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 October 13, 2021, with the record closing on October 25, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the appellant (claimant) did not sustain a compensable mental trauma injury on (date of injury). The claimant appealed the ALJ’s determination. Respondent 1 (self-insured) responded, urging affirmance of the ALJ’s determination. There was no response in the appeal file from respondent 2 (subclaimant).

DECISION

Affirmed as clarified.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.—Houston [14th Dist.] 1984, no writ).  As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are 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); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).  

COMPENSABLE INJURY

The claimant testified that she worked as a police detective for the employer and specialized in crimes against children cases. She stated that on August 5, 2020, she was transferred from that role to patrol duty on the night shift. She further testified that on (date of injury), as she was preparing to report for work, she became distressed about being stripped away from her cases and not being able to contact the victims in her cases. She then fell off her bed and passed out. The claimant was eventually diagnosed with depression, anxiety, and post-traumatic stress disorder (PTSD).

The ALJ stated in her decision that:

The Appeals Panel (AP) has established that mental trauma can produce a compensable injury if it arises in the course and scope of employment and is traceable to a definite time, place, and cause. The AP has also found that, while a specific stressful incident of sufficient magnitude occurring on the job can result in a compensable mental trauma injury, repetitive mentally traumatic activity or stressful events do not constitute a compensable injury.

However, we note that Section 504.019(b), as amended effective September 1, 2019, to apply to a claim for workers’ compensation benefits based on a compensable injury that occurs on or after that date, states, in part, that “[PTSD] suffered by a first responder is a compensable injury if it is based on a diagnosis that: (1) the disorder is caused by one or more [emphasis added] events occurring in the course and scope of the first responder’s employment.”^[1]  Section 504.019(a)(1) states, in part, that peace officers under Article 2.12 of the Code of Criminal Procedure are first responders.

The ALJ further stated in her decision that the self-insured relied on Section 408.006(b), which states that notwithstanding Section 504.019, a mental or emotional injury that arises principally from a legitimate personnel action, including a transfer, promotion, demotion, or termination, is not a compensable injury under this subtitle. The ALJ found in Finding of Fact No. 4 that the claimant’s anxiety and other reported symptoms were as a result of her demotion and transfer to night patrol duty, a legitimate personnel action. This finding and the ALJ’s determination that the claimant did not sustain a compensable mental trauma injury on (date of injury), is supported by sufficient evidence and is affirmed.

In the case on appeal, the ALJ made clear that she based her decision on her finding that the claimant’s symptoms were as a result of a legitimate personnel action and not her work as a police detective. However, a written decision is being issued to clarify that under Section 504.019, as amended on September 1, 2019, PTSD in a first responder, as is the claimant, may be compensable even when it is caused by more than one event occurring in the course and scope of employment.

SUMMARY

We affirm the ALJ’s determination that the claimant did not sustain a compensable mental trauma injury on (date of injury).

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

NAME
ADDRESS
CITY, STATE ZIP CODE.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

1. Acts 2019, 86th Leg., R.S., Ch. 1101 (H.B. 2143), Sec. 1, eff. September 1, 2019. ↑

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 May 18, 2021, with the record closing on May 28, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable mental trauma injury on (date of injury); and (2) the claimant did not have disability from (date of injury), through the date of the CCH, resulting from the claimed mental trauma injury of (date of injury). The claimant appeals the ALJ’s determination that she did not sustain a compensable mental trauma injury on (date of injury), and that she did not have disability. The respondent (self-insured) responded, urging affirmance of the disputed issues.

DECISION

Affirmed in part and reversed and rendered in part by striking. The claimant testified that she sustained a mental trauma injury on (date of injury), when she was sent to work at an inmate facility that had a COVID-19 outbreak and no air conditioning. The claimant testified that she had several comorbidities including asthma, obesity, and high blood pressure.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.—Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error unless they are 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); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

MENTAL TRAUMA INJURY

The ALJ’s determination that the claimant did not sustain a compensable mental trauma injury on (date of injury), is supported by sufficient evidence and is affirmed.

DISABILITY

The disability issue reported out of the benefit review conference was as follows: “[d]id the [c]laimant sustain disability as a result of the claimed injury, and if so, for what period?” During the opening argument, the claimant’s attorney stated that the claimant was claiming disability beginning (day after the date of injury), through March 31, 2021. The ALJ asked the parties if they agreed to amend the disability issue to reflect the period of (day after the date of injury), through March 31, 2021, and both parties stated that they agreed to amend the disputed period of disability. The ALJ stated on the record that the disability issue would be amended as agreed to by the parties. However, the ALJ failed to amend the disability issue in the Decision and Order. The claimant appealed the ALJ’s determination that she did not have disability from (date of injury), through the date of the CCH.

The ALJ failed to modify the disability issue as agreed to by the parties. Accordingly, we reform the ALJ’s decision to reflect that the only period of disability at issue before the ALJ was (day after the date of injury), through March 31, 2021. We reverse that portion of the ALJ’s determination that the claimant did not have disability on (date of injury), and from April 1, 2021, through the date of the CCH as exceeding the scope of the amended issue before him. We strike that portion of the ALJ’s determination that the claimant did not have disability on (date of injury), and from April 1, 2021, through the date of the CCH. That portion of the ALJ’s determination that the claimant did not have disability from (day after the date of injury), through March 31, 2021, is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the ALJ’s determination that the claimant did not sustain a compensable mental trauma injury on (date of injury).

We affirm that portion of the ALJ’s determination that the claimant did not have disability from (day after the date of injury), through March 31, 2021.

We reverse that portion of the ALJ’s determination that the claimant did not have disability on (date of injury), and from April 1, 2021, through the date of the CCH, as exceeding the scope of the amended issue before him. We strike that portion of the ALJ’s determination that the claimant did not have disability on (date of injury), and from April 1, 2021, through the date of the CCH.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

NAME
ADDRESS
CITY, TEXAS ZIP CODE.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
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 September 3, 2014, in Fort Worth, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant/cross-respondent (claimant) did not sustain a compensable mental trauma injury on [Date of Injury]; (2) the claimant did not fail to notify her employer of her claimed mental trauma injury within 30 days after its occurrence; and (3) the claimant did not have disability as a result of a compensable injury beginning on December 17, 2013, and continuing through February 28, 2014, as a result of a compensable mental trauma injury.

