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 December 29, 2022, 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 date of injury is (date of injury); (2) the appellant (claimant) did not sustain a compensable repetitive trauma injury on (date of injury); (3) the respondent (self-insured) is relieved from liability under Section 409.002 because the claimant did not timely notify her employer pursuant to Section 409.001; (4) the self-insured is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003; and (5) because the claimant did not sustain a compensable injury on (date of injury), the claimant did not have disability resulting from the claimed injury.  The claimant appealed, disputing the ALJ’s determinations regarding compensability, timely reporting, timely filing, and disability. The self-insured responded, urging affirmance of the appealed determinations.

The ALJ’s determination that the date of injury is (date of injury), was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the date of injury is (date of injury). The claimant testified that she was injured while working as a Life Skills Aide due to the repetitious actions of lifting, clothing, and feeding disabled children who weighed between 80 and 100 pounds.  

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).

COMPENSABILITY

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

TIMELY FILING

The ALJ’s determination that the self-insured is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003 is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that because the claimant did not sustain a compensable injury on (date of injury), the claimant did not have disability resulting from the claimed injury is supported by sufficient evidence and is affirmed.

TIMELY REPORTING  

The parties stipulated that the date of injury in this case is (date of injury). Additionally, the ALJ found that on January 4, 2021, the claimant reported the claimed injury to the employer.  This finding is supported by sufficient evidence.    

Section 409.001(a)(2) provides that, if the injury is an occupational disease, an employee or a person acting on the employee’s behalf shall notify the employer of the employee of an injury not later than the 30th day after the date on which the employee knew or should have known that the injury may be related to the employment.  

The ALJ determined that the claimant did not timely report her work injury to the employer because January 4, 2021, is more than 30 days from the claimed injury and that because the claimant did not timely report her injury, the self-insured is relieved of liability under Section 409.002.  We conclude that the ALJ erred in determining that the claimant did not timely report her injury because the 30th day after (date of injury), was Saturday, January 2, 2021, and the claimant gave notice on the next working day, Monday, January 4, 2021.  During the time period under consideration, 28 Tex. Admin. Code § 102.3(a)(3) (Rule 102.3(a)(3)) provided that, if the last day of any period is not a working day, the period is extended to include the next day that is a working day.  A working day is defined in Rule 102.3(b).  In Appeals Panel Decision (APD) 950658, decided June 12, 1995, the Appeals Panel, citing Sections 311.014(a) and (b) of the Code Construction Act and Rule 102.3(a), held that where the 30th day after the date of injury was a Sunday, notice of injury was timely when given on the next working day, a Monday.  See also APD 002549, decided December 11, 2000; and APD 160634, decided May 24, 2016.  Accordingly, we reverse the ALJ’s determination that the self-insured is relieved from liability under Section 409.002 because the claimant failed to timely notify her employer pursuant to Section 409.001 and render a new decision that the self-insured is not relieved from liability under Section 409.002 because the claimant timely notified her employer pursuant to Section 409.001.  

SUMMARY

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

We affirm the ALJ’s determination that the self-insured is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003.

We affirm the ALJ’s determination that because the claimant did not sustain a compensable injury on (date of injury), the claimant did not have disability resulting from the claimed injury.

We reverse the ALJ’s determination that the self-insured is relieved from liability under Section 409.002 because the claimant failed to timely notify her employer pursuant to Section 409.001 and render a new decision that the self-insured is not relieved from liability under Section 409.002 because the claimant timely notified her employer pursuant to Section 409.001.  

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

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 15, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the sole disputed issue by deciding that the appellant (claimant) did not sustain a compensable injury on (date of injury). The claimant appealed the ALJ’s determination. The respondent (carrier) responded, urging affirmance of the ALJ’s determination.

DECISION

Reversed and remanded.

The claimant testified he was injured on (date of injury), when he stepped on a piece of metal that pierced his work boot and punctured his left foot. The claimant also testified he did not feel anything at the time he stepped on the metal and noticed the injury when he got home and removed his boot.

The ALJ noted in her discussion that the claimant testified he punctured his left foot. The ALJ, in discussing various medical records in evidence, noted complaints of a left foot injury, and that the claimant had been diagnosed with left foot necrotizing fasciitis and cellulitis of the left foot. However, the ALJ also stated the claimant sought treatment on September 30, 2021, at (clinic), complaining of “pain and swelling of his right foot after it was punctured by a piece of metal ‘yesterday afternoon.’” The ALJ noted the following:

A careful review of all the evidence presented revealed numerous inconsistencies in the medical records, [the] [c]laimant’s testimony, and the recorded statements of witnesses. These inconsistencies could not be resolved in [the] [c]laimant’s favor.

The claimant points out on appeal that the medical records reflect a left foot injury, not a right foot injury as stated by the ALJ, and that the ALJ’s statement is an “untrue and an inaccurate reading of the medical records. . . .” In evidence are medical records from (clinic) dated September 30, 2021, which state the claimant was “complaining of pain in [the] left foot plant after [he] got a pucture (sic) with a piece of metal yesterday afternoon. . . .” The records from (Clinic) do not discuss the right foot.   

While the ALJ can accept or reject in whole or in part the evidence regarding the claimed injury, her decision in this case is based, in part, upon a misstatement of the medical evidence in the record.  Accordingly, we reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and we remand the issue of compensability to the ALJ for further action consistent with this decision.    

REMAND INSTRUCTIONS

On remand the ALJ is to correct her misstatement regarding the medical records in evidence.  The ALJ shall consider all of the evidence and make a determination of whether the claimant sustained a compensable injury on (date of injury), that is consistent with the evidence.

