This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held in (City), Texas, on April 2, 1999. The hearing officer determined that the respondent (claimant) sustained a compensable injury on __________, and had disability from August 23, 1998, through the date of the CCH. The determination that the claimant sustained a compensable injury on __________, has not been appealed and has become final under the provisions of Section 410.169. The appellant (carrier) requested review of the determination that the claimant had disability from August 23, 1998, through the date of the CCH. It attached a copy of an investigation report dated April 30, 1999, which states that the claimant worked approximately eight hours a day, three days a week; quoted from Texas Workers’ Compensation Commission Appeal No. 92444, decided October 5, 1992, concerning newly discovered evidence; contended that the report met the standard for requiring a rehearing because of newly discovered evidence; and requested that the Appeals Panel reverse the decision of the hearing officer concerning disability and remand for the hearing officer to consider the newly discovered evidence. A response from the claimant has not been received.
DECISION
We affirm.
The claimant testified that she began working for the employer on August 16 or 17, 1998; that she was paid $6.10 an hour; that she was injured on __________; that she had not worked for the employer since August 27, 1998; that she was released to return to work at light duty; that she began working for a temporary agency on January 4, 1999; that she worked 20 hours one week and 39 hours another week; that she was paid $5.50 an hour the first week and $5.15 an hour the second week; that she was unable to continue working because of her back pain; that she worked for another temporary agency for one week; that she does not remember how many hours she worked that week but that she worked more than 20 hours and less than 40 hours; and that she was paid $5.50 an hour.
On August 27, 1998, (Dr. V), an orthopedic surgeon, diagnosed a central disc rupture with bilateral leg pain and recommended an MRI. In a report dated September 3, 1998, Dr. V stated that the MRI showed a large, partially extruded right side and central disc herniation at L4-5 and that surgery would be set up. (Dr. R), a chiropractor, first saw the claimant on September 16, 1998; established a treatment plan; and took her off work. In a report dated November 11, 1998, Dr. R stated that the claimant was currently off work. The record does not contain a document releasing the claimant to return to work.
The report of the benefit review conference (BRC) states that the carrier’s position on disability was “[t]he claimant did not have disability resulting from an injury on __________ as she did not sustain a compensable injury on __________.” At the CCH, the carrier presented the following argument concerning disability:
Secondly, as to the disability, claimant is not disabled, because she did not experience a compensable injury. In addition to that, if you wish to assume she did suffer a compensable injury for the sake of argument, there is no worker’s release in the records to signify when that would have–when she would have been released from work, and it’s her burden to demonstrate such a release was present but was not given.
She did say, however, that she was released to work on January 4, 1999. Although that release wasn’t provided, she did testify to that, and therefore, at latest, she was capable of working January 4, 1999, and as could be seen by her testimony today, she testified turning her body and twisting her upper torso without pain. So the physical evidence she gave here today was that she’s not disabled.
So the disability period, if one is determined, would certainly be–would have ended before January 4th, 1999, and we don’t know when it started. And since it’s claimant’s burden to show when it started, we have no work release, and therefore, we have no evidence of when it started.
In its appeal, the carrier stated that “[o]n April 27, 1999, Carrier procured an investigator to determine when and whether claimant’s disability had ended per the Hearing Officer’s (HO’s) Decision and Order.” The carrier provided the following quote from Appeal No. 92444, supra:
Where there is a claim of newly discovered evidence, as there is here, we evaluate the evidence to determine if there is a sound basis to cause a remand for further consideration and development of evidence. In doing so, we look to the guidelines provided in Texas case authority. It is incumbent on a party who seeks a new trial on grounds of newly discovered evidence to establish: (1) the evidence has come to the knowledge of the party since the hearing; (2) it was not owing to want of due diligence that it did not come sooner; (3) the evidence is not just cumulative; and (4) the evidence is so material it would probably produce a different result if a new hearing were granted. See Jackson v. Van Winkle, 660 S.W.2d 807 (Tex. 1983); Texas Workers’ Compensation Commission Appeal No. 92124 [docket no. omitted] decided May 11, 1992.
The record indicates that at the BRC the carrier disputed disability on the basis that the claimant did not sustain a compensable injury. At the CCH, the carrier continued to dispute disability on that basis and also on the theory that the claimant had been released to return to work. The carrier actually questioned the claimant about how long she had worked. The Appeals Panel has stated that evidence acquired late because of deferred preparation is not newly discovered evidence and that, if a carrier knew an issue would be before a hearing officer, the carrier could either take the risk that the claimant would not meet her burden or seek to obtain evidence on the issue. Texas Workers’ Compensation Commission Appeal No. 941053, decided September 20, 1994; Texas Workers’ Compensation Commission Appeal No. 960993, decided July 11, 1996. In the case before us, the carrier had the opportunity to have an investigation on the work activities of the claimant conducted, but elected not to have that investigation conducted until after the CCH. The carrier has not met its burden of proving that due diligence was used in not discovering the evidence sooner.
We do not reverse and remand for the hearing officer to consider the investigative report dated April 30, 1998, in deciding the issue of whether the claimant had disability. The issue of the amount of temporary income benefits due the claimant was not before the hearing officer. We affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Philip F. O’Neill – Appeals Judge