This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held. This was a matter held on remand from the Appeals Panel in Texas Workers’ Compensation Commission Appeal No. 981319, decided July 29, 1998. The issues, as reported, concerned whether the respondent, who is the claimant, suffered a compensable cervical and right shoulder injury on __________, and whether an earlier injury on __________, was a “producing cause” of the claimant’s current cervical and shoulder “conditions.” Any related issues of disability or medical benefits, were not articulated for direct decision by the hearing officer.
There are two carriers involved in this claim. The carrier for the 1993 injury was the (carrier #1), referred to herein as Carrier #1. On the 1996 date of injury, the claimant worked for an employer insured by (Carrier #2). Carrier #2 accepted only that the claimant injured his right hand on __________.
The hearing officer repeated his findings from the first decision, and made two additional findings. He stated that claimant suffered both an injury to his right shoulder when he injured his right hand, and that he sustained an injury by way of aggravation to his neck on __________. He held that the right shoulder and neck were part of the __________, injury. Nevertheless, he did not amend his order, and he continued his order to both carriers to pay “benefits.”
Carrier #1 has appealed the fact finding that the 1993 injury was the “producing cause” of the current cervical and lumbar problems, and asks that a clear order be issued allocating responsibility for benefits. The response to this by Carrier #2 and the claimant is that the hearing officer’s decision is supported by the record. The claimant further responds that a plain reading of the decision shows that Carrier #2 is liable for income benefits.
Carrier #2 appeals on the basis that there was no evidence to prove that the shoulder and cervical conditions were results “naturally flowing” from the 1996 injury, and recites evidence it believes to be in its favor. As part of this argument, it argues that a chiropractor’s opinion should not be given weight over medical doctors. Carrier #2 also argues that the hearing officer could not determine that an injury occurred to the neck by way of aggravation in 1996 because there was not a stated issue on aggravation. The carrier also argues that there is no evidence that claimant injured his shoulder in 1996, or suffered a crush injury to his right hand. The claimant responds that consideration of aggravation as the source of the 1996 injury (and whether the 1993 injury was the sole cause) was subsumed in the greater injury issue. The claimant argues that all fact determinations made by the hearing officer are supported, and notes that it may be the wording of the order that has caused confusion.
DECISION
Affirmed as to findings of fact and conclusions of law. The order is modified to add the following sentence to the current order: Carrier #2 is hereby ordered to pay temporary income benefits (TIBS) for any periods of disability that may have followed the __________, injury until disability ends or maximum medical improvement (MMI) is reached.
The remand hearing essentially involved argument on the matters before the hearing officer, as well as the entertainment of a motion by Carrier #2 to specifically articulate an issue on aggravation. The hearing officer declined, stating that although he read the Appeals Panel decision to call for such a ruling, he did not believe the issue of aggravation was before him. We disagree. The issue of whether there was “an injury” to the cervical area and right shoulder on __________, was plainly before the tribunal. We have before stated that ours is not a notice pleading system,[1] and the specifics about how an injury occurred, whether by a fall or a strain, by accident or by aggravation of a preexisting condition, may be appropriately considered by the hearing officer whether or not specifically spelled out in a statement of the “issue.” Furthermore, the defensive theory of Carrier #2 set out in the benefit review conference (BRC) was both that there was no injury in 1996 to the shoulder and neck, and that there was a prior cervical injury. Whether the magic words “sole cause” are used or not, the assertion that the current conditions leading to disability are due to a prior injury is a variation on “sole cause.”
For clarity, we will repeat pertinent facts developed at the CCH underlying the remand decision.
Claimant was injured on __________, while employed by (employer #1), which had workers’ compensation coverage with Carrier #1, when he was struck on his upper right shoulder by a piece of equipment. He ultimately had cervical surgery at the C5-6 level on January 25, 1994, and apparently received a nine percent impairment rating from a designated doctor. X-rays of the claimant’s cervical spine taken in September 1993 showed some bulging at two cervical levels, mostly at C5-6. He was given a full release back to work by his surgeon, Dr. SE, on October 4, 1994.
Claimant said he returned to work for (employer #2) as a foreman. Employer # 2 was insured by Carrier #2. He said that this position required lifting and he did not have trouble meeting this requirement. Claimant said except for some decreased sensation and some stiffness in cold weather, his 1993 injury had pretty much resolved.
