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 19, 1999. The hearing officer issued two separate decisions but held a consolidated hearing with both respondents (carriers) to determine whether the appellant (claimant) sustained a compensable hearing loss injury; the correct date of the claimant’s alleged injury; whether the claimant timely reported such alleged injury, or had any good cause for any failure to do so; and whether the claimant timely filed his claim for compensation, or had good cause for any failure to do so. The hearing officer determined that the claimant sustained a work-related hearing loss injury on _____________; that the claimant failed to timely report his hearing loss injury of _____________; that the claimant did not have good cause for failing to timely report his hearing loss injury of _____________; that the claimant did not timely file his claim for compensation with the Texas Workers’ Compensation Commission (Commission); and that the claimant did not have good cause for failing to timely file his claim for compensation with the Commission. The claimant appeals the hearing officer’s findings that on _____________, he knew or should have known that his hearing loss injury might be related to his employment with employer; that he did not act as a reasonably prudent person in failing to report his hearing loss injury prior to March 23, 1998; and that he did not act as a reasonably prudent person in failing to file his claim for compensation with the Commission prior to March 30, 1999, and requests that the hearing officer’s decision be reversed. Respondent, Reliance National Indemnity Company (Carrier 1) replies that the hearing officer’s decision is supported by the evidence and should be affirmed and that a finding that the date of injury is _____________, would render the hearing officer without jurisdiction to decide the remaining issues. Respondent, Zurich American Insurance Company (Carrier 2) replies that there is sufficient evidence to support the hearing officer’s decision and it should be affirmed.
DECISION
Reversed and remanded.
The claimant testified that he has worked for employer as a maintenance mechanic since 1987; that his job requires him to go into all areas of the plant, some of which are very loud; that he is given hearing protection when he enters the plant; that he wears hearing protection when working, but not during lunches, breaks, when entering or exiting the plant, or when in vessels because it interferes with his balance; that the employer gives a hearing test to employees annually; that the employer’s nurse would go over the test results with him and ask for his signature; that the first time he noticed that he might be having a problem with his hearing was in 1998, when his family members were complaining that he was not listening to them, but he thought it was due to his age (52 years); that it was not until after a conversation with his supervisor and coworkers approximately (date), that he thought his hearing loss might be work related; and that he was unaware of the reason why the employer required employees to take an annual hearing test. It was the claimant’s position that his date of injury is (date); that he timely reported the injury to the employer on March 23, 1998; that Carrier 2 is the proper carrier; that he filed his Employee’s Notice of Injury or Occupational Disease & Claim for Compensation (TWCC-41) with the Commission on March 30, 1999; and that because the employer failed to file an Employer’s First Report of Injury or Illness (TWCC-1) until June 22, 1999, his time for filing was tolled pursuant to Section 409.008.
Not appealed is the hearing officer’s finding that the claimant’s employment with the employer caused the claimant to be exposed to injurious levels of industrial noise, which resulted in the claimant sustaining a hearing loss injury. While the hearing officer’s decision does not specifically indicate the periods of workers’ compensation coverage provided by Carrier 1 and Carrier 2, it does indicate that on January 1, 1994, employer had a policy of workers’ compensation with Carrier 1, and on (date), employer had a policy of workers’ compensation with Carrier 2. It was undisputed that the claimant filed his TWCC-41 with the Commission on March 30, 1999; that the injury was reported to the employer on March 23, 1998; and that the employer filed the TWCC-1 with the Commission on June 22, 1999.
The evidence indicates that the claimant had a baseline hearing test performed on February 4, 1985. Other hearing tests were performed on February 15, 1989; December 12, 1989; April 30, 1991; December 18, 1991; December 16, 1992; November 16, 1994; November 16, 1995; November 13, 1997; November 5, 1998; and March 16, 1999. The audiometric data sheet for February 15, 1989, indicates under comments “normal” and is signed by the claimant. On June 5, 1989, a “Report of Hearing Test Results” refers to the current test being February 15, 1989, and states:
You appear to have a hearing loss for speech sounds and higher pitched sounds. There appears to have been a standard threshold shift in your hearing since your last baseline test as calculated by the OSHA standard on hearing conservation. Hearing protection must be worn in all required areas: now is a good time to have your protection checked for reliability and fit. Your current audiogram has been designated a baseline test for the purpose of future calculations. The pattern and/or severity of your audiograms suggest that your hearing might be improved by medical treatment or by the use of a hearing aid. Unless you have recently done so, you are urged to consult a physician to determine the cause and any appropriate treatment for your hearing loss. Your next test will be in one year.
