for the current bout of nodes. The majority opinion’s statement that the nodes removed in 1996 represent a “continuation” of a prior condition is pure speculation and not supported by the record in this case. In any case, this, too, was the fact finder’s call.
It is clear that the judges in the majority would have decided the case differently were they the fact finders. I am disinclined to second-guess the medical opinion that the hearing officer evidently found persuasive or to sit as fact finder in the hearing officer’s place and would affirm the decision.
Susan M. Kelley – Appeals Judge