This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On June 18, 1997, a contested case hearing. The issue, as restated, was:
Is the compensable injury a producing cause of left lower extremity reflex sympathetic dystrophy (RSD), tear of the left [A]chilles tendon, partial tear of the anterior cruciate ligament of the left knee, a posterior cruciate ligament injury of the left knee and medial meniscus left knee abnormality?
To facilitate the flow of events, we note that the parties stipulated that appellant (claimant) sustained a compensable injury to his left knee and ankle on ______ (the compensable injury), and it is further undisputed that another event occurred on ________ (the parties and the hearing officer refer to this as the ________ injury). The hearing officer determined the ________ “1995 injury did not naturally progress from the old injury” and the ________ “1995 injury caused” the various medical conditions listed in the stated issue, and that the “compensable injury was not a producing cause” of those conditions.
The claimant takes issue with the hearing officer’s statement that “this case presents a question of law only,” the failure of the hearing officer “to consider the testimony of Dr. M” (actually the “written deposition” of Dr. M), and various portions of the hearing officer’s determinations, including the fact that the hearing officer erroneously referred to the male claimant as “she” in a stipulation. Claimant requests that we reverse the hearing officer’s decision and render a decision in his favor. Respondent (carrier) rebuts claimant’s appeal and urges affirmance.
DECISION
Affirmed for the reasons stated.
The hearing officer states “[t]he facts in this case are clear.” The parties stipulated that claimant sustained a compensable left knee and ankle injury on ______ (when claimant caught his foot between an elevator and the wall and the elevator door shut on his leg). Exactly what treatment was rendered at the time is not clear, but he was seen by Dr. J on January 24, 1995, for a sprained ankle, placed “into a 3D short-leg walker” and sent to physical therapy (PT). Claimant testified that he had continuous pain and discomfort in his left knee and ankle from ______, onward. An MRI scan of the left ankle performed on April 17, 1995, showed only “mild intratendinous degeneration and previous tenosynovitis of the tibialis posterior tendon/sheath is suggested.” A limited bone scan of the left ankle on April 28, 1995, showed only “modest degenerative change.” X-rays of the left heel of that date were normal. An evaluation by Dr. TM on May 2, 1995, indicated claimant had not had any surgery or injections, noted the previous diagnostic studies, had a diagnostic impression of “chronic left ankle dysfunction,” noted some “mild level of depression” and recommended a stretching PT program. Dr. TM, on a Specific and Subsequent Medical Report (TWCC-64) dated June 14, 1995, released claimant to return to work at “normal activity” effective June 8, 1995.
Dr. G, claimant’s treating doctor at the time, in a report dated June 27, 1995, had an impression of “[h]istory of left ankle sprain with normal work up” with a recommendation of PT. In a report dated July 3, 1995, Dr. G stated that claimant was given an impairment rating (IR) before he had completed his treatment and that when he finished the treatment plan he would be at maximum medical improvement (MMI). In a report dated July 17, 1995, Dr. G noted that claimant had “developed mild ankle contractures.” In a report of August 29, 1995, Dr. G said claimant was still not at MMI. In a report dated August 24, 1995, Dr. D, who is later identified as a treating doctor, noted some tenderness over the Achilles tendon, but stated that claimant “has some residual injuries to his ankle primarily which fits in a pattern of sprain and possible tendonitis [sic].”
Apparently, Dr. O was appointed as the Texas Workers’ Compensation Commission (Commission)-selected doctor and, on a Report of Medical Evaluation (TWCC-69) and narrative, both dated October 4, 1995, certified claimant at MMI on June 18, 1995, with a five percent IR, noting “a[n] audible and palpable click when the knee cap gets in a bind.” The five percent IR was based on four percent impairment for loss of range of motion (ROM) of the ankle and one percent impairment for the “click.” Dr. O did a comprehensive evaluation of the existing medical reports and records. Dr. D, in a note dated October 20, 1995, for a visit on October 18, 1995, referencing a “DOI: ________,” states MMI was reached September 26, 1995, and agrees with the designated doctor’s “5% disability rating.” Dr. D released claimant from care.
It is not clear whether claimant returned to work or not; however, claimant testified that on ________, while at home walking to the mailbox, he “felt a pop in the back of my ankle.” Exactly what happened next is unclear, but claimant said he immediately sought medical treatment from his own doctor, Dr. N. Dr. N’s report of November 20, 1995, notes claimant’s ________ injury, treatment by Dr. G, and states “[claimant] hurt his left ankle again last Sunday.” Dr. N goes on:
Patient states he was walking to the mail box at home and his left ankle gave out. Patient was wearing tennis shoes, but no braces at that time. He put some ice packs on the ankle and today his ankle is still painful especially with walking. Patient also complains of left knee pain.