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 ALJ, 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 Appeals Panel Decision 060721, decided June 12, 2006.

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

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

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 (CCH) was held on November 2, 2020, and May 17, 2021, with the record closing on June 8, 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 repetitive trauma injury; (2) the date of injury is (date of injury); (3) respondent 1 (carrier 1) and respondent 2 (carrier 2) are relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (4) carrier 1 and carrier 2 are relieved from liability because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003; and (5) because the claimant did not sustain a compensable injury, the claimant did not have disability as a result of the claimed injury from March 9, 2020, to the date of the CCH. The claimant appealed, disputing the ALJ’s determinations of compensability, date of injury, timely notice to employer, timely filing of a claim, and disability. Both carrier 1 and carrier 2 responded, urging affirmance of the disputed determinations.

DECISION

Affirmed in part and reversed and remanded in part.

The claimant testified that he injured his left arm because of repetitive activities performed in the course and scope of his employment.

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).

DATE OF INJURY

The ALJ’s determination that the date of injury is (date of injury), pursuant to Section 408.007 is supported by sufficient evidence and is affirmed. This is so even though another fact finder might have drawn other inferences and reached other conclusions. Salazar, et al. v. Hill, 551 S.W.2d 518 (Tex. Civ. App.—Corpus Christi 1977, writ ref'd n.r.e.).

COMPENSABLE REPETITIVE TRAUMA INJURY

The ALJ’s determination that the claimant did not sustain a compensable repetitive trauma injury is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability resulting from the claimed injury from March 9, 2020, to the date of the CCH is supported by sufficient evidence and is affirmed.

TIMELY NOTICE TO EMPLOYER

The ALJ’s determination that carrier 1 and carrier 2 are relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001 is supported by sufficient evidence and is affirmed.

TIMELY FILING OF A CLAIM

Section 410.168 provides that an ALJ’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 an ALJ’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 ALJ states in Conclusion of Law No. 6, the summary paragraph on page one, and Decision section on pages 9 and 10 that carrier 1 and carrier 2 are relieved from liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003. Although the ALJ made a conclusion of law, decision, and discussed the timely filing of a claim in his discussion of the evidence, the ALJ failed to make a finding of fact whether the claimant timely filed a claim for compensation with the Division. Because the ALJ’s decision contains no findings of fact regarding the timely filing issue, which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16. We therefore reverse the ALJ’s determination that carrier 1 and carrier 2 are relieved from liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003 as being incomplete, and we remand the issue of timely filing of a claim for compensation. See Appeals Panel Decision (APD) 132339, decided December 12, 2013, and APD 180839, decided, June 4, 2018.

SUMMARY

We affirm the ALJ’s determination that the date of injury is (date of injury), pursuant to Section 408.007.

We affirm the ALJ’s determination that the claimant did not sustain a compensable repetitive trauma injury.

We affirm the ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability resulting from the claimed injury from March 9, 2020, to the date of the CCH.

We affirm the ALJ’s determination that carrier 1 and carrier 2 are relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001.

We reverse the ALJ’s determination that carrier 1 and carrier 2 are relieved from liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003 as being incomplete, and we remand the issue of timely filing of a claim for compensation to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make a finding of fact, conclusion of law, and a decision regarding whether carrier 1 and carrier 2 are relieved form liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003.

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 ALJ, 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 Division, 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 1 is ACE AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201.

The true corporate name of the insurance carrier 2 is ELECTRIC INSURANCE COMPANY and the name and address of its registered agent for service of process is

C T CORPORATION SYSTEM
1999 BRYAN STREET SUITE 900
DALLAS, TEXAS 75201-3136.

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 (CCH) was held on May 12, 2021, with the record closing on May 18, 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 injury in the form of an occupational disease with a date of injury of (date of injury). The claimant appealed, disputing the ALJ’s determination that he did not sustain a compensable injury. The respondent (self-insured) responded, urging affirmance.

DECISION

Reversed and remanded.

The claimant worked as a senior patrol officer for (county) County. The claimant testified that on (date of injury), he was dispatched to respond to a call regarding a death in a private residence. The claimant testified that he was notified prior to his arrival at the call that the residents of the home had tested positive for coronavirus 2019 (COVID-19). The claimant testified he spent 3 to 4 hours at the scene. The claimant traveled by airplane to (city), (state), for a short vacation on (the day after the date of injury). After experiencing a fever and body aches along with a cough, the claimant tested for COVID-19 on (two days after the date of injury), which yielded a positive result.

At issue was whether the claimant sustained a compensable injury in the form of an occupational disease on (date of injury). The parties argued at the CCH about the applicability of Section 607.054 of the Texas Government Code. Section 607.054 of the Government Code provides, in part, that a firefighter, peace officer, or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter, peace officer, or emergency medical technician. In her discussion of the evidence the ALJ correctly noted that the record contains no authoritative evidence addressing any statistical correlation between the claimant’s COVID-19 infection and his service as a peace officer. The ALJ stated that for this reason the evidence failed to raise a presumption that the claimant’s COVID-19 infection was contracted in the course and scope of his employment.

Section 401.011(34) provides that “occupational disease” means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease. Expert medical testimony is necessary to establish the cause of the claimant’s disease. See generally Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.—Texarkana 1974, writ ref'd n.r.e.), Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980). The question in this case is whether there is a causal connection between COVID-19 and the claimant’s employment as established by medical evidence.

The ALJ found that the claimant’s employment did not place him at greater risk of a COVID-19 infection than employment generally. Accordingly, the ALJ determined that the claimant did not sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury).

