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 February 18 , 1999. The hearing officer determined that the appellant/cross-respondent’s (claimant) compensable injury of ___________, was not a producing cause of a later-diagnosed L4-5 disc “protrusion”; that the carrier did not waive the right to contest the compensability of the L4-5 disc “protrusion”; that the compensable injury of ___________, was not a producing cause of the L4-5 “injury” after November 16, 1998 (the date of a laminectomy and nerve root decompression at L4-5); that the claimant was not barred from pursuing Workers’ compensation benefits because of an election to receive medical benefits under medicaid; and that the claimant was not entitled to reimbursement of travel expenses for medical treatment at the direction of a Dr. T. The claimant appeals the adverse determinations, expressing his disagreement with them and arguing that they are contrary to the evidence. The respondent/cross-appellant (carrier) replies that the determinations appealed by the claimant are correct, supported by sufficient evidence, and should be affirmed. The carrier appeals the finding of no election of remedies, urging that it is against the great weight and preponderance of the evidence and otherwise erroneous. The appeals file contains no response from the claimant to the carrier’s appeal.
DECISION
We affirm.
The claimant, a truck driver, testified that while prying up a board on ___________, he experienced sharp pain in his lower back radiating down his legs. He continued working and saw Dr. H, on March 27, 1997. X-rays were taken which showed arthritic changes of the lumbar spine and “a little narrowing of the . . . L4-L5 interspaces.” Dr. H diagnosed lumbar subluxation, sprain/strain, muscle spasms, and joint stiffness. The claimant returned to light duty in May 1997, with, he said, continuing pains. On or about (alleged date of injury), he said, his back, neck, shoulder, and head started aching “real bad.” He did not attribute these symptoms to any particular event. He returned to Dr. H on April 28, 1998. The claimant provided a “history” form to Dr. H in which he stated that his symptoms were “pain in neck and right shoulder” and entered “(alleged date of injury)” in a blank marked “when started.” Dr. H noted that on this visit the claimant complained of neck pain and headaches. X-rays were taken and Dr. H concluded there was no new injury, but simply a recurrence of the same injury of the prior year. On May 28, 1998, the claimant was terminated from his job with the employer. The carrier accepted liability for a low back injury, not further defined, but presumably based on Dr. H’s initial diagnosis, which did not change through the claimant’s later visits.
Shortly after the claimant’s termination, it appears that he went to the Texas Workers’ Compensation Commission (Commission) to discuss benefits presumably for his low back injury as well as a shoulder and neck injury. According to the claimant, a benefit review conference (BRC) was held on June 30, 1998, to address whether he sustained a new shoulder and neck injury on (alleged date of injury). As a result of this BRC, it appears, the claimant was referred by the carrier to Dr. S. Dr. S examined the claimant on July 31, 1998, and in a Report of Medical Evaluation (TWCC-69) signed on August 6, 1998, Dr. S referred to a date of injury of ___________. The TWCC-69 contains diagnostic codes for lumbar strain, neuritis or radiculitis, and unspecified spondylosis. This report was, in part, based on an MRI of July 31, 1998, which disclosed a “midline protruding disc” at L4-5. In his narrative report, Dr. S commented that the claimant’s injury was to the lumbosacral region. His diagnoses included strain, radiculopathy, muscle spasms, and degenerative facet arthropathy. He said the muscle spasms were common after any injury to the spine and did not believe that the claimant had a new injury after the ___________, injury. In an undated addendum to this report, Dr. H wrote that he had discussions with the radiologist who performed the MRI and maintained his conclusion that there was no new injury on (alleged date of injury), and that his injury of ___________ was essentially a back strain imposed on spinal arthritic conditions.