On __________, it was undisputed that the claimant’s right hand became caught in a cable and he was dragged some distance along the ground, resulting in the crushing and/or severing of several fingers.[2] These were reattached at the hospital, but he ultimately had his right index finger amputated on February 21st because the reattachment was not successful. Claimant said that his right arm was in traction above his head after surgery. Hospitalizations occurred after the reattachment and the amputation surgeries, and physical therapy followed. Claimant was also under active case management from a managed care group. The managed care group’s reports from after the injury through the end of December 1996 do not record any complaints of shoulder or neck pain.
Claimant said he was on painkillers for several months and, after another surgery in October 1996, began weaning himself off them. He said it was then he really began to notice pain in his arm and shoulder, which has worsened to limit movement of his shoulder, and he has trouble sleeping due to neck pain. Claimant asserted he complained about neck and shoulder pain after his 1996 injury from the beginning.
Medical records from his treating doctor, Dr. M, indicate that Dr. M first began documenting pain and numbness in claimant’s right shoulder on February 7, 1997. Carpal tunnel indications were mildly positive. Dr. M recorded his impression that claimant had mild thoracic outlet compression syndrome as well as mild carpal tunnel syndrome in his right extremity. On February 10, 1997, Dr. M requested physical therapy, including stretching exercises to the neck, back, and shoulder. The carrier denied preauthorization on the 11th, but a handwritten note dated February 12th indicates that the services were approved with instruction to the claimant to do home exercises.
Claimant subsequently changed treating doctors to Dr. P and then Dr. D, D.C. The only report from Dr. P in March 1995 records only hand problems and tenosynovitis. On June 27, 1997, Dr. D stated that claimant probably developed neck and shoulder symptoms due to immobilization of his arm during surgery, but that further studies were needed. An MRI done on July 26, 1997, was reported as showing a moderate-sized herniation at C6-7 (4 mm) and small bulge at C4-5. The C6-7 herniation was noted to encroach on the thecal sac and neural foramina.
On August 19, 1997, Dr. D stated that the present findings were either new conditions or worse than prior findings. Asked to determine if his current symptoms were the result of a preexisting condition or the results of the subsequent injury, Dr. D stated that his findings were the direct result of the injury sustained on __________, and not the result of passive arm restraint during recovery from his hand surgery.
On September 3, 1997, the claimant was examined in an independent medical examination by Dr. F. Dr. F stated the records he reviewed did not show complaints of neck pain until August 19, 1997. It was not clear from his report whether Dr. F had earlier MRI studies than that done in July 1997, as he refers to an earlier August 1994 MRI by its reference in Dr. Se’s records. Dr. F stated that absent documentation that claimant complained about his neck in the period between __________, and August 19, 1997, he “could not say that there was a correlation between his hand injury and his neck and shoulder complaints of today.” He noted that claimant apparently had an “existing problem in the same area” in 1994.
Dr. Se, claimant’s surgeon for his 1993 injury, wrote a letter on June 23, 1997, following his reevaluation of claimant a week before. Dr. Se recorded his impression of cervical radiculopathy with pseudoarthritis at C5-6 and with a history of bulging at C6-7 “which had become symptomatic as a result of a new injury that he suffered . . . .”
There are no medical opinions expressly stating that the claimant’s cervical injuries, manifested on the July 1997 MRI, stem solely from his 1993 injury and surgery.
THE PRODUCING CAUSE ISSUE
Although Carrier #1 has appealed the finding that the 1993 injury is a producing cause of the current cervical condition, we decline to reverse this. In this case, the holding that claimant’s 1993 injury was a “producing cause” of his current cervical condition may amount to nothing more than an acknowledgment that he had a preexisting cervical condition. As such, it is sufficiently supported by the evidence. The hearing officer has resolved the primary liability for resultant income benefits by his fact finding and conclusions of law holding that the cervical and right shoulder “current” conditions are part of the __________, injury, for which Carrier #2 has coverage responsibility.
The Appeals Panel, when it remanded the case, pointed out that the previous decision appeared not to resolve the issue of whether claimant had a cervical and shoulder injury on __________, which it stated should include some analysis of what the evidence suggested–aggravation of the preexisting condition. Although it was argued at the beginning of the remand hearing that the Appeals Panel “implicitly” affirmed the hearing officer’s determination on “producing cause,” the Appeals Panel had actually questioned the utility of such an issue as being more than a philosophical advisory, noting that a finding of “producing cause” did little to answer the issue as to responsibility for the second injury and its effects. The Appeals Panel remanded for reconsideration of the second issue because this issue, involving the scope of the 1996 injury, was at the heart of the liability dispute of the parties.