The claimant testified regarding Senate Bill (S.B.) 22 of the 87th Leg., R.S. (2021) at the CCH but stated he did not know if at that time it had been signed into law. S.B. 22 added a subsection (b) to Section 607.054 of the Government Code which provides this section does not apply to a claim that a firefighter, peace officer, or emergency medical technician suffers from severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or COVID-19.

S.B. 22 provided an additional section to specifically cover SARS-CoV-2 and COVID-19 for detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians. Section 607.0545(a) of the Government Code provides, in pertinent part, that a peace officer who suffers from COVID-19 that results in death or total or partial disability is presumed to have contracted the virus or disease during the course and scope of employment as a peace officer if the peace officer is: (1) employed in the area designated in a disaster declaration by the governor under Section 418.014 of the Government Code or another law and the disaster is related to COVID-19; and (2) contracts the disease during the disaster declared by the governor described above. On March 13, 2020, the governor declared a state of disaster in Texas due to COVID-19.

Section 607.0545(b) of the Government Code provides, in pertinent part, the presumption only applies to specified persons including a peace officer employed on a full-time basis who is diagnosed with COVID-19 using a test authorized, approved, or licensed by the United States Food and Drug Administration. See Section 607.0545(b)(1) and (2)(A) of the Government Code. Section 607.0545(b)(3) of the Government Code further provides, in pertinent part, that the presumption only applies to a peace officer who was last on duty not more than 15 days before the date the person is diagnosed with COVID-19 using a test described by Section 607.0545(b)(2)(A) of the Government Code.

Section 607.058(a) of the Government Code provides, in part, that the presumption established in Section 607.0545 of the Government Code is rebuttable. Section 607.058(b) of the Government Code provides, in pertinent part, that any rebuttal offered must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual’s service as a peace officer was a substantial factor in bringing about the individual’s disease or illness without which the disease or illness would not have occurred.

Section 607.058(c) of the Government Code provides, in pertinent part, that an ALJ in addressing an argument based on a rebuttal must make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the individual’s service as a peace officer was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred. Section 607.058(d) provides, in pertinent part, that a rebuttal to a presumption under Section 607.0545 of the Government Code may not be based solely on evidence relating to the risk of exposure to COVID-19 of a person with whom a peace officer resides.

S.B. 22 provides that a person subject to Section 607.0545 of the Government Code who on or after the date the governor declared a disaster under Chapter 418 of the Government Code relating to COVID-19 but before the effective date of S.B. 22 may file a claim for benefits related to COVID-19 on or after the effective date of S.B. 22 regardless of whether the claim is otherwise considered untimely and the changes in law made by S.B. 22 apply to that claim.

The ALJ correctly determined that the presumption set forth in Section 607.054 of the Government Code did not apply. However, S.B. 22 makes clear that the presumption set forth in Section. 607.0545 of the Government Code applies to claims, like the one in the instant case, that were pending at the time the law went into effect. See Appeals Panel Decision (APD) 211026-s, decided August 20, 2021. S.B. 22 became effective on June 14, 2021, a date after the CCH was held in this case and a decision was issued. However, because this claim was pending at the time S.B. 22 went into effect, we reverse the ALJ’s determination that the claimant did not sustain a compensable injury in the form of an occupational disease with a date of injury of (date of injury), and remand this case back to the ALJ. On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury).

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 ALJ, 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 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 (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 (CCH) was held on January 25, 2021, and May 24, 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 decedent, (claimant), did sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death; (2) the respondent (claimant beneficiary) is a proper legal beneficiary of the decedent, thus the claimant beneficiary is entitled to death benefits; and (3) the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86. The appellant (self-insured) appealed, disputing the ALJ’s determinations. The claimant beneficiary responded, urging affirmance of the disputed determinations.

DECISION

Reversed and remanded.

The evidence reflected that the decedent had been employed with the self-insured for 27 years and worked as a deputy sheriff detention officer in the Annex building of the (county) County Jail. The claimant beneficiary testified that the decedent began to have a dry cough and was tested for coronavirus 2019 (COVID-19) on (date of injury). The decedent’s condition rapidly deteriorated and he passed away at his house on the morning of April 30, 2020. The COVID-19 test yielded a positive result. Additionally, an autopsy report in evidence dated April 30, 2020, concluded that the decedent died as a result of complications of COVID-19, with hypertension and cardiomegaly contributing.

At issue was whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death. The ALJ reconvened the hearing on May 24, 2021, in order to take evidence and testimony regarding the applicability of Section 607.054 of the Texas Government Code. The self-insured argued in its appeal that the admission of new evidence and testimony at the May 24, 2021, CCH was improper. Rulings on evidentiary matters are reviewed under an abuse-of-discretion standard and the Appeals Panel will not disturb the ALJ’s ruling on a continuance absent an abuse of discretion.  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 ALJ acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).  Considering the facts of this case, we find no abuse of discretion in the ALJ’s reconvening the hearing and admission of evidence.

COMPENSABILITY

Section 401.011(34) provides that “occupational disease” means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease. Expert medical testimony is necessary to establish the cause of the disease. See generally Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.—Texarkana 1974, writ ref'd n.r.e.), Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980).  The question in this case is whether there is a causal connection between COVID-19 and the decedent’s employment as established by medical evidence. 

Section 607.054 of the Government Code provides, in part, that a firefighter, peace officer, or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter, peace officer, or emergency medical technician. In her discussion of the evidence the ALJ stated that the claimant beneficiary satisfactorily met the requirements of Section 607.054 of the Government Code by proving that COVID-19 is a disease or illness of the lungs or respiratory tract and proving that there is a statistically positive correlation between COVID-19 and the decedent’s employment. We disagree. Although the articles in evidence discuss a prevalence of COVID-19 in police officers, the evidence in the record is insufficient to prove a statistically positive correlation between the decedent’s COVID-19 infection and his service as a detention officer. In addition, Senate Bill (S.B.) 22 of the 87th Leg., R.S. (2021) added a subsection (b) to Section 607.054 of the Government Code which provides this section does not apply to a claim that a firefighter, peace officer, or emergency medical technician suffers from severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or COVID-19.

