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 September 8, 1998. He (the hearing officer) determined that the appellant (claimant) did not sustain a compensable injury in the form of an occupational disease on ___________. The claimant appeals this determination, contending that it is against the great weight of the evidence. The respondent (self-insured) replies that the decision is correct, supported by sufficient evidence, and should be affirmed.
DECISION
Affirmed.
The claimant worked as an “educational diagnostician” for the self-insured school district. She described her primary job duties as conducting Admission Review and Dismissal meetings, or ARDs, involving handicapped students. The meetings could last a couple of hours or an entire day. Over 40 such meetings were conducted in August 1997, nearly 100 in September 1997, and over 100 in October 1997. She said she conducted about 85% of the meetings. The associated paperwork involved filling in the blanks and checking blocks on forms and writing out in longhand the positions of the participants. She said that this required the production of from 100 to 200 pages of written material per day. She said she did this sitting on a plastic chair with no armrests.
According to the claimant, she began to experience more intense pain in her upper body on ___________, and saw Dr. M, her family doctor, for complaints of right shoulder pain. In a note of February 16, 1998, Dr. M, after he had referred the claimant to Dr. B, D.C., wrote that “I determined her condition was due to repetitive motion. There is a rib dislocation, not a fracture.”
In an Initial Medical Report (TWCC-61) of November 19, 1997, Dr. B diagnosed cervical neuritis, cervical segmental dysfunction, and muscle spasm. He described the claimant’s complaints as mid-back and neck pain that radiated into the right arm and hand and her job as sitting in a hard plastic chair writing in longhand 120 to 240 pieces of paper per day. He concluded: “There is no doubt in my mind that this condition is caused by repetitive work stress to the neck and upper back caused by writing long-hand at an ergonomically deficient workstation.” In a letter of February 26, 1998, he described the mechanism of injury as follows:
Without proper arm support, flexion of the cervical and upper thoracic spine results. With this flexion, the posterior spinal erector muscles are stretched. Over time, this elongation of the muscles produces a weakening effect of the muscles which causes the increased likelihood of the structures those muscles support, i.e., the scapula and cervical vertebrae, to “slip” or subluxate from their intended position. As this happens, the subluxation will produce abnormal joint function and nerve root irritation which results in the symptoms that [claimant] presents with.
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It has been stated that activities that are performed as part of daily living are not compensable. While this may be true, it does not take into the account of the extreme amount of writing and sitting that [claimant] performs during her work day.
The claimant testified that she understood her injury to be a rib dislocation which caused a pinched nerve and pain radiating into the arm.
Other medical evidence included the report of an examination of the claimant done by Dr. S on August 31, 1998, at the request of the self-insured. His diagnoses were degenerative spondylosis with neural encroachment at C5-6 (arthritis) and right upper extremity radiculopathy. In his opinion, the cause of her symptoms was a degenerative or preexisting ordinary disease of life. He did not find her activities in the workplace to cause or be expected to cause these symptoms.
The claimant had the burden of proving that she sustained a repetitive trauma injury as claimed. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Whether she did so was a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93449, decided July 21, 1993. An occupational disease, which includes a repetitive trauma injury, is a “disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body . . . . The term does not include an ordinary disease of life to which the general public is exposed outside of employment . . . .” Section 401.011(34). The hearing officer made the following findings of fact and conclusion of law which have been appealed by the claimant:
FINDINGS OF FACT
1.On ___________, the date of the alleged injury, the Claimant was the employee of [self-insured].
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5.Claimant was not engaged in repetitive traumatic activity at work.
6.There is no causal relationship between Claimant’s condition and her employment.
7.Claimant’s condition is an ordinary disease of life.
CONCLUSION OF LAW
3.Claimant did not sustain a compensable injury in the form of an occupational disease on ___________.