The bottom of the report states in handwriting: “Employee did not show up for scheduled app to see Dr. 7/17/89” and contains the claimant’s initials with the date June 23, 1989. On _____________, a medical chart note written by an unknown person which is only partially legible states that the claimant “works as machinist in noisy areas . . . does not wear protection due to excessive ear wax . . . since ear test done same day will repeat Monday . . . states he will start wearing ear protection.” On December 8, 1989, a medical chart note signed by a registered nurse states that a wax plug was removed with irrigation. On December 12, 1989, the audiometric test data sheet indicates at the top of the form “Repeat Test” and under comments states “normal.” The audiometric test data sheets for April 30, 1991, and December 18, 1991, also state “normal” and are signed by the claimant. A hearing test report signed by the claimant on December 19, 1994, for a test taken on November 16, 1994, states “for high-pitched sounds such as whistles, birds singing, and some speech sounds, the hearing test results indicate that your left ear shows a mild hearing loss and your right ear shows a mild hearing loss. For common sounds such as voices and most everyday sounds, the hearing test results indicate that your left ear shows a mild hearing loss and your right ear shows a slight hearing loss. Remember that ears are sensitive! IT IS IMPORTANT THAT YOU ALWAYS WEAR HEARING PROTECTION WHENEVER YOU ARE EXPOSED TO LOUD NOISE, BOTH ON AND OFF THE JOB.”
The date of injury, for purposes of an occupational disease, is “the date on which the employee knew or should have known that the disease may be related to the employment.” Section 408.007. The date of injury is when the injured employee, as a reasonable person, could have been expected to understand the nature, seriousness, and work-related nature of the disease. Commercial Insurance Co. of Newark, N.J. v. Smith, 596 S.W.2d 661 (Tex. Civ. App.-Fort Worth 1980, writ ref’d n.r.e.). While a definite diagnosis from a doctor is not required, neither is the employee held to the standard of a doctor’s knowledge of causation. See Texas Workers’ Compensation Commission Appeal No. 91097, decided January 16, 1992. The date of the first symptoms will not necessarily constitute the date of injury.
The hearing officer states that “[s]ince the office note referenced above [_____________] has been contained in Claimant’s Exhibit No. 17 indicates that the claimant knew or should have known of the possible connection between his employment and the hearing loss which was detected as a result of his hearing test of June 5, 1989, and since no document indicates an earlier date of injury, the hearing officer considers it appropriate to determine that the claimant’s on-the-job hearing loss occurred as of _____________, an injury date which deprives the Commission of jurisdiction under the 1989 Act.” The hearing officer has a footnote which states: “[I]n the alternative, it would be reasonable to determine that the Claimant’s injury occurred on December 19, 1994. . . .” Although not mentioned by the hearing officer, the medical chart note of _____________, indicates that the claimant will be retested; the medical chart note of December 8, 1989, indicates that the claimant had a wax plug removed; and the December 12, 1989, audiometric test data sheet indicates “normal” as do subsequent tests until November 1994. While we do not disagree with the hearing officer’s statement that the claimant cannot reasonably contend that he had no way of knowing that excessive noise exposure could be injurious to one’s hearing, we do not believe that such knowledge equates with knowledge of an actual injury. Although the claimant testified that he thought he might have hearing loss due to his age, the claimant was notified that his hearing tests were “normal.” To determine that on _____________, the claimant knew or should have known that his hearing loss injury might be related to his employment after medical treatment and further testing indicated no hearing loss, is against the great weight and preponderance of the evidence. We reverse the hearing officer’s determination that the claimant’s date of injury is _____________, and remand this issue to the hearing officer for further development and consideration of the evidence.