The claimant continued treatment with Dr. H who referred him to Dr. T. Dr. T ordered an MRI, which was done on November 5, 1998, and showed a “broad based disc bulge” at L4-5, but without significant neural foraminal narrowing. On November 16, 1998, Dr. T performed a laminectomy and nerve root decompression at L4-5. Although the condition is routinely referred to as an L4-5 “protrusion,” the discharge diagnosis was L4-5 herniation. According to the claimant, when the subject of surgery came up, the carrier was denying liability for any treatment of L4-5. For this reason, he said, Dr. T suggested paying for the operation with medicaid funds. The claimant, out of work for some time at this point, already had medicaid insurance and used this to pay for the operation.
On September 1, 1998, Dr. W examined the claimant as designated doctor in this case. His diagnosis included “chronic lower back pain with disc protrusion at L4-5 without frank herniation complicated by transitional lumbosacral segment.”
We construe the two separate causation issues in this case to be whether the original injury, described essentially as a low-back strain on ___________, was a producing cause of the L4-5 condition described as protrusion at least up to November 16, 1998, the date of the surgery, when it was also described as herniation.[1] The claimant had the burden of proving causation. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). This required proof in this case by expert medical evidence to a reasonable degree of medical probability. Schaefer v. Texas Employers= Insurance Association, 612 S.W.2d 199 (Tex. 1980); Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref’d n.r.e.). Whether the original injury caused the later conditions was essentially a question of fact for the hearing officer to decide. She found the evidence of Dr. H and Dr. S, discussed above, persuasive and determined that the later conditions were not produced by the earlier compensable injury. Indeed, there was virtually no medical evidence introduced to support the claimant’s assertion of causation. We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong 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). Applying this standard of review to the record of this case, we find the opinions of Dr. H and Dr. S sufficient to support the determinations that neither protrusion nor herniation at L4-5 was caused by the ___________, compensable injury.
Section 409.021(c) requires a carrier to dispute the compensability of a claimed injury within 60 days of notice of the injury. Failure to do so constitutes waiver of the right to dispute compensability. A carrier may reopen the issue of compensability based on newly discovered evidence which could not reasonably have been discovered earlier. Section 409.021(d). The hearing officer found that the carrier did not waive the right to dispute compensability of the L4-5 protrusion/herniation because it did so on the basis of newly discovered evidence. According to the hearing officer, the newly discovered evidence was the report of surgery performed by Dr. T and received by the carrier on December 7, 1998. She further found that the carrier disputed the L4-5 protrusion/herniation on December 17, 1998, in a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) received by the Commission on this date.
In his appeal, the claimant argues that both Dr. S’s report, received by the carrier on August 10, 1998, and Dr. W’s report, received by the carrier on September 10, 1998, constituted notice of the claimed L4-5 protrusion/herniation. Because the herniation diagnosis had not been made as of either of these reports, we cannot agree that they gave notice of a herniation injury. In any case, Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.1(a)(3) (Rule 124.1(a)(3)) provides that notification can be any document “which fairly informs the insurance carrier of . . . facts showing compensability.” As noted above, the TWCC-69 itself makes no diagnosis of L4-5 protrusion/herniation. The remaining documents attached to the report address primarily the question of whether a neck injury and a shoulder injury were related to the ___________, injury, questions not before the hearing officer. Included within this information was the report of the first MRI on July 31, 1998, which showed a midline protruding disc at L4-5. Given that the carrier accepted a low-back injury in ___________, we cannot agree that an MRI report received well over a year later with this simple reference to a protrusion put the carrier on notice that a new injury to the lumbar spine, different from the one it accepted, was being asserted, see Texas Workers’ Compensation Commission Appeal No. 980177, decided March 13, 1998, particularly when this document is but one item in a lengthy report that takes great pains to refute the existence of additional injuries. Similarly, we do not consider Dr. W’s use of the words “disc protrusion” in his report of September 1, 1997, to constitute notice of an additional injury.
The hearing officer based her finding of no carrier waiver of the right to dispute compensability on the determination that the carrier’s right to dispute was reopened by the report of the operation. In doing so, she relied on our decision in Texas Workers’ Compensation Commission Appeal No. 971949, decided November 5, 1997, which states that “where the issue involves whether a more severe condition has evolved from an injury whose compensability was conceded or waived, the ‘reopening statute’ applies.” This is consistent with the comment in Texas Workers’ Compensation Commission Appeal No. 982282, decided November 9, 1998, that “(w)here damage or harm to a region of the body has been present throughout the course of a compensable injury, and has been part of the medical evaluation of the injury (regardless of the discrete diagnosis given at any particular point), it appears that the focus of the inquiry should be whether, at the time of disputing compensability, the carrier had information that could not have been discovered earlier, rather than combing through medical records to determine which rose to a ‘written notice of injury’ for the discrete diagnosis.” The hearing officer concluded that the new condition claimed by the claimant was herniation and that the carrier was only put on notice of this when it received the operative report, wherein the word herniation at L4-5 first appears. We agree. In the absence of evidence that any other document put the carrier on notice of the L4-5 herniation, we affirm the hearing officer’s finding that the receipt of the operative report provided the carrier with the opportunity to reopen the issue of compensability.
Though not expressly raised on appeal and not a disputed issue, see Appeal No. 982282, we also believe that the TWCC-21 filed by the Carrier with the Commission on December 17, 1998, was adequate to dispute compensability of the herniation condition raised by the operative report. Although the basis for the dispute appears to be limited to a contention that the herniation arose on (alleged date of injury), that contention is sufficient to dispute that the herniation was related to a ___________, injury.
On the issue of travel reimbursement, the claimant testified that Dr. H referred him to Dr. T and, at some unspecified time, the Commission approved his request to change treating doctors from Dr. H to Dr. T. This was not disputed by the carrier. At the time of the change, we assume Dr. H was limiting his treatment to the ___________, injury. From this, we conclude that Dr. T’s treatment was solely for the disc protrusion/herniation. Having affirmed a finding that the protrusion/herniation was not part of the compensable injury, we also affirm the further finding that the carrier was not responsible for travel expenses for medical care for this non-compensable injury.
Finally, we find no merit in carrier’s appeal of the election-of-remedies determination. The hearing officer found the claimant credible in his assertion that he used medicaid to pay for his surgery because the carrier was denying treatment and Dr. T suggested this method of payment. This testimony provides sufficient evidentiary support for the determination that no election of remedies was made. See Texas Workers’ Compensation Commission Appeal No. 990525, decided April 16, 1999.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
I DISSENT:
I would affirm certain findings of fact made by the hearing officer but would reverse and remand in regard to the issue of whether carrier “waived the right to contest the compensability of claimant’s disc protrusion of L4-5 by not contesting compensability within 60 days . . . .” The evidence does not show that carrier disputed the “disc protrusion of L4-5.” The carrier provided three Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) forms; the operative portion of each appears in chronological order; the first was dated June 11, 1998; it said:
CARRIER ADMITS THE CLAIMANT SUSTAINED A LOW BACK INJURY ON ___________. HE HAD NO LOSS [sic] WAGES. RRTW DUTY 5/31/97. LAST SEEN BY TREATING DOCTOR 5/2/97 FOR THE INJURY OF ___________. CARRIER DENIES THE LOW BACK INJURY EXTENDS TO THE NECK & RIGHT SHOULDER WHICH CLAIMANT REPORTED TO SAME TREATING DOCTOR ON 4/28/98. CLAIMANT’S CURRENT CONDITION IS RELATED TO AN UNREPORTED ALLEGED INJURY. CLAIMANT HAS THE RIGHT TO REQUEST A BRC WITH TWCC.
The second TWCC-21 was dated June 12, 1998, prior to any MRI that first showed a “disc protrusion of L4-5”; it said:
CARRIER IS RELIEVED OF LIABILITY OF THE ALLEGED (ALLEGED DATE OF INURY) INJURY. CLAIMANT FAILED TO TIMELY NOTIFY THE EMPLOYER OR A SUPERVISOR WITHIN 30 DAYS OF THE ALLEGED INJURY, PER SECTION 409.002. CARRIER DENIES LIABILITY DUE TO NO EVIDENCE TO SUPPORT AN INJURY OCCURRED ON (ALLEGED DATE OF INJURY) TO THE NECK AND RIGHT SHOULDER. NO EVIDENCE TO SUPPORT THE NECK AND RIGHT SHOULDER INJURY IS RELATED TO THE ___________ INCIDENT. CLAIMANT HAS THE RIGHT TO REQUEST A BRC WITH TWCC.
The last TWCC-21 was dated December 17, 1998; it said:
BASED ON NEWLY DISCOVERED EVIDENCE, RECEIVED 12-7-98, THE CLAIMANT DID NOT FOLLOW TWCC SPINAL SURGERY PROCEDURE ON 11-16-98. CLAIMANT MADE AN ELECTION OF REMEDIES, SINCE SEC.408.029, WAS NOT FOLLOWED, THE CARRIER IS TOTALLY RELIEVED OF SPINAL SURGERY AND TREATMENT. CARRIER IS DISPUTING DISABILITY AND COMPENSABILITY AS CURRENT CONDITION IS RELATED TO THE (ALLEGED DATE OF INJURY), LATE/NON-REPORTED INJURY AS INITIALLY FILED ON 6-12-98. SEE ATTACHED DOCUMENTS. A RESET BRC IS PENDING.
I read the three TWCC-21s as showing no dispute of a disc protrusion at L4-5. The last TWCC-21 took issue with spinal surgery on the basis that spinal surgery procedures were not followed, not that such surgery addressed injuries that were not compensable. The last TWCC-21 also referred to the “current condition” but did so only in the context of “current condition is related to the (alleged date of injury) late/non-reported injury as initially filed on 6-12-98.” (Emphasis added.) With the “current condition” being described in the context of the “6-12-98” TWCC-21, the former TWCC-21 could not dispute the “disc protrusion at L4-5” because the evidence shows that was first discovered by an MRI ordered in July 1998 by Dr. S.
With Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.6(a)(9)(Rule 124.6(a)(9)) providing that the carrier’s dispute will provide a “complete statement of the grounds for the carrier’s refusal (emphasis added) . . . and with words such as “compensability in dispute” said to be insufficient, I believe that carrier’s dispute should be examined from the standpoint of whether carrier would prevail at a hearing if the reasons for its refusal were found to be accurate by a hearing officer. See Texas Workers’ Compensation Commission Appeal No. 92468, decided October 9, 1992. In the case under review, carrier’s assertion in December 1998 that claimant did not follow spinal surgery procedures, if fully accepted as accurate, does not win any issue as to whether claimant had a compensable L4-5 disc protrusion. Also contained in the December 1998 dispute was “the current condition is related to . . . (alleged date of injury) . . . injury . . . filed on 6-12-98.” The only thing identified in the (alleged date of injury) injury, filed on June 12, 1998, was the neck and shoulder. Carrier did not identify anything else, including an L4-5 protrusion, as being part of the (alleged date of injury) injury. Since other disputes refer to the 4-6-98 injury as being to the “neck and shoulder,” any inference that an L4-5 disc protrusion was included in an injury at that time would not be reasonable. The most that can be said of the December 1998 TWCC-21, in regard to an L4-5 protrusion, would be that the December 1998 TWCC-21 could be interpreted to dispute any unnamed condition (perhaps including the admitted “low back injury” — see the first TWCC-21), which does not meet requirements of Rule 124.6(a)(9). The hearing officer should have been asked to reconsider the waiver question in the context of these comments; if her findings were that carrier did not waive compensability of the “L4-5 disc protrusion,” an explanation as to the basis for such a determination would be appropriate.
Joe Sebesta – Appeals Judge
- No effort was made to distinguish these terms either in the report of the BRC or in the medical evidence. ↑