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 July 28, 2003. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) reached maximum medical improvement on October 10, 2002, with an impairment rating of 2%; that the claimant had disability from February 22, 2002, through February 28, 2003; and that the issue of whether or not there was a violation of the 1989 Act by the designated doctor when he received and reviewed the videotape sent by the carrier is outside the jurisdiction of the hearing officer. Initially, the claimant mailed a copy of the blue brochure of the Texas Workers’ Compensation Commission (Commission) regarding “Review of Claims Disputes by the Commission’s Appeals Panel” and subsequently filed a written appeal dated September 8, 2003. The respondent (carrier) responded, urging affirmance of the determinations of the hearing officer and arguing that the claimant’s appeal was untimely.

DECISION

The hearing officer’s decision has become final under Section 410.169 because a timely appeal has not been filed with the Commission.

The Appeals Panel has held that where a claimant files only a copy of the previously described brochure, this is not sufficient to serve as an appeal because the claimant "did not adequately state the grounds upon which review was requested nor indicate disagreement with any portion of that decision." Texas Workers' Compensation Commission Appeal No. 94973, decided September 1, 1994; Texas Workers' Compensation Commission Appeal No. 000452, decided April 13, 2000. In this case, the claimant did not indicate on the brochure the case that was being appealed or what portions of any decision he disagreed with. The filing of the brochure on September 4, 2003 (mailed August 28, 2003), did not constitute the filing of a sufficient appeal.

Pursuant to Section 410.202(a), a written request for appeal must be filed within 15 days of the date of receipt of the hearing officer’s decision. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal. Section 410.202(d). Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § Rule 143.3(c) (Rule 143.3(c)) provides that an appeal is presumed to have been timely filed if it is mailed not later than the 15th day after the date of receipt of the hearing officer’s decision and received by the Commission not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(c) must be satisfied in order for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 002806, decided January 17, 2001.

Commission records indicate that the hearing officer’s decision was mailed to the claimant on August 1, 2003. Pursuant to Rule 102.5(d), unless the great weight of evidence indicates otherwise, the claimant is deemed to have received the hearing officer's decision five days after it was mailed or on August 6, 2003, in this instance. The record reflects that the hearing officer’s decision was mailed to the claimant at the address he listed on the appearance sheet at the hearing. Thus, the appeal needed to be mailed or faxed no later than August 28, 2003, the 15th day after the deemed date of receipt. The claimant sent a written appeal dated September 8, 2003. However, the claimant’s appeal is postmarked as being mailed on September 19, 2003. Section 410.202(c) discusses the form of appeals and responses. Early on, and repeatedly since, we have held that no particular form of appeal is required and that an appeal, even though terse and unartfully worded, will be considered. Texas Workers' Compensation Commission Appeal No. 91131, decided February 12, 1992; Texas Workers' Compensation Commission Appeal No. 93040, decided March 1, 1993; and cases cited therein. We have also held that appeals that lack specificity will be treated as challenges to the sufficiency of the evidence. Texas Workers' Compensation Commission Appeal No. 92081, decided April 14, 1992. We find that the appeal dated September 8, 2003, which is a written letter from the claimant is adequate in the present case to raise the issue of whether there was sufficient evidence to support the hearing officer's decision. However the appeal needed to be mailed no later than August 28, 2003, the 15th day after the deemed date of receipt. The claimant's appeal was mailed to the Commission on September 19, 2003, and is, therefore, untimely.

The appeal being untimely, the jurisdiction of the Appeals Panel was not properly invoked and the decision is final pursuant to Section 410.169.

The true corporate name of the insurance carrier is PROTECTIVE INSURANCE COMPANY and the name and address of its registered agent for service of process is

VAN WAGNER CO.

1100 JUPITER ROAD, SUITE 121

PLANO, TEXAS 75074.

Margaret L. Turner
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 24, 2003, with (hearing officer 2) presiding as the hearing officer. Hearing officer 2 resolved the disputed issues by deciding: (1) the respondent (claimant) sustained a compensable injury on _____________; (2) the claimant had disability from July 5 through December 31, 2001; (3) the appellant (carrier) provided workers’ compensation insurance for the employer on _____________; (4) the Texas Workers’ Compensation Commission (Commission) has jurisdiction to determine the disputed issues; (5) the principles of res judicata, laches, and collateral estoppel do not act as a bar to the claimant on the disputed issues; and (6) the carrier waived its right to dispute compensability of the claim. The carrier appealed, and the claimant responded. We note that the cover letter to the carrier’s request for review correctly identifies the carrier as Federal Insurance Company, but that the first page of the request for appeal incorrectly identifies the employer as being self-insured. It is undisputed that the carrier provided workers’ compensation insurance to the employer on the date of the claimed injury, _____________.

DECISION

Affirmed.

BACKGROUND

On November 19, 2001, with (hearing officer 1) presiding as the hearing officer. The issues at the CCH were whether the claimant sustained a compensable injury on _____________, and whether he had disability. The employer represented at the CCH that it was self-insured for purposes of workers’ compensation insurance. Hearing officer 1 issued a decision determining that the claimant did not sustain a compensable injury and that he did not have disability. The claimant appealed hearing officer 1’s decision. In Texas Workers’ Compensation Commission Appeal No. 020071, decided February 28, 2002, the Appeals Panel reversed hearing officer 1’s decision and remanded the case to hearing officer 1 because Commission records did not show that the employer was approved for self-insurance by the Commission. The Appeals Panel stated that if the proper carrier was not before the Commission as a party in the claim, then hearing officer 1 should take appropriate action.

On remand, hearing officer 1 obtained a corrected carrier information form, which showed that the carrier was the workers’ compensation insurance carrier for the employer. Hearing officer 1 did not hold a CCH on remand, but instead, when identifying the carrier in his decision on remand, substituted the carrier’s name for the employer’s name. In the decision on remand, hearing officer 1 again determined that the claimant did not sustain a compensable injury and that he did not have disability. The claimant appealed hearing officer 1’s decision on remand. In Texas Workers’ Compensation Commission Appeal No. 020940, decided June 10, 2002, the Appeals Panel held that it was clear that the dispute had not been litigated with the correct party, and that a new proceeding must be initiated by the parties to resolve the compensability issue in the absence of an agreement. The Appeals Panel decided that:

Because of harmful error in failing to join the insurance carrier as a party in a reconvened CCH, and our inability to remand a second time (Section 410.203(c)) the Appeals Panel reverses and renders a new decision that there has been no binding adjudication of the dispute with the proper carrier present, and the decision and order is null and void, and has no precedential effect.

On July 12, 2002, the carrier filed a petition in district court seeking to set aside the decision in Appeal No. 020940, and requesting the court to affirm hearing officer 1’s decision on remand. Apparently, that suit is still pending as there is no information in the CCH record of March 24, 2003, to indicate otherwise.

A benefit review conference was held on November 26, 2002, and a CCH was held on March 24, 2003 on the disputed issues of compensable injury, disability, carrier coverage, carrier waiver, Commission jurisdiction, and res judicata. The claimant and the carrier appeared at the March 24, 2003, CCH. Hearing officer 2 found in favor of the claimant on the disputed issues and the carrier has appealed those determinations. It is undisputed that the carrier provided workers’ compensation insurance for the employer on _____________, the date of the claimed injury.

CARRIER’S APPEAL

Venue. The carrier appeals hearing officer 2’s determination that venue was proper in the (city) Field Office. Since the parties stipulated that venue was proper in the (city) Field Office, we find no merit in the carrier’s dispute of that determination.

Jurisdiction. The carrier appeals the hearing officer’s determination that the Commission has jurisdiction to determine the disputed issues. The carrier asserts that the Commission had no authority to proceed with a second CCH because the Appeals Panel is not authorized to void a decision. We disagree. Section 410.203(b) provides that the Appeals Panel may: (1) affirm the decision of the hearing officer; (2) reverse that decision and render a new decision; or (3) reverse that decision and remand the case to the hearing officer for further consideration and development of evidence. Section 410.203(c) provides that the Appeals Panel may not remand a case under subsection (b)(3) more than once. In Appeal No. 020940, the Appeals Panel reversed hearing officer 1’s decision and rendered a new decision that there had been no binding adjudication of the dispute with the proper carrier present, and that hearing officer 1’s decision and order was null and void. Thus, the Appeals Panel reversed hearing officer 1’s decision and rendered a new decision as authorized by Section 410.203(b)(2).

Although not mentioned in the carrier’s appeal as a basis for disputing the Commission’s jurisdiction, as noted in the background section of this decision, the carrier filed a petition in district court to set aside the decision in Appeal No. 020940. We do not find the carrier’s suit in district court to be an impediment to the Commission’s jurisdiction to determine the disputed issues of compensability and disability because Section 410.205(b) provides that “[t]he decision of the appeals panel regarding benefits is binding during the pendency of an appeal under Subchapter F or G.” In Appeal No. 020940, the Appeals Panel reversed hearing officer 1’s decision that the claimant did not sustain a compensable injury and that he did not have disability and rendered a decision that that decision was null and void, and in doing so the Appeals Panel determined that since the dispute had not been litigated with the correct party, a new proceeding must be initiated by the parties to resolve the compensability issue. A new proceeding was initiated in accordance with the decision in Appeal No. 020940. Thus, although the carrier appealed the decision in Appeal No. 020940 to the district court, the decision in Appeal No. 020940 that hearing officer 1’s decision was null and void remains binding during the pendency of the appeal. Section 410.205(b).

