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 28, 2018, with the record closing on August 2, 2018, 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 employer or appellant (carrier) properly provided respondent 2 (claimant) with the information required by Insurance Code §§ 1305.005 and 1305.451; (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) has jurisdiction to determine the medical fee disputed by (Dr. R) for the date of service of June 9, 2017; and (3) the carrier is liable to pay for the maximum medical improvement (MMI) and impairment rating (IR) evaluation by Dr. R, a non-network doctor, because the claimant was referred to him by the treating doctor for such evaluation.

The carrier appealed the ALJ’s determination that it is liable to pay Dr. R for the MMI and IR evaluation at issue. The carrier states the ALJ added the issue on his own motion and that it was improper to do so as this was not a justiciable issue. Respondent 1 (subclaimant) responded, urging affirmance of the ALJ’s determination. The appeal file does not contain a response from the claimant.

The ALJ’s determinations that the employer or carrier properly provided the claimant with the information required by Insurance Code §§ 1305.005 and 1305.451, and the Division has jurisdiction to determine the medical fee disputed by Dr. R for the date of service of June 9, 2017, have not been appealed and have become final pursuant to Labor Code § 410.169.

DECISION

Reversed and rendered by striking.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and that, on that date, the employer provided workers’ compensation insurance coverage through the carrier. The evidence reflects that the carrier provided health care to the claimant through a workers’ compensation health care network, the Texas Star Network. The evidence also reflects the claimant’s treating doctor, (Dr. G), a network doctor, referred the claimant to Dr. R, a non-network doctor who is the subclaimant in this case, for an examination to determine MMI and IR. Dr. R examined the claimant on June 9, 2017, and certified on June 19, 2017, that the claimant reached MMI on May 30, 2017, with a one percent IR.

At the CCH, the ALJ, on his own motion and over objection by the carrier, added the following issue:

Is the [c]arrier liable to pay for the [MMI/IR] evaluation by [Dr. R], a non-network physician, because [the] [c]laimant was referred to him by the treating doctor for such evaluation?

The ALJ writes in the statement of the case portion of the decision that he added the issue “to reflect to [the] correct issue raised by the positions of the parties in this case. . . .” The ALJ held the record open for the parties to have the opportunity to provide briefs on the added issue. After receipt of the parties’ briefs, the ALJ closed the record on August 2, 2018, and later issued a decision and order.

The ALJ concluded that the carrier is liable to pay for the MMI/IR evaluation by Dr. R, a non-network doctor, because the claimant was referred to him by the treating doctor for such evaluation. A dispute over payment for providing an MMI/IR examination is a medical fee dispute which is adjudicated through the Division’s Medical Fee Dispute Resolution program (Chapter 413, Medical Review, of the Labor Code) or the network’s internal complaint resolution process (Chapter 1305, Workers’ Compensation Health Care Networks, of the Insurance Code). Accordingly, we reverse by striking the ALJ’s Conclusion of Law No. 3 and the decision that: “[t]he [c]arrier is liable to pay for the MMI/[IR] evaluation by [Dr. R], a non-network physician, because [the] [c]laimant was referred to him by the treating doctor for such evaluation.”

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto
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 (CCH) was held on August 14, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) [Employer] is the respondent’s (claimant) employer for purposes of the 1989 Act; (2) the claimant did sustain a compensable injury on [date of injury]; (3) the claimant does have disability from April 10 through June 4, 2012, as a result of a compensable injury sustained on [date of injury]; and (4) the appellant (self-insured) is limited to its defense that the claimant was not an employee of [Employer] as listed in its Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) dated April 16, 2012.

The self-insured appeals the hearing officer’s determinations of whether it is the claimant’s employer for purposes of the 1989 Act, that the claimant sustained a compensable injury on [date of injury], and had disability from April 10 through June 4, 2012, as well as the determination that it is limited to its defense that the claimant was not an employee of [Employer] as listed in its PLN-1 dated April 16, 2012. The claimant responded, urging affirmance of the disputed determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that on [date of injury], the claimant was injured while performing her job duties as a reserve deputy constable. It was undisputed that the claimant was not paid by the county for performing her duties as a reserve deputy constable. The self-insured argues that since the claimant was not paid for her job duties she was not an employee. Further, the self-insured argued that the county never took action to provide optional workers’ compensation coverage for its volunteer reserve deputy constables. The claimant testified that she is licensed and bonded through the county and that the county “carries their commission and maintains their full time license.” The claimant testified that she was told by her supervisor that she would be covered if she was injured.

It is undisputed that the self-insured is a political subdivision.  See Section 504.001(3).  Because the self-insured is a political subdivision, the applicable statute is Section 504.001 et seq.  Section 504.001(2) defines employee as (A) a person in the service of a political subdivision who has been employed as provided by law; or (B) a person for whom optional coverage is provided under Section 504.012 (which specifically provides for optional coverage of volunteer police officers) or 504.013. Section 504.012(a) provides that a political subdivision may cover volunteer fire fighters, police officers, emergency medical personnel, and other volunteers that are specifically named.  A person covered under this subsection is entitled to full medical benefits and the minimum compensation payments under the law. Although the claimant testified she was told she would be covered in the event of an injury, she did not specify that she was told the coverage was workers’ compensation insurance. No evidence was presented at the CCH to establish that [Employer] had agreed to provide optional coverage for reserve deputy constables pursuant to Section 504.012. In evidence was the agenda and minutes from the meetings of [Employer] Commissioners Court for various dates from 2009 through 2012 which included agenda items brought by the office of the constable of the precinct for which the claimant was a reserve deputy constable. None of the minutes in evidence indicate that a request was ever made to provide optional workers’ compensation coverage for the reserve deputy constables. The claimant presented no evidence to the contrary.