The claimant appealed the hearing officer’s determinations that she did not sustain a compensable mental trauma injury on [Date of Injury], and that she did not have disability beginning on December 17, 2013, and continuing through February 28, 2014, as a result of a compensable mental trauma injury. The claimant contends that the evidence established she had sustained a compensable mental trauma injury and that she had disability for the claimed period. The respondent/cross-appellant (self-insured) responded, urging affirmance of those determinations. The self-insured also appealed the hearing officer’s determination that the claimant did not fail to notify her employer of her claimed mental trauma injury within 30 days after its occurrence. The self-insured contended that the evidence established the claimant failed to timely notify her employer of an alleged mental trauma injury.

DECISION

Affirmed in part and reversed and remanded in part.

The claimant testified that she sustained a compensable mental trauma injury on [Date of Injury], when she was subjected to a disciplinary hearing involving an alleged improper use of State property for personal reasons. The claimant testified that the employer accused her of violating its policy when she used the employer’s computer for personal reasons. The claimant also testified that her use of the computer did not violate the employer’s policy.

MENTAL TRUAMA INJURY AND DISABILITY

The hearing officer’s determinations that the claimant did not sustain a compensable mental trauma injury on [Date of Injury], and that the claimant did not have disability as a result of a compensable injury beginning on December 17, 2013, and continuing through February 28, 2014, as a result of a compensable mental trauma injury are supported by sufficient evidence and are affirmed.

TIMELY NOTICE TO EMPLOYER

Section 410.168 provides that a hearing officer’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due.  28 TEX. ADMIN. CODE § 142.16 (Rule 142.16) provides that a hearing officer’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due.

The hearing officer states in the Decision portion of the decision and order that the claimant did not fail to notify her employer of her claimed mental trauma injury within 30 days after its occurrence. However, the hearing officer did not make any findings of fact or conclusions of law as to whether the self-insured is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001, which was an issue properly before the hearing officer. Because the hearing officer’s decision contains no findings of fact or conclusions of law regarding the issue of whether the self-insured is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001, it does not comply with Section 410.168 and Rule 142.16. See also Appeals Panel Decision (APD) 132339, decided December 12, 2013. We therefore reverse the hearing officer’s determination that the claimant did not fail to notify her employer of her claimed mental trauma injury within 30 days after its occurrence as being incomplete, and we remand the issue of whether the self-insured is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001 for the hearing officer to make findings of fact and conclusions of law regarding this issue.

SUMMARY

We affirm the hearing officer’s determination that the claimant did not sustain a compensable mental trauma injury on [Date of Injury].

We affirm the hearing officer’s determination that the claimant did not have disability as a result of a compensable injury beginning on December 17, 2013, and continuing through February 28, 2014, as a result of a compensable mental trauma injury.

We reverse the hearing officer’s determination that the claimant did not fail to notify her employer of her claimed mental trauma injury within 30 days after its occurrence as being incomplete, and we remand the issue of whether the self-insured is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001 for further action consistent with this decision

REMAND INSTRUCTIONS

On remand the hearing officer is to make findings of fact and corresponding conclusions of law and a decision regarding whether the self-insured is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001. No new evidence is to be taken.

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 Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

For service in person the address is:

STEPHEN S. VOLLBRECHT

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET, 6TH FLOOR

AUSTIN, TEXAS 78701

For service by mail the address is:

STEPHEN S. VOLLBRECHT

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
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 October 25, 2011, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) did not sustain a compensable mental trauma injury on [date of injury], and the claimant did not have disability from January 31, 2011, through June 24, 2011 (the claimed period of disability). The claimant appealed, disputing the hearing officer’s determinations on compensability and disability. The respondent (carrier) responded, urging affirmance.

DECISION

Reversed and rendered.

It was undisputed that the claimant was sent out-of-town on a week-long business trip with her supervisor by the employer during the week of [December 2010], and that the claimant worked with her supervisor at the employer’s subsidiary offices in Washington, D.C. on Monday, [date of injury]. After working, the claimant testified that the supervisor drove the employer-provided rental car to a restaurant for the two of them to obtain a meal and drove back to the hotel, at which the employer provided overnight housing for them. The claimant further testified that she was attempting to retire for the night in her hotel room when her supervisor came into her room and sexually assaulted her. It was undisputed that the claimant reported the sexual assault to the Washington, D.C. police and to her employer. The claimant also testified that she did not have a relationship with the supervisor outside of her work with the employer. There was no evidence of a consensual personal relationship between the claimant and her supervisor outside of the work relationship or evidence of a history of ill feelings or animosity between the claimant and her supervisor.

The evidence established that the claimant received care from Dr. M, who diagnosed her with post-traumatic stress disorder (PTSD). In evidence is a letter dated October 5, 2011, from Dr. M, who stated that the claimant’s PTSD was precipitated by the sexual assault suffered on her business trip in December of 2010 and that “[p]rior to this trauma [the claimant] had been a highly functioning and emotionally stable individual.” It was the claimant’s testimony that she was unable to work from January 31, 2011, through June 24, 2011, because of the PTSD resulting from the sexual assault. On June 24, 2011, the claimant resigned from the employer. In the Background Information section of his decision, the hearing officer stated that “[i]f the injury were compensable, [the] [c]laimant would have had disability from January 31, 2011, through June 24, 2011.”

In Finding of Fact No. 3, the hearing officer determined that “[t]he sexual assault of [the] [c]laimant which caused [PTSD] to [the] [c]laimant arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment.” See Section 406.032(1)(C) (personal animosity exception).

The claimant contends that the hearing officer’s determination on compensability is error because: (1) she was injured during the course and scope of her employment under the continuous coverage doctrine; (2) there was no deviation from her employment at the time of the sexual assault in her room; and (3) the personal animosity exception did not apply to her case. The carrier responded to the claimant’s appeal in the alternative that: (1) the carrier is relieved of liability because of the personal animosity exception; (2) the claimant was not in the course and scope of employment because the evidence established a deviation; and (3) there was insufficient expert medical evidence of the causal relationship between the claimant’s PTSD and the alleged sexual assault.

The main dispute in this case is whether the carrier is relieved from liability under the personal animosity exception.