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IMPRESSION: 1. Left ankle sprain; 2. Possible partial tear of the Achilles’ tendon.
Dr. G, in a report dated January 16, 1996, noted an abnormal gait pattern and “knee pain now has edema.” Dr. G recommended repeat MRI scanning of the left knee and ankle.
Claimant changed treating doctors from Dr. D to Dr. M on March 29, 1996, approved on April 2, 1996. Dr. M, in a report dated March 25, 1996, stated:
He now has allodynia below the left knee, with 2/5 swelling/edema in foot as compared to no edema on the right. The patient’s left foot is palpably cooler than the right. The pain, which originally was limited to the knee, has gradually spread to include the ankle, foot and all toes. He walks with a limp, favoring the left leg. He reports that he is unable to work.
Dr. M diagnosed RSD of the left lower extremity. Dr. M, in a report dated June 25, 1996, diagnosed RSD of the left lower leg and internal derangement of the left knee and ordered an MRI of the left knee. Dr. M, in a “follow up note” dated July 12, 1996, repeated his RSD diagnosis and stated “An MRI performed on the left knee reveals anterior and posterior cruciated ligament meniscus tears and sprains.” In another follow-up note, dated July 19, 1996, Dr. M states “MRI findings reveal as follows: Left ankle-complete tear of Achilles tendon. Left knee partial ruptures of ACL, PCL and possible meniscal tear.” Dr. M referred claimant to Dr. W. Dr. W, in a report of September 16, 1996, notes a history of “a complicated injury starting _____” and has an impression of RSD with Achilles tendinitis. An additional “MRI reveals an attenuation of the Achilles with bulbus expansion consistent with a tear & subsequent healing.”
The Commission apparently sent claimant back to Dr. O for an opinion on causation. (Both parties and the hearing officer rely extensively on Dr. O’s subsequent October 9, 1996, opinion, probably because it is the only report in evidence which addresses causation head-on.) In his October 9th report to the Commission, Dr. O notes that claimant “has a tear of the Achilles tendon. This is basically new. He also has a probable partial tear of the anterior cruciate ligament in the knee. This also in my opinion would be new.” Dr. O reviews the findings of his October 1995 report, including the April 1995 MRI. Dr. O’s opinion is that claimant does not have RSD. Dr. O summarized claimant’s ________, incident and the treatment he received for that injury and the more recent MRIs. (Dr. O states that surgery will be required for the ankle injury.) Dr. O commented that the ________ injury “no doubt . . . gave him weakness, caused his leg to give out which caused at least a partial tear of the Achilles.” Dr. O emphasizes that the original injury did not cause claimant’s present condition, but that “[t]he work injury weakened the area and certainly caused him to be susceptible to this with activities of daily living.” Dr. O concluded, “[i]f he had not had the original work injury, in all probability he would not have gotten this tear and this abnormality in the knee.”
The hearing officer, at the beginning and end of the CCH, announced that a deposition on written questions had been sent to Dr. M and that the record would be left open to receive Dr. M’s answer and the carrier’s response, if any. The hearing officer’s decision lists as Hearing Officer’s Exhibit No. 2 “[Dr. M’s] Answers to Interrogatories – Not admitted.” (No reason is given why the answers were not admitted and whether carrier had been given an opportunity to respond, nor does either claimant’s appeal or carrier’s response directly address this other than claimant citing error for the hearing officer “ignoring the testimony of [Dr. M] (which is only anecdotally [sic] referred to as ‘Answers to Interrogatories.’)”) The hearing officer, in his Statement of the Evidence, comments “[h]ad [Dr. M’s] answers to interrogatories been admitted into evidence, it would not have changed the findings, conclusions or decision in this case.”
Carrier, at the CCH (but not on appeal), cited Texas Workers’ Compensation Commission Appeal No. 950524, decided May 19, 1995, which is referenced and distinguished by the hearing officer in his decision. The issue in Appeal No. 950524 was whether a compensable knee injury caused a subsequent neck and shoulder injury. The Appeals Panel in Appeal No. 950524 reversed the hearing officer’s decision that the subsequent injury was compensable, applying the “flowing naturally” standard found in Maryland Casualty Co. v. Rogers, 86 S.W.2d 867 (Tex. Civ. App.-Amarillo 1935, writ ref’d), and other Appeals Panel decisions. See also Maryland Casualty Co. v. Sosa, 425 S.W.2d 871 (Tex. Civ. App.-San Antonio 1968, writ ref’d n.r.e.).