Res Judicata. The carrier appeals hearing officer 2’s determination that the principles of res judicata, laches, and collateral estoppel do not act as a bar to the claimant on the disputed issues in this case. Since the Appeals Panel determined in Appeal No. 020940 that hearing officer 1’s decision was null and void, the hearing officer did not err in making the complained-of determination.

Compensable Injury and Disability. The carrier appeals hearing officer 2’s determinations in favor of the claimant on the issues of compensable injury and disability. The claimant had the burden to prove that he sustained a compensable injury as defined by Section 401.011(10) and that he had disability as defined by Section 401.011(16). Conflicting evidence was presented at the CCH. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Hearing officer 2 found that the claimant was injured at work on _____________, when a 50-pound box of nails fell on his head; that the incident of _____________, caused harm or damage to the claimant’s head, neck, and back; and that as a result of the injury of _____________, the claimant was unable to work from July 5 through December 31, 2001. Although there is conflicting evidence on the disputed issues of compensable injury and disability, we conclude that hearing officer’s 2’s determinations in favor of the claimant on those issues are supported by sufficient evidence and are not 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 (Tex. 1986).

Carrier Waiver. The carrier appeals hearing officer 2’s determination that the carrier waived its right to dispute compensability. In Continential Casualty Company v. Downs, 81 S.W.3d 803 (Tex. 2002), the Texas Supreme Court concluded that under Sections 409.021 and 409.022, a carrier that fails to begin payments as required by the 1989 Act or send a notice of refusal to pay within seven days after it receives written notice of injury has not met the statutory requisite to later contest compensability. Hearing officer 2 found that the carrier first received written notice of the claim on July 6, 2001, and did not file a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) disputing the claim until November 26, 2002, and that the carrier did not file a TWCC-21 disputing the claim within seven days after receiving written notice of the injury or begin to pay benefits as required. Hearing officer 2 concluded that the carrier waived its right to dispute compensability of the injury. We conclude that hearing officer 2’s determination on the carrier waiver issue is supported by sufficient evidence and that it is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, supra.

The carrier contends that it had no obligation to dispute the injury because the claimant had no injury. We disagree. In Continental Casualty Company v. Williamson, 971 S.W.2d 108 (Tex. App.-Tyler 1998, no pet.), the court held that “if a hearing officer determines that there is no injury, and that finding is not against the great weight and preponderance of the evidence, the carrier’s failure to contest compensability cannot create an injury as a matter of law.” The Appeals Panel has held that Williamson is limited to situations where there is a determination that the claimant did not have an injury, that is, no damage or harm to the physical structure of the body, as opposed to cases where there is an injury, which was determined by the hearing officer not to be causally related to the claimant’s employment. Texas Workers’ Compensation Commission Appeal No. 020941, decided June 6, 2002. In the instant case, hearing officer 2 determined that the claimant has an injury, thus the Williamson case does not apply. Since the Appeals Panel in Appeal No. 020940 reversed hearing officer 1’s decision against the claimant and rendered a decision that hearing officer 1’s decision was null and void because the carrier was not joined as a party, hearing officer 1’s decision is not res judicata as asserted by the carrier. We note that even if it were to be determined that the carrier did not waive its right to contest compensability of the injury, the claimant would still be entitled to benefits because we are affirming hearing officer 2’s determination that the claimant was injured at work when the box of nails fell on him and thus had a compensable injury and resulting disability.

Denial of Request to Add an Issue. The carrier contends that the hearing officer erred in denying its request to add an issue as to whether the claimant waived his right to assert that the carrier waived its right to dispute compensability of the injury. The claimant did not consent to the addition of the requested issue and hearing officer 2 did not find good cause for adding the requested issue. See Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.7(d) and (e) (Rule 142.7(d) and (e)). Under the circumstances of this case, where the employer represented it was self-insured at the November 19, 2001, CCH, and it was later determined that that was not correct and that the employer had workers’ compensation insurance with the carrier on the date of injury, we cannot conclude that hearing officer 2 abused his discretion in denying the carrier’s request to add the issue of the claimant’s waiver of his right to assert that the carrier waived its right to dispute compensability.

Excluded Exhibits. The carrier contends that hearing officer 2 erred in excluding from evidence Carrier’s Exhibit Nos. U, W, X, AA, and BB. The excluded exhibits are, respectively, hearing officer 1’s original decision, hearing officer 1’s letter regarding the remand, hearing officer 1’s decision on remand, the response to the claimant’s appeal of hearing officer 1’s original decision, and the response to the claimant’s appeal of hearing officer 1’s decision on remand. To obtain reversal of a decision based upon error in the admission or exclusion of evidence, it must be shown that the ruling was in fact error and that the error was reasonably calculated to cause and probably did cause the rendition of an improper decision. Texas Workers’ Compensation Commission Appeal No. 91003, decided August 14, 1991. We conclude that the carrier has not shown that hearing officer 2 committed reversible error in excluding the aforementioned exhibits. In so determining, we note that in Appeal No. 020940, the Appeals Panel determined that hearing officer 1’s decision on remand was null and void because the proper carrier was not present at the CCH, and that the record of the March 24, 2003, CCH contains, among other things, copies of Appeal No. 020940 and Appeal No. 020071, and the transcript of the November 19, 2001, CCH.

We affirm hearing officer 2’s decision and order.

The true corporate name of the insurance carrier is FEDERAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

PARKER W. RUSH

2001 BRYAN STREET, SUITE 3400

DALLAS, TEXAS 75201-3068.

Robert W. Potts

CONCUR:

Gary L. Kilgore
Appeals Judge

Thomas A. Knapp
Appeals Judge

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 January 4, 2001. With respect to the issues before her, the hearing officer determined that the appellant’s (claimant) compensable injury is not a producing cause of the claimant’s right rib cage injury, and that the claimant is not entitled to supplemental income benefits (SIBs) for the fourth, fifth, sixth, and seventh quarters. In his appeal, the claimant asserts that those determinations are against the great weight of the evidence. In addition, the claimant contends that the hearing officer erred in admitting a decision of the State Office of Administrative Hearings (SOAH) in a medical dispute hearing. In its response to the claimant’s appeal, the respondent (carrier) urges affirmance.

DECISION

Affirmed.

The hearing officer did not err in determining that the claimant’s compensable injury of ________ is not a producing cause of his right rib cage injury. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165. The hearing officer noted that the medical evidence offered did not establish the causal connection between the claimant’s prior thoracic surgery and his rib condition that necessitated the August 15, 2000, right rib resection and excision of a neuromuscular bundle. There was conflicting evidence on the causation issue and it was a matter for the hearing officer to resolve the conflicts and to determine what facts the evidence had established. The hearing officer was acting within her role as the fact finder in determining that the claimant did not sustain his burden of proving that his right rib cage injury was a direct and natural consequence of his compensable injury. Nothing in our review of the record indicates that the hearing officer’s determination that the compensable injury is not a producing cause to the right rib cage injury is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Accordingly, no sound basis exists for us to disturb that determination on appeal. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cainv. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The claimant contends that the hearing officer erred in admitting a SOAH decision concerning a preauthorization dispute for the previously mentioned surgery to resect the right rib. In that decision the SOAH administrative law judge determined that the claimant did not sustain his burden of proving that the pain he was experiencing in his rib cage was reasonably related to his compensable injury or that the proposed procedure was medically necessary; thus, the preauthorization request was denied. The claimant contends that the hearing officer erred in admitting the SOAH decision because it was prejudicial in that it resolved the compensability issue, a matter beyond the jurisdiction of the SOAH judge. We cannot agree that the admission of the decision, if error, was reversible error because its consideration "was not reasonably calculated to cause and probably did not cause the rendition of an improper judgment." Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ).

The hearing officer did not err in determining that the claimant is not entitled to SIBs for the fourth, fifth, sixth, and seventh quarters. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(d)(4) (Rule 130.102(d)(4)) provides that an injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee “has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.” The hearing officer determined that the claimant did not present a sufficient narrative and that other records show an ability to work. The hearing officer was acting within her province as the fact finder under Section 410.165(a) in determining that the reports stating that the claimant had no ability to work did not provide sufficient explanation as to how the claimant’s compensable injury caused a total inability to work and that there were other records that showed an ability to work. Nothing in our review of the record demonstrates that the hearing officer’s determination that the claimant had some ability to work in the qualifying periods for the fourth, fifth, sixth, and seventh quarters is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. As such, we will not disturb that determination on appeal. Pool, supra; Cain, supra. The claimant acknowledged that he did not look for work in the relevant qualifying periods and, as such, the hearing officer did not err in determining that the claimant is not entitled to SIBs for the quarters at issue.

The hearing officer’s decision and order are affirmed.