In Nasser v. Security Insurance Company, 724 S.W.2d 17 (Tex. 1987), the court reversed the appellate court’s judgment that the manager of a restaurant was not entitled to workers’ compensation benefits because he was not in the course and scope of his employment when he was stabbed by a customer at work. The carrier’s main argument was that the personal animosity defense relieved the carrier of liability. The carrier argued that the manager’s customer/attacker was motivated by jealousy when he observed the manager talking to the customer/attacker’s ex-girlfriend, who was also a customer at the restaurant but had no personal or romantic relationship with the manager outside the restaurant. In that case, the court stated that:

[T]he purpose of the ‘personal animosity’ exception is to exclude from coverage of the Act those injuries resulting from a dispute which has been transported into the place of employment from the injured employee’s private or domestic life, at least where the animosity is not exacerbated by the employment. Commercial Standard Ins. Co. v. Marin, 488 S.W.2d 861 (Tex. Civ. App.–San Antonio 1972, writ ref’d n.r.e.). Whenever conditions attached to the place of employment or otherwise incident to the employment are factors in the catastrophic combination, the consequent injury arises out of the employment. Garcia v. Texas Indem., . . . 209 S.W.2d 333 (1948). See also Williams v. Trinity Universal, 309 S.W.2d 850 (Tex. Civ. App.–Amarillo 1958, no writ) (if the assault is incidental to some duty of employment, the injuries suffered thereby arise out of the employment). It was part of [the manager’s] job to talk to customers. As a result of his performance of this aspect of his job, he was stabbed by [a customer]. The dispute, if any, between [the manager] and [the customer/attacker] was not one that was transported from [the manager’s] private life into the workplace. The dispute, if any, arose in the workplace or was exacerbated by, or in the very least, was incidental to, a duty of [the manager’s] employment.

In Walls Regional Hospital v. Bomar, 9 S.W.3d 805 (Tex. 1999), several nurses alleged that a doctor had sexually harassed them while at work and brought suit against their hospital employer. However, the court found that the nurses’ problems with the doctor were not transported into the workplace from their private or domestic lives; rather, their problems with the doctor only occurred while at work in the hospital. The hospital was the exclusive setting for the doctor’s harassment of the nurses. The personal animosity exception did not apply.

In Appeals Panel Decision (APD) 011962-s, decided October 10, 2001, the injured worker had a fight with a co-worker harassing him. In that case, the hearing officer determined that there was no relationship or contact between the injured worker and the co-worker other than at the workplace during work hours. The hearing officer determined that the injury was compensable and that the personal animosity exception did not apply. The Appeals Panel affirmed the hearing officer’s decision.

In APD 022091-s, decided October 7, 2002, an employee was the target of “unwelcomed affection” from a co-worker that resulted in the employee filing a formal sexual harassment complaint against the co-worker and the termination of the co-worker. The same day that the co-worker was terminated, the employee was threatened and then stabbed on the employer’s premises by the co-worker. The basis of the carrier’s denial of the workers’ compensation claim was that the injured employee was not in the course and scope of employment and the altercation was over a personal matter and did not arise out of her job duties. Based on the evidence presented, the hearing officer determined that the claimant sustained a compensable mental trauma injury and the Appeals Panel affirmed the decision.

In reviewing a “great weight” challenge, we must examine the entire record to determine if: (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence. See Cain v. Bain, 709 S.W. 2d 175 (Tex. 1986).

The evidence established that the claimant was directly supervised by the man who sexually assaulted her while on a business trip required by their employer. The evidence established the claimant was sexually assaulted by the supervisor in the claimant’s hotel room. There was no conflicting evidence that there was a personal dispute between the claimant and her supervisor transported from the claimant’s domestic or private life into the workplace. Therefore, the hearing officer’s finding of fact that the sexual assault of the claimant arose out of an act of a third person intended to injure the claimant because of a personal reason and directed at the employee as an employee or because of the employment is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

The evidence was sufficient to support that there was no deviation by the claimant from the course and scope of employment. A deviation, if any, regarding the claimant and her supervisor having a drink at the hotel prior to her going to her room, was ended at the time the claimant went to her room. Furthermore, the medical evidence was sufficient to support that the claimant’s diagnosed PTSD was casually related to the sexual assault.

Therefore, we reverse the hearing officer’s determination that the claimant did not sustain a compensable mental trauma injury on [date of injury], and we render a new decision that the claimant did sustain a compensable mental trauma injury on [date of injury].

Given that we have reversed the hearing officer’s determination on compensability, we reverse the hearing officer’s determination that the claimant did not have disability from January 31, 2011, through June 24, 2011, and we render a new decision that the claimant had disability from January 31, 2011, through June 24, 2011.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
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 September 8, 2008, with the record closing on November 3, 2008. The issues before the hearing officer were:

1. 1.Has the respondent/cross-appellant (self-insured) waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021?

2. 2.Did the appellant/cross-respondent (claimant) sustain a compensable mental trauma injury on __________?

The hearing officer determined that: (1) the self-insured waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021; and (2) because of carrier waiver, the claimant sustained a compensable mental trauma injury on __________.

The self-insured appealed the hearing officer’s compensable injury and carrier waiver determinations. The self-insured states that as a matter of law, the hearing officer erred by concluding that the self-insured waived its right to contest compensability of the mental trauma injury “because it did not prove the date it filed its [Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1)] with the [Texas Department of Insurance, Division of Workers’ Compensation (Division)].” The claimant responded, urging affirmance.

The claimant cross-appealed the hearing officer’s finding that the mental trauma injury is not compensable in conjunction with a legitimate personnel action. The claimant states that he disagrees that the mental trauma injury is compensable “solely due to waiver.” The self-insured responded, contending that the hearing officer’s finding that the claimant did not sustain a work-related mental trauma injury on __________, is supported by sufficient evidence.

At the September 8, 2008, CCH, the hearing officer took official notice of the Division’s Dispute Resolution Information System (DRIS) notes.

DECISION

Reversed and rendered.

The claimant testified that he sustained a mental trauma injury on __________, when he was informed by his employer that he would be transferred to another department. The claimant sought medical care the next day, (day after date of injury), at the employer’s medical clinic. In evidence is a medical report dated August 29, 2007, from the employer’s medical clinic which notes that the claimant was not alleging a work-related injury. That medical report notes that the claimant was upset because he was being transferred to another department and lists the claimant’s problem as “[e]levated [b]lood pressure.” The claimant was referred to, and seen by, Dr. T on August 29, 2007, and the claimant was treated for “acute stress reaction/[high blood pressure (HBP)].” In evidence is a letter dated November 12, 2007, from a marital/family therapist that states that the claimant’s “diagnosis is Adjustment Disorder with Mixed Emotional Features.”