The hearing officer cited Section 86.012(a) of the Local Government Code as authority that allows a county to appoint reserve deputy constables and therefore, was persuaded that the claimant was an employee of [Employer]. However, the fact that [Employer] was allowed to appoint reserve deputy constables does not make those reserve deputy constables employees under the 1989 Act.

In Goldminz v. City of Dallas, 2010 Tex. App. LEXIS 1392 (Tex. App.-Dallas, February 26, 2010), the claimant was a volunteer police officer with the city. The court held that because a reserve police officer serves without pay, he does not meet the definition of an employee under Section 504.012(a) of the 1989 Act. The court stated that there is no evidence that the city elected to give full medical benefits and the minimum compensation benefits provided by Chapter 504 to volunteer police officers, including Goldminz.

Similarly, in the instant case, the claimant was not paid for her duties as a reserve deputy constable. While the claimant testified that she understood she would be covered by workers’ compensation insurance no evidence was presented to indicate that the county provided the optional coverage for volunteers provided in Section 504 of the 1989 Act.

Accordingly, we reverse the hearing officer’s determination that [Employer] is the claimant’s employer for purposes of the 1989 Act and render a new decision that [Employer] is not the claimant’s employer for purposes of the 1989 Act.

“Compensable injury” is defined in Section 401.011 as an injury that arises out of the course and scope of employment for which compensation is payable under this subtitle. Because we have rendered a new decision that [Employer] is not the claimant’s employer for purposes of the 1989 Act, compensation is not payable. Accordingly, we reverse the hearing officer’s determination that the claimant sustained a compensable injury on [date of injury], and render a new decision that the claimant did not sustain a compensable injury on [date of injury]. While the hearing officer’s finding regarding the period of time that the claimant was unable to obtain and retain employment at pre-injury wages is supported by sufficient evidence, we reverse the hearing officer’s determination that the claimant had disability from April 10 through June 4, 2012, because, without a compensable injury, the claimant would not have disability as defined by Section 401.011(16). We render a new decision that the claimant did not have disability from April 10 through June 4, 2012.

The hearing officer’s determination that the self-insured is limited to its defense that the claimant was not an employee of [Employer] as listed in its PLN-1 dated April 16, 2012, is supported by sufficient evidence and is 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

COUNTY JUDGE

[ADDRESS]

[CITY], TEXAS [ZIP CODE].

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 18, 2005. The hearing officer resolved the disputed issues by deciding that: (1) (Dr. C) was not properly appointed by the Texas Workers’ Compensation Commission (Commission) in accordance with Section 408.0041 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5 (Rule 130.5); (2) that because Dr. B was the properly appointed designated doctor, the Commission must seek clarification from Dr. B regarding whether the inclusion of the disc protrusion at L4/5 as part of the compensable injury would change his prior certification of maximum medical improvement (MMI) and impairment rating (IR) and whether he wishes to reexamine the respondent (claimant); (3) that because clarification has not been sought from Dr. B regarding his certification, the claimant’s date of MMI and IR cannot be determined; (4) that the claimant had disability from January 29, 2004, through the date of the CCH; (5) that the claimant had good cause for failing to submit to the required medical examination (RME) on March 31, 2004, and is entitled to temporary income benefits (TIBs) from March 31, 2004, through the date of the CCH; and (6) that the claimant had good cause for failing to submit to the RME on April 22, 2004, and is entitled to TIBs from April 22, 2004, to the date of the CCH.

The appellant (carrier) appealed, disputing the disability determination as well as the determination that the claimant had good cause for failing to attend the RME scheduled for April 22, 2004. The carrier also contends that the hearing officer erred in finding that the claimant is entitled to TIBs from March 31, 2004, through the date of the CCH, arguing that MMI ends a claimant’s entitlement to TIBs and that to order the carrier to now pay TIBs is an express violation of the 1989 Act.

The claimant responded, urging affirmance of the disputed determinations. In her response, the claimant also states her disagreement with the hearing officer’s determination that the appointment of Dr. C was not correct and argues that presumptive weight should be given to the report of Dr. C and that there should be a determination that the claimant has not yet reached MMI and thus has no IR. We note that although the claimant’s response was timely as a response, it is untimely as an appeal and therefore the issues disputed by the claimant in her response cannot be considered. Since there was not a timely appeal, the determinations that Dr. C was not properly appointed as the second designated doctor and that “[b]ecause the [Commission] has not sought clarification from [Dr. B] in regard to his certification, the claimant’s date of [MMI] and [IR] for the compensable lumbar sprain/strain and disc protrusion at L4/5 injury of _________, cannot be adjudicated” are final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

DISABILITY

The parties stipulated that the claimant sustained a compensable lumbar strain/sprain and a disc protrusion at L4/5 injury in the course and scope of employment with employer on _________. Disability is defined in Section 401.011(16). Whether the claimant had disability from January 29, 2004, to the date of the CCH was a fact question for the hearing officer to resolve from the conflicting evidence presented 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 on the issue of disability, we conclude that the hearing officer’s determinations 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).

GOOD CAUSE

Section 408.004(e) effective for RMEs scheduled to occur after January 1, 2000, provides in part that an employee is not entitled to TIBs, during and for a period in which the employee fails to submit to an examination under Subsection (a) and (b) unless the Commission determines that the employee had good cause for the failure to submit to the examination. Rule 126.5(g) provides that a carrier “shall send a copy of the request for a medical examination order required by subsection (d) of this section to the employee and the employee’s representative (if any) by facsimile or electronic transmission if carrier has been provided with a facsimile number or email address for the recipient, otherwise, the carrier shall send the request by verifiable means.”  Rule 126.5(h) provides that a carrier “shall maintain copies of the request for a medical examination order and shall also maintain verifiable proof of successful transmission of the information.”  The rule goes on to instruct that “verifiable proof includes, but is not limited to, a facsimile confirmation sheet, certified mail return receipt, delivery confirmation from the postal or delivery service, or a copy of the electronic transmission.”