The issue of whether the claimant gave timely notice to the employer is dependent on the date of injury. The parties agreed that the claimant first reported the alleged injury to employer on March 23, 1998. The hearing officer states that the evidence indicates that the claimant did not consider his hearing loss injury serious until approximately (date), approximately three weeks before the claimant reported the injury to the employer, but did not have good cause up until the time the injury was actually reported on March 23, 1998. The purpose of the notice requirement is to afford the employer with the opportunity to promptly investigate the circumstances of the injury. DeAnda v. Home Insurance Company, 618 S.W.2d 529, 532 (Tex. 1980). The need for notice can be dispensed with where there is actual knowledge of an injury. Actual knowledge could be found if the trier of fact believed that the employer had facts that would lead a reasonable person to conclude that a compensable injury had been sustained by the claimant. See Miller v. Texas Employers’ Insurance Association, 488 S.W.2d 489 (Tex. Civ. App.-Beaumont 1972, writ ref’d n.r.e.). Actual knowledge on the part of the employer is an exception to timely notice. Section 409.002(1). We have previously stated that a timely notice issue subsumes all the exceptions in Section 409.002, which includes actual knowledge. Texas Workers’ Compensation Commission Appeal No. 970649, decided May 28, 1997; Texas Workers’ Compensation Commission Appeal No. 962560, decided February 4, 1997.
While we cannot agree that the hearing officer’s resolution of the timely notice/good cause issue is against the great weight of the evidence, we believe that an issue of whether the employer had actual knowledge of the injury was presented to the hearing officer and remains unresolved. The claimant’s hearing loss was confirmed by on-site testing in November 1994. The claimant testified that the employer’s nurse discussed each hearing test result with him. Additionally, (Ms. H), the employer’s safety specialist, testified that the nurses explain to employees that they must wear hearing protection in high noise areas because it protects their hearing, they counsel the employees as to whether their hearing has changed in any measurable way, they show employees different kinds of hearing protection, and they go over the warnings that are actually contained in the audiogram. The claimant signed a form for the employer acknowledging hearing loss on December 19, 1994; March 5, 1996; January 8, 1998; and March 16, 1999. If the employer had the same knowledge that claimant had, in that the nurse who counseled claimant was an employee in a management position, the employer may have had knowledge of an injury by virtue of its actual knowledge of a hearing loss. Factual questions were before the hearing officer as to whether the employer had actual knowledge of the claimant’s injury; however, the hearing officer did not resolve that issue. Accordingly, we reverse the hearing officer’s notice determination and remand the case for the hearing officer to resolve the issue of whether the employer had actual knowledge of the claimant’s injury, and, if so, when.
We next address the determination that the claimant did not timely file a claim and did not have good cause for failing to timely file a claim. The claimant argued that his time to file a claim was extended because the employer did not timely file a TWCC-1. Section 409.003 requires that a claimant file a claim for compensation with the Commission no later than one year after the date of injury. Pursuant to Section 409.004, failure to do so will relieve the carrier of liability. Section 409.008 provides that time for the claimant to file his claim is tolled when, having been given notice or having knowledge of the injury, the employer or carrier fails to file a TWCC-1. In the present case, it is undisputed that the claimant filed his claim with the Commission on March 30, 1999, and that the claimant notified the employer of the injury on March 23, 1998. A TWCC-1 is required to be mailed or delivered to the Commission and the carrier not later than the eighth day after an employee notifies the employer of an occupational disease under Section 409.001. Section 409.005. Pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 120.2(1) (Rule 120.2(1)), the employer shall report to the employer’s insurance carrier each occupational disease if the employer has received notice of injury or has knowledge. “Knowledge” means “receipt of written or verbal information regarding diagnosis of an occupational disease, or the diagnosis of an occupational disease through direct examination or testing by a doctor employed by the employer.” When the employer was required to file a TWCC-1 hinges on when the employer was notified of the injury. Since the issue of notice to the employer is remanded, we must also reverse and remand the issue of whether the claimant timely filed his claim for compensation with the Commission.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Dorian E. Ramirez – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
CONCURRING/DISSENTING OPINION:
I agree that this case may be remanded to determine the date of injury. I do not equate an employer’s knowledge of an employee’s hearing loss to that of knowledge of an injury. In my opinion, the evidence did not raise an issue of actual knowledge requiring a remand for the hearing officer to address relative to the issue of notice to employer. (I note that the majority states, in addressing claimant’s knowledge, that excessive noise exposure “could be injurious,” then said, “We do not believe such knowledge equates with knowledge of an actual injury.” I also note that Rule 120.2(1) addresses reporting requirements regarding a TWCC-1, which does not necessarily determine compensability or liability.
Joe Sebesta – Appeals Judge