S.B. 22 provided an additional section to specifically cover SARS-CoV-2 and COVID-19 for detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians. Section 607.0545(a) of the Government Code provides, in pertinent part, that a detention officer who suffers from COVID-19 that results in death or total or partial disability is presumed to have contracted the virus or disease during the course and scope of employment as a detention officer if the detention officer is: (1) employed in the area designated in a disaster declaration by the governor under Section 418.014 of the Government Code or another law and the disaster is related to COVID-19; and (2) contracts the disease during the disaster declared by the governor described above. On March 13, 2020, the governor declared a state of disaster in Texas due to COVID-19.

Section 607.0545(b) of the Government Code provides, in pertinent part, the presumption only applies to specified persons including a detention officer employed on a full-time basis who is diagnosed with COVID-19 using a test authorized, approved, or licensed by the United States Food and Drug Administration. See Section 607.0545(b)(1) and (2)(A) of the Government Code. Section 607.0545(b)(2)(B) of the Government Code reflects that the presumption would apply to a deceased person who is diagnosed by a test authorized, approved, or licensed by the United States Food and Drug Administration (Section 607.0545(b)(2)(A) of the Government Code) or by another means, including by a physician. Section 607.0545(b)(3)(B)(iv) of the Government Code further provides, in pertinent part, that the presumption only applies to a detention officer who was last on duty not more than 15 days before the person died if COVID-19 was a contributing factor in the person’s death.

Section 607.058(a) of the Government Code provides, in part, that the presumption established in Section 607.0545 of the Government Code is rebuttable. Section 607.058(b) of the Government Code provides, in pertinent part, that any rebuttal offered must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual’s service as a detention officer was a substantial factor in bringing about the individual’s disease or illness without which the disease or illness would not have occurred.

Section 607.058(c) of the Government Code provides, in pertinent part, that an ALJ in addressing an argument based on a rebuttal shall make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the individual’s service as a detention officer was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred. Section 607.058(d) of the Government Code provides, in pertinent part, that a rebuttal to a presumption under Section 607.0545 of the Government Code may not be based solely on evidence relating to the risk of exposure to COVID-19 of a person with whom a detention officer resides.

S.B. 22 provides that a person subject to Section 607.0545 of the Government Code who on or after the date the governor declared a disaster under Chapter 418 of the Government Code relating to COVID-19 but before the effective date of S.B. 22, contracted COVID-19, may file a claim for benefits related to COVID-19 on or after the effective date of S.B. 22 regardless of whether the claim is otherwise considered untimely and the changes in law made by S.B. 22 apply to that claim.

The ALJ in this case incorrectly determined that the presumption set forth in Section 607.054 of the Government Code applied to this claim. However, S.B. 22 makes clear that the presumption set forth in Section 607.0545 of the Government Code applies to claims, like the one in the instant case, that were pending at the time the law went into effect. S.B. 22 became effective on June 14, 2021, a date after the CCH was held and a decision was issued in this case. Because this claim was pending at the time S.B. 22 went into effect, we reverse the ALJ’s determination that the decedent did sustain a compensable injury in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death, and we remand this issue back to the ALJ for further action consistent with this decision.

On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death.

PROPER LEGAL BENEFICIARY AND DEATH BENEFITS

As we have reversed and remanded the compensability issue in this case, we also reverse the ALJ’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent, thus entitling her to death benefits, and we remand this issue back to the ALJ for further action consistent with this decision.

BURIAL BENEFITS

As we have reversed and remanded the compensability issue in this case, we also reverse the ALJ’s determination that the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86, and we remand the issue of burial benefits back to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the decedent did sustain a compensable injury in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death, and we remand this issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent, thus entitling her to death benefits, and we remand this issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86, and we remand the issue of burial benefits back to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death. The ALJ is then to make determinations regarding the issues of whether the claimant beneficiary is a proper legal beneficiary entitling her to death benefits and whether the claimant beneficiary is entitled to reimbursement for burial benefits.

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 ALJ, 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 Government Code in the computation of the 15-day appeal and response periods.  See Appeals Panel Decision 060721, decided June 12, 2006.

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

COUNTY JUDGE NELSON WOLFF
101 W. NUEVA, 10TH FLOOR
SAN ANTONIO, TEXAS 78205.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
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 March 22, 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 injury in the form of an occupational disease, with a date of injury of (date of injury).

The claimant appealed the ALJ’s determination of compensability. The respondent (carrier) responded, urging affirmance of the ALJ’s determination.

DECISION

Reversed and remanded for reconstruction of the record.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; Claimant’s Exhibits 1 through 5; and Carrier’s Exhibits A through E. The claimant’s exhibit list indicates that Exhibit 5 contains 9 pages of workplace photos; however, the case file sent for review contains only 2 pages of an email thread and a link that states “view photos” that does not function. In the appeal file is correspondence with the ALJ after the issuance of the decision and order which indicates that the claimant did intend to offer the photos as evidence. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibits. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

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 ALJ, 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 STANDARD FIRE 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.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
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 February 27, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) (date of injury), is the date of injury pursuant to Section 408.007, the date the employee knew or should have known the disease may be related to the employment; (2) the appellant/cross-respondent (claimant) did not sustain a compensable repetitive trauma injury; (3) the respondent/cross-appellant (carrier) is not relieved from liability pursuant to Section 409.002 because the claimant timely notified her employer pursuant to Section 409.001; (4) because the claimant did not sustain a compensable injury, she does not have disability from July 3 through October 18, 2019; and (5) the carrier is not relieved from liability under Section 409.004 because the claimant timely filed a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003.