At the CCH, the claimant argued that the self-insured waived the right to contest compensability of the claimed mental trauma injury. The claimant argued that the Employee’s Notice of Injury or Occupational Disease and Claim for Compensation (DWC-41) was filed with the Division in September 2007. A DRIS note dated September 18, 2007, states “Rec’d DWC 41 on 09/14/2007 *Created on 09/18/2007.” The claimant argued that based on a presumption of administrative regularity, the Division sent a letter to the self-insured in September of 2007, which gave notice of a claimed injury. Therefore, the self-insured received first written notice in September 2007, and the self-insured did not dispute compensability of the claimed injury prior to the expiration of the waiver period (in November 2007). At the CCH, the self-insured stated that it did not receive the written notice from the Division in September 2007, as alleged by the claimant. Rather, the self-insured stated that it received first written notice of the claimed injury on December 5, 2007. In evidence is an employer’s internal document entitled “Workers Compensation-First Report Of Injury Or Illness” which states “Date Reported to Claims Administrator 12/05/2007.” Also, in evidence is an affidavit dated May 23, 2008, from the employer’s “Claims Supervisor” stating that the self-insured was “first notified on December 5, 2007 of this alleged on the job injury” and that the self-insured filed a notice of denial on December 19, 2007. In evidence is a PLN-1 dated December 19, 2007, which states that the self-insured received notice of the claimed injury on December 5, 2007, and that it was denying compensation. A DRIS note dated June 12, 2008, states that the PLN-1 was received by the Division on December 19, 2007.

CARRIER WAIVER

Section 409.021(a) provides that for claims based on a compensable injury that occurred on or after September 1, 2003, that not later than the 15th 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 the 1989 Act; or (2) notify the Division and the employee in writing of its refusal to pay. Section 409.021(c) provides that 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. In Appeals Panel Decision 041738-s, decided September 8, 2004, the Appeals Panel established that when a carrier does not timely dispute the compensability of an injury, the compensable injury is defined by the information that could have been reasonably discovered by the carrier’s investigation prior to the expiration of the waiver period.

The hearing officer in the Background Information of her decision states that “the PLN 1 had no date stamp of when the Division received it. Since there was an injury, and because there was no proof of when the Division received the denial of compensation, [s]elf-insured would not have timely filed a dispute of the claim.” The hearing officer’s Finding of Fact No. 8 states:

1. 8.Self-insured received notice of the claim on December 5, 2007 and filed a denial of compensation on December 19, 2007, but the dispute was not date stamped as to when it was received by the Division.

That portion of the hearing officer’s finding of fact that the “[s]elf-insured received notice of the claim on December 5, 2007 and filed a denial of compensation on December 19, 2007,” is supported by sufficient evidence. As previously mentioned, the hearing officer took official notice of the DRIS notes and a DRIS entry states that the PLN-1 was received on December 19, 2007. The evidence establishes that the self-insured denied compensability of the claimed injury on December 19, 2007, a date prior to the expiration of the waiver period. Accordingly, we reverse the hearing officer’s determination that the self-insured waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021, and we render a new decision that the self-insured did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021.

EXTENT OF INJURY

The hearing officer’s Findings of Fact Nos. 6 and 7 state that:

1. 6.The action of the employer was a legitimate personnel action.

2. 7.A psychological injury, mental trauma, is not compensable in conjunction with a legitimate personnel action.

These findings are supported by sufficient evidence. See Section 408.006(b).

The hearing officer determined that “[b]ecause of [carrier] waiver, [the] [c]laimant sustained a compensable mental trauma injury on __________.” Given that we have reversed the hearing officer’s carrier waiver determination and rendered a new decision that the self-insured did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021, we likewise reverse the hearing officer’s extent-of-injury determination.

Accordingly, we reverse the hearing officer’s determination that because of carrier waiver, the claimant sustained a compensable mental trauma injury on __________, and we render a new decision that the claimant did not sustain a compensable mental trauma injury on __________.

SUMMARY

We reverse the hearing officer’s determination that the self-insured waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021, and we render a new decision that the self-insured did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021. We reverse the hearing officer’s determination that because of carrier waiver, the claimant sustained a compensable mental trauma injury on __________, and we render a new decision that the claimant did not sustain a compensable mental trauma injury on __________.

The true corporate name of the insurance carrier is (a certified self-insured) and the name and address of its registered agent for service of process is

(NAME)

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
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 24, 2006. The hearing officer resolved the disputed issue by deciding that the respondent (claimant) did not sustain a compensable physical injury on _; and that the claimant did sustain a compensable mental trauma injury on or about _. The appellant (carrier) appeals, arguing that the hearing officer erred in finding that the claimant sustained a compensable mental trauma injury. The claimant responded, urging affirmance of the disputed determination. The hearing officer’s determination that the claimant did not sustain a compensable physical injury on _, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

It is undisputed that the claimant was in the course and scope of employment when the employer was robbed on _. The claimant testified that she was held at knifepoint by the assailant. At issue was whether the claimant sustained a mental trauma injury. In GTE Southwest, Incorporated v. Bruce, 998 S.W.2d 605, 610 (Tex. 1999), the Texas Supreme Court stated:

This Court has liberally construed the word “injury” in cases involving emotional distress and traumatic neurosis. See Olson v. Hartford Accident & Indem. Co., 477 S.W.2d 859, 860 (Tex. 1972). The phrase “physical structure of the body” refers to the entire body; and emotional distress may constitute an “injury” when it results in malfunctioning of the physical structure of the body. Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 336-37 & n. 2 (Tex. 1979); Bailey v. American Gen. Ins. Co. 154 Tex. 430, 279 S.W.2d 315, 318-19 (1955).