The hearing officer distinguished Appeal No. 950524 on the basis that in the present case “the injuries are intertwined” and that the same body parts are involved in both injuries. The hearing officer cites as authority Texas Workers’ Compensation Commission Appeal No. 951402, decided October 5, 1995, a case involving a compensable right knee injury extending to a subsequent alleged left knee injury because of use of crutches. The Appeals Panel reversed the hearing officer’s determination of a compensable right knee injury, again citing the Rogers, supra, case, applying a “direct and natural result of the original compensable injury.” The Appeals Panel, in Appeal No. 951402, cited 1 ARTHUR LARSON, THE LAW OF WORKMEN’S COMPENSATION § 13.11 (1990), stating:
A distinction must be observed between causation rules affecting the primary injury . . . and causation rules that determine how far the range of compensable consequences is carried, once the primary injury is causally connected with the employment. As to the primary injury, it has been shown that the “arising” test is a unique one quite unrelated to common law concepts of legal cause, and . . . the employee’s own contributory negligence is ordinarily not an intervening cause preventing initial compensability. But when the question is whether compensability should be extended to a subsequent injury or aggravation related in some way to the primary injury, the rules that come into play are essentially based upon the concepts of “direct and natural results” and of claimant’s own conduct as an independent intervening cause.
Appeal No. 951402 also cited a number of other Appeals Panel decision applying a “naturally flowing” standard to claimed follow-on injuries.
The hearing officer appeared to apply the “flowed naturally” standard, although referring to it as “natural progression” and “naturally progressed as a result of the old injury.” (We note the “natural progression” language is used in Section 408.008, the hearing attack section.) The hearing officer also states that “[w]ith these clear facts this case essentially presents a question of law.” Claimant’s first point on appeal attacks the hearing officer’s comment that this case “presents a question of law only,” and contends that “a question of fact is at issue.” Claimant argues in terms of “producing cause” and “producing causation.” We hold that this case should be analyzed on the basis of whether the subsequent injury “flowed naturally” from the original compensable injury. We have many times held that whether there was a follow-on injury which flowed naturally from the original injury was a fact question for the hearing officer to determine. Texas Workers’ Compensation Commission Appeal No. 960407, decided April 10, 1996, and Texas Workers’ Compensation Commission Appeal No. 951108, decided August 23, 1995.
In this particular case, we believe the hearing officer applied the correct standard in deciding the case. Dr. O’s October 1996, report presents a rather extensive discussion of the factual circumstances of this case and the hearing officer could, and apparently did, rely heavily on that opinion. While Dr. O clearly established that the compensable (first date of injury) weakened claimant’s knee and ankle and made it more susceptible to subsequent injury, the hearing officer could, and apparently did, determine that opinion stopped well short of saying that claimant’s subsequent torn Achilles tendon flowed naturally from the ______ injury. We interpret the hearing officer’s determinations that the ________, injury “did not naturally progress from the old injury” to mean that the ________ injury had not flowed naturally from the compensable ____ injury. We find that interpretation to be supported by the evidence, principally Dr. O’s October 1996 report. While it is true, as the claimant contends, that no doctor has stated that claimant’s current injury was not a “producing cause” of the original injury and that Dr. O’s report does not say the current condition was not a producing cause we affirm the hearing officer’s determinations that since the current injury had not flowed naturally from the original injury, and therefore it is not compensable.
The fact that the hearing officer announced that Dr. M’s written deposition would be considered and sent to carrier for comment and then, subsequently, the hearing officer refused to admit that document without any explanation or rationale may, in some circumstances, result in a remand; however, in this case the hearing officer apparently looked at it, and considered it before excluding it. The hearing officer remarks that it would not have changed his decision in the case. We agree that the hearing officer erred in excluding Dr. M’s unsigned documentary evidence without a ruling or explanation. However, under the circumstances of this case, we find it was harmless error in that the failure of the hearing officer to rule on the reason for the exclusion was not reasonably calculated to cause, and probably did not cause, the rendition of an improper decision. See Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). This is particularly so in that the hearing officer stated, apparently after reading the evidence, that it would not have changed the findings, conclusions or decision in the case. Also, the hearing officer’s erroneous typographical error in referring to claimant as she does not constitute reversible error.
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 for the reasons stated.
Thomas A. Knapp – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Gary L. Kilgore – Appeals Judge