The claimant appealed the ALJ’s determinations that she did not sustain a compensable repetitive trauma injury and that she did not have disability from July 3 through October 18, 2019. The claimant specifically notes in her appeal that the ALJ failed to make a finding of fact on the disability issue. The carrier responded, urging affirmance of the ALJ’s compensability and disability determinations. The carrier cross-appealed, disputing the ALJ’s determinations of the date of injury, timely notice to employer, and timely filing of a claim with the Division. The appeal file does not contain a response to the carrier’s cross-appeal.

DECISION

Affirmed in part and reversed and remanded in part.

The claimant testified she injured her left upper extremity when assembling medical kits for the employer. The claimant testified that her job duties were repetitive in nature. The claimant testified that on (date of injury), she sought medical treatment due to increasing pain in her left upper extremity. The medical records in evidence indicate the claimant was given an EMG/NCV of her left upper extremity on July 24, 2019, and was diagnosed with carpal tunnel syndrome of the left wrist.

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).

DATE OF INJURY

The ALJ’s determination that the date of injury is (date of injury), pursuant to Section 408.007, the date the employee knew or should have known that the disease was related to her employment is supported by sufficient evidence and is affirmed.

COMPENSABLE REPETITIVE TRAUMA INJURY

The ALJ’s determination that the claimant did not sustain a compensable repetitive trauma injury is supported by sufficient evidence and is affirmed.

TIMELY NOTICE TO EMPLOYER

The ALJ’s determination that the carrier is not relieved from liability pursuant to Section 409.002 because the claimant timely notified her employer pursuant to Section 409.001 is supported by sufficient evidence and is affirmed.

TIMELY FILING OF A CLAIM

The ALJ’s determination that the carrier is not relieved from liability under Section 409.004 because the claimant timely filed a claim for compensation with the Division within one year of the injury as required by Section 409.003 is supported by sufficient evidence and is affirmed.

DISABILITY

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’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 ALJ states in Conclusion of Law No. 6, the summary paragraph on page one and Decision section on page five that because the claimant did not sustain a compensable repetitive trauma injury, the claimant does not have disability from July 3 through October 18, 2019, the disability period in dispute. Although the ALJ made a conclusion of law, decision, and addressed the disability period in her discussion of the evidence, the ALJ failed to make a finding of fact whether the claimant had disability resulting from the claimed injury. Because the ALJ’s decision contains no findings of fact regarding the disability issue, which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16. We therefore reverse the ALJ’s determination that because the claimant did not sustain a compensable repetitive trauma injury, the claimant does not have disability from July 3 through October 18, 2019, as being incomplete, and we remand the issue of whether the claimant had disability from July 3 through October 18, 2019, resulting from the claimed injury. See Appeals Panel Decision (APD) 132339, decided December 12, 2013; APD 180839, decided, June 4, 2018; and APD 181357, decided July 30, 2018.

SUMMARY

We affirm the ALJ’s determination that the date of injury is (date of injury), pursuant to Section 408.007, the date the employee knew or should have known that the disease was related to her employment.

We affirm the ALJ’s determination that the claimant did not sustain a compensable repetitive trauma injury.

We affirm the ALJ’s determination that the carrier is not relieved from liability pursuant to Section 409.002 because the claimant timely notified her employer pursuant to Section 409.001.

We affirm the ALJ’s determination that the carrier is not relieved from liability under Section 409.004 because the claimant timely filed a claim for compensation with the Division within one year of the injury as required by Section 409.003.

We reverse the ALJ’s determination that because the claimant did not sustain a compensable repetitive trauma injury, the claimant does not have disability from July 3 through October 18, 2019, as being incomplete, and we remand the issue of whether the claimant had disability from July 3 through October 18, 2019, resulting from the claimed injury.

REMAND INSTRUCTIONS

On remand the ALJ is to make a finding of fact, conclusion of law and a decision regarding whether the claimant had disability from July 3 through October 18, 2019, resulting from the claimed injury.

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 ALJ, 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 Division, 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 XL INSURANCE AMERICA, INC. and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201.

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 (CCH) was held on December 12, 2019, 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 respondent (claimant) sustained a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury); (2) the claimant had disability from March 14 through March 29, 2019, and from May 25 through June 18, 2019; and (3) the claimant did not have disability on March 12, March 13, from March 30 through May 24, 2019, nor from June 19, 2019, through the date of the CCH.

The appellant (self-insured) appealed the ALJ’s determination of compensability as well as the determination of disability in favor of the claimant. The self-insured contends that the ALJ improperly determined that the claimant met the gateway requirements of Government Code Section 607.052(a)(1), (2), and (3). The self-insured also contends that the ALJ incorrectly determined that the claimant met the requirements of Government Code Section 607.052(b)(4) because the claimant admitted to smoking cigarettes at some point in his past. The claimant responded, urging affirmance of the appealed determinations. The ALJ’s determination that the claimant did not have disability on March 12, March 13, from March 30 through May 24, 2019, nor from June 19, 2019, through the date of the CCH was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

We note that the Evidence Presented section of the decision states Claimant’s Exhibits 1 through 19 were admitted. However, the record reflects that Claimant’s Exhibits 1 through 20 were admitted at the CCH.