In Appeals Panel Decision (APD) 950633, decided June 7, 1995, the Appeals Panel noted that “[g]enerally, the existence of an injury may be established through the testimony of the claimant alone; however, in [APD 941551, decided December 23, 1994,] we noted that the cause, progression, and aggravation of mental disease is a subject of such a technical nature that expert medical evidence is required.” APD 960966, decided July 5, 1996, also noted that expert medical evidence was required to make the necessary causal connection between the mental condition and a specific incident at work. In APD 94785, decided July 29, 1994, the Appeals Panel rendered a decision that the employee did not sustain a compensable mental trauma injury where no medical report mentioned the specific event at work that was alleged to have caused mental trauma and the medical reports only mentioned pressure and stress of the job in general. Although the occurrence of a traumatic event (the robbery) was undisputed, the hearing officer correctly noted that there was no medical evidence in the record supporting a mental trauma injury. Nor do the records contain any diagnosis of a mental trauma injury. The hearing officer in his discussion of the evidence cites to a statement of a doctor who conducted a peer review. The peer reviewer was asked whether or not the claimant suffered from any psychological or mental trauma conditions. He opined that in reasonable medical probability, the claimant did not suffer any psychological or mental trauma. The peer reviewer went on to comment on the treatment of a mental trauma, which included minimizing avoidant behavior and returning to normalize functioning as soon as possible. The doctor who conducted the peer review further commented that “[a]pparently this was done after eight days of being off work. In this case, it appears that that was sufficient to resolve any acute traumatic stress effects that may have occurred.” The hearing officer in his discussion, then concluded that however minimal, the claimant did sustain a mental trauma.

Given that the record does not include any medical evidence of a mental trauma injury of any kind, the hearing officer’s determination that the claimant did sustain a mental trauma injury is not supported by sufficient evidence. Accordingly, we reverse the hearing officer’s determination that the claimant sustained a compensable mental trauma injury and render a new determination that the claimant did not sustain a compensable mental trauma injury.

The true corporate name of the insurance carrier is AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
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 December 15, 2005. The issues at the CCH were: (1) whether the respondent (claimant) sustained a compensable mental trauma injury on or about (Date of Injury No. 1); and (2) whether the claimant had disability resulting from the claimed injury and, if so, for what period. The hearing officer found that the claimant suffered a mental trauma injury during the course and scope of her employment on (Date of Injury No. 2), and concluded that the claimant sustained a compensable injury on (Date of Injury No. 2). The hearing officer further determined that the claimant had disability on June 14, 2005, and beginning on July 19, 2005, and continuing through the date of the CCH. The appellant (carrier) appeals the hearing officer’s determinations that the claimant sustained a compensable injury and that she had disability. The claimant requests affirmance of the hearing officer’s decision.

DECISION

Reversed and rendered.

BACKGROUND INFORMATION

At the beginning of the CCH the claimant’s attorney explained that the claimed date of injury is (Date of Injury No. 2), not (Date of Injury No. 1), and that (Date of Injury No. 1), is the date the claimant first saw a doctor for her condition.

The claimant worked for the employer as a juvenile correctional officer (JCO). She was the only witness at the CCH. The written job description in evidence for a JCO states that a JCO works under stressful conditions, with possible occurrences of extreme heightened stress. The claimant testified that in February 2004, after having worked for the employer for about a month, she reported to her supervisor that misconduct had occurred between staff and students at the employer’s facility and that the misconduct involved sex and drugs. She said that she made a written report of the misconduct to her supervisor in February 2004. She said that the employer did nothing in response to her report. She said that in April (the year was not stated, but it appears to be 2005) she hired the attorney who represented her at the CCH to represent her with regard to a grievance she had filed with her employer on an issue of being placed on leave without pay. The reason the claimant had been placed on leave without pay, the period she was on leave without pay, and the outcome of her grievance proceeding were not developed. Apparently the period of leave without pay was sometime before June 2005 because the claimant was working in June 2005.

The claimant further testified that on June 9, 2005, she met with her attorney at the employer’s facility and she told him about her concerns about the employer’s failure to follow up on her report of misconduct and that on that day she and her attorney met with the superintendent. She testified that at the June 9, 2005, meeting she related to the superintendent her concerns about her report of sexual abuse of students not being properly investigated and that her attorney told the superintendent that contact with the claimant should be made through him. The claimant said that after that meeting she was subject to harassment by the staff and the superintendent.

The claimant said that prior to (Date of Injury No. 2), she had retained her attorney for assistance in making sure that the allegations of sexual abuse were properly handled, and that she had gone to law enforcement authorities and provided them with the information.

The claimant said that the morning of (Date of Injury No. 2), the student that her misconduct allegation concerned told her that the superintendent had told the student not to tell anyone about the abuse. The claimant said that on (Date of Injury No. 2), she had a meeting with an assistant superintendent and the superintendent and was asked why she had not turned in a written report of the misconduct to the superintendent. The claimant said that the superintendent said that he had not received any written report. The claimant said that she was unaware that her supervisor had not turned in the claimant’s written report to the superintendent. The claimant said that she told the superintendent that she wanted to give a written report to her attorney before giving a written report to the superintendent. The claimant said that the superintendent threatened to charge her with a misdemeanor for not turning in a report in a timely manner and told her that if she gave a copy of the report to her attorney, then there would be a different problem because of the confidentiality of names. The claimant testified that her training at work included training on not discussing the names of the students outside the agency. The claimant testified that the superintendent told her that he wanted a written report that day.

The claimant said that she felt that she was being threatened with a criminal misdemeanor action and that she did not feel that that was a legitimate personnel action. She said she felt she was being harassed, threatened, and retaliated against for bringing allegations of criminal activity to the attention of her employer. She said that after the (Date of Injury No. 2), meeting she received three telephone calls from her superiors, one of which concerned a doctor’s appointment, and that she felt threatened being asked about her doctor’s appointment. The other calls related to why she had not turned in a report to the superintendent. She said that she eventually provided a written report to the superintendent and that she was not given any “grievance” for failing to submit the report to him earlier. In a recorded statement taken on August 1, 2005, the claimant said that as soon as she had talked to her superintendent, she became the target of extreme harassment and threats of being fired almost daily.

The claimant said that the evening of (Date of Injury No. 2), she had a panic attack, which, she said, she had never had before; that she took off work on June 14, 2005; that she contacted her doctor on June 14, 2005, and the doctor “did call me in something,” apparently referring to some medication; and that she was unable to see her doctor until (Date of Injury No. 1). The claimant said that the point that started her panic attacks was the (Date of Injury No. 2), meeting where she was threatened. The claimant said that she continued to work for the employer after June 14, 2005, until her doctor took her off work on July 14th or 15th, 2005; that her doctor has not released her to return to work; and that she has not worked since then because she is not able to. She testified that she has been medically separated from her employer due to her mental trauma condition.

The claimant testified that after (Date of Injury No. 2), due to the stress, she was a nervous wreck and was having panic and anxiety attacks. She said that she had almost daily panic attacks between June 14th and (Date of Injury No. 1), when she saw her doctor. The claimant said that prior to (Date of Injury No. 2), she did not have problems with her memory, but after (Date of Injury No. 2), she has had memory problems because of the stress and that her condition has not improved. She said her doctor has prescribed medications to help her cope with her mental trauma and is trying to get her a referral to a psychiatrist. The claimant said that she had not sought psychiatric care prior to (Date of Injury No. 2).

The claimant said that she understands from her doctor that her condition is extreme stress and anxiety and that her doctor told her that the condition is work related. She said that when her doctor asked her what was going on at work she told her doctor “what was happening,” and told him what had gone on trying to make sure she did the correct thing to turn in the sexual abuse, and her doctor told her that her insomnia, anxiety, and panic attacks were work related.

In a letter dated July 19, 2005, the claimant’s doctor stated:

This letter is concerning my patient [claimant]. It is my medical opinion that she is suffering from severe stress related to recent developments at her work. The actions of her employer have lead to severe mental anguish. I believe the best remedy for the current situation is to allow [claimant] to go on extended stress leave, until the current situation has been resolved.

In a certification of health care provider form, the claimant’s doctor wrote that the claimant is “suffering from major depression, anxiety, insomnia resultant from work situation.” In response to a direction to state the approximate date the condition commenced, the claimant’s doctor noted the date of (Date of Injury No. 1), which was the date the claimant said she first went to the doctor for her condition.

In an undated letter, the claimant’s doctor wrote:

I have had the pleasure of being [claimant’s] physician for the past several months. She recently started having problems with anxiety and depression. To my knowledge and after review of previous medical records, she has had no prior history of this. She developed these problems after her situation at work deteriorated about 5-6 months ago. I have tried to treat her condition, but have found it to be severe enough to warrant a referral to [psychiatrist] here in [city]. That appointment is on December 22, 2005. It is my opinion that she is suffering from this illness as a direct result of job related issues.

MENTAL TRAUMA INJURY

Section 408.006 provides as follows:

Mental Trauma Injuries.

(a)It is the express intent of the legislature that nothing in this subtitle shall be construed to limit or expand recovery in cases of mental trauma injuries.

(b)A mental or emotional injury that arises principally from a legitimate personnel action, including a transfer, promotion, demotion, or termination, is not a compensable injury under this subtitle.

In GTE Southwest, Incorporated v. Bruce, 998 S.W.2d 605, 610 (Tex. 1999), the Texas Supreme Court stated:

This Court has liberally construed the word “injury” in cases involving emotional distress and traumatic neurosis. See Olson v. Hartford Accident & Indem. Co., 477 S.W.2d 859, 860 (Tex. 1972). The phrase “physical structure of the body” refers to the entire body; and emotional distress may constitute an “injury” when it results in malfunctioning of the physical structure of the body. Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 336-37 & n. 2 (Tex. 1979); Bailey v. American Gen. Ins. Co. 154 Tex. 430, 279 S.W.2d 315, 318-19 (1955).

We have previously considered whether an injury caused by repetitious mental traumatic activity rather than physical activity is compensable under the Act. In Maksyn, the employee suffered from “anxiety depression” attributed to long hours and stress. Maksyn, 580 S.W.2d 334-35. We held that repetitive mental trauma resulting in injury is not a compensable occupational disease under the Act. Id. at 337-39. However, we also recognized that an employee may recover for an accidental injury due to mental trauma (as opposed to an occupational disease) when there is evidence of an undesigned, untoward event traceable to a definite time, place, and cause. Id. at 336-37; see also Brown v. Texas Employers’ Ins. Ass’n, 635 S.W.2d 415, 416 (Tex. 1982); Olson, 477 S.W.2d at 859-60.

The Court in Bruce at page 611 noted that the allegations established that the injuries were caused by repetitive mental trauma rather than an ascertainable event and stated that “[w]hen there is no evidence of a particular event causing the mental injury, there can be no recovery under the Act.” Thus, the Court held that the injuries were not compensable under the 1989 Act.

In Appeals Panel Decision (APD) 94925, decided August 23, 1994, the Appeals Panel stated that “[t]here must be evidence of a reasonable medical probability that the mental trauma was caused by a specific event.” In APD 941551, decided December 23, 1994, the Appeals Panel stated that “[r]epetitive mental stress over a period of time does not constitute a compensable mental trauma injury” and that “[n]or does one event, among many similar events, constitute a causal connection for a compensable injury where there is a complete lack of medical evidence establishing such a link.” In APD 950633, decided June 7, 1995, the Appeals Panel noted that “[g]enerally, the existence of an injury may be established through the testimony of the claimant alone; however, in Appeal 941551, supra, we noted that the cause, progression, and aggravation of mental disease is a subject of such a technical nature that expert medical evidence is required.” APD 960966, decided July 5, 1996, also noted that expert medical evidence was required to make the necessary causal connection between the mental condition and a specific incident at work. In APD 94785, decided July 29, 1994, the Appeals Panel rendered a decision that the employee did not sustain a compensable mental trauma injury where no medical report mentioned the specific event at work that was alleged to have caused mental trauma and the medical reports only mentioned pressure and stress of the job in general.

We note that in Texas court decisions that have found a compensable mental trauma injury, the courts relied in great part on the medical testimony relating the mental condition of the claimant to a specific event at work. See e.g., Travelers Insurance Company v. Garcia, 417 S.W.2d 630 (Tex. Civ. App.-El Paso 1967, writ ref’d n.r.e.); Director, State Employees Workers’ Compensation Division v. Camarata, 768 S.W.2d 427 (Tex. App.-El Paso 1989, no writ). With regard to the employer’s memo as the specific event giving rise to the asserted mental injury in Camarata, supra, in APD 941162, decided September 29, 1994, the Appeals Panel stated that it considered that decision to have been legislatively overruled. In Bailey, supra, the court noted that no issue was raised concerning the causal relationship between the accident and the mental injury, but the court did rely on medical testimony to establish that the neurosis suffered by the employee was an injury.

The claimant contended at the CCH that her mental trauma is traceable to a specific time, place, and cause, that being the (Date of Injury No. 2), meeting when she was threatened with a misdemeanor charge; that causation was established by the claimant’s doctor’s reports; and that the employer’s actions at the (Date of Injury No. 2), meeting were not legitimate personnel actions. The carrier contended that the employer’s actions at the (Date of Injury No. 2), meeting represented legitimate personnel actions because the claimant was intending to disclose to her attorney confidential information regarding individuals under the employer’s supervision, and that the claimant failed to prove that her mental condition was traceable to a definite time, place, and cause in the course and scope of her employment.

The hearing officer in the Background Information section of her decision stated as follows:

In the instant case, Claimant has shown, by a preponderance of the evidence, that she sustained a compensable mental trauma injury. Her testimony and the medical records show that the events of the (Date of Injury No. 2), meeting caused her anxiety and subsequent depression. The records of [claimant’s doctor] show that she is suffering from major depression, anxiety and insomnia and he relates those conditions to the occurrences at work.

It is clear that there were some ongoing issues between Claimant and Employer herein which caused stress prior to and after the (Date of Injury No. 2), meeting. However, the traumatic events of the (Date of Injury No. 2) meeting were separate, distinct and significant. The meeting on (Date of Injury No. 2), and Claimant’s reaction to that meeting was a specific event, traceable to a specific date, place and time. Claimant has shown that she sustained damage or harm to the physical structure of her body, specifically a mental trauma injury, during the course and scope of her employment on (Date of Injury No. 2). There was no evidence presented that Claimant’s condition was the result of a legitimate personnel action.

The carrier appeals the hearing officer’s finding of fact that “[c]laimant suffered a mental trauma injury, during the course and scope of her employment on (Date of Injury No. 2),” and the hearing officer’s conclusion of law that “[c]laimant sustained a compensable injury on (Date of Injury No. 2).” The carrier contends on appeal that the hearing officer’s determination of a compensable mental trauma injury is against the overwhelming weight of the evidence because the meeting in question was a legitimate personnel action; the meeting represented only one of a series of on-going stressors, and so it cannot be said that the claimant’s stress is traceable to a definite time, place and cause; and that there is no expert testimony or evidence to support a diagnosis of mental trauma. The carrier points out that the claimant’s doctor does not refer to the (Date of Injury No. 2), meeting, but instead references “developments” at work and “actions” of the employer.

Section 410.165(a) provides that the hearing officer is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given to the evidence. We hold that there is insufficient medical evidence to relate the claimant’s mental condition to a definite time, place, and cause in the course and scope of her employment, and that the hearing officer’s determination of a compensable mental trauma injury is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. The claimant’s doctor wrote that the claimant “is suffering from severe stress related to recent developments at her work;” that “the actions of her employer have lead to severe mental anguish;” that the claimant is “suffering from major depression, anxiety, insomnia resultant from work situation;” that the claimant developed anxiety and depression “after her situation at work deteriorated about 5-6 months ago;” and that “she is suffering from this illness as a direct result of job related issues.” At most, the doctor’s opinion merely relates the claimant’s anxiety and depression to “recent developments” at work, “actions of her employer,” the claimant’s “work situation,” and “job related issues.” The doctor does not provide an opinion with regard to a particular event in the course and scope of employment that caused the asserted mental injury and makes no reference to the (Date of Injury No. 2), meeting the claimant had with her superiors, which the claimant alleges is the cause of her mental condition. The evidence reflects that the claimant indeed had “job related issues” with the employer as opined by the claimant’s doctor, but that fails to satisfy the requirement that the asserted mental injury be traceable to a definite time, place, and cause.

The hearing officer made no finding of fact with regard to whether the (Date of Injury No. 2), meeting represented a legitimate personnel action. In APD 970292, decided March 28, 1997, the Appeals Panel stated that “[a]s stated in many prior decisions, the burden of proof to show a compensable mental trauma injury is on the claimant to show that the injury stemmed from a definite time, place, and event within the scope of employment” and that “[w]hen a mental health injury has been shown, then the claimant must show that it did not emanate from a legitimate personnel action.” Because we hold that the claimant has presented insufficient medical evidence to show that her asserted mental condition is traceable to a definite time, place, and cause in the course and scope of her employment, we do not reach the question of whether the (Date of Injury No. 2), meeting was a legitimate personnel action.

DISABILITY

Because we hold that the claimant has not sustained a compensable injury, the claimant has not had disability as defined by Section 401.011(16).

We reverse the hearing officer’s decision that the claimant sustained a compensable injury on (Date of Injury No. 2), and that the claimant had disability on June 14, 2005, and beginning on July 19, 2005, and continuing through the date of the CCH, and we render a decision that the claimant did not sustain a compensable injury on (Date of Injury No. 2), and that the claimant has not had disability.

The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

For service in person the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR

AUSTIN, TEXAS 78701.

For service by mail the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Robert W. Potts

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
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 21, 2004. The hearing officer resolved the disputed issues by deciding that on ______________, the respondent/cross-appellant (claimant) sustained a compensable injury; that the claimant had disability beginning on April 24 and continuing through April 30, 2002; and that the appellant/cross-respondent (self-insured) is not relieved from liability for benefits under Section 409.002. The self-insured appealed, disputing the injury and timely notice determinations. The appeal file did not contain a response from the claimant. The claimant also appealed, disputing the disability determination. The self-insured responded, urging affirmance of the disability determination.

DECISION

Affirmed.

The claimant attached documents to his appeal, some of which were not admitted into evidence at the hearing. Documents submitted for the first time on appeal are generally not considered unless they constitute newly discovered evidence. See generally Texas Workers' Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). In determining whether new evidence submitted with an appeal requires remand for further consideration, the Appeals Panel considers whether the evidence came to the knowledge of the party after the hearing, whether it is cumulative of other evidence of record, whether it was not offered at the hearing due to a lack of diligence, and whether it is so material that it would probably result in a different decision. See Texas Workers' Compensation Commission Appeal No. 93536, decided August 12, 1993. Upon our review, we cannot agree that the evidence meets the requirements of newly discovered evidence, in that the claimant did not show that the new evidence submitted for the first time on appeal could not have been obtained prior to the hearing or that its inclusion in the record would probably result in a different decision. The evidence, therefore, does not meet the standard for newly discovered evidence and will not be considered.

The claimant had the burden to prove that he sustained a compensable mental trauma injury, that he had disability as defined by Section 401.011(16), and that he gave timely notice of injury to his employer pursuant to Section 409.001. Conflicting evidence was presented on the disputed issues at the CCH. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. Although there is conflicting evidence in this case, we conclude that the hearing officer’s determinations that the claimant did sustain a compensable mental trauma injury; that he timely notified his employer pursuant to Section 409.001; and that he had disability beginning on April 24 and continuing through April 30, 2002, 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). Although another fact finder could have drawn different inferences from the evidence of record, which would have supported a different result, that does not provide a basis for us to reverse the hearing officer's decision on appeal. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref'd n.r.e.).