The hearing officer found that the carrier did not prove by verifiable means that the claimant received sufficient notice, including written notice, of the requested RME scheduled for April 22, 2004. The carrier argues in its appeal that it presented evidence at the CCH that the carrier sent notice of the appointment through a private shipper on April 6, 2004; that the adjuster stated under oath in responses to interrogatories that she sent notice to both the claimant and claimant’s representative on April 6, 2004; and that there was documentation from a carrier employee that the claimant called the carrier to let them know that she received the appointment notice.

The claimant testified that she did not receive notice of the appointment and denied ever receiving a delivery from the private delivery service used by the carrier. The carrier correctly points out that confirmation of delivery to the claimant’s address on April 6, 2004, from the private delivery service was in evidence. The claimant testified at the CCH as to her correct address. The address listed on the confirmation of delivery from the private delivery service on April 6, 2004, was the same address the claimant acknowledged as her correct address during the CCH. As the trier of fact, the hearing officer may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). The hearing officer was presented with conflicting evidence regarding whether the notice was sent based on representations made by employees of the carrier and the claimant’s testimony that she never received such notice. Rule 126.5(h) specifically lists the evidence of confirmation of delivery from a delivery service presented by the carrier as an example of verifiable proof. The hearing officer concluded that the carrier failed to prove by verifiable means that the claimant received written notice of the April 22, 2004, RME appointment but gave no indication as to why the confirmation of delivery to the claimant’s address by a private delivery service was not credible. We note that Rule 126.5 addresses requirements for requesting RMEs rather than the actual order and notice of the appointment. Rule 126.6 does not provide a corresponding requirement of verifiable proof of successful transmission of the information regarding the actual order. A Commission order dated March 30, 2004, approving the request for an RME appointment was in evidence. Additionally, correspondence dated April 5, 2004, notifying the claimant of the Commission ordered RME appointment scheduled for Thursday, April 22, 2004, was in evidence along with confirmation of delivery to the claimant’s address by a private delivery service on April 6, 2004.

Although there is compelling evidence regarding notice of the appointment, whether good cause exists for failure to attend a RME is a matter left up to the discretion of the hearing officer. That determination will not be set aside unless the hearing officer acted without reference to any guiding rules or principles. Texas Workers' Compensation Commission Appeal No. 010828, decided May 16, 2001. The test for good cause is that of ordinary prudence; that is, the degree of diligence an ordinarily prudent person would have exercised under the same or similar circumstances. Texas Workers’ Compensation Commission Appeal No. 94244, decided April 15, 1994.

As noted above, there is no requirement that the carrier prove the claimant received notice of the RME appointment by verifiable means. The hearing officer applied the wrong standard to determine whether or not the claimant received notice of the RME appointment scheduled for April 22, 2004. This was legal error and an abuse of discretion. Therefore, we remand this issue of good cause back to the hearing officer to apply the correct standard in determining whether or not the claimant had good cause for failing to submit to the RME on April 22, 2004, and is entitled to TIBs from April 22, 2004, to the date of the CCH. We note that it is undisputed that the RME scheduled for March 31, 2004, was cancelled. However, to the extent that the hearing officer’s determination that the claimant is entitled to TIBs from March 31, 2004, to the date of the CCH may conflict with the determination regarding entitlement to TIBs from April 22, 2004 to the date of the CCH, we correspondingly reverse and remand that determination.

MMI AND IR

There was not a timely appeal of the determination that the claimant’s date of MMI and IR cannot be adjudicated. However, we note that under the holding in Albertson’s, Inc. v. Ellis, 131 S.W.3d 245 (Tex. App.-Fort Worth 2004, pet. denied), an affirmance of the hearing officer’s determination that MMI and IR cannot be determined pending the appointment of a designated doctor would, in essence, be a remand.  The court noted in that case that the mere failure of the Appeals Panel to use the word “remand” in its opinion did not make its nonfinal decision (on MMI and IR) final for the purposes of judicial review, and was, in effect, a remand.

However, the carrier correctly notes in its appeal that Section 408.102 provides that TIBs continue only until the employee reaches MMI. Section 408.121(b) provides that the carrier shall begin to pay impairment income benefits not later than the fifth day after the date on which the carrier receives the doctor’s report certifying MMI. Because the claimant’s entitlement to TIBs ends upon attainment of MMI, on remand the hearing officer must also resolve the issues of MMI and IR before entitlement to TIBs can be determined.

We affirm the determination that the claimant had disability from January 29, 2004, and continuing through the date of the CCH; we reverse the determination that the claimant is entitled to TIBs from March 31, 2004, to the date of the CCH, striking that language from the decision and order; and we reverse the determination that the claimant had good cause for failing to submit to the RME on April 22, 2004, and that the claimant is entitled to TIBs from April 22, 2004, to the date of the CCH and remand back to the hearing officer for actions consistent with this decision.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Commission’s Division of Hearings pursuant to Section 410.202, 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.

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

LEO F. MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
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 17, 2004. With regard to the disputed issues before him, the hearing officer determined that the Independent Review Organization (IRO) decision is supported by a preponderance of the evidence and that the respondent (claimant) did not waive his right to medical dispute resolution and independent review of spinal surgery by not timely filing a request as required by Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 133.308(e)(2) (Rule 133.308(e)(2)).

The appellant (carrier) appealed asserting that a Request for Independent Review (RIR) by the claimant’s treating doctor had been dismissed as untimely and a subsequent RIR by the claimant himself was also untimely. The carrier also asserted that the IRO should never have been appointed in the first place and therefore, no weight should have been given to the IRO determination. The file does not have a response from the claimant.

DECISION

Reversed and rendered.

It is undisputed that the claimant sustained a compensable spinal injury on _____________, that Dr. G was the claimant’s treating doctor and surgeon and that the claimant had almost two years of failed conservative treatment which included epidural steroid injections, nerve block injections, and physical therapy.

THE WAIVER ISSUE

Dr. G sought preauthorization for an anterior/posterior L5-S1 fusion which was denied by the carrier on February 23, 2004. Dr. G then sought reconsideration which was again denied by the carrier on March 1, 2004.

Rule 133.308 pertains to “Medical Dispute Resolution by [IRO].” Specifically Rule 133.308(e) provides that a person or entity who fails to timely file a request waives the right to independent review or medical dispute resolution. Timeliness is determined in Rule 133.308(e)(2) as:

(2)A request for prospective necessity dispute resolution shall be considered timely if it is filed with the division no later than the 45th day after the date the carrier denied approval of the party’s request for reconsideration of denial of health care that requires preauthorization or concurrent review pursuant to the provisions of § 134.600.

Pursuant to Rule 133.308(e)(2) a request for a prospective necessity dispute resolution for the proposed spinal surgery would have to have been filed with the Texas Workers' Compensation Commission’s (Commission) Medical Review Division (MRD) by April 15, 2004. Dr. G filed a Request for Medical Dispute Resolution (TWCC-60) with the MRD on June 14, 2004. By letter dated June 21, 2004, the MRD dismissed Dr. G’s request for RIR because it had not been timely filed pursuant to Rule 133.308(e)(2). The dismissal notice advised that either party had a right to request a hearing within 20 days of receipt of the dismissal. No hearing was requested.

Subsequently, the claimant filed another TWCC-60 requesting RIR of the proposed spinal fusion at L5-S1. A date stamp on the upper right portion of the form is illegible. Above the illegible date stamp someone has hand written “7.6.04.” The hearing officer, in his “Background Information” commented that the “[C]arrier has asserted that the date [on the TWCC-60 form] was July 6, 2004.” The carrier on appeal disputes that statement and our review indicates that the carrier’s attorney stated that he did not know what the date of filing was and speculated that the date in the upper right corner might have been put there by someone at the Commission. In the lower corner of the TWCC-60 form in the block for “Date Stamp for Receipt from Requestor” is an illegible date which could arguably be “JUL 07 2004.” The carrier responded to the claimant’s TWCC-60 request that the request was untimely pursuant to Rule 133.308(e)(2) by letter dated July 14, 2004. The MRD nonetheless advised the parties by letter dated July 30, 2004, that it was assigning an IRO. The IRO report is dated August 17, 2004.

The hearing officer, in determining that the claimant had not waived his right to independent review of the proposed spinal surgery cited Texas Workers' Compensation Commission Appeal No. 030583, decided April 28, 2003. Appeal No. 030583, was a case where the claimant failed to request reconsideration after the carrier’s first denial of prospective surgery and subsequently an IRO was appointed without objection. The Appeals Panel in that case stated that “the hearing officer opines that the carrier also failed to introduce evidence of its compliance which the rule, i.e. its response or objection to the claimant’s RIR” and held that “because the IRO proceeded with an evaluation and opinion, the carrier failed to preserve its objection to the claimant’s RIR.” That case is distinguishable from the instant case, where Dr. G did ask for reconsideration, which was denied, but then failed to timely request a RIR and when he did request the RIR it was dismissed as untimely. In the instant case, the claimant then also requested an RIR for the same procedure for which Dr. G had requested review. If Dr. G’s RIR on June 14, 2004, was untimely pursuant to Rule 133.308(e)(2) it would appear that the claimant’s subsequent RIR on the TWCC-60 for the same procedure, would also be untimely. We so hold.

Under those circumstances it is immaterial whether the carrier timely objected to the claimant’s July TWCC-60. The hearing officer determined that “[T]here was no proof of the date Claimant filed his [RIR],” which under the circumstances is correct (the claimant testified that he did not know or remember when he filed the TWCC-60). That being so, the hearing officer erred in placing the burden of proof on the carrier by finding that “[T]here was no proof that the Carrier filed its response to Claimant’s [RIR]. . . within seven calendar days of the date of receipt of Claimant’s [RIR]” which by the hearing officer’s prior finding was unknown. The hearing officer’s reliance on Appeal No. 030583, supra, is misplaced. The claimant’s RIR, as well as Dr. G’s RIR, was untimely filed, the MRD should have dismissed the claimant’s RIR, as it had Dr. G’s, as being untimely pursuant to Rule 133.308(e)(2) and the IRO should not have been appointed.

THE IRO DECISION

Had the IRO been properly appointed, there was conflicting medical evidence regarding the necessity of the proposed spinal surgery. The IRO’s decision would have been supported by sufficient evidence.

The hearing officer’s determination that the claimant did not waive the right to medical dispute resolution and independent review of spinal surgery is reversed and we render a new decision, that under the circumstances of this case, the claimant had waived the right to medical dispute resolution for the proposed L5-S1 fusion because neither Dr. G, nor the claimant, had timely filed their RIR within 45 days after the date the carrier denied approval of the reconsideration.

The true corporate name of the insurance carrier is TRAVELERS INDEMNITY COMPANY OF AMERICA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 78201.

Thomas A. Knapp

CONCUR:

Robert W. Potts
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 commenced on June 28, 2004, and then continued on August 23, 2004. The hearing officer decided that the appellant’s (claimant herein) compensable injury of (date of injury), did not extend to include the claimant’s right knee condition after (alleged date of injury no. 1); that the claimant’s compensable injury of (date of injury), does not extend to include the claimant’s right knee injury after (alleged date of injury no. 2); and that the claimant’s compensable injury of (date of injury), does not extend to and include right orbital cellulitis and seizures and/or posttraumatic headaches. The claimant appeals, requesting we reverse these determinations. There is no response to the claimant’s request for review from the respondent (carrier herein) in the appeal file.

DECISION

We affirm in part and we reverse and render in part.

The claimant was injured on (date of injury), when he fell approximately 15 feet off a truck. It was undisputed that the claimant suffered multiple injuries in his fall. The parties stipulated that the claimant’s compensable injury includes a concussion, a contusion to the forehead, injury to the cervical spine, loss of an upper bridge, and an anterior cruciate ligament tear, a lateral meniscus tear, a condral fracture and a medial femoral condyle of the right knee. The claimant underwent knee surgery in 1993, 1994, and 1996. The carrier paid for all of these surgeries. The claimant also underwent extensive treatment for his head injuries and his cervical injury. On October 20, 1995, Dr. S, M.D., the designated doctor, certified on a Report of Medical Evaluation (TWCC-69) that the claimant has a 29% impairment rating (IR) as a result of his compensable injury. Dr. S’s IR combined three components. In regard to the claimant’s head injury, Dr. S assessed 10% whole person impairment for complex integrated cerebral function deficits. Dr. S assessed 11% whole body impairment for the claimant’s cervical spine injury. Finally, Dr. S assessed 11% whole body impairment for the claimant’s right knee injury. Dr. S then combined these impairments to arrive with the 29% IR for the compensable injury. Both parties stated at the CCH that neither party ever disputed Dr. S’s IR certification. Both parties also stated at the CCH that all temporary income benefits, impairment income benefits and supplemental income benefits (SIBs) due in this case had been paid.

In 2003 the claimant was diagnosed with right orbital cellulitis. The claimant’s doctors initially related this condition to the compensable injury of (date of injury), and the claimant underwent surgery for this condition. Later, upon receiving additional medical information concerning the claimant’s medical history from the carrier, some doctors changed their opinions concerning the relatedness of the right orbital cellulitis to the compensable injury. At this point the carrier apparently decided to dispute the extent of the claimant’s injury regarding the right orbital cellulitis as well as the right knee and seizures and/or posttraumatic headaches.

Initially there was a great deal of confusion as how to frame the disputed issue at the CCH in regard to the right knee. The carrier’s contention that the compensable injury does not include the right knee is based upon its contention that the claimant suffered intervening right knee injuries. The carrier contends that the claimant injured his right knee on or about (alleged date of injury no. 1), when he stepped over a dishwasher and again on (alleged date of injury no. 2), when he felt his knee pop when he squatted. The claimant argued that neither of these events constituted intervening injuries.

The disputed issues really do not specify the nature of what additional right knee injury the claimant was alleged to have suffered on (alleged date of injury no. 1), and (alleged date of injury no. 2). Nor is this clear from the voluminous medical records in evidence. Also, there is really no issue or evidence whether the alleged intervening injuries were the sole cause of the claimant’s right knee condition. See Texas Workers’ Compensation Commission Appeal No. 93226, decided May 13, 1993; Texas Workers’ Compensation Commission Appeal No. 93864, decided November 10, 1993.

Part of the problem with grappling with any of the extent issues before the hearing officer is that they are not in the context of any income benefit dispute. All income benefits that will ever be paid in this case have clearly been paid and, thus, what this case is really about is determining future medical benefits. In essentially ending the claimant’s right knee injury in 1994 by finding claimant’s compensable right knee injury had resolved by May 23, 1994, the hearing officer seems to be limiting the claimant’s right to lifetime medical benefits for the compensable injury which are provided under Section 408.021. Absent a finding of sole cause, this finding is legally incorrect. Nor does it appear to be supported by the evidence.

However, our basis for reversing the decision of the hearing officer’s decision regarding the claimant’s right knee injury is Tex. W.C. Comm’n 28 TEX. ADMIN. CODE § 130.102(g) (Rule 130.102(g)) and Texas Workers’ Compensation Commission Appeal No. 040150-s, decided March 8, 2004. In Appeal No. 040150-s we held that pursuant to Rule 130.102(g) a carrier waived the right to dispute the extent of an injury where: (1) the carrier contends that the compensable injury does not extend to a condition or body part; (2) an IR includes impairment for that condition or body part; and (3) the IR has not been challenged before the first quarter SIBs period expired. These three conditions clearly apply in the present case. We therefore reverse the decision of the hearing officer that the claimant’s compensable injury does not include an injury to his right knee after (alleged date of injury no. 1), and after (alleged date of injury no. 2), and render a decision that the claimant’s compensable injury continues to include an injury to his right knee. We order the carrier to pay for reasonable and necessary medical treatment for the claimant’s compensable right knee injury for the claimant’s lifetime as provided by the 1989 Act.

We note that the attempt to cut off medical treatment to the claimant’s right knee is particularly egregious in this particular case where the Commission-selected designated doctor clearly stated in his report that the claimant will probably need a total knee replacement as a result of his injury in 20 to 30 years. We would observe that any attempt to cut off lifetime open medical benefits under the guise of disputing the extent of injury is inherently suspect.

As far as the hearing officer’s determination that the claimant’s injury does not include seizures and posttraumatic headaches, we note that the designated doctor diagnosed traumatic brain injury with residuals and assessed a 10% whole body impairment for complex integrated cerebral function deficits. In discussing the claimant’s head injury the designated doctor discusses the claimant’s headaches and seizures. The designated doctor specifically notes that the claimant will require further medical treatment for his headaches. In light of the evidence in this case, we find that the hearing officer’s determination that the claimant’s injury does not include seizures and posttraumatic headaches is a against the great weight and preponderance of the evidence and we reverse this determination and render a new decision that the claimant’s compensable injury does include seizures and posttraumatic headaches.

Finally, we address the hearing officer’s determination that the claimant’s injury does not extend to include right orbital cellulitis. This was a condition that was not diagnosed until 2003 and is obviously not discussed in the designated doctor’s 1995 report. We have held previously that the extent of injury is a question of fact for the hearing officer. See Texas Workers' Compensation Commission Appeal No. 93613, decided August 24, 1993. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given to the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals-level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer's decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In the present case, there was simply conflicting evidence as to whether or not the claimant’s compensable injury extended to include right orbital cellulitis, and it was the province of the hearing officer to resolve these conflicts. Applying the above standard of review, we find that the hearing officer’s decision that the claimant’s compensable injury did not extend to include right orbital cellulitis was sufficiently supported by the evidence in the record. We, therefore, affirm this determination.

In summary, we reverse the hearing officer’s extent-of-injury determinations concerning the right knee, posttraumatic headaches and seizures and render a new decision that the claimant’s compensable injury of (date of injury), extends to include the claimant’s right knee, posttraumatic headaches and seizures. We affirm the hearing officer’s determination that the claimant’s compensable injury does not extend to include right orbital cellulitis.

The true corporate name of the insurance carrier is CONTINENTAL CASUALTY COMPANY 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.

Gary L. Kilgore

CONCUR:

Thomas A. Knapp
Appeals Judge

CONCUR IN THE RESULT:

Robert W. Potts
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 4, 2003. The hearing officer determined that: (1) the respondent (claimant) sustained a compensable injury on ______________; (2) the appellant (carrier) is not relieved from liability under Section 409.002, because the claimant did timely notify the employer pursuant to Section 409.001; (3) the claimant had disability from May 30 through July 4, 2002, and then again from May 7, 2003, through the date of the CCH; (4) the claimant did not file with the Texas Workers’ Compensation Commission (Commission) a claim for compensation for an injury within one year pursuant to Section 409.003, however, the claimant had good cause pursuant to Section 409.004(1); and (5) Section 409.008 of the Act applies, and the one year statute of limitations is tolled. The carrier appealed, arguing that the hearing officer’s determinations are against the great weight and preponderance of the evidence. The appeal file does not contain a response from the claimant.

DECISION

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

The claimant testified that he injured his right knee at work on ______________, and that he reported a work-related injury to his employer on November 8, 2001. The claimant stated that he relied on the employer’s representation that it did not provide workers’ compensation insurance coverage, and that he filed a claim later than one year after the date of injury when he became aware that the employer did provide workers’ compensation coverage. There is conflicting evidence.

COMPENSABLE INJURY AND DISABILITY

The claimant had the burden to prove that he sustained a compensable injury and that he had disability as defined by Section 401.011(16). Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). Those issues presented a question of fact for the hearing officer to resolve. The hearing officer is the sole judge of the relevance and materiality of the evidence and of its weight and credibility. Section 410.165(a). The hearing officer resolves the conflicts and inconsistencies in the evidence and decides what facts the evidence has established. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). After reviewing the record, we find sufficient evidence to support the compensable injury and disability determinations.

TIMELY NOTIFICATION

The 1989 Act generally requires that an injured employee or person acting on the employee's behalf notify the employer of the employee of the injury not later than 30 days after the injury occurred. Section 409.001. The burden is on the claimant to prove the existence of notice of injury. Travelers Insurance Company v. Miller, 390 S.W.2d 284 (Tex. Civ. App.-El Paso 1965, no writ). In the present case, there was conflicting evidence as to whether or not the claimant gave timely notice of a ______________, injury to his employer. It was the province of the hearing officer to resolve the conflicting evidence. Applying the standard of review discussed above, we find sufficient evidence to support the hearing officer’s timely notice determination.

TIMELY FILING OF CLAIM

Section 409.004 provides that the failure to file a claim for compensation with the Commission as required by Section 409.003 (not later than one year after the date of injury) relieves the employer and the carrier of liability unless good cause exists for failure to timely file a claim or the employer or the carrier does not contest the claim. Whether good cause exists is a matter left up to the discretion of the hearing officer, and the determination will not be set aside unless the hearing officer acted without reference to any guiding rules or principles. Texas Workers' Compensation Commission Appeal No. 002816, decided January 17, 2001, citing Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). We have held that the appropriate test for the existence of good cause is whether the claimant acted as a reasonably prudent person would have acted under the same or similar circumstances. Texas Workers' Compensation Commission Appeal No. 94244, decided April 15, 1994. In the instant case, the hearing officer determined that the claimant did not file an Employee's Notice of Injury or Occupational Disease and Claim for Compensation (TWCC-41) with the Commission within one year of his ______________, work-related injury because he relied on the employer’s’ representation that it did not provide workers’ compensation coverage, and as soon as the claimant learned of his employer’s workers’ compensation coverage, he acted as a reasonably prudent person and filed his TWCC-41. In view of the evidence presented, we cannot conclude that the hearing officer abused her discretion in determining that the claimant had good cause for failing to timely file a TWCC-41 with the Commission.

TOLLING STATUTE

Section 409.008 provides that if an employer or the employer's insurance carrier has been given notice or has knowledge of an injury to or the death of an employee and the employer or insurance carrier fails, neglects, or refuses to file the report under Section 409.005 (Employer's First Report of Injury or Illness (TWCC-1)), the period for filing a claim for compensation under Sections 409.003 and 409.007 does not begin to run against the claim of an injured employee or legal beneficiary until the day on which the report required under Section 409.005 has been furnished. The resolution of the timely filing issue revolves around whether the time for filing was tolled. This hinges on when the employer had actual knowledge of the injury. Having affirmed the hearing officer’s determination that the claimant gave timely notice of his injury to his employer, we find that there was sufficient evidence to support the determination that the one-year statute of limitations is tolled.

We affirm the decision and order of the hearing officer.

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

CINDY GHALIBAF

7610 STEMMONS FREEWAY, SUITE 350

DALLAS, TEXAS 75247.

Gary L. Kilgore

CONCUR:

Chris Cowan
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 (CCH) was held on June 17, 2003. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) sustained a compensable repetitive trauma injury in the form of bilateral carpal tunnel syndrome on _____________; (2) that appellant (carrier) is not relieved from liability under Section 409.002 because the claimant timely notified her employer pursuant to Section 409.001; (3) that the carrier waived the right to contest compensability of the claimant’s claimed injury by not timely contesting in accordance with Section 409.021; (4) that the carrier’s failure to dispute the claimant’s claim in accordance with Continental Casualty Company v. Downs, 81 S.W.3d 803 (Tex. 2002) precludes the carrier from raising the defense of timely notice to employer; and (5) that the claimant sustained disability beginning on September 5, 2002, and continuing through the date of the CCH. The carrier appealed, arguing that the determinations of the hearing officer are supported by insufficient evidence or alternatively are contrary to the great weight and preponderance of the evidence. The carrier additionally argues that the determinations constitute legal error and should be reversed. The claimant responded, urging affirmance.

DECISION

Affirmed.

CARRIER WAIVER

The evidence reflected that the Texas Workers’ Compensation Commission (Commission) approved a Employee's Request to Change Treating Doctors (TWCC-53) on August 19, 2002, and mailed a copy of the TWCC-53 to the carrier. The carrier asserts that it did not receive written notice of the claim until October 23, 2002. Section 409.021(a) and Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 124.1(a) (Rule 124.1(a)) require receipt of written notice of an injury to trigger the 7-day pay or dispute period. Rule 124.1(a)(3) indicates that any communication regardless of source may serve as written notice of injury if it fairly informs the carrier of the name of the injured employee, the identity of the employer, the approximate date of the injury, and information which asserts that the injury is work-related. See Texas Workers’ Compensation Commission Appeal No. 021558, decided August 7, 2002. The hearing officer’s finding that the TWCC-53 indicated that the claimant had a bilateral arm and hand injury while working for the employer on _____________, and listed the carrier as the insurance carrier for workers’ compensation purposes was not appealed. The TWCC-53 reflects that a copy was sent to the carrier and the Dispute Resolution Information System notes in this case indicate that the approved TWCC-53 form was mailed out on August 19, 2002. The carrier cites Texas Workers’ Compensation Commission Appeal No. 001443, decided August 4, 2000, as support for its argument that the waiver determination was in error. However, the cited case dealt with whether the carrier timely waived its right to contest supplemental income benefits for a particular quarter. Deemed receipt of a document could not be applied in that case because the communication at issue was from the claimant rather than the carrier. In the instant case, there is sufficient evidence to support the hearing officer’s finding that the carrier first received written notice of the claimant’s claim in the form of the TWCC-53 on August 26, 2002, which was the next business day following the expiration of five business days from August 19, 2002. Rule 102.5(d) provides that for purposes of determining the date of receipt of written communications sent by the Commission, the Commission shall deem the received date to be five days after it was mailed. As to the written notice from the Commission, public officials are presumed to have performed their duties. Sanchez v. Texas Industries, Inc., 485 S.W.2d 385 (Tex. Civ. App.-Waco 1972, writ ref'd, n.r.e.).The hearing officer was not persuaded that the affidavit from the adjuster in evidence, alleging that no correspondence from the Commission was received prior to October 23, 2002, overcame the presumption of deemed receipt established by the rule and the hearing officer was within his province as a fact finder in so deciding. Because we affirm the finding that the carrier received first written notice of the injury on August 26, 2002, we affirm the determination that the carrier waived the right to contest compensability of claimant’s claimed injury by not timely contesting the claimed injury in accordance with Section 409.021. It is undisputed that the carrier did not dispute compensability prior to October 28, 2002.

Due to our affirmance of the hearing officer’s waiver determination, we likewise affirm his determination that the claimant sustained a compensable injury because the injury became compensable as a matter of law due to the carrier’s waiver of its right to dispute compensability. In addition, by waiving its right to contest compensability, the carrier also lost its right to assert a defense that the claimant failed to timely notify his employer of the injury under Sections 409.001 and 409.002. Texas Workers' Compensation Commission Appeal No. 022027-s, decided September 30, 2002.

The carrier contends that the hearing officer erred in determining that the carrier is precluded from raising the defense of timely notice to employer arguing that the issue of the carrier’s relief from liability of an otherwise compensable injury is not an issue of “compensability” and the carrier’s failure to notify the Commission and the claimant of this fact does not create waiver of the right to raise the issue. We disagree. We have specifically held that a carrier loses its right to contest compensability, which includes its right to assert a defense under Section 409.002, due to the carrier’s failure to contest the claim in accordance with Section 409.021. Texas Workers’ Compensation Commission Appeal No. 022027-s supra.