The evidence reflects that the claimant had been employed with the self-insured since February 2009. The claimant first worked as a firefighter and emergency medical technician. The claimant testified he was promoted to an engineer operator, which required him to drive the firefighting apparatus to the scene, help pump water into the fire, and occasionally suit up and fight interior structure fires. It is undisputed the claimant was diagnosed with bladder cancer in March 2019. The claimant contends he developed bladder cancer as a result of exposure to heat, smoke, and carcinogens during his work for the self-insured.

Government Code Section 607.052.  APPLICABILITY.

(a) Notwithstanding any other law, this subchapter applies only to a firefighter or emergency medical technician who:

(1)  on becoming employed or during employment as a firefighter or emergency medical technician, received a physical examination that failed to reveal evidence of the illness or disease for which benefits or compensation are sought using a presumption established by this subchapter;

(2)  is employed for five or more years as a firefighter or emergency medical technician; and

(3)  seeks benefits or compensation for a disease or illness covered by this subchapter that is discovered during employment as a firefighter or emergency medical technician.

Based upon the evidence presented, the ALJ found the claimant met the gateway requirements of Government Code Section 607.052(a)(1), (2), and (3). The ALJ specifically found that upon becoming a firefighter the claimant had a physical examination that failed to reveal evidence of bladder cancer; the claimant was employed for more than five years^[1] as a firefighter or emergency medical technician; and the claimant was seeking benefits for bladder cancer discovered during his employment as a firefighter or emergency medical technician. The evidence supports the ALJ’s finding that the claimant met the gateway requirements of Government Code Section 607.052(a)(1), (2), and (3).

The question now turns to whether the cancer presumption would apply under Government Code Section 607.052(b)(4).

Government Code Section 607.052 provides in pertinent part the following:

(b) A presumption under this subchapter does not apply:

****

(4) if the disease or illness for which benefits or compensation is sought is known to be caused by the use of tobacco and:

(A) the firefighter or emergency medical technician is or has been a user of tobacco

The evidence reflects that smoking cigarettes is known to cause bladder cancer. The claimant testified at the CCH that after he graduated high school in 2004, he had socially smoked cigarettes from approximately 2005 to 2006. The claimant testified he had smoked cigarettes on maybe six or seven occasions, he never liked them or purchased any, never considered himself a smoker, and that he had perhaps half a dozen cigarettes in his life at that time and “never picked another one up.” The ALJ stated the following in her discussion regarding the claimant’s tobacco use:

. . . [the] [c]laimant’s testimony regarding his prior limited use of tobacco was persuasive. Consequently, [the] [c]laimant is not excluded from establishing the presumption under Section 607.052(b)(4) of the Texas Government Code.

The self-insured states on appeal that a plain reading of Government Code Section 607.052(b)(4) indicates that if the disease or illness for which benefits or compensation is sought is known to be caused by the use of tobacco and the firefighter or emergency medical technician is or has been a user of tobacco, the presumption does not apply. The self-insured contends that the statute “does not mention or discuss how long the injured worker must use tobacco or the gap between the use of tobacco and the diagnosis.” The self-insured argues the cancer presumption does not apply in this case because the evidence established smoking cigarettes is known to cause bladder cancer and the claimant has smoked cigarettes.

The claimant contends in his response to the self-insured’s appeal that neither the Texas Government Code nor the Texas Labor Code define the term “user” or “tobacco user.” The claimant argues that the definition of tobacco use found in the Code of Federal Regulations and used by health insurance companies should be used. 45 C.F.R. § 147.102(a)(1)(iv) defines tobacco use as:

. . . use of tobacco on average four or more times per week within no longer than the past [six] months. This includes all tobacco products, except that tobacco use does not include religious or ceremonial use of tobacco. Further, tobacco use must be defined in terms of when a tobacco product was last used.

The claimant also argues that tobacco use is “any habitual use of the tobacco plant leaf and its products,” and a user is “based on long-continued use.” The claimant contends that smoking a total of approximately seven cigarettes in his life approximately 15 years before his bladder cancer diagnosis does not make him a habitual user of tobacco and does not exclude the cancer presumption under Government Code Section 607.052(b)(4).

Based on the plain reading of Government Code Section 607.052(b)(4), the cancer presumption under 607.052 does not apply if the disease or illness is known to be caused by the use of tobacco, and the firefighter or emergency medical technician is or has been a user of tobacco.  The statute does not define a minimal amount of tobacco used or the length of time tobacco has been used by the firefighter or emergency medical technician that would preclude the cancer presumption. We decline to impose a threshold amount or time frame when the legislature has not done so. We note the House Research Organization (HRO) Bill Analysis for S.B. 310 reflects that opponents of S.B. 310 presented the argument that a firefighter “who smoked for a short period of time in the past might be denied benefits if he developed certain forms of cancer, even though [firefighters] in burning buildings can be exposed to a variety of cancer-causing carcinogens.” HRO Bill Analysis, Tex. S.B. 310, 79th Leg. R.S. (2005). The facts of this case establish that bladder cancer is known to be caused by smoking cigarettes. The facts also establish that the claimant has smoked cigarettes in the past. Therefore, we hold that under Government Code Section 607.052(b)(4), the claimant’s tobacco use precludes the claimant from establishing the cancer presumption.

The ALJ based her determination that the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), on the basis that the claimant is entitled to the presumption under Government Code Section 607.055(a). Given that we have held the claimant’s tobacco use precludes the cancer presumption from applying in this case, we reverse the ALJ’s determination that the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury). We remand the issue of compensability to the ALJ to make findings of fact, conclusions of law, and a determination whether the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), for further action in accordance with this decision.

Because we have reversed and remanded the ALJ’s compensability determination, we also reverse the ALJ’s determination that the claimant had disability from March 14 through March 29, 2019, and from May 25 through June 18, 2019, and we remand the issue of disability for these periods to the ALJ for further action consistent with this decision.

