Compensable injury means an injury that arises out of and in the course and scope of employment for which compensation is payable under the Workers' Compensation Act. Section 401.011(10) . Injury means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease. Section 401.011(26). [Cross reference: Not in Course and Scope Because of Other Grounds (C10); Other Compensability Issues - Course and Scope (C00)]
An injury includes the aggravation of a preexisting condition or injury. Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614 (Tex. App.-Amarillo 1999, no pet.); Peterson v. Continental Cas. Co., 997 S.W.2d 893 (Tex. App.-Houston [1st Dist.] 1999, no pet.). To prove an aggravation of a preexisting condition there must be some enhancement, acceleration, or worsening of the underlying condition from the injury. APD 002967.
Burden of Proof.
The burden is on the IW to prove that an injury occurred within the course and scope of employment. APD 013018. As a general rule, the IW's testimony, if believed, can support a finding of injury in the course and scope of employment. Highlands Insurance Company v. Baugh, 605 S.W.2d 314 (Tex. Civ. App.- Eastland 1980, no writ). An injury arises out of employment if the employment is a producing cause. That means even if there are other causes of the injury, the employment need only be a cause. Texas Workers' Compensation Ins. Fund v. Simon, 980 S.W.2d 730, 736 (Tex.App. -San Antonio 1998, no pet.). Expert medical evidence may be required to establish a causal connection between the employment and an injury where the claimed injury is a disease which is beyond common knowledge or experience, such as cancer. Houston General Ins. Co. v. Pegues, 514 S.W.2d 492, 495 (Tex. Civ. App.-Texarkana 1974, writ ref'd n.r.e.).
An IW claiming a compensable injury, other than an occupational disease, must prove a definite time, place, and cause of the injury. Olson v. Hartford Accident & Indemnity Co., 477 S.W.2d 859 (Tex. 1972). The definite time, place, and cause requirement may be met if the IW can identify the work activity being performed when injured, such as moving heavy bags or boxes during the day, but is not able to relate the injury to the lifting of a specific bag or box. Hartford Accident & Indemnity Co. v. Contreras, 498 S.W.2d 419 (Tex. Civ. App.-Houston [1st Dist.] 1973, writ ref'd n.r.e.); Panola Junior College v. Estate of Thompson, 727 S.W.2d 677 (Tex. App.-Texarkana 1987, no writ). Whether or not an IW sustained a compensable injury is a question of fact for the HO to resolve. APD 970799.
[Cross reference: Compensability Occupational Disease (C14).]
PAIN. Mere pain is not compensable. Nat'l Union Fire Ins. Co. of Pittsburgh v. Janes, 687 S.W.2d 822 (Tex. App.-El Paso 1985, writ ref'd n.r.e.); APD 94084. However, pain accompanied by swelling and medical evidence of aggravation would support a finding of injury. Janes, supra. It should be noted that in cases where the AP has determined that pain alone is not an injury, no other objective or clinical indication of physical harm or damage to the IW was present. APD 032608.
Prosthetic and Orthotic Devices.
Effective September 1, 2007, the 80th Legislature R.S. amended Section 401.011 by amending subsection (19) and adding subsections (34-a) and (35-a) to read as follows:
1. The term "health care" includes "a medical or surgical supply, appliance, brace, artificial member, or prosthetic or orthotic device, including the fitting of, change or repair to, or training in the use of the appliance, brace, member, or device." (The underlined text reflects the amended language). Section 401.011(19)(F).
2. ""Orthotic device" means a custom-fitted or custom-fabricated medical device that is applied to a part of the human body to correct a deformity, improve function, or relieve symptoms related to a compensable injury or occupational disease." Section 401.011(34-a).
3. ""Prosthetic device" means an artificial device designed to replace, wholly or partly, an arm or leg. Section 401.011(35-a).
Repetitive Trauma Injury.
[Cross reference: Compensability Occupational Disease (C14)]
[Cross reference: Other Compensability Issues - Course and Scope (C00)]
The IW was walking to a work meeting on the employer's premises when she experienced a pop in her right knee. The next day a doctor provided work injury diagnoses of a right knee strain and a tear of the calf muscle. The claimed injury was a specific injury, not a repetitive trauma injury. The HO determined that the IW did not sustain a compensable injury because the overwhelming evidence supported that the mechanism of injury was simply walking. The AP reversed and rendered a decision that the IW sustained a compensable injury. The injury occurred in the course and scope of employment and the injury arose from the employment. It was not necessary for the IW to prove that a pivot, twist, turn, or other type of untoward body motion occurred while walking to the work-related meeting to establish that the injury arose from the employment. In Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W.72 (1922), the Texas Supreme Court stated that "an injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business." The AP declined to follow APD 980631, which held that a claimed specific injury was not compensable under similar facts. APD 070284-s.