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 August 4, 1998. With respect to the issues before her, the hearing officer determined that the respondent (claimant) sustained a compensable injury in the form of occupational disease, bilateral carpal tunnel syndrome (CTS), and that she is not barred from pursuing workers’ compensation benefits because of an election to receive benefits under a group health insurance policy. In its appeal, the appellant (carrier) asserts error in each of those determinations and asks that we reverse the hearing officer’s determinations and render a new decision that the claimant did not sustain a compensable injury and that she is barred from receiving workers’ compensation benefits because she made an election of remedies. In her response, the claimant urges affirmance.
DECISION
Affirmed.
It is undisputed that the claimant began working part time as a legal secretary for (Mr. C) in 1992 and that she started working full time for Mr. C on May 15, 1993. The claimant testified that her job as a legal secretary required her to perform repetitive movements with her hands. She stated that in August 1996, she began to develop numbness, tingling and pain in her right hand. She stated that the pain went up her arm and into her shoulder. On August 29, 1996, the claimant had an appointment with (Dr. D), her family doctor, who gave her a splint and referred her to (Dr. M), a neurologist. The claimant had her initial appointment with Dr. M on September 26, 1996. Dr. M performed electromyography (EMG) and nerve conduction (NCV) testing on that date. The conclusions from that testing were reported, as follows:
No major abnormalities. The reduced CMAPs [compound muscle action potentials] for both median nerves and the EMG findings may indicate very early and subtle median nerve dysfunction compatible with bilateral [CTS].
For this reason and because the clinical symptoms suggest [CTS], suggest repeat study in 4-6 months.
In a November 22, 1996, “To Whom it May Concern” letter, Dr. M stated:
Her clinical symptoms and findings on examination were strongly suggestive of a [CTS] (median nerve entrapment) on the right side. However, [EMG] and [NCV] testing showed no specific abnormalities. [Claimant] has done very well with the use of splinting of the wrist at night an non-steroidal anti-inflammatory agents.
[Claimant] will require periodic re-evaluation to determine whether or not her symptoms are progressing or improving. However, at the present time I would not foresee any immediate need for surgery. In my opinion, the symptoms will most likely resolve completely with simple conservative therapy.
The progress note from a December 4, 1996, appointment with Dr. M refers to continued complaints of pain and numbness in the right hand. Dr. M notes that “these symptoms seem to be related to heavy work loads at the office. [Claimant] is an assistant in a legal office and types or uses the computers on a daily basis.” Dr. M’s January 6, 1997, progress notes provide that the claimant had an injection in the her right wrist on December 4, 1996, and that her “symptoms have completely resolved.” On March 14, 1997, Dr. M states that the tingling and numbness in the right hand has returned and that she has developed symptoms in the left hand, noting that she was four months pregnant. Dr. M referred her for EMG and NCV testing on April 3, 1997, which was interpreted as revealing normal findings. On January 30, 1998, Dr. M stated that the claimant had continuing complaints about the right hand and no symptoms in the left. He noted that the claimant had positive Tinel’s and Phalen’s signs at the right wrist but not at the left. On March 5, 1998, the claimant had a third set of EMG and NCV testing, which was interpreted as normal. The claimant testified that Dr. M advised her that although the testing was not conclusive, her symptoms were consistent with CTS and that “it couldn’t be anything else.”
On cross-examination, the claimant testified that she did not have any problems with her left wrist prior to her pregnancy and that the problems with her left hand resolved after her delivery. In a June 4, 1998, “To Whom it May Concern” letter, Dr. M states that he has been following the claimant since September 1996 and that she has been diagnosed with bilateral CTS, noting that the symptoms have predominantly involved the right. Dr. M stated that the claimant’s electrophysiological studies “have shown equivocal abnormalities”; however, he maintained that “her clinical symptoms are quite specifically [CTS] and she has had a very good response to standard treatment including anti-inflammatory agents and wrist braces.” On the question of causation, Dr. M stated:
[CTS] is generally felt to be related to inflammation of the traverse carpal ligament with compression of the median nerve. The most common cause of this is repetitive motion type injury. This is particularly common in secretaries and other persons who use their hands as part of their daily work.