We note the ALJ stated in a footnote of the decision that the 86th Texas Legislature amended Government Code Chapter 607 by passage of S.B. 2551, and that the amendments apply only to claims filed on or after June 10, 2019. The ALJ also stated that “[t]he claim in this case is governed by the law as it existed on the date the compensable injury occurred” (emphasis added). However, S.B. 2551 states that the amendments apply only to a claim for workers’ compensation benefits filed on or after the effective date of this Act, and that “a claim filed before that date is governed by the law as it existed on the date the claim was filed, and the former law is continued in effect for that purpose” (emphasis added). The evidence reflects that the amendments in S.B. 2551 are not applicable in the case on appeal.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a decision on whether the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), considering the evidence and without applying the cancer presumption. The ALJ is then to make findings of fact, conclusions of law, and a decision on whether the claimant had disability from March 14 through March 29, 2019, and from May 25 through June 18, 2019.

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 ALJ, 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 Appeals Panel Decision 060721, decided June 12, 2006.

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

ANNA RUSSELL – CITY SECRETARY
900 BAGBY
HOUSTON, TEXAS 77002.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note Government Code Section 607.052(a)(2) requires employment as a firefighter or emergency medical technician for five or more years. ↑

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, 2019, 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 injury, in the form of an occupational disease, with a date of injury of (date of injury); and (2) because the claimant did not sustain a compensable injury, the claimant did not have disability. The claimant appealed, disputing the ALJ’s determinations of compensability and disability. The respondent (self-insured) responded, urging affirmance of the disputed compensable injury and disability determinations.

DECISION

Reversed and rendered.

The evidence reflected that the claimant had been employed with the self-insured since November of 2001. The claimant first worked as a probationary firefighter and subsequently was employed as a firefighter/paramedic. In evidence is an MRI dated October 26, 2012, which included an impression of a cystic tumor in the tail of the pancreas which is most compatible with a mucinous cystadenoma/cystadenocarcinoma. The claimant was diagnosed with a neuroendocrine tumor of the pancreas. In October of 2017, the claimant obtained the results of a liver biopsy and it was determined that he had a neuroendocrine tumor of the liver.

COMPENSABILITY

Government Code Section 607.055.  CANCER.

(a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:

(1)  the firefighter or emergency medical technician:

(A)  regularly responded on the scene to calls involving fires or fire fighting; or

(B)  regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or emergency medical technician; and

(2)  the cancer is known to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as described by Subsection (b).

(b)  This section applies only to a type of cancer that may be caused by exposure to heat, smoke, radiation, or a known or suspected carcinogen as determined by the International Agency for Research on Cancer [(IARC)].^[1]

Government Code Section 607.057.  EFFECT OF PRESUMPTION.

Except as provided by Section 607.052(b), a presumption established under this subchapter applies to a determination of whether a firefighter's or emergency medical technician's disability or death resulted from a disease or illness contracted in the course and scope of employment for purposes of benefits or compensation provided under another employee benefit, law, or plan, including a pension plan.

Sec. 3, eff. September 1, 2005.

Government Code Section 607.058.  PRESUMPTION REBUTTABLE.

A presumption under Sections 607.053, 607.054, 607.055, or 607.056 may be rebutted through a showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual's service as a firefighter or emergency medical technician caused the individual's disease or illness.

The ALJ’s finding that the claimant met the gateway requirements of Government Code Section 607.052(a)(1), (2), and (3) was not appealed. Additionally, the ALJ’s finding that the claimant regularly responded on the scene to calls involving fires or fire fighting; or he regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while employed as a firefighter was not appealed. The ALJ found that the claimant has been diagnosed with a pancreatic neuroendocrine tumor and metastatic neuroendocrine tumor of the liver (digestive cancers) and that digestive cancer is known to be associated with fire fighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as determined by the IARC. The ALJ found that the claimant established the presumption under Government Code Chapter 607, Subchapter B. These findings were not appealed.

However, the ALJ found that the self-insured rebutted the presumption that the claimant developed pancreatic and liver cancers during the course and scope of employment through showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician caused the claimant’s pancreatic and liver cancers relying on the testimony and written report of (Dr. K). The ALJ therefore determined that the claimant did not sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury).

Much of Dr. K’s testimony and written report attempted to establish that the presumption set forth in Government Code Section 607.055 did not apply in this case. As noted above, the ALJ found that the claimant established the presumption applied. That finding was not appealed. At issue is whether the presumption was rebutted by the evidence presented at the CCH.

The ALJ stated that Dr. K’s testimony was persuasive that the claimant’s pancreatic neuroendocrine tumor is related to family history. However, while the claimant testified that his father had kidney cancer, there was no specific evidence that the kidney cancer was a result of a neuroendocrine tumor. Further, it is undisputed that the claimant did not have any genetic testing to determine if he possessed any of the genetic syndromes which have been identified to cause pancreatic neuroendocrine tumors. Although Dr. K’s written report dated October 30, 2018, stated that neuroendocrine tumors can occur in the kidney, Dr. K acknowledged that the type of kidney cancer the claimant’s father had was not described.

Dr. K testified that the cancers caused from neuroendocrine tumors were not mentioned in the monograph of the IARC. Dr. K contended that the claimant’s type of cancer was not associated with the firefighter literature. However, Dr. K testified he could not say what was the cause of the claimant’s cancer, other than his contention it was related to family history. Dr. K contended simply that it was not a result of the claimant’s duties as a firefighter/paramedic.

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).

