This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 5, 1998. The single issue reported from the benefit review conference was whether the compensable injury was a producing cause of the appellant/cross-respondent’s (claimant) left knee condition. The respondent/cross-appellant (carrier) raised a question about whether the injury was in course and scope and whether there was disability. In response, the claimant’s attorney indicated if adding issues was what it would take to go forward, that is the way he would go. The hearing officer, stating that “there’s no such thing as whether we can’t resolve whether one body part extends to another if there’s no compensable injury . . . ,” then added these two issues: “Did the claimant sustain a compensable injury on _____,” and “Did the claimant have disability as a result of the _____, injury and if so, for what period.” Unfortunately, this changed the whole complexion of the case. The hearing officer determined that the claimant sustained a compensable injury on _____, that the compensable injury is a producing cause of claimant’s left knee condition, and that the claimant did not have disability “resulting from the injury sustained on _____, from _____, to the date of this hearing.” The claimant appeals the determination on disability, only citing the medical evidence that shows the injury and effects thereof, and does not address economic factors in accordance with the definition of disability. The carrier appeals the determination that the compensable injury (to the right knee) is a producing cause of the claimant’s left knee injury condition, or is otherwise compensable, urging there was no evidence that the left knee naturally resulted from the right knee.
DECISION
Reversed and remanded in part and affirmed in part.
Regarding the determination that the claimant’s compensable injury (right knee on _____) is a producing cause of claimant’s left knee condition, the claimant testified that he twisted and injured his right knee on _____, that he was unable to work and had to use crutches, that he subsequently had to have surgery on the right knee, that a couple of weeks prior to the surgery he had started having pain in his left knee on which he placed more weight, and that the pain to his left leg continued to worsen after his surgery on the right knee. He was subsequently diagnosed with internal derangement of the left knee with probable tear of left medial meniscus. The claimant treating doctor, Dr. H, states his opinion in an October 14, 1996, report that:
It is my impression that his left knee pain is directly related to the injury of _____, since the pain was not present prior to his fall. Initially after the injury, he was at bed rest and was only undergoing limited weight-bearing and the right knee was predominantly tender. After the surgery, he returned to work and became more active. He began having increasing pain in the left knee indicating there could have been a tear which occurred at the time of the initial injury which became worse, or it could have been a tear which resulted from increasing stress of full weight-bearing on his left knee with protected weight bearing to the right knee because of the right knee surgery.
At any rate, I do feel that the left knee injury is the direct result of the injury of _____.
Pursuant to the direction of the Texas Workers’ Compensation Commission, the claimant was examined by a doctor designated to render an opinion on the causality of the left knee injury. Dr. J rendered a report dated September 2, 1997, which indicates that the claimant’s mechanical malalignment, obesity, and arthritis were unquestionably present prior to the fall but that it appears that the surgery on the right knee has loaded the left leg and caused the pre-existing arthritic condition to be more symptomatic. He goes on to state that:
In summary, I think the symptoms he is currently having in his left knee are related to the pain and the right knee post-operatively increased load the left knee has had to sustain. I have seen this many times, and this seems to push this arthritic-type knee over the edge into becoming quite symptomatic.
Regarding the assertion of no evidence, this is certainly some evidence to support the factual determination of the hearing officer. We believe this is sufficient to establish a direct flow of events to causally relate the left knee condition to the compensable injury of _____. Texas Workers’ Compensation Commission Appeal No. 93414, decided July 5, 1993. In Appeal No. 93414, an injury resulting from a changed gait, similar to the circumstances here, was held compensable. The follow-on left knee injury is not so remote in time from the original injury nor is there some distinct activity or incident such as a fall or burning incident that caused a new, distinct injury. See Texas Workers’ Compensation Commission Appeal No. 950524, decided May 19, 1995, and Texas Workers’ Compensation Commission Appeal No. 93672, decided September 16, 1993, for a discussion of cases on this issue. In sum, we cannot conclude that there was no evidence to support the determination of the hearing officer. Nor, for that matter, can we conclude that the determination of the hearing officer on this issue was so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. 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 also do not find a misapplication of the law. Accordingly, the decision and order are affirmed on this issue.
Regarding disability, a coherent decision cannot be made on this inadequately developed record. While claimant cites medical evidence on this issue in his appeal, disability relies largely on economic factors. See Section 401.011(16) for the definition of disability. Because of reversible error, we necessarily reverse and remand on this issue. Initially, we find that the hearing officer predicated her finding of no disability on a misstatement of the evidence, that is, that claimant owns a furniture repair store with his brother and that the claimant “stated that the store has opened and closed various times, but that since the date of injury, the store has been open and the claimant supervises the workers and occasionally loads furniture, as needed.” The claimant clearly testified that the business stopped operating when he injured his right knee (_____) and did not operate again until “last year” in July (apparently 1997). The claimant stated that he received about $100.00 to $200.00 a week from the business. His wage at the preinjury job is not disclosed in the record nor is there other definitive information about any periods of employment. With the addition of the issue of disability at the hearing, it probably is not surprising that the record is devoid of necessary information to decide this issue. Accordingly, on the issue of disability, the decision and order are reversed and the case is remanded to the hearing officer for development of evidence and further consideration.
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.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Elaine M. Chaney – Appeals Judge