Elaine M. Chaney
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Philip F. O’Neill
Appeals Judge

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 July 28, 2000. With respect to the issues before him, the hearing officer determined that the respondent (claimant) sustained a compensable injury in the form of an occupational disease with a date of injury of _________; that she timely reported her injury to her employer; and that she has had disability as a result of her compensable injury from July 6, 1999, through the date of the hearing. In its appeal, the appellant (self-insured) asserts error in each of those determinations. The self-insured also argues that the hearing officer erred in excluding the report of its expert witness, Dr. K. In her response to the self-insured’s appeal, the claimant urges affirmance. The claimant responds that the hearing officer did not err in excluding the report of Dr. K; however, she argues that the hearing officer erred in permitting Dr. K to testify at the hearing. The claimant’s response was not timely to serve as an appeal under Section 410.202, and, as such, only the issue of the exclusion of Dr. K’s written report is before us on appeal.

DECISION

Affirmed.

The claimant testified that she began working for the self-insured’s zoo in January 1999. She stated that she is an animal keeper responsible for the care of animals in the zoo hospital and that her job duties required her to be exposed to a disinfectant, Roccal-D, for nearly six hours each day because one of her primary duties was to clean and disinfect animal stalls and other areas. The claimant testified that she used a Roccal-D concentrate that she diluted in a gallon bucket of water. She stated that in late March 1999 she began to notice that she had difficulty breathing at work; that her symptoms started out as allergy-type symptoms; that she had an “inkling” this was work related on _________, because every time she mixed the Roccal-D she felt the tightness in her chest; that her symptoms became progressively worse over the next couple of months; that by the end of May 1999, her symptoms had moved to her lungs and included tightness in her chest and difficulty breathing with any exertion; and that at first her symptoms were worse when she was at work and eventually they progressed so that they were the same at work and away from work. The claimant testified that by _________, she told her supervisor, Ms. B, that she thought that the breathing problems she was having at work were related to her use of the Roccal-D. In a document entitled “Supervisor’s Investigation,” Ms. B states that “[d]uring April or May, 1999, [claimant] mentioned that she thought she was having problems working with a disinfectant (Roccal), specifically that she found it harder to breathe when she used the product.”

The claimant acknowledged that she operates a wildlife rehabilitation center where she takes care of injured birds and gets them ready for release back into the wild. She stated that she feeds the birds, cleans their cages, and administers medications. She further testified that on any given day she is exposed to 500 to 600 birds; that she has owned birds for over 30 years; that she has been rehabilitating them in large numbers for over 20 years; and that she has never had breathing problems similar to the ones she experienced after her exposure to Roccal-D at the zoo in the course of over 20 years of working to rehabilitate birds.

The claimant initially sought treatment with her primary care physician, Dr. C. Dr. C took the claimant off work on July 6, 1999. The claimant’s symptoms became progressively worse; thus, Dr. C referred the claimant to Dr. E, a pulmonary specialist. The claimant’s initial appointment with Dr. E was on August 2, 1999. In his progress notes from the claimant’s initial appointment, Dr. E diagnosed hypersensitivity pneumonitis and noted that the claimant’s problem could be related to her exposure to birds or exposure to toxic fumes. Dr. E treated the claimant with a course of corticosteroids. The claimant continued to be exposed to birds on a daily basis while she was being treated with steroids; however, she was no longer exposed to Roccal-D because Dr. E continued to keep her off work from the zoo. In a progress note dated October 21, 1999, Dr. E noted that the claimant was doing well despite her continued exposure to birds. In a “To Whom it May Concern” letter dated October 25, 1999, Dr. E stated that the claimant’s hypersensitivity pneumonitis “appears to be related to an exposure to work-related agents which may include various toxic fumes.” Finally, in a letter of May 8, 2000, Dr. E addressed the issue of causation, as follows:

This lady appears to have a hypersensitivity lung reaction. The etiology is not 100% clear. However, her symptoms increased after heavy exposure to toxic fume inhalation while at work and a clinical association can be made. In addition, she has improved somewhat with removal from the environment as well as treatment.

Obviously, it will be difficult to tell if there is any relation to her exposure to pigeons at home and she has been advised to avoid ongoing exposure here. However, her toxic fume exposure certainly has a strong temporal relationship to the development of her symptomatology and removal from the environment seems to have improved her symptoms. In addition, her nasal symptomatology appears to be much more consistent with a toxic fume exposure.

Dr. K testified by telephone on behalf of the self-insured at the hearing. Dr. K stated that he had reviewed the claimant’s medical records. Dr. K opined that it is “extremely unlikely” that the claimant’s illness is related to her exposure to Roccal-D at work because that substance has low toxicity and, according to the medical literature and in his experience, is not associated with continued hypersensitivity reactions. Dr. K further testified that there were three better explanations of the claimant’s illness: pulmonary sarcoidosis; “bird fancier’s” hypersensitivity pneumonitis; and compost lung hypersensitivity pneumonitis, and that in order to make a definitive diagnosis between those three the claimant would have needed to undergo a lung biopsy prior to being treated with steroids. On cross-examination, Dr. K stated that he dismissed exposure to Roccal-D as the cause of the claimant’s problems even though the Material Safety Data Sheet on Roccal-D listed breathing difficulty as a sign/symptom of overexposure because it has a temporary irritant effect. Dr. K maintained that the medical literature does not support development of hypersensitivity pneumonitis due to exposure to Roccal-D and that the improvement in the claimant’s condition following her removal from Roccal-D does not change his causation opinion because she had steroid treatment and the other conditions would have been expected to resolve also with such treatment.

The claimant had the burden to prove that she sustained a compensable injury. Johnson v. Employers Reinsurance Corp., 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). That issue presented a question of fact for the hearing officer to resolve. The hearing officer is the sole judge of the relevance and materiality of the evidence and of its weight and credibility. Section 410.165. The hearing officer resolves conflicts and inconsistencies in the evidence and decides what weight to give to the evidence. Texas Employers Ins. Ass'n v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). To this end, the hearing officer as fact finder may believe all, part, or none of the testimony of any witness. The causation of the claimant’s pulmonary injury is a matter beyond common experience such that expert evidence of causation is required in this instance. When reviewing a hearing officer's decision we will reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

The self-insured contends that the claimant did not sustain her burden of proving that she sustained a compensable injury. Specifically, the self-insured argues that Dr. E’s causation opinion does not rise to the level of reasonable medical probability and, as such, it cannot serve as expert evidence of causation under the 1989 Act. We find no merit in this assertion. When the substance of Dr. E’s letter is reviewed it can reasonably be interpreted as stating that in his opinion, within reasonable medical probability, the claimant’s hypersensitivity pneumonitis was caused by her overexposure to Roccal-D at work. Dr. K provided a conflicting causation opinion. The hearing officer was acting within his province as the fact finder in deciding to credit the evidence from Dr. E over that of Dr. K. The hearing officer's determination that the claimant sustained a compensable injury in the form of an occupational disease is supported by sufficient evidence and our review of the record does not reveal that the hearing officer’s injury determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust; therefore, no sound basis exists for us to reverse it on appeal. Pool; Cain.

The self-insured also argues that the hearing officer’s determination that the claimant timely reported her injury to her employer is against the great weight of the evidence. The claimant testified that no later than _________, she told Ms. B, her supervisor, that she believed that her exposure to Roccal-D at work was causing her breathing problems. Ms. B’s investigation report confirms that in either April or May 1999, the claimant told her that she found it harder to breathe when she used the Roccal-D. This evidence supports the hearing officer’s determination that the claimant reported her injury to her employer within 30 days of the _________, date of injury, which was not disputed. Nothing in our review of the record demonstrates that the hearing officer’s determination that the claimant timely reported her injury is so contrary to the great weight of the evidence as to compel its reversal on appeal.

The self-insured’s challenge to the disability issue is premised upon the success of its argument that the claimant did not sustain a compensable injury. Given our affirmance of the hearing officer’s injury and notice determinations, we likewise affirm his determination that the claimant had disability as a result of her compensable injury from July 6, 1999, through the date of the hearing. While the dissent raises some valid concerns about continuing disability in a case such as this where it appears that the claimant could return to work with the caveat that she not be exposed to Roccal-D, the method for addressing those concerns is not, as the dissent suggests, the imposition of a job search requirement on the claimant in order to establish disability and corresponding entitlement to temporary income benefits. Rather, the 1989 Act provides for this situation through the bona fide job offer provisions of Section 408.103 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 129.5 (Rule 129.5).

Finally, we briefly consider the self-insured’s assertion that the hearing officer committed reversible error in excluding Dr. K’s written report, which was not timely exchanged. This assertion is wholly without merit. Dr. K was permitted to testify at the hearing. The self-insured does not indicate what evidence is contained in Dr. K’s written report, which was unavailable in his testimony, and none is apparent to us. There is no question that the report was not timely exchanged with the claimant in that it was not exchanged until the morning of the hearing. Accordingly, the hearing officer did not err in excluding the report.

The hearing officer’s decision and order are affirmed.

Elaine M. Chaney
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

DISSENTING OPINION:

I dissent on affirming the extent of disability found by the hearing officer and would reverse and remand for further development and consideration of evidence. When evidence is offered by the carrier that the physical damage caused by an allergic reaction has cleared up, and the sole restriction given to the claimant is not to work around the particular substance causing the reaction, it seems to me that the injured worker bears the responsibility of proving that the compensable injury is still causing an inability to obtain and retain employment in the workplace at large. This burden is not met merely by showing that she cannot return to a specific work site where the chemical is in use, when the substance is one not found in most workplaces. Given evidence here of the ability to perform transferable skills (work in the bird rescue activities) that don't cause harm, and the medical evidence that her lung condition has cleared up, I cannot agree that the finding of nearly a year's worth of disability is sufficiently supported by the record.