Under the facts of this case, we find the ALJ’s finding that the self-insured rebutted the presumption through showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the claimant’s service as a firefighter or emergency medical technician caused the individual’s disease or illness as required by Government Code Section 607.058 to be so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Accordingly, we reverse the ALJ’s determination that the claimant did not sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury), and render a new decision that the claimant did sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury).

DISABILITY

The ALJ found that the claimant’s pancreatic neuroendocrine tumor and metastatic neuroendocrine tumor of the liver were a producing cause of his inability to obtain and retain employment at wages equivalent to his pre-injury wage from October 28, 2017, through March 27, 2018, and from May 26, 2018, through the date of the CCH but not from March 28, 2018, through May 25, 2018. These findings were not appealed. The ALJ determined that because the claimant did not sustain a compensable injury, the claimant did not have disability. The claimant appealed the ALJ’s conclusion on disability. We have reversed the ALJ’s determination that the claimant did not sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury), and rendered a new decision that the claimant sustained a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury). Consequently, we reverse the ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability and render a new decision that the claimant had disability from October 28, 2017, through March 27, 2018, and from May 26, 2018, through the date of the CCH but not from March 28, 2018, through May 25, 2018.

SUMMARY

We reverse the ALJ’s determination that the claimant did not sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury), and render a new decision that the claimant did sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury).

We reverse the ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability and render a new decision that the claimant had disability from October 28, 2017, through March 27, 2018, and from May 26, 2018, through the date of the CCH but not from March 28, 2018, through May 25, 2018.

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

ANNA RUSSELL - CITY SECRETARY

900 BAGBY

HOUSTON, TEXAS 77002.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

1. We note that Senate Bill 2551 of the 86th Texas Legislature amended Government Code Sections 607.055 and 607.058 but those amendments are not applicable in the instant case.

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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 8, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the appellant/cross-respondent (claimant) did not sustain a compensable injury in the form of an occupational disease with a date of injury of (date of injury); and (2) because the claimant timely notified the employer of the claimed occupational disease, the respondent/cross-appellant (carrier) is not relieved from liability under Section 409.002. We note the ALJ inadvertently states in the decision that Claimant’s Exhibits C-1 through C-G were admitted, rather than C-1 through C-9, and that Carrier’s Exhibits CR-A through CR-9 were admitted, rather than CR-A through CR-G.

The claimant appealed, disputing the ALJ’s determination that he did not sustain a compensable injury in the form of an occupational disease with a date of injury of (date of injury). The carrier responded, urging affirmance of the appealed determination. The carrier cross-appealed, disputing the ALJ’s determination that because the claimant timely notified the employer of the claimed occupational disease, the carrier is not relieved from liability under Section 409.002. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.

DECISION

Reversed and remanded.

The parties stipulated, in part, that Valley Fever is the same condition as coccidioidomycosis. The claimant testified that he worked as an environmental compliance coordinator for the employer at various work sites in West Texas. The claimant also testified that around (date of injury), he started not feeling well, was losing his stamina, had a hard time breathing, and was coughing a lot. The claimant further testified that he was initially diagnosed with an infection by (Dr. B), but after being subsequently treated by (Dr. S), he was ultimately diagnosed with Valley Fever and told that his diagnosis of Valley Fever may be related to his work. In evidence is a medical record dated July 5, 2018, which reflects the claimant was diagnosed with Valley Fever on that date and told that this diagnosis may be work related. The claimant also testified that he notified the employer of this injury on the day he was diagnosed. We note in evidence is an employee injury report dated July 18, 2018, and a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) dated August 2, 2018, that state the claimant notified the employer of this injury on July 12, 2018.

While a date of injury was not a specific issue stated at the beginning of the CCH, during the CCH the claimant introduced evidence that while his symptoms began on or around (date of injury), it was not until July 2018, that he was diagnosed with Valley Fever and told by Dr. S that Valley Fever may be related to his work. The Appeals Panel has held that where the claimed injury is an occupational disease and there is an issue of timely notice, as in the case on appeal, it is essential for a resolution of the issues that a date of injury be determined. See Appeals Panel Decision (APD) 972552, decided February 23, 1998.

The ALJ found the claimant knew or should have known on July 5, 2018, that the injurious condition may have been related to his employment. The ALJ also found that on July 12, 2018, the claimant notified the employer or an employee holding a supervisory or management position of his claimed work-related occupational disease, which is within 30 days of when he knew or should have known that his claimed occupational disease may have been related to his employment. However, the ALJ determined that the claimant did not sustain a compensable injury in the form of an occupational disease with a date of injury of (date of injury). The ALJ also determined that the claimant timely notified the employer of the claimed occupational disease, which would be predicated on a July 5, 2018, date of injury. The ALJ’s date of injury in his finding of fact conflicts with the date of injury in his conclusion of law and decision. With the issues in this case of compensability of an occupational disease and timely notice to the employer, the ALJ must determine the date of injury to resolve this case. Therefore, we reverse the ALJ’s determinations that the claimant did not sustain a compensable injury in the form of an occupational disease with a date of injury of (date of injury), and that because the claimant timely notified the employer of the claimed occupational disease the carrier is not relieved from liability under Section 409.002. We remand these issues to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the claimant did not sustain a compensable injury in the form of an occupational disease with a date of injury of (date of injury), and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that because the claimant timely notified the employer of the claimed occupational disease the carrier is not relieved from liability under Section 409.002 and we remand this issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a decision on the date of injury in this case that is consistent with the evidence presented. The ALJ is then to make findings of fact, conclusions of law, and a decision as to whether the claimant sustained a compensable injury in the form of an occupational disease, and whether the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001.

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 ALJ, 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 STARR INDEMNITY & LIABILITY COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge