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 December 30, 1997. She (hearing officer) determined that respondent’s (claimant) compensable injury of ________, did not extend to a neck injury, but that the neck injury became compensable as a matter of law because the appellant (carrier) failed to timely dispute it, and that the claimant had disability as a result of the ________, injury from August 6, 1997, through the date of the hearing. The carrier appeals the determinations that it failed to timely dispute the neck injury and that the claimant had disability, contending they are against the great weight of the evidence. The claimant replies that the decision regarding carrier waiver of the right to dispute the compensability of the neck injury is correct and should be affirmed. Neither party has appealed the determination that the claimant did not sustain a cervical injury in the course and scope of her employment on ________, and this determination has become final. Section 410.169. The claimant appeals on the date of the beginning of disability as found by the hearing officer. This appeal is contained in its response to the carrier’s appeal. The claimant acknowledges that she received the decision and order on January 20, 1998. The 15 days from the date of receipt for filing an appeal expired on February 4, 1998. The response is dated February 16, 1998, and was received by the Texas Workers’ Compensation Commission (Commission) on February 18, 1998. It was, therefore, untimely as an appeal of the disability issue. Section 410.202.
DECISION
Affirmed in part and reversed and remanded in part.
The claimant testified that while picking up boxes at work on ________, she felt a sensation run up her right hand and arm “like a shock.” The initial diagnosis by (Dr. S) was a wrist sprain. She then began treating with (Dr. G), D.C., who, in an Initial Medical Report (TWCC-61) of July 7, 1997, diagnosed Reflex Sympathetic Dystrophy (RSD), pain in the right forearm, and injury to the wrist. Dr. G referred the claimant to (Dr. P), who diagnosed RSD. With the preauthorization of the carrier, Dr. P administered a stellate ganglion block on the right side on January 22, 1997, on January 29, 1997, and on February 5, 1997. Symptoms of pain and numbness in the right arm subsided for a period of time and then returned in May 1997. Dr. P again saw the claimant and in a report of June 3, 1997, which was stamped as received by the carrier on June 23, 1997, recommended a series of daily stellate blocks which he hoped would give her some “benefit from the possible cervical pathology at this time.” These were also approved by the carrier. He also suggested an EMG and MRI of her neck to “clarify” whether she had a cervical lesion. In a letter to the carrier written toward the end of June 1997, Dr. G requested an MRI of the cervical spine “to better aid in the differential diagnosis of a spinal canal process with myelopathy and radiculopathy than would an EMG.” An MRI of the cervical spine on July 9, 1997, disclosed a small herniation at C3-4, but described “[n]o significant abnormality.”
(Ms. W), the adjuster for this claim, testified by telephone that this case was “originally handled” as a wrist injury with RSD. She said she spoke with Dr. G about his request for a cervical MRI and that the purpose of the MRI was to rule out the neck as the source of the claimant’s pain. She admitted to having received the MRI results by July 14, 1997, and that on July 15, 1997, Dr. G told her the claimant’s injury was not to the neck. In a letter of July 14, 1997, to the carrier, Dr. G wrote that the “MRI of the cervical spine does not match her complaint of clinical presentation. The study failed to present a spinal canal process with myelopathy.” Dr. G then recommended EMG testing to “differentially diagnose a radicular syndrome versus an atypical arm pain possible of discogenic origin.” Ms. W also testified that she was not aware where the stellate ganglion blocks were made in the body, but that they were approved as treatment for the RSD and that the MRI was only wanted by Dr. G to rule out cervical pathology.
Eventually, (Dr. J) became the treating doctor. In a TWCC-61 of August 6, 1997, Dr. J described the complaint as “mainly of neck pain, which radiates into the right arm” and of “some weakness in the right arm.” He diagnosed cervical radiculopathy. Ms. W testified that she received this report on September 15, 1997, and, after unsuccessful attempts to obtain all of Dr. J’s reports and after conversations with his office staff, filed a Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) on October 23, 1997, contesting the compensability of a cervical injury.