Susan M. Kelley
Appeals Judge

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 on May 15, 2000. The hearing officer kept the record open to an unspecified date and determined that the respondent (claimant) sustained a compensable deep vein thrombosis (DVT) condition resulting from an injury she sustained on __________, and that she had disability beginning on December 8, 1999, and continuing through December 21, 1999. The appellant (carrier) requested review; contended that the hearing officer erred in admitting a report from Dr. H, in refusing to submit certain questions to Dr. H in the carrier’s request for deposition on written questions, and in refusing to admit the boot the claimant was wearing at the time of the injury; urged that the claimant failed to prove with reasonable medical probability that she sustained a compensable DVT injury on __________, as opposed to the consequences of an infected dog scratch and that the determination on the extent of the claimant’s injury is so against the great weight and preponderance of the evidence as to be manifestly unjust; argued that since the claimant’s compensable injury did not include DVT, she did not have disability; and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision in its favor on each issue. In the alternative, the carrier requested that the Appeals Panel reverse the decision of the hearing officer and remand to the hearing officer so that he may examine and cross-examine Dr. H on the issue of whether the claimant’s injury extends to DVT. The claimant responded, urged that the evidence is sufficient to support the decision of the hearing officer, and requested that it be affirmed.

DECISION

We reverse and remand.

We first address the carrier’s contention that the hearing officer erred in not admitting a rubber boot like the one worn by the claimant at the time that she was struck by a piece of metal. The hearing officer stated that he would not admit the boot into evidence, that the boot was examined by him and the parties, and that a photograph and a description of the boot could be entered into the record. The hearing officer and the attorney representing the carrier made statements describing the boot. The record contains a photograph. The hearing officer should have done as is often done in trials in court and admitted the boot into evidence and then permitted the photograph and description of the boot to be substituted for the boot in the record of the hearing. The practical effect of how the hearing officer handled the offering of the boot into evidence is that the boot was admitted into evidence. He did not commit reversible error.

We next address the hearing officer’s keeping the record open to receive the letter from Dr. H dated May 4, 2000. The benefit review conference (BRC) was held on March 29, 2000, and the BRC report was transmitted to the parties with a letter dated April 11, 2000, advising that the CCH was scheduled for May 15, 2000. At the CCH, the attorney representing the claimant stated that the claimant spoke with Dr. H, trying to get a report from him. He also said that on April 12, 2000, he, the attorney, faxed a letter to Dr. H; advised Dr. H of the upcoming CCH; told him that Dr. S had characterized the claimant’s condition as an ordinary disease of life and not the result of her work-related injury; and requested that Dr. H provide a short statement about whether he agreed or disagreed with Dr. S’s conclusions and the medical indications that supported Dr. H’s position. The attorney stated that after a response was not received within two weeks, the claimant contacted Dr. H’s office; that they learned that the fax was sent to a general fax number rather than to Dr. H’s personal fax number; that Dr. H is in his office only two days a week; and that historically it is difficult to get a response from Dr. H. The carrier stated that Dr. S’s report was exchanged with the claimant well before the CCH and objected to keeping the record open to receive a report from Dr. H.

Evidentiary rulings by a hearing officer on documents which are admitted or not admitted are generally viewed as being discretionary on the part of the hearing officer. Texas Workers’ Compensation Commission Appeal No. 94816, decided August 10, 1994. The standard of review on such evidentiary questions is abuse of discretion. Texas Workers’ Compensation Commission Appeal No. 93580, decided August 26, 1993. In determining whether there was an abuse of discretion, the Appeals Panel looks to see if the hearing officer acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The Appeals Panel has stated that the hearing officer should look at diligence in obtaining a document in addition to timely exchanging it after it is received. Texas Workers’ Compensation Commission Appeal No. 001812, decided September 13, 2000. It would have been preferable for the hearing officer to have stated that he found good cause to keep the record open to receive the report if it was received in seven days and to have stated the basis for finding good cause. However, the record does not reveal that the hearing officer erred in keeping the record open and admitting the letter from Dr. H dated May 4, 2000.

We next address the carrier’s contention that the hearing officer erred in not submitting to Dr. H eight of the thirteen questions it requested be submitted to Dr. H. The claimant testified that on __________, a piece of metal fell and struck her right leg; that she did not see the piece fall; that other employees who saw the piece fall and maintenance personnel of the employer told her that the piece is about three feet long and weighs about 30 pounds and that it hit the floor, bounced, and struck her; that the piece slid down her leg and landed on her ankle; that her ankle was very swollen; that she went to the employer’s nurse; and that ice was placed on her ankle. The claimant said that she had a scratch on her leg that is not related to the injury; that the scratch became infected; that she went to Dr. MR, her regular doctor; and that Dr. MR placed her on antibiotics. A report from Dr. MR dated October 14, 1999, is consistent with her testimony concerning the scratch. An affidavit from Ms. LR, the employer’s nurse, states that she saw the claimant on __________; that there was no laceration on the claimant’s right ankle as a result of a piece of metal that fell to the floor and bounced back, hitting the claimant’s ankle; that the claimant was treated with ice; and that during the examination of the claimant she noticed a stasis ulcer on the anterior side of the claimant’s right leg; and that the ulcer was not related to the claimant’s injury.

A hospital discharge summary from Dr. H indicates that the claimant was admitted on December 8, 1999, and discharged on December 10, 1999; that the discharge diagnosis is DVT; that a couple of weeks ago the claimant had a heavy object fall on her leg at work; that since that time, she had significant swelling; that after the soft-tissue swelling of her injury resolved, she had persistent swelling in her calf and foot and developed ulceration in her tibial area; that a venous sonogram showed nonocclusive probable acute DVT; that given her history, the DVT is certainly posttraumatic from her work injury; that she was admitted for anticoagulation; and that she was dismissed, will take medication, and will be monitored. In the letter dated May 4, 2000, Dr. H wrote:

This is a note in behalf of [claimant] regarding her treatment for [DVT] of the right lower extremity. I first saw [claimant] in December 1999. At that time the patient gave me a history of having swelling in her right leg after an accident which had occurred at work several weeks prior to this. The exam was consistent with venous insufficiency and a duplex sonogram was performed which demonstrated [DVT] in the right lower extremity. This was appropriately treated with blood thinners and compression stockings. I was asked to render an opinion as to whether or not this injury occurred as a result of work. My impression is that DVT is common in the general population, but in younger patients such as [claimant] it is most commonly associated with an identifiable event such as an injury. It is exceedingly common to have post traumatic DVT after blunt trauma to the lower extremity.

At the request of the carrier, Dr. S reviewed unspecified records of the claimant. In a letter dated March 13, 2000, Dr. S wrote that a piece of metal hit the right outside of the claimant’s ankle; that there was no record indicating that the claimant received any laceration, contusion, or required any treatment at all for that condition; that records of Dr. MR show that he has treated the claimant since the 1980s for numerous diagnoses, including a diagnosis of deep right femoral vein thrombophlebitis and hypertension; that DVT is an ordinary disease of life; and that the claimant’s DVT was a preexisting condition and not a result of the __________, injury. Reports of Dr. MR reveal the claimant was hospitalized for hypertension in February 1989 and that since May 1989 the hypertension has been adequately controlled. Dr. MR’s records also indicate that in 1989 he began treating the claimant for a kidney problem, that in January 1990 she had some swelling and pain in her right leg, that in February 1990 she had no swelling in the right leg and was post thrombophlebitis in the right leg, and that in August 1991 she was post thrombophlebitis in the right leg with the condition totally resolved.

The carrier had admitted into evidence a document about DVT. It includes:

Venous thrombosis may be caused by any of several factors. It may result from damage to the wall of a vein caused by injury, infection, or some form of autoimmune disorder, in which the body reacts against itself, causing venous inflammation. Sometimes, thrombosis may develop because of a combination of an increase in the clotting factors within the blood and slowing of the normal blood circulation.

Review of information from Dr. H indicates that he may have been under the impression that the ulcer on the claimant’s leg resulted from the injury sustained on __________. The hearing officer did not submit all questions proposed by the carrier to further develop the evidence in that area. The hearing officer’s refusal to do so was error. We reverse the decision of the hearing officer and remand for additional information to be obtained from Dr. H and for the hearing officer to resolve the issues of whether the claimant’s DVT naturally resulted from the __________, injury and whether she had disability. It appears that a prehearing conference to develop questions to be submitted to Dr. H may be appropriate so that additional information from Dr. H needed to resolve the disputed issues may be obtained prior to convening the CCH on remand.

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 Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.

Tommy W. Lueders
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Philip F. O’Neill
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 24, 2000. The hearing officer determined that the appellant (claimant) injured her right knee in the course and scope of her employment on _________; that the claimant did not timely report the injury to the respondent (self-insured) and did not have good cause for not timely reporting the claimed injury; that the self-insured is relieved of liability for the injury; and that since the claimant did not sustain a compensable injury, the claimant did not have disability. The determination that the claimant injured her right knee in the course and scope of her employment has not been appealed and has become final under the provisions of Section 410.169. The claimant appealed, contended that the hearing officer erred in admitting two of the self-insured’s exhibits, contended that the determinations concerning notice to the self-insured and disability are not supported by sufficient evidence, and requested that the determinations adverse to her be reversed. The self-insured responded, contended that the hearing officer did not err in admitting the exhibits, urged that the evidence is sufficient to support the appealed determinations of the hearing officer, and requested that her decision be affirmed.

DECISION

We affirm.

We first address the claimant’s contention that the hearing officer erred in admitting page 3 of Self-Insured’s Exhibit No. 8, a letter from Mr. M dated July 20, 2000, and Self-Insured’s Exhibit No. 9, a letter from Mr. B dated October 6, 1999. The claimant objected to the admission of the exhibits, contending that they were not timely exchanged. The self-insured presented a document indicating Self-Insured’s Exhibit No. 9 was exchanged at the benefit review conference (BRC) held on May 25, 2000. The claimant did not offer evidence to counter that document. The hearing officer did not err in admitting Self-Insured’s Exhibit No. 9.

The self-insured had admitted into evidence pages 1 and 2 of Self-Insured’s Exhibit No. 8. It is a transcript of an interview of Mr. M conducted on August 26, 1999. Mr. M states that he was the high school principal where the claimant worked. The transcript indicates that there was noise on the audiotape of the interview of Mr. M and that answers to questions of whether he saw the claimant fall and whether she reported the injury could not be heard. The adjuster representing the self-insured at the CCH stated that soon after the BRC held on May 25, 2000, the self-insured began attempting to obtain a statement from Mr. M; that Mr. M no longer worked for the self-insured; that she obtained the letter from Mr. M dated July 20, 2000, on that day; and that on that day she transmitted a copy of the letter to the ombudsman assisting the claimant and mailed a copy to the claimant. The hearing officer found good cause for not exchanging the letter earlier and admitted it. Evidentiary rulings by the hearing officer on documents which are admitted or not admitted are generally viewed as being discretionary on the part of the hearing officer. Texas Workers’ Compensation Commission Appeal No. 94816, decided August 10, 1994. The standard of review on such evidentiary issues is abuse of discretion. Texas Workers’ Compensation Commission Appeal No. 93580, decided August 26, 1993. In determining whether there was an abuse of discretion, the Appeals Panel looks to see of the hearing officer acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The Appeals Panel has stated that the hearing officer should look at diligence in obtaining a document in addition to timely exchanging it after it is received. The hearing officer did not err in admitting the letter from Mr. M dated July 20, 2000.

The Decision and Order of the hearing officer contains a statement of the evidence. Only the evidence pertaining to timely reporting the injury to the self-insured will be included in this decision. The claimant contended that she timely reported the injury to the self-insured. She did not contend that she had good cause for not timely reporting the injury. The claimant testified that she reported the injury to Mr. M the day that it happened. In a written statement dated April 19, 2000, Ms. DC said that she saw the claimant fall on _________, and that the claimant “talked to [Mr. M] and [Ms. S] and I think [Mr. B].” The claimant’s daughter testified that she also worked for the self-insured and that she saw her mother fall. She said that she was standing next to her mother when she told Mr. M that she had fallen from the stage, that Mr. M asked the claimant if she was hurting, that the claimant said that she was not hurting at the time, and that they went back to work. A transcript of a July 1999 interview of the claimant’s daughter indicates that she was asked when the claimant reported the injury and the transcript indicates that the answer could not be heard because of noise on the audiotape. Ms. C testified that she was standing next to the claimant when she fell, that she did not see the claimant discuss the fall with Mr. M or Mr. B, and that she was not aware of any knowledge Mr. M or Mr. B may have had of the claimant’s injury. Mr. B testified that in February 1999 he was the director of transportation for the self-insured. He said that he and the claimant had been friends for years; that the date the claimant was injured, she did not tell him that she fell and hurt herself; that while the claimant worked for the self-insured she did not tell him that she fell at work; that he thought that it was correct that the claimant quit work on or about March 10, 1999; and that after the claimant no longer worked for the self-insured, she told him about falling at work and hurting her knee. In a letter dated July 20, 2000, Mr. M said that he was the principal at the high school where the claimant worked from August 1990 until July 1999; that he did not remember any incident in which the claimant informed him that she had an injury or felt as though she would require medical treatment; and that as a high school principal he was very sensitive to any workplace injuries and always reacted with concern for employees.

The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The trier of fact may believe all, part, or none of any witness’s testimony because the finder of fact judges the credibility of each and every witness, determines the weight to assign to each witness’s testimony, and resolves conflicts and inconsistencies in the evidence. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. In a case such as the one before us where both parties presented evidence on the disputed issue, the hearing officer must look at all of the relevant evidence to make factual determinations and the Appeals Panel must consider all of the relevant evidence to determine whether the factual determinations of the hearing officer are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Texas Workers’ Compensation Commission Appeal No. 941291, decided November 8, 1994. An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its own judgement for that of the trier of fact even if the evidence could 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). Only were we to conclude, which we do not in this case, that the hearing officer’s determinations concerning the claimant’s reporting the injury to the self-insured and the self-insured’s being relieved of liability are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust would there be a sound basis to disturb those determinations. In re King’s Estate, 150 Tex. 662, 224 S.W.2d 660 (1951); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Since we find the evidence sufficient to support the appealed determinations of the hearing officer, we will not substitute our judgement for hers. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.

We affirm the decision and order of the hearing officer.

Tommy W. Lueders
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Alan C. Ernst
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on June 1, 2000. The issues at the CCH were injury, whether an injury arose out of an act of a third person intended to injure the appellant/cross-respondent (claimant herein) because of personal reasons, waiver of compensability by the respondent/cross-appellant (carrier herein), and disability. The hearing officer determined that the claimant did not suffer a compensable injury, that the carrier did not waive its right to contest compensability, that the "personal animosity" exception was not applicable, and that the claimant did not have disability. The claimant appeals, arguing that the evidence established that the claimant suffered a compensable injury, that the carrier waived the right to contest compensability by failing to do so timely, and that the claimant had disability. The claimant also complains that the hearing officer erred in finding that the carrier had good cause for not timely exchanging the names of carrier’s witnesses that the hearing officer allowed to testify over the objection of the claimant. The carrier responds that the decision of the hearing officer is supported by the evidence and that the hearing officer properly found good cause for the failure to exchange the names of the witnesses to whom the claimant objected. The carrier files a conditional request for review, contending that the hearing officer erred in making certain factual findings and in excluding the testimony of a witness. The carrier also points to a typographical error in the decision of the hearing officer. There is no response from the claimant to the carrier's request for review in the appeal file.

DECISION

We reform the decision of the hearing officer. Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer as reformed.

The hearing officer summarizes the evidence in his decision and we adopt his rendition of the evidence. We will only briefly summarize the evidence germane to the appeals. This includes testimony from the claimant that he was shoved against a wall by his supervisor on __________. The claimant testified that as a result of this incident he suffered a compensable injury and sustained disability from __________, through the date of the CCH. The claimant also presented some medical evidence in support of his claim of injury. The supervisor testified that he merely brushed the claimant and the carrier contended that the claimant did not sustain an injury.

At the CCH, the carrier called some of the claimant's coworkers who witnessed the incident of __________. The claimant objected to these witnesses, arguing that the carrier did not timely exchange the identity of these witnesses. The hearing officer found good cause for the untimely exchange of the identity of these witnesses. The hearing officer did sustain the claimant's objection to the carrier's calling a witness to testify concerning the dispute of the claim in this case because of lack of timely exchange without good cause.

The question of whether an injury occurred is one of fact. Texas Workers' Compensation Commission Appeal No. 93854, decided November 9, 1993; Texas Workers' Compensation Commission Appeal No. 93449, decided July 21, 1993. Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. 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 regarding 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.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). 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). When reviewing a hearing officer's decision for factual sufficiency of the evidence, we should reverse such decision only if it is so contrary to the overwhelming weight 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 Co., 715 S.W.2d 629, 635 (Tex. 1986).

A finding of injury may be based upon the testimony of the claimant alone. Houston Independent School District v. Harrison, 744 S.W.2d 298, 299 (Tex. App.-Houston [1st Dist.] 1987, no writ). However, as an interested party, the claimant's testimony only raises an issue of fact for the hearing officer to resolve. Escamilla v. Liberty Mutual Insurance Company, 499 S.W.2d 758 (Tex. Civ. App.-Amarillo 1973, no writ). In the present case, the hearing officer found no injury contrary to the testimony of the claimant which found some support in the medical evidence. Claimant had the burden to prove he was injured in the course and scope of his employment. Reed v. Aetna Casualty & Surety Co., 535 S.W.2d 377 (Tex. Civ. App.-Beaumont 1976, writ ref'd n.r.e.). We cannot say that the hearing officer was incorrect as a matter of law in finding that the claimant failed to meet this burden.

Section 409.021 provides as follows, in relevant part:

(a)An insurance carrier shall initiate compensation under this subtitle promptly. Not later than the seventh day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall:

(1)begin the payment of benefits as required by this subtitle; or

(2)notify the commission and the employee in writing of its refusal to pay and advise the employee of:

(A)the right to request a benefit review conference; and

(B)the means to obtain additional information from the commission.

(b)An insurance carrier shall notify the commission in writing of the initiation of income or death benefit payments in the manner prescribed by commission rules.

(c)If an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability. The initiation of payments by an insurance carrier does not affect the right of the insurance carrier to continue to investigate or deny the compensability of an injury during the 60-day period.