As noted in the first decision in this case, and recently in Texas Workers’ Compensation Commission Appeal No. 982461, decided December 2, 1998, the phrasing of an issue of “producing cause,” where the issue is causation (rather than disability), has no practical meaning in ascertaining whether currently observed conditions are part of an earlier “injury.” It is important to emphasize again that there is little reason to depart from the definitions of injury as developed in the workers’ compensation statute and related law (including the case law on aggravation as an injury in its own right). Not all conditions that a compensable injury could arguably “produce” are part of that compensable injury. See Texas Workers’ Compensation Commission Appeal No. 941615, decided January 20, 1995. Section 401.011(26) defines injury, in pertinent part, as:
[D]amage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.
Further, as we set out in our first decision, any time there is a subsequent injury through a worsening, acceleration, or aggravation of a prior condition, that prior condition could always be said to be, in some sense, a “producing cause.” An opinion on “producing cause” consequently becomes an academic exercise where, as in this case, there are two disputing carriers for whom some clear direction on payment of income benefits must be rendered.
Finally, to the extent that “producing cause” issues reflect underlying disputes about medical benefits where there have been two injuries, such disputes are ultimately determined through the medical review dispute procedures set forth in Section 408.027 and applicable rules. While an injured worker has the right to potential “lifetime” medical treatment of his injury, such care does not exist in a vacuum. Such care must be that which is reasonably required by the nature of the injury and, under Section 408.021(a):
(1)cures or relieves the effects naturally resulting from the compensable injury;
(2) promotes recovery; or
(3)enhances the ability of the employee to return to or retain employment.
As can be seen, a declaration that an earlier injury is in some form or fashion a “producing cause” may or may not have any bearing on resolving reasonable medical care issues for a particular injury.
AGGRAVATION
Although the hearing officer ruminated at the beginning of the hearing on remand that he did not believe the issue of aggravation and sole cause were before him, the hearing officer was asked to determine, essentially, the extent of the 1996 injury. The BRC report makes clear that the heart of Carrier #2’s defense was that he continued to suffer the effects of his 1993 injury. Whether or not the words “sole cause” were used, the heart of what it was contending was that there had been no new injury to the shoulder or neck, but that problems in these areas resulted solely from the 1993 injury or at least did not rise to the level of a new injury through aggravation.
We specifically remanded so that the issue of the scope of the 1996 injury, including any injury by aggravation, would be decided by the hearing officer. His decision that there has been an aggravation is sufficiently supported by the evidence herein, which includes a full release back to work after the 1993 injury. The hearing officer could also consider the medical evidence indicating a worsening of the cervical area and he could weigh the respective expertise of the medical doctors. He was entitled to consider the mechanism of the injury, dragging by the hand, and apply common experience to the medical evidence in concluding that claimant injured his right shoulder again in 1996. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.- Amarillo 1974, no writ). This is equally true of medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.). An appeals level body is not a fact finder, and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.- El Paso 1991, writ denied); American Motorists Insurance Co. v. Volentine, 867 S.W.2d 170 (Tex. App.- Beaumont 1993, no writ).
THE ORDER
The hearing officer essentially repeated his previous order, which we agree is ambiguous, that each carrier pay benefits. While we agree that each carrier remains liable for medical benefits necessary to treat the effects of the injury that occurred within its coverage period, there is no clarity in this order for income benefits. Part of the problem was that the parties did not ask the hearing officer to determine the issue of disability. Nevertheless, if there is disability, it occurred after the 1996 injury. Moreover, Carrier #1’s obligation to pay TIBS has passed, upon certification of MMI from that injury. The order as currently worded would be unenforceable should Carrier #2 refuse to pay. Section 410.168(a)(3) requires a hearing officer to issue a decision that includes an award of benefits due. An unenforceable or ambiguous order in this case does not fulfill this statutory directive. We therefore modify the order, and which adds to the current order: Carrier #2 is hereby ordered to pay TIBS for any periods of disability that may have followed the February 13, 1996, injury until disability ends or MMI is reached. The decision is otherwise affirmed.
Susan M. Kelley – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Joe Sebesta – Appeals Judge
- Texas Workers’ Compensation Commission Appeal No. 950086, decided March 3, 1995; Texas Workers’ Compensation Commission Appeal No. 951834, decided December 18, 1995. ↑
- Apparently, on its appeal on remand, Carrier #2 has to some extent disputed this although it accepted compensability of a right hand injury. ↑