Section 409.021(c) provides that if a carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the carrier waives its right to contest compensability and the claimed injury becomes compensable as a matter of law. Texas Workers’ Compensation Commission Appeal No. 961176, decided July 26, 1996. The 60-day period for disputing compensability is triggered by a written notice of an injury. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.1(a)(3) (Rule 124.1(a)(3)) provides that if no first report of injury has previously been filed by the employer, written notice of injury consists of any other notification, regardless of source, which fairly informs the carrier of the name of the injured employee, the identity of the employer, the approximate date of the injury, and “facts showing compensability.”
The resolution of the issue in this case of whether the carrier failed to timely dispute compensability depends on a determination of what written notice fairly informed the carrier, with facts showing compensability, of “an injury to the cervical area.” The hearing officer determined that the MRI report of July 9, 1997, was received by the carrier by July 14, 1997, and triggered the requirement for the carrier to dispute a cervical injury within 60 days or waive the right to do so. Unfortunately, the hearing officer’s pertinent Finding of Fact No. 7, states only that the “carrier received written notice of a possible cervical injury no later than July 14, 1997.” She makes no other findings of fact, nor does she discuss how this MRI report contained “facts showing compensability.” The MRI, on the one hand, gives an impression of a small herniation, and on the other hand, it points to no significant abnormality and does not mention trauma, an injury or a date of injury.
The claimant relies on our decision in Texas Workers’ Compensation Commission Appeal No. 961090, decided July 22, 1996, for the proposition that “a Carrier’s 60 day clock begins with receipt of an abnormal MRI.” In that case, the claimant sustained an electric shock injury. Lumbar and cervical MRIs showed herniation. The carrier received copies of the MRI results, but did not dispute compensability on the basis of these reports within 60 days of receipt. Two later evaluations assigned a zero percent impairment rating (IR). In affirming a determination that the MRI reports put the carrier on notice that lumbar and cervical disc problems were being asserted as part of the compensable injury, we wrote:
Unless the claimant’s injury at least arguably included some lumbar and cervical disc derangement, then there would have been no need to conduct lumbar or cervical MRI’s as part of the claimant’s work-up for the electric shock injury or to provide these reports to the carrier . . . these reports were sufficient to put the carrier on notice that cervical and lumbar disc problems were asserted to be included in the claimant’s injury.
In this case, the type of injury indicated that the MRI was intended for an adequate diagnosis. There was never a contention that the lumbar spine and cervical spine were not part of the compensable injury. In the case we now consider, unlike the facts in Appeal No. 961090, supra, Dr. G expressly excluded a cervical condition as part of the compensable injury in the letter he sent to the carrier at about the time the carrier received the results of the MRI. These seemed to confirm the theory of the injury as pain radiating up the arm, not down the arm from the cervical spine. It was not until Dr. J’s report of August 6, 1997, that the cause of the arm numbness and pain was attributed not to the wrist injury or RSD, which the carrier accepted, but to cervical pathology. Thus, we do not consider our decision in Appeal No. 961090 controlling in this case.
Our decision in Texas Workers’ Compensation Commission Appeal No. 972672, decided February 6, 1997 (Unpublished), presented a fact situation similar to the one we now consider. In that case, the claimant sustained a compensable neck and low back injury which resulted in surgery to the lumbar spine. Later the claimant developed left arm pain, tingling, and numbness. The hearing officer found that the report of the pain in the left arm constituted notice of left arm neuropathy which triggered the 60-day period for disputing compensability of a left arm injury. The Appeals Panel found that this notice of pain did not trigger a duty to contest an ulnar nerve condition because, at the time, the arm pain was being attributed to the cervical injury for which the self-insured had accepted liability, and not to ulnar nerve neuropathy. The claimant eventually had cervical surgery, but the complaints of the left arm pain continued. Only then were tests performed to determine that the cause of the arm pain was not cervical disc disease, but ulnar neuropathy. The Appeals Panel found that a later notice of injury which addressed the pain in terms of ulnar neuropathy triggered the 60-day dispute requirement. Because a timely contest was not filed in response to this later notice, the Appeals Panel upheld the decision of the hearing officer, albeit on a different basis than that found by the hearing officer. We believe this case is similar to the one we now consider because, at the time of the July 7, 1997, MRI, the claimant and his treating doctors considered the source of the right arm pain to be the wrist injury or RSD, and not cervical pathology. Not until an assertion was made by Dr. J that the arm pain was the result of cervical radiculopathy, was the carrier on notice of a claimed compensable cervical injury that had to be disputed within 60 days or waived.
For the foregoing reasons, we find that the hearing officer’s determination that the MRI report of July 7, 1997, constituted written notice to the carrier of a claimed cervical injury was contrary to the great weight and preponderance of the evidence. We reverse this determination and render a decision that the first written notification of a claimed cervical injury was Dr. J’s report of August 6, 1997, discussed above, which according to the uncontradicted testimony of Ms. W was not received until September 15, 1997. We remand this issue for further findings of fact and conclusions of law as to whether a dispute was timely filed by the carrier not later that 60 days after September 15, 1997. See also Texas Workers’ Compensation Appeal No. 980177, decided March 13, 1998.
The carrier also appeals the hearing officer’s determination that the claimant had disability due to her right arm and wrist injury from August 6, 1997, through the date of the CCH. According to the claimant’s testimony, she has not worked since March 10, 1997. She further said she told the employer on March 10, 1997, that she could not work for a couple of weeks because her ex-husband was stalking and harassing her. On April 1, 1997, Dr. G released the claimant to return to full duty. At the CCH, the claimant testified that she did not feel able to work because of her “condition.” On August 6, 1997, as a result of her initial evaluation by Dr. J, he placed her in a “off work” status which he has generally renewed thereafter.
The hearing officer commented in the decision and order that the claimant’s “testimony regarding disability was not credible.” In particular, the hearing officer stated that the claimant’s testimony that her domestic difficulties did not cause her to be unable to work was not credible. Despite this determination of a lack of credibility, the hearing officer based a finding of disability on Dr. J’s duty excuse and the opinion of a designated doctor on September 9, 1997, that the claimant was not yet at MMI. It has been held that disability can be established by the testimony of the claimant alone if found credible. Texas Workers’ Compensation Commission Appeal No. 93560, decided August 19, 1993. In this case, we have the somewhat anomalous situation of a hearing officer disbelieving a claimant’s assertion that she was unable to work because of her injury, but relying on the treating doctor’s duty excuses. Section 401.011(16) defines disability as the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. In order to find disability, the compensable injury need only be a producing cause of the inability to earn the preinjury wage, not the sole cause. Texas Workers’ Compensation Appeal No. 960054, decided February 21, 1996. In this case, we can reconcile the hearing officer’s refusal to believe the claimant’s explanation that her domestic problems did not keep her from work with the finding of disability on the theory that, whatever role the domestic problems had in keeping the claimant from work, the compensable injury also played some causative role. The carrier argues on appeal that the domestic difficulties were, in effect, the only cause of the claimant’s failure to return to work. This evidence presented a factual question for the hearing officer to resolve. The evidence of disability was obviously in conflict. The hearing officer resolved this conflict in favor of the claimant and, under our standard of appellate review, we decline to reverse that determination. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986).
We affirm the findings of disability, but reverse and remand the determination that the carrier waived the right to contest the compensability of the cervical injury. On remand, the hearing officer is to make findings of fact and conclusions of law about when the carrier disputed the written notification of a compensable neck injury and whether such dispute was timely.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Alan C. Ernst – Appeals Judge
CONCUR:
Christopher L. Rhodes – Appeals Judge
DISSENTING OPINION:
I dissent for a number of reasons. First and foremost, I think the majority opinion only serves to weaken one of the cornerstones of the 1989 Act. Second, I think it unnecessarily confuses our jurisprudence. Third, I do not believe that the majority opinion properly applies our prior cases on this issue. Finally, I believe that properly applying our standard of review the decision of the hearing officer should be affirmed. I shall discuss each of these points separately and at some length.
Section 409.021 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.6 (Rule 124.6) both clearly require that a carrier dispute a claim within 60 days of receiving written notice of a claim or waives its right to do so. In my dissenting opinion in Texas Workers’ Compensation Appeal No. 94292, decided April 26, 1994, I expressed my view that I believed failing to strictly apply these provisions undermined one of the basic purposes of the 1989 Act, stating in part as follows:
The 1989 Act was designed to cut costs to prevent the Texas workers’ compensation system from collapse. Inherent in the process of cost cutting was the need for sacrifice. This sacrifice was mitigated by additional benefits which the 1989 Act provided to the claimant was a promptness of payment and processing of claimants which had been sorely lacking under pre-1989 Act law. Section 409.021 and Rule 124.6 were clearly enacted to further this promptness. Failing to strictly apply these dictates from the legislature and Commissioners will, in my mind, not further promptness, but could encourage delay, not only in the payment of claims, but in their investigation, by reducing the pressure on the carriers to act promptly. Further, it is unfair to the carriers that have made a determined and successful effort to comply with the requirements of the law to have to compete with a slacker who is not penalized for noncompliance. Also, by muddying what constitutes compliance with Section 409.021 and Rule 124.6, this decision could undermine the Commission’s own compliance and enforcement efforts.
In addition to the equity considerations expressed above there is an additional question of administrative efficiency to consider. The 1989 Act continues the tradition, which dates from the beginning of the Texas workers’ compensation law and which itself is based upon the precepts of the American tort system, of relying primarily on private insurance carriers to administer the Texas workers’ compensation law with oversight by a state agency. This scheme has always contemplated that the great majority of claims would be processed by carriers with minimal need for agency involvement which should be reserved for those cases which constituted unique or difficult questions or in which a party failed to follow the dictates of the law. Ideally, such a system does not require a tremendous bureaucracy to administer as most cases will be resolved without governmental micromanagement. To me, Section 409.021 and Rule 124.6 by setting a firm deadline on carriers regarding case management further the automatic operation of the Texas workers’ compensation system and, failing to strictly apply them or create exception to them only creates situations where the agency will be called upon to decide whether or not such exceptions apply, requiring more bureaucracy and undermining the administrative efficiency of the system.
The undermining of administrative efficiency also underlies my second concern with the majority decision. Even though the Appeals Panel addresses only a minority of the cases which enter the dispute resolution system, which is itself a small minority of the total number of cases in the Texas workers’ compensation system, our written decisions now number over 10,000 and continue to grow at an accelerating rate. Merely keeping abreast of this voluminous jurisprudence is a daunting task for the members of the Appeals Panel itself, and I think can be an almost impossible task to anyone who is not devoting their full time to it. I think the sheer volume of decisions puts a great burden on our hearing officers in trying to apply them. One way that we have tried to reduce this problem is to designate a number of our opinion as being “Unpublished.” These cases are not sent to Westlaw for publication in its reporter. My understanding of not publishing a decision is that it is an indication that the case has little to no precedential value because it merely represents the application of well-established legal doctrine without breaking any new ground. While members of the Appeals Panel, including myself, have cited unpublished decisions before to illustrate or bolster a point, to purport to rely almost exclusively on an unpublished decision, as the majority does here, makes the distinction between unpublished and published meaningless. This means that anyone seeking to follow our precedent must carefully look at all of our decisions, not just the published cases, which of course makes our jurisprudence not only more unwieldy, but also partially hidden from anyone seeking to research it using Westlaw. However, in my view, an even worse aspect of the majority’s decision is that it seeks to draw a very fine legal distinction, unfounded in my opinion for reasons I shall discuss infra, between a published and an unpublished decision as what constitutes written notice to trigger the application of Section 409.021 and Rule 124.6. Even were this fine distinction well founded, the drawing of distinctions based upon extremely fine factual nuances can only make our jurisprudence more difficult to follow and apply. Going down this road will in my view eventually make Appeals Panel jurisprudence incomprehensible to anyone, including the members of the Appeals Panel.