(d)An insurance carrier may reopen the issue of the compensability of an injury if there is a finding of evidence that could not reasonably have been discovered earlier.

In the present case, there was a factual dispute concerning when the carrier received notice of the claimant's injury and when it first filed a dispute of compensability. The hearing officer found that the claimant first filed a notice of injury with the employer on December 9, 1999, and that the carrier first disputed compensability on January 21, “1999,” thus concluding that the carrier timely disputed compensability. We do not perceive these findings to be contrary to the great weight and preponderance of the evidence.

We also do not find error in the hearing officer’s admission and exclusion of evidence. Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 142.13(c)(1)(D) (Rule 142.13(c)(1)(D)) requires that no later than 15 days after the benefit review conference the parties shall exchange the identity and location of any witness known to have knowledge of relevant facts. To obtain reversal of a judgment based upon the hearing officer's abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was, in fact, an abuse of discretion and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers' Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ).

Even assuming, without deciding, that there was an abuse of discretion in the hearing officer's admission of the testimony of the coworkers, we conclude that there was no reversible error. The testimony of these witnesses was merely cumulative of other testimony concerning the incident. We conclude that the admission of this evidence was not reasonably calculated to cause nor did it probably cause the rendition of an improper decision and order in this case. Nor do we find the hearing officer erred in excluding testimony concerning the carrier's dispute of the claim as the identity of the witness was not timely disclosed and the hearing officer found no good cause for the failure to disclose the identity of this witness.

Other than its challenge to the hearing officer's Finding of Fact No. 7, we find no merit to the carrier's appeal of the hearing officer's findings of fact as we find sufficient evidence, applying the standard of review discussed above, to support these findings. As far as Finding of Fact No. 7 is concerned, the carrier points out that it contains a typographical error in that it states that the carrier filed a dispute on January 21, 1999. This is clearly a typographical error and should read January 21, 2000, and we reform this finding to so read.

Finally, with no compensable injury found, there is no loss upon which to find disability. By definition, disability depends upon a compensable injury. See Section 401.011(16).

The decision and order of the hearing officer, as reformed, are affirmed.

Gary L. Kilgore
Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

Philip F. O’Neill
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 13, 2000. The issue reported as unresolved at the benefit review conference (BRC) is A[w]as the __________ compensable injury a producing cause of the Claimant's [respondent] scar in the left lateral recess at L4-L5? The hearing officer proposed that the issue be stated as A[w]as the __________, compensable injury a producing cause of the Claimant's current low back problems? The appellant (carrier) and the claimant agreed to the issue as stated by the hearing officer. The hearing officer determined that the compensable injury of __________, is a producing cause of the claimant's current low back problems. The carrier appealed, contended that the hearing officer erred in admitting a letter from Dr. D, argued that the hearing officer erred in not making findings of fact requested by it, urged that the great weight and preponderance of the evidence is against the decision of the hearing, and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision in its favor. In the alternative, the carrier requested that the case be remanded for the hearing officer to make additional findings of fact. The claimant responded, urged that the evidence is sufficient to support the decision of the hearing officer, and requested that it be affirmed.

DECISION

We affirm.

We first address the carrier's contention that the hearing officer erred in admitting the report of Dr. D, dated April 6, 2000. The date of the compensable injury is __________. A BRC was held on February 17, 2000. Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 142.13(c) (Rule 142.13(c)) provides that parties shall exchange documents no later than 15 days after the BRC; that thereafter parties shall exchange additional documents as they become available; that parties shall bring all documentary evidence not previously exchanged to the CCH; and the hearing officer shall make a determination whether good cause exists for a party not having previously exchanged such documents. The attorney representing the claimant stated that it takes time to get an appointment with an orthopaedic surgeon; that two previous appointments had been canceled; that he got the claimant to an orthopaedic surgeon as soon as he could; that the letter of Dr. D was transmitted by facsimile to him and received by him on April 11, 2000; that he immediately transmitted a copy by facsimile to the attorney representing the carrier; and that he would not oppose a continuance to permit the carrier additional time to respond to the letter of Dr. D. The attorney representing the carrier stated that it did not dispute that the claimant used due diligence after the report was received, but that due diligence was not used in obtaining the report. The hearing officer said that he accepted the representations of the attorney representing the claimant and found good cause for admitting the letter of Dr. D. The hearing officer gave the carrier the opportunity to request a continuance and the attorney representing the carrier stated that he would rely on his objection and not request a continuance. Evidentiary rulings by the hearing officer on documents which are admitted or not admitted are generally viewed as being discretionary and will be reversed only if there is an abuse of discretion. Texas Workers' Compensation Commission Appeal No. 941414, decided December 6, 1994. In determining whether there was an abuse of discretion, the Appeals Panel looks to see if the hearing officer acted without reference to any guiding rules or principles. Appeal No. 941414. The hearing officer did not abuse his discretion in admitting the letter of Dr. D.

The Decision and Order of the hearing officer contains a thorough, three-page statement of the evidence. Only a brief summary of the evidence will be included in this decision. The claimant testified that he sustained a nonwork-related low back injury in a motor vehicle accident in March 1990; that he had surgery; that he returned to work in February 1994; and that he worked without any back problems until __________. He said that on that day he ran while performing duties as a security guard and had sharp pain in his left heel, that the pain radiated up into his calf, that the next day the pain radiated into his thigh, that the pain later radiated into his buttocks, and that he did not have lower back pain until a couple of days after the accident. It is undisputed that the claimant has low back problems and that on July 13, 1999, the Texas Workers' Compensation Commission approved spinal surgery related to a compensable injury. The claimant contended that on __________, he sustained a new low back injury or aggravated a preexisting low back condition that resulted in a new injury. The carrier contended that the claimant did not sustain a new injury on __________. Each party introduced medical evidence to support its position. The hearing officer found the claimant's evidence to be more persuasive.

The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The trier of fact may believe all, part, or none of any witness's testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Texas Workers' Compensation Commission Appeal No. 93426, decided July 5, 1993. This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The Appeals Panel has written numerous decisions concerning causation, aggravation, and sole cause. In Texas Workers' Compensation Commission Appeal No. 960622, decided May 13, 1996, the Appeals Panel held that an aggravation of a noncompensable back injury may result in a compensable injury. In a case such as the one before us where both parties presented evidence on the disputed issues, the hearing officer must look at all of the relevant evidence to make factual determinations and the Appeals Panel must consider all of the relevant evidence to determine whether the factual determinations of the hearing officer are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Texas Workers' Compensation Commission Appeal No. 941291, decided November 8, 1994. An appeals level body is not a fact finder and it 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 could 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). The determination of the hearing officer that the compensable injury sustained on __________, is a producing cause of the claimant's current low back problems is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In re King=s Estate, 150 Tex. 662, 224 S.W.2d 660 (1951); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Since we find the evidence sufficient to support the determination of the hearing officer, we will not substitute our judgment for his. Texas Workers' Compensation Commission Appeal No. 94044, decided February 17, 1994.

The carrier contended that the hearing officer erred in not making findings of fact concerning the claimant's scar tissue and degenerative condition. As noted earlier in this decision, both parties agreed to the rewording of the unresolved issue. The hearing officer resolved that issue. The hearing officer did not err in applying the law concerning aggravation of a preexisting condition. The carrier did not request that the issue of sole cause, on which it would have borne the burden of proof, be added. The hearing officer did not err in not making additional findings of fact.

We affirm the decision and order of the hearing officer.

Tommy W. Lueders
Appeals Judge

CONCUR:

Alan C. Ernst
Appeals Judge

Gary L. Kilgore
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 11, 2000. The hearing officer determined that: (1) the appellant (claimant) did not sustain a compensable injury on __________; (2) the respondent (carrier) is relieved of liability because of claimant's failure to timely notify her employer pursuant to Section 409.001; (3) claimant did not have disability; (4) carrier is relieved of liability as the claimant did not timely file a claim for compensation with the Texas Workers' Compensation Commission (Commission) and no good cause existed for failure to timely file; and (5) that claimant is barred from pursuing Workers' compensation benefits because of an election of remedies. Claimant appealed these adverse determinations on sufficiency grounds. She also asserts that the hearing officer abused his discretion in admitting certain exhibits. Carrier responded that the Appeals Panel should affirm the hearing officer's decision and order.

DECISION

We affirm.

Claimant first contends the hearing officer erred in determining that she did not sustain a compensable injury. The claimant in a workers' compensation case has the burden to prove by a preponderance of the evidence that he or she sustained a compensable injury in the course and scope of employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers' Compensation Commission Appeal No. 950456, decided May 9, 1995.

The hearing officer summarized the evidence in his decision. Briefly, claimant testified that she sustained a compensable injury on __________, when her foot fell through a pallet and she fell back on a concrete floor. Claimant said she reported her injury to her supervisor and that she also told Ms. V, the personnel coordinator, about it on the following Monday after the Friday injury. Claimant said Ms. V told her that she could not file a Workers' compensation claim because claimant had not immediately reported the injury before she went to the doctor. Ms. V testified that claimant told her about back pain and that she would have to miss time from work. Ms. V said claimant did not say she had an injury. Ms. V testified that claimant agreed that she wanted to take Afamily medical leave. Claimant filed a claim with the Texas Workers' Compensation Commission (Commission) on November 9, 1999. Claimant said she had filed a prior Workers' compensation claim for an injured finger.