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

For service in person the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR

AUSTIN, TEXAS 78701.

For service by mail the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Margaret L. Turner
Appeals Judge

CONCUR:

Daniel R. Barry
Appeals Judge

Robert W. Potts
Appeals Judge

This appeal after remand 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 28, 2004. The hearing officer determined that the appellant (claimant) did not sustain a compensable mental trauma injury on or about ______________; that the respondent (self-insured) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001; and that the claimant did not have disability from June 10 through October 13, 2003, resulting from an injury sustained on ______________. The claimant appealed on sufficiency of the evidence grounds. The self-insured responded, urging affirmance.

The Appeals Panel reversed the hearing officer’s decision because Self-Insured’s Exhibit I was incomplete and remanded the case for the addition or reconstruction of the missing pages of the self-insured’s exhibit. The hearing officer did not hold a CCH on remand. The record reflects that Self-Insured’s Exhibit I was reconstructed and completed. In a decision on remand, the hearing officer essentially made the same determinations. The claimant again appealed and the self-insured responded that the Appeals Panel should affirm the hearing officer’s decision.

DECISION

Affirmed.

The hearing officer did not err in making the complained-of determinations. The claimant had the burden of proof on these issues. It was for the hearing officer, as the trier of fact, to resolve the conflicts and inconsistencies in the evidence and to determine what facts had been established. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). In the instant case, the hearing officer determined that the claimant knew or should have known that her mental condition was work related on January 4, 2001, when she was diagnosed with post-traumatic stress disorder as a result of the work activities she performed on ______________. The hearing officer determined that the claimant reported an injury to her employer in August 2002, and that she failed to establish good cause for failing to inform her employer within 30 days from January 4, 2001. Given that the hearing officer determined that the claimant failed to give timely notice of her injury, the hearing officer found that the claimant did not sustain a compensable injury and that she did not have disability. In view of the evidence presented, we cannot conclude that the hearing officer’s determinations are 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).

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

MAYOR

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Veronica L. Ruberto

CONCUR:

Robert W. Potts
Appeals Judge

Edward Vilano
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 May 26, 2004. The hearing officer determined that the appellant (claimant) did not sustain a compensable mental trauma injury on or about _______________, and that she therefore did not have disability. The claimant appealed, asserting that the hearing officer applied the wrong legal standard, that the hearing officer committed evidentiary error in admitting some of the respondent’s (carrier) evidence, and that the hearing officer’s decision and order is against the great weight of the evidence. The carrier responded, asserting that the claimant’s appeal is untimely, and otherwise seeking affirmance.

DECISION

Affirmed.

The carrier asserts that the claimant’s appeal is untimely. A written request for appeal must be filed within 15 days of the date of receipt of the hearing officer's decision, excluding Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code. Section 410.202(a) and (d). Texas Workers' Compensation Commission (Commission) records indicate that the decision and order was mailed to the parties on June 9, 2004, and therefore was deemed to have been received by the claimant on June 14, 2004. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § Rule 102.5(d) (Rule 102.5(d)). 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. The last date for the claimant to timely file an appeal was July 5, 2004. The claimant’s appeal is post marked July 2, 2004, and stamped as received by the Chief Clerk of Proceedings on July 6, 2004. The appeal is, therefore, timely.

The claimant asserts that the hearing officer erred in admitting Carrier’s Exhibit H and allowing the testimony of one of its witnesses because neither the exhibit nor the identity of the witness in question were timely exchanged and because the admission of the complained-of evidence caused the rendition of an improper decision. To obtain a reversal for the admission of evidence, the appellant must demonstrate that the evidence was actually erroneously admitted and that “the error was reasonably calculated to cause and probably did cause rendition of an improper judgment.” Hernandez v. Hernandez, 611 S.W.2d 732, 737 (Tex. Civ. App.-San Antonio 1981, no writ). It has also been held that reversible error is not ordinarily shown in connection with rulings on questions of evidence unless the whole case turns on the particular evidence admitted or excluded. Atlantic Mut. Ins. Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). In the present case, after listening to the arguments of the parties, the hearing officer found good cause for the late exchange. Under the facts of this case, the hearing officer’s admission of the complained-of evidence does not constitute reversible error.

The claimant next asserts that the hearing officer applied the wrong legal standard in deciding this matter. The claimant asserts that the hearing officer incorrectly applied a “reasonable person” standard as opposed to the proper “reasonable medical probability” standard. While we note that the hearing officer did comment that “under the objective ‘reasonable person’ standard, the facts established here do not support a finding of mental trauma-induced injury.” However, that being said, the hearing officer also commented that the “police investigator concluded that the assault allegation was unfounded. The preponderance of the credible evidence here is to the same effect” and that the “claimant attempted to mitigate the effect of the contrary evidence to some extent, emphasizing that she was testifying to the event ‘as she saw it’ and arguing that her subjective perception is the controlling factor. Even under that standard, the evidence is not persuasive that the claimant in reality viewed the interchange with [the alleged assailant] as the terrifying event she now claims.” In view of the evidence presented and the hearing officer’s lengthy discussion of the same, we cannot conclude that the hearing officer held the claimant to an improper burden of proof.

What remains is a sufficiency of the evidence appeal. The claimant had the burden to prove that she sustained a compensable injury and had disability. There is conflicting evidence in this case. The 1989 Act makes the hearing officer the sole judge of the weight and credibility to be given to the evidence. Section 410.165(a). The finder of fact may believe that the claimant has an injury, but disbelieve that the injury occurred at work as claimed. Johnson v. Employers Reinsurance Corp., 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). A fact finder is not bound by medical evidence where the credibility of that evidence is manifestly dependent upon the credibility of the information imparted to the doctor by the claimant. Rowland v. Standard Fire Ins. Co., 489 S.W.2d 151 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). An appellate body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its judgment for that of the trier of fact, even if the evidence would support a different result. Texas Workers’ Compensation Commission Appeal No. 950084, decided February 28, 1995. Our review of the record reveals that the hearing officer's injury and disability determinations are supported by sufficient evidence and that they are not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Thus, no sound basis exists for us to disturb those determinations on appeal. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The hearing officer’s decision and order are affirmed.

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

LEE F. MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251.

Daniel R. Barry
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Margaret L. Turner
Appeals Judge