I am unpersuaded by the majority’s attempt to distinguish our decision in Texas Workers’ Compensation Appeal No. 961090, decided July 22, 1996, from the present case. One distinction the majority appears to attempt to draw is that in the present case the MRIs were “done for an adequate diagnosis.” Since the MRI is a diagnostic test, I would think its purpose in any case would be to obtain an adequate diagnosis. In the present case it seems to me that there were sufficient facts for the hearing officer to conclude that the reason for the MRI was to determine whether the claimant’s injury included a cervical spine injury. The MRI here indicated that the claimant had a herniated cervical disc. While the majority latches onto the use of the word “normal” in the MRI report, the indication of a cervical disc problem in my view indicated it was a positive cervical MRI. In the context of the fact that the MRI was being performed to determine whether the claimant had a cervical injury, it appears to me that receipt of a positive MRI should have put the carrier on notice that the claimant’s injury could extend to her neck. I understand that the claimant’s treating doctor read the MRI not to indicate this. However, it is not necessary for the claimant to prove the absolute existence of an injury or to establish that there was no evidence contradicting an injury to trigger the application of Section 409.021 and Rule 124.6. Here, it was abundantly clear that the carrier was aware that the claimant’s injury might include a cervical injury, and I think the hearing officer could conclude that based upon the receipt of a positive cervical MRI that the carrier was under an obligation to dispute a cervical injury. While the treating doctor’s opinion that the MRI did not establish a cervical injury could well have been the basis for that dispute, I fail to understand how it relieved the carrier as a matter of law from the requirements that it dispute within 60 days. Investigating and weighing contradictory evidence is the reason the carrier is given time to dispute, not a reason to relieve it from an obligation to timely dispute.
Further, I do not find the majority’s reliance on our unpublished decision in Texas Workers’ Compensation Appeal No. 972672, decided February 6, 1997 (Unpublished) well-placed. In addition to be an unpublished opinion I also note that in Appeal No. 972672, the majority affirmed the decision of the hearing officer. It is difficult for me to fathom the majority’s reasoning in relying on Appeal No. 972672 to justify reversing the hearing officer’s decision in the present case. A close reading of Appeal No. 972672 shows that in that case the cervical MRI was not performed to determine whether or not the claimant’s injury included an injury to the cervical spine. It was undisputed in Appeal No. 972672 that the claimant had a cervical spine injury. The MRI was done not to determine whether or not the claimant had a cervical injury but to rule out whether or not the claimant’s arm symptoms could be caused by cervical problems. The MRI was negative and only later testing determined that the claimant’s arm symptoms were caused by ulnar nerve damage in the arm itself. The hearing officer concluded in that case that the carrier was only on notice of an injury to the arm when later testing established an ulnar nerve problem. In my mind this case is not controlling to the present case where the MRI was performed to determine whether there was a cervical injury and was positive.
The question of whether a medical report is sufficient to put a carrier on notice that an injury includes a body part so as to trigger the application the carrier’s obligation to dispute the inclusion of the body part in the injury is a mixed question of fact and law. Here, the hearing officer found that an MRI showing a herniated cervical disc was sufficient to put the carrier on notice of a cervical injury. I think that there was ample evidence to support the hearing officer so finding and that the majority as shown no reason that the MRI report was inadequate as a matter of law to the carrier’s duty to dispute. By overturning the hearing officer’s determination, I believe that the majority is simply substituting its view of the evidence for that of the fact finder in contradiction of our oft stated standard of appellate review. I would affirm the decision and order of the hearing officer.
Gary L. Kilgore – Appeals Judge