The claimant appeals Finding of Fact No. 1 on the basis that the date of the claimed injury was (alleged date of injury), the date she knew or should have known that her claimed occupational disease may be related to her employment. See Section 408.007. The date of injury was not an express or implied issue at the CCH. While better practice would have been to phrase the issue in terms of an occupational disease with a date of injury, the claimant raised no objection to the formulation of the issue as whether the claimant sustained a compensable injury in the form of an occupational disease on ___________. Given the total absence of any indication that the date of the claimed injury was in dispute, we decline to address or resolve this question for the first time on appeal. See Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.7(a) (Rule 142.7(a)).
Findings of Fact Nos. 5 through 7 are appealed on the basis that the evidence “conclusively shows” that the claimant was engaged in repetitive traumatic activities at work; that the medical evidence and common sense “clearly establish a causal relationship” between the injury and the employment; and that the evidence was “clearly sufficient to remove [claimant’s] condition from the category of an ‘ordinary disease of life’.” The claimant further argues that the hearing officer “focused only on the rib injury . . . and totally ignored the medical records which establish a much more extensive injury than just the [claimant’s] rib.”
Given the claimant’s testimony and the statement of Dr. M, quoted above, which appear to stress the nature of the injury and symptoms as deriving from rib subluxation, we cannot agree that the hearing officer improperly “focused” only on the rib to the exclusion of the claimant’s other complaints. In his discussion of the evidence, the hearing officer refers to these other symptoms. The findings of fact are in terms of the claimant’s “condition” and are not limited to a rib injury. More to the point, his decision was premised on the findings that the claimant did not engage in repetitively traumatic activities at work and that her condition was an ordinary disease of life.
Section 401.011(36) defines a repetitive trauma injury as “damage or harm to the physical structure of the body occurring as the result of repetitious, physically traumatic activities that occur over time and arise out of and in the course and scope of employment.” To recover for a repetitive trauma injury, a claimant must prove not only that repetitious traumatic activities occurred on the job, but also that there is a causal link between the activities and the injury, that is, that the injury is inherent in that type of employment as compared to employment generally. Texas Workers’ Compensation Commission Appeal No. 92272, decided August 6, 1992. The claimant maintains that sitting in an ergonomically deficient chair without an armrest and writing in longhand to the degree claimed were repetitiously traumatic activities. The hearing officer did not agree. In Texas Workers’ Compensation Commission Appeal No. 961832, decided October 31, 1996, we discussed at length the concept that sitting, walking, and standing, without more, do not generally establish a repetitive trauma injury. With regard to sitting, this proposition remains valid even when the chair is uncomfortable, broken, or ergonomically incorrect. See Appeal No. 92272, supra; Texas Workers’ Compensation Commission Appeal No. 941733, decided February 7, 1995. In Texas Workers’ Compensation Commission Appeal No. 941024, decided September 15, 1994, we affirmed the decision of a hearing officer that “sitting long hours . . . bent over a desk with my left arm fully extended writing corrections and notations on . . . computer printouts” did not cause a compensable repetitive trauma injury, but rather established no more than an ordinary disease of life. In the case we now consider, the hearing officer was not persuaded by the claimant’s evidence that the act of sitting as described or the writing was repetitive traumatic activity beyond that which one encounters in employment generally or to which the general public is exposed outside of employment. This was essentially a factual determination to be made by the hearing officer and is subject to reversal on appeal only if that decision is so against the great weight and preponderance of the evidence as to be clearly erroneous and 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). Having reviewed the record in this case, we cannot agree that the evidence conclusively established repetitious traumatic activity at work and, under our standard or review, decline to reverse the determination of the hearing officer that the claimant did not engage in repetitive traumatic activity at work.
The hearing officer also premised his decision on the finding that the claimant’s condition was an ordinary disease of life. This, too, presented a question of fact. While Dr. M and Dr. B obviously thought otherwise, it was Dr. S’s opinion that the claimant was suffering from arthritis, which he considered an ordinary disease of life. Section 410.165(a) provides that the hearing officer is the sole judge of the weight and credibility of the evidence. He found the opinion of Dr. S more credible and persuasive and found accordingly. Under our standard of review, we find the opinion of Dr. S sufficient evidence to support the determination that the claimant’s condition was an ordinary disease of life.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
CONCUR IN RESULT:
Elaine M. Chaney – Appeals Judge