The hearing officer was the judge of the credibility of the witnesses and medical evidence. As the fact finder, he considered the issue of whether claimant sustained a compensable injury on __________, and resolved this issue against claimant. We will not substitute our judgment for his in that regard because the hearing officer's determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain, supra.

Claimant also contends the hearing officer erred in determining that she did not have disability. Disability means the "inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage." Section 401.011(16). Because there was no compensable injury, there can be no disability.

Claimant contends the hearing officer erred in determining that she did not timely report her injury to employer. The applicable law and our standard of review are stated in Section 409.001; Texas Workers' Compensation Commission Appeal No. 92397, decided September 21, 1992; Section 410.165(a); and Cain, supra. Claimant testified that she reported her injury within 30 days. The hearing officer determined that claimant did not timely report her injury. We will not disturb the hearing officer's good cause finding in this regard because it is not against the great weight and preponderance of the evidence. Cain, supra.

Claimant contends the hearing officer erred in determining that she made a knowing election of remedies in this case. In Texas Workers' Compensation Commission Appeal No. 991934, decided October 11, 1999, the Appeals Panel noted that in Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980), the court stated that the election of remedies doctrine may constitute a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights or states of fact (3) which are so inconsistent as to (4) constitute manifest injustice. The Appeals Panel noted in Appeal No. 991934 that the carrier has the burden of proving an effective election of remedies and that whether an election has been made is generally a question of fact for the hearing officer to decide. Under the facts of this case, we conclude that the hearing officer's findings are supported by sufficient evidence and are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). We note that this issue is moot, in effect, because the hearing officer determined that claimant did not sustain a compensable injury.

Claimant complains that the hearing officer determined that she did not timely file a claim. Section 409.003 provides that a claim for compensation must be filed with the Commission within one year of the date of injury. Failure to do so, in the absence of good cause, relieves the employer and carrier of liability for the injury. Section 409.004. The test of good cause is that of ordinary prudence, that is, did the claimant exercise the degree of diligence that a person of ordinary prudence would have exercised under the same or similar circumstances. Claimant argues on appeal that she did not file a claim because Ms. V discouraged her from doing so. Claimant also asserts that she did not fully understand how the system worked. The hearing officer found that claimant was not credible in her testimony regarding reporting the injury to Ms. V. It was during that conversation that claimant alleges that Ms. V mislead her and discouraged her from filing a Workers' compensation claim. Further, ignorance of the law generally does not constitute good cause. Texas Workers' Compensation Commission Appeal No. 971670, decided October 9, 1997. The hearing officer was not satisfied that claimant established good cause for her late filing. From our review of the record, we conclude that the evidence was sufficient to support this determination.

Claimant contends that the hearing officer abused his discretion in admitting carrier's exhibits one through four. Our standard of review regarding the hearing officer's evidentiary rulings is one of abuse of discretion. Texas Workers' Compensation Commission Appeal No. 92165, decided June 5, 1992. To obtain reversal of a judgment based upon the hearing officer's abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers' Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles. Appeal No. 951943; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).

In this case, the complained-of evidence was relevant regarding whether claimant had any experience with Workers' compensation claims and the issues of timely filing of a claim and election of remedies. The hearing officer did not abuse his discretion in admitting the evidence. Even if there had been an abuse of discretion, any possible error was not reasonably calculated to cause nor did it probably cause the rendition of an improper judgment.

We affirm the hearing officer's decision and order.

Judy L. Stephens

CONCUR:

Susan M. Kelley

Appeals Judge

Tommy Lueders
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 17, 2000. The hearing was held on remand of a previous decision by the Appeals Panel in Texas Workers' Compensation Commission Appeal No. 992764, decided January 24, 2000. In that decision, the Appeals Panel found that certain evidence had been admitted in error by the hearing officer and should have been excluded because it was not timely exchanged. The Appeals Panel further noted that an issue over whether respondent's (claimant) lumbar spine injury of herniated discs was part of his lumbar injury that occurred in __________ or resulted from an earlier __________ injury had been somewhat miscast as a 60-day "waiver" issue under Section 409.021(c), but was instead an attempt by the appellant (carrier) to reopen the lumbar injury under Section 409.021(d) based upon newly discovered evidence.

The hearing officer reopened the hearing and the record over objection by the carrier. The hearing officer determined that the claimant's herniated discs were part of his __________, slip-and-fall injury; that the carrier had timely disputed the cervical injury, but that the carrier had not shown that its dispute of the lumbar condition was based upon newly discovered evidence that could not reasonably have been discovered earlier.

The carrier has appealed. It argues that the hearing officer abused his discretion in holding another evidentiary hearing on remand and that this went beyond the direction of the Appeals Panel. The carrier further argues that the lumbar herniated discs are a continuation of a __________ injury and that the claimant did not prove that his __________ fall was a "producing cause" of the lumbar condition. The carrier argues that there is no evidence of a cervical "injury." The carrier argues that the hearing officer abused his discretion in admitting two documents that were discussed at the benefit review conference (BRC) but not subsequently exchanged. Lastly, the carrier asserts that it had the basis to reopen the lumbar injury, but then argues this in terms of when it received first written notice of that injury and argues that it reacted within 60 days of that document. The claimant has responded, and urges that there was no reversible error by the hearing officer in admission of two pages of an exhibit that was discussed at the BRC. The claimant urges that the decision is supported by the evidence of record. On the matter of reopening, the claimant points out that Section 409.021(d) does not automatically grant an additional 60 days to seek a reopening of the case.

DECISION

We affirm the hearing officer's decision.

We will repeat some of the factual discussion from our previous decision. As we noted previously, the claimant in this case had a previous work-related back injury on __________, while working for (employer), a meat packing company. This resulted in lumbar surgery on October 29, 1992. The claimant was off work for about five months and then returned. There are references to him having received 19% and 16% impairment ratings. Although claimant testified that he had no problems after his last surgery until the date of his __________ accident, medical records indicated that he began to have problems again in late 1993. A spinal myelogram from June 8, 1993, showed a mild bulge at L3-4, a laminectomy defect at L4-5, and no other significant findings noted. An MRI with contrast two weeks later reported a small midline herniation at L3-4.

In 1994 Dr. P recommended further surgery. Dr. P reported on October 24, 1994, that another myelogram showed an anterior defect at L3-4 and deformity of the nerve root at that level with stenosis. He further recorded that he called and spoke to claimant's wife, urging that claimant needed a decompression at L3-4. On November 17, 1994, a woman associated with Dr. P wrote to the claimant and told him that surgery was agreeable to a second opinion doctor and he should call Dr. P to schedule surgery. (The concurring opinion from the second opinion doctor is also in evidence and he characterized the L3-4 problem as a herniated disc.) Dr. P's notes show that he called the adjusting firm on December 6, 1994, "re later date of injury" but apparently no later injury had been reported. On December 6, 1994, he noted that claimant refused to have surgery because he would not receive any benefits from workers' compensation. Another note on March 24, 1995, noted that claimant declined surgery because he was ineligible for further impairment income benefits and therefore had to work.

The injury in question here occurred on __________. The claimant still worked for the same employer, and was in charge of "washing heads" with a high pressure hose. He was standing on a raised steel platform performing his job when he slipped and fell backwards. His treating doctor was still Dr. P. Dr. P's notes of August 25, 1998, record that claimant had difficulty on examination with flexion and extension of his neck as well as lumbar flexion, that he had positive sitting sciatica, spasm in the paravertebral lumbar muscles bilaterally, and that he had thoracic pain which might result from a herniated disc. Dr. P recommended MRIs of both regions, and noted that x-rays taken that day showed some narrowing at C5-6 and L5-S1. Dr. P also noted claimant's previous history of an injury in __________ and surgery. The x-rays showed his hemi-laminectomies at L5-S1. At the claimant's follow-up visit on September 8, 1998, it was noted that he continued to complain of low back and right sciatic pain as well as neck pain and pain into the right shoulder. He continued to have marked limitation on lumbar flexion. Dr. P continued to recommend MRI testing.

As noted in the original opinion, the employer filed its Employer's First Report of Injury or Illness (TWCC-1) on August 25, 1998, and characterized the injury as a lumbar sprain. The doctor listed is not Dr. P. There was no evidence that any Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) was filed by the carrier responsive to this report. The carrier did not assert or prove that it did not receive the TWCC-1 shortly after it was completed.

A lumbar MRI report of September 14, 1998, found no evidence of recurrent herniation at L5-S1, a defect compatible with a recurrent herniation at L4-5, and a central disc herniation at L3-4 superimposed on a broad spondylitis bulge.

The May 28, 1999, TWCC-21 filed by the carrier disputes claimant's "entire back and left leg" and rises an untimely notice defense, a sole cause defense (preexisting condition) and an intervening injury defense. Nowhere does this form dispute only an "extent" of the injury to a diagnosis of herniation or identify any newly discovered evidence as a basis for reopening the claim. As noted in our earlier decision, the claimant testified that he received three injections to his neck but had had no further treatment for that area.