The claimant testified that she initially filed her medical bills under her husband’s group health insurance policy. She stated that she did not realize initially that she could file a workers’ compensation claim; that she had a conversation with her employer in September 1996 about her condition possibly being work related; that as a result of that conversation, her employer bought an ergonomic keyboard and a foot rest; and that her employer did not advise her that she could file a workers’ compensation claim. On cross-examination, the claimant stated that she does not recall there being a sign in her employer’s office advising that the employees had workers’ compensation coverage and that she first became aware that she could pursue a claim for workers’ compensation benefits in March 1998, when the group health carrier sent her notification that it was no longer going to pay for treatment because her injury was work related. Mr. C testified that he and the claimant had a conversation about her CTS and about it potentially being work related, noting that he bought the ergonomic keyboard and foot rest to make sure that her condition did not get worse. He testified that he did not discuss the option of filing a workers’ compensation claim with the claimant during that conversation. On cross-examination, Mr. C stated that he knew he had workers’ compensation coverage in September 1996 when he discussed the CTS with the claimant, that he did not discuss workers’ compensation coverage with the claimant, and that he did not give the claimant any advice on filing a claim either under group health or workers’ compensation.
Initially, the carrier argues that the hearing officer erred in finding that the claimant sustained a compensable occupational disease injury. The carrier argues that the medical evidence is insufficient to establish causation in this case. We have previously rejected the argument that expert medical evidence of causation is required in CTS cases. To the contrary, we have stated that a hearing officer could properly consider medical evidence that diagnoses CTS, along with the claimant’s description of their job duties, and conclude that a causal connection had been established. Texas Workers’ Compensation Commission Appeal No. 972639, decided February 5, 1998; Texas Workers’ Compensation Commission Appeal No. 972397, decided January 5, 1998; and Texas Workers’ Compensation Commission Appeal No. 961823, decided October 30, 1996. In this instance, the claimant testified as to the repetitive nature of her work duties and Dr. M diagnosed bilateral CTS based upon his examination of the claimant and the nature of her symptoms. This evidence was sufficient to support the hearing officer’s determination that the claimant sustained a compensable injury. Our review of the record does not demonstrate that that determination is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust; therefore, no sound basis exists for our reversal of that determination on appeal. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The carrier also argues that the medical evidence of causation in this instance does not meet the standards of Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex 1997) and E. I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). The success of the carrier’s argument is by definition dependent upon a determination that expert medical evidence of causation is required. Given our rejection of the assertion that expert evidence of causation is required to prove CTS, we find no merit in the argument that the Havner and Robinson requirements apply in this instance.
In its appeal, the carrier notes that the hearing officer did not make any findings of fact to support her conclusion of law that the claimant is not barred from pursuing workers’ compensation benefits because of an election to receive benefits under a group health insurance policy. While the hearing officer did not make explicit fact findings, we are able to imply findings in this instance from the discussion section of her decision and the conclusion of law that “Claimant is not barred from pursuing Texas Workers’ compensation benefits because of an election to receive benefits under a health insurance policy.” In the discussion section of her decision, the hearing officer stated, as follows, with respect to the election of remedies issue:
Claimant was not aware that she had an election of remedies available to her until sometime in March 1998 when her health care carrier denied her benefits for the claim and advised her that her condition should be considered work-related, wherein, Claimant filed her report of injury with her employer. Claimant’s employer testified he and Claimant never discussed an election of remedies or the availability of workers’ compensation insurance and Claimant testified she never was aware she had that option.
From this discussion, it is apparent that the hearing officer credited the claimant’s testimony that she was not aware of the option to file a claim for workers’ compensation in September 1996 and that she did not make an informed choice to pursue group health benefits to the exclusion of filing a claim for workers’ compensation benefits. A fundamental principle in an election of remedies case is that a claimant make an informed choice between inconsistent remedies. The claimant testified that she was unaware of the option to pursue a claim for workers’ compensation benefits until the group health carrier denied her claim in March 1998. The claimant’s testimony and the testimony from Mr. C that he did not discuss the availability of workers’ compensation insurance provides sufficient evidentiary support for the implied finding that the claimant did not make an informed choice to pursue group health benefits instead of workers’ compensation benefits in this instance. Our review does not demonstrate that such a determination is so contrary to the great weight and preponderance of the evidence as to compel reversal of the hearing officer’s conclusion that the claimant is not barred from pursuing workers’ compensation benefits because of an election to pursue group health benefits. Pool, supra; Cain, supra.
The hearing officer’s decision and order are affirmed.
Elaine M. Chaney – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Tommy W. Lueders – Appeals Judge