This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On July 17, 1998, a hearing was held. [The hearing officer] determined that the respondent (claimant) did not timely notify her employer of an injury but that she had good cause for her late notice. Appellant (carrier) asserts that the injury was not trivial and that an ordinarily prudent person would not have waited to report the injury. Claimant replied that the decision should be affirmed.
DECISION
We affirm.
The only issue at this hearing concerned the timelines of notice given by claimant to the employer.
Claimant worked for (employer), on ___________. She was a lead woman on her shift. During the shift a pallet jack was moving toward her and, apparently, she struck her left knee against a pallet or a pallet struck her knee. She stated that the knee was bruised, but she kept working. A day or so later the knee was swollen, but she also testified that the swelling appeared to recede and then she was not sure about its recurrence because of her weight. She thought the accident was just “a bump”. When she then went to (Dr. T) in October 1997 with knee pain, she said, she thought it was because she was on her feet for 12-hour periods and because of her weight. Claimant stated that Dr. T told her to take ibuprofen after x-rays showed no abnormality.
She began seeing (Dr. D), an orthopedic surgeon, on January 9, 1998. He scheduled her for an MRI in mid-January and the MRI showed a torn meniscus. Surgery was scheduled and took place on January 21, 1998. Claimant stated that she thought she had arthritis and had obtained medical care under her medical insurance.
After the surgery, claimant said she returned about a week later to have stitches removed. Dr. D was just leaving his office that day, and she only exchanged greetings with him; another medical care provider removed the stitches. Claimant said that when she returned for follow-up care on February 17, 1998, Dr. D said that the tear was more pronounced than had been thought and, claimant said, told her that “something happened to your knee.” Claimant said she could not think of anything at first but also said that Dr. D then showed her where a blow to the knee “should have happened” to cause the damage. That was the first time she thought that the “bump” caused her problem as opposed to the long periods of standing and her weight. Claimant said that she then reported the injury to employer on February 18, 1998.
Carrier does not assert that notice was not provided on February 18, 1998, but rather that, since claimant stated she had no knee pain prior to ___________, she should have known that her intermittent pain and swelling after that date were due to the accident, even though she kept working until mid-January when she had the MRI. Carrier also stressed that claimant was a lead woman and had prepared accident reports for personnel on her shift before.
The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. There was no issue as to whether an injury to the left knee had occurred in the course and scope of employment. Even though Dr. D does not state in writing that trauma must have caused the problem, which he found in surgery, he does state that surgery showed changes greater than those shown on the MRI–and there was no issue as to causation. Claimant’s statement that Dr. D told her on February 17, 1998, that something happened to her knee, together with Dr. D’s indication that the surgery showed more than the studies had indicated, sufficiently supports the finding of fact that claimant thought her knee problem stemmed from another source prior to mid-February 1998 and thereafter thought she had injured the knee. While there is an element of trivialization in this finding, which is supported by the evidence, there also is an indication that claimant was mistaken as to cause, which also may be considered in determining whether good cause exists. See Texas Workers’ Compensation Commission Appeal No. 941720, decided February 7, 1995, which cited Baca v. Transport Insurance Company, 538 S.W.2d 814 (Tex. Civ. App.-El Paso 1976, writ ref’d n.r.e.). There was no question as to whether good cause was maintained until the time of notice since the evidence, which could be credited, showed notice given one day after the claimant learned that her belief as to causation was in error.
While the carrier states that claimant knew to report any injury at all, claimant testified that minor scrapes and bruises routinely occur and are not reported. The hearing officer could also credit her testimony that she had no continuous pain or swelling but was able to keep working, and therefore thought that the effect of the bump, with bruising, was trivial and that her long hours of work together with her weight were what caused the recurring aspects of an abnormal condition. The Appeals Panel will only overturn the factual determination of a hearing officer when it is against the great weight and preponderance of the evidence; in this case, his determination that claimant had good cause for late notice was not against the great weight of the evidence.
Finding that the decision and order are sufficiently supported by the evidence, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Elaine M. Chaney – Appeals Judge