A Recommendation for Spinal Surgery (TWCC-63) shows that the carrier is the adjusting firm, with Ms. C listed as the adjuster, and the __________ date of injury is used. There is a letter from Ms. C to the Texas Workers' Compensation Commission (Commission) dated January 5, 1999, conveying a choice of a second opinion doctor. Both the __________ and __________ injuries and claim numbers are at the top of the letter. The carrier for whom Ms. C was writing the letter is not identified. Ms. C stated that there was a discrepancy on the TWCC-63 and claimant had two back injuries and she was therefore submitting her second opinion forms to reflect both injury dates and claim numbers and to preserve a right to a second opinion on both. An affidavit from this same adjuster identified her as the "custodian of records" for the claimant's records and is written with the style of this case at the top, with the appellant/carrier's name. The affidavit states that the first written notice of a neck injury relating to the __________ injury was in a record which has been excluded from this record, and goes on to describe a brief summary of events and surgical recommendations relating to the __________ injury and time period thereafter.

The carrier at the CCH objected to the second opinion reports for this surgery, but there was presumably at least one concurrence as claimant was admitted for surgery on June 11, 1999; a report by Dr. PK stated he would perform an L4-5, L3-4 exploration with probable interbody fusion and instrumentation.

Further light on the events leading to surgery is shed by a decision and order issued April 15, 1999, holding that the second spinal opinion process was not ripe. Apparently, the hearing officer agreed with the assertion by the carrier that it had not been given the opportunity for a second opinion because the Commission's Medical Review Division had identified the wrong carrier in processing the request. There are no records indicating the name of the carrier that was deemed to be the "wrong" carrier or the entity for whom the adjuster was acting in January 1999 when she requested a second opinion.

WHETHER THE HEARING OFFICER ERRED IN FINDING THAT CLAIMANT HAD A CERVICAL AND LUMBAR INJURY (INCLUDING HIS HERNIATED DISCS) ON __________.

We affirm the hearing officer's decision that the claimant sustained a neck injury and lumbar injury when he slipped and fell on __________. Regarding the neck, there need not be an objective defect on an objective test for the hearing officer to be persuaded that there has been a soft tissue injury or a strain or sprain. Well before the date that the adjuster contends constituted a first report of a cervical injury, the claimant complained of neck pain immediately following his slip and fall. The hearing officer's decision is sufficiently supported.

Although the carrier focuses its argument on whether the __________, slip and fall was a "producing cause" of the herniation, this is not the only basis upon which an injury may be found. Plainly, the claimant had some preexisting problems with his back. He was, however, able to work until after his fall. As we have stated many times, an aggravation of a preexisting condition is an injury in its own right. INA of Texas v. Howeth, 755 S.W.2d 534, 537 (Tex. App.-Houston [1st Dist.] 1988, no writ). A carrier that wishes to assert that a preexisting condition is the sole cause of an incapacity has the burden of proving this. Texas Employers Insurance Association v. Page, 553 S.W.2d 98, 100 (Tex. 1977); Texas Workers' Compensation Commission Appeal No. 92068, decided April 6, 1992. In Texas Workers' Compensation Commission Appeal No. 93866, decided November 8, 1993, we stated that "aggravation" has a somewhat technical meaning and that to be compensable, an aggravation "must be a new and distinct injury in its own right with a reasonably identifiable cause. . . ." The mere recurrence or manifestation of symptoms of the original injury does not equate to a compensable new aggravation injury.

Although claimant undoubtedly had lumbar problems prior to falling, an incident may indeed cause injury where there is preexisting infirmity where no injury might result in a sound employee, and a predisposing bodily infirmity will not preclude compensation. Sowell v. Travelers Insurance Company, 374 S.W.2d 412 (Tex. 1963). We are struck that the carrier indicated that the __________ injury should be deemed limited to a lumbar strain only; this stance effectively concedes that the slip and fall caused an injury to the lumbar area. The hearing officer, with support in the record, concluded that the fall was nearly literally "the straw that broke the camel's back." A compensable injury includes enhanced effects that result from the preexisting weakness and, unless a first condition is one for which compensation is payable under the 1989 Act, a subsequent carrier's liability is not reduced by reason of the prior condition. St. Paul Fire & Marine Insurance Company v. Murphree, 357 S.W.2d 744 (Tex. 1962). The carrier here is not liable only for the injury that might have occurred but for the preexisting weakness. If the prior condition is compensable, the appropriate reduction for a prior compensable injury must be allowed through contribution determined in accordance with Section 408.084.

The hearing officer evidently did not agree that the carrier had proved that claimant's enhanced pain and discomfort and limited range of motion, documented in August and September 1998 by Dr. P, amounted to a mere continuation of a prior condition. The hearing officer could draw this conclusion from the medical evidence and the mechanics of the claimant's slip and fall. We cannot agree that he erred in finding that claimant's injury included an enhancement of his lumbar condition or that the previous injury was not the sole cause thereof.

WHETHER THE CARRIER DEMONSTRATED THAT ITS LATE-FILED DISPUTE OF THE LUMBAR INJURY WAS BASED UPON NEWLY DISCOVERED EVIDENCE THAT COULD NOT REASONABLY HAVE BEEN DISCOVERED EARLIER.

Section 409.021(d) provides that a carrier may reopen the issue of compensability of an injury if there is a finding of evidence that could not reasonably have been discovered earlier. It is important to point out that the carrier in this case did not dispute a particular diagnosis of herniated lumbar discs, although the issue about the scope of the injury was so cast. Rather, the TWCC-21 filed disputed the "entire" back injury, notwithstanding the assertion made by the carrier that it was disputing only the extent.

The carrier's argument does not appear to differentiate between provisions of Section 409.021 which have to do with filing a dispute upon receipt of "written notice of injury" and that provision having to do with reopening the compensability of an injury after the initial 60 days have transpired. In this case, the carrier did not file a TWCC-21 disputing the injury within the 60-day period after receiving the TWCC-1.^[1] As our previous decision stated, the TWCC-1 is, by definition, a written notice of injury under Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 124.1 (Rule 124.1). This triggers the duty of the carrier to investigate the claim, and it is the investigation which is to yield information not only about how the accident happened but the scope and extent of the injury. Texas Workers' Compensation Commission Appeal No. 971401, decided September 3, 1997. Because of this, the claimant is not limited to the diagnosis of the injury framed by the employer in its TWCC-1. See Texas Workers' Compensation Commission Appeal No. 971949, decided November 5, 1997.

We also previously stated that a carrier may not just act as a passive repository of documents and then later dispute an extent of injury or raise a defense that would have been readily apparent within the first 60 days upon timely investigation of the claim. See Texas Workers' Compensation Commission Appeal No. 93967, decided December 9, 1993; Texas Workers' Compensation Commission Appeal No. 981489, decided August 17, 1998 (Unpublished).

As in Texas Workers' Compensation Commission Appeal No. 992584, decided January 3, 2000, the carrier here had the obligation to prove that information about a prior back condition could not have been ascertained by it upon prompt investigation of the claim within the first 60 days after the TWCC-1 was received, which, at a minimum, could have included a contact with the employer to find out if claimant had prior injuries. Although the carrier argues that there was no evidence that it received the September 1998 MRI report, this is somewhat academic. The fact is, a number of medical records were in existence from the treating doctor which were readily discoverable by the carrier. The December 14, 1998, report plainly shows it was mailed to the adjuster for the carrier and it assesses the herniated lumbar discs. There was no reaction to this by the carrier. It is also clear from Ms. C's affidavit that she was the joint "custodian" of claimant's records on both claims, and from her January 5, 1999, letter that she was well aware of both injuries; the existence of a preexisting injury defense was ascertainable well before the TWCC-21 was eventually filed. As in Appeal No. 992584, supra, cited above, it was not until spinal surgery was recommended that the carrier activated any dispute to the lumbar injury. We affirm the hearing officer's determination that there was no basis to reopen compensability, although this holding is somewhat moot in light of the hearing officer's substantive findings in favor of the claimant concerning his lumbar injury.

WHETHER THE HEARING OFFICER ERRED IN ADMITTING TWO PAGES OF ONE OF CLAIMANT'S EXHIBITS.

The carrier has raised this point of error a second time. We did not find error in the admission of these two pages and continue to hold that as to the pages discussed at the BRC, there was no abuse of discretion in admitting them at the CCH.

WHETHER THE HEARING OFFICER ERRED IN HOLDING A REMAND HEARING.

We cannot agree that the hearing officer abused his discretion in holding a second hearing. As he pointed out, the carrier had the burden of proof on the clarified issue of reopening of compensability and he wished to afford an opportunity to have evidence presented on this. In any case, we disagree that our remand decision precluded the exercise of the hearing officer's discretion in this matter or limited him to consideration of only argument. We note that Section 410.203(d), calling for priority settings for remand hearings, implies that a hearing on remand is contemplated. We are not inclined to hold our hearing officers in error for choosing to afford more due process than arguably required.

For the reasons stated above, we affirm the decision and order on all appealed points of error.

Susan M. Kelley
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Philip F. O'Neill
Appeals Judge

1. Although the date of receipt was not clarified, the adjuster's letter of January 5, 2000, certainly makes clear that the __________ claim was well known to the carrier at least by then. Further, the carrier has not asserted that it was not aware of the TWCC-1, but, on the contrary, argues that this document only informed it of a lumbar strain. The hearing officer could conclude that this document had been received by the carrier well before 60 days prior to the May 28, 1999, TWCC-21.

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