DISABILITY

The claimant had the burden to prove that she sustained disability as defined by Section 401.011(16). Conflicting evidence was presented at the CCH. The evidence reflects that the claimant was taken off work by her then-treating doctor on September 5, 2002. Conflicting evidence was presented at the CCH. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). 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, the claimant’s testimony and medical evidence support the hearing officer’s determinations on the disability issue. We conclude that the hearing officer’s decision is supported by sufficient evidence and that it is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is NORTH AMERICAN SPECIALTY INSURANCE COMPANY 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:

Judy L. S. Barnes
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 12, 2002, and continued until May 20, 2002. The hearing officer determined that respondent 3’s (claimant) compensable injury of ______________, extended to and included disc desiccation and bulging discs; that the claimant did not sustain a new injury on ______________; that the claimant did not give timely notice of his ______________, injury and had no good cause for failing to do so; that the claimant did not have good cause for his failure to appear at the scheduled March 12, 2002, CCH; and that, likewise, the appellant (carrier 1) (the carrier who was liable for the claimant’s ______________, compensable injury), did not have good cause for its failure to appear.

Carrier 1 appeals, arguing that respondent 1 (carrier 2) (the carrier for the alleged ______________, injury), failed to raise sole cause as an issue; that the determination that the claimant did not sustain a new injury on ______________, is against the great weight and preponderance of the evidence; and that it had good cause due to a series of conflicts of interest of its prior attorneys for failing to appear. Carrier 1 also argues that the hearing officer abused his discretion by failing to grant a continuance to carrier 1. Respondent 2 (subclaimant), who is the claimant’s surgeon, responds that the decision on the appealed issues was correct. Neither carrier 2 nor the claimant has responded.

DECISION

Affirmed.

The hearing officer has laid out the facts of this case. On the matter of injury, certainly there is evidence that would have supported the contrary inference that the claimant sustained a new injury or at least an aggravation on ______________. However, as the hearing officer points out, the doctor for carrier 2 also formulated his theory of how the medical treatment for the prior injury played a role in causing development of the condition leading to surgery. Consequently, we cannot say that the hearing officer’s decision is so against the great weight of the evidence as to be manifestly unfair or unjust.

Any failure to grant a continuance was obviated by the fact that a subsequent CCH was held, with a representative for carrier 1 in attendance, and evidence was taken on the merits. However, we do not agree that the hearing officer abused his discretion by finding that carrier 1 was without good cause for the failure to appear at the March session of the CCH. A party’s representatives’ actions are attributable to that party. The hearing officer apparently believed that the attorneys for carrier 1 should have been able to ascertain the possibility of a conflict of interest much earlier than shortly before the March CCH. There is support for his belief in the record.

For the reasons stated in the opinion, we affirm the hearing officer’s decision on the appealed determinations.

The true corporate name of carrier 1 is TEXAS PROPERTY AND CASUALTY INSURANCE GUARANTY ASSOCIATION for Reliance National Indemnity Company, an impaired carrier, and the name and address of its registered agent for service of process is

MARVIN KELLY, EXECUTIVE DIRECTOR

T.P.C.I.G.A.

9120 BURNET ROAD

AUSTIN, TEXAS 78758.

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

ROBIN M. MOUNTAIN

6600 CAMPUS CIRCLE DRIVE EAST, SUITE 300

IRVING, TEXAS 75063.

Susan M. Kelley
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 24, 2000, in_______, Texas, with ____________presiding as hearing officer. The hearing officer determined that on __________, (employer) was the employer of the appellant (claimant); that the claimant was not injured in the course and scope of his employment on or about____________; that the claimant reported the claimed injury on __________, and that the respondent (carrier) is not relieved of liability for late reporting; that since the claimant did not sustain a compensable injury, he does not have disability; and that the claimant's average weekly wage is $500.00. The claimant appealed, contended that the hearing officer erred in adding the issue of whether he was injured in the course and scope of his employment, urged that the determination that he was not injured in the course and scope of his employment is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust, and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision that the carrier waived the right to raise the issue of injury in course and scope of employment. In the alternative, the claimant requested that the Appeals Panel reverse the hearing officer’s determination that he was not injured in the course and scope of his employment and render a decision that he was. As another alternative, the claimant requested that the decision of the hearing officer be reversed and the case be remanded for the hearing officer to make determinations consistent with the Appeals Panel decision reversing the decision of the hearing officer. The carrier responded, contended that the hearing officer did not err in adding the issue, urged that the evidence is sufficient to support the appealed determinations of the hearing officer, argued that the claimant should not be given another opportunity to prove his case, and requested that the decision of the hearing officer be affirmed.

DECISION

We affirm.

We first address the claimant’s contention that the hearing officer erred in adding the issue of whether the claimant was injured in the course and scope of his employment. The carrier responded to the benefit review conference (BRC) report, requesting that the issue be added. (Mr. M) testified that he represented the carrier at the BRC, that one of the issues discussed at the BRC was whether the claimant was injured in the course and scope of his employment, that that issue was not resolved at the BRC, that it was his understanding that that would be an issue at the CCH, and that it was not included as an issue in the BRC report. During cross-examination, Mr. M stated that three Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) forms were filed and are in evidence; that the issue of injury in the course and scope of employment is based on the TWCC-21 dated December 15, 1999; and that at the BRC, they discussed whether the TWCC-21 disputed the claim. The claimant contended that the benefit review officer did not include whether he was injured in the course and scope of his employment as an issue because the TWCC-21 dated December 15, 1999, was not sufficient to dispute that he was injured in the course and scope of his employment. The hearing officer did not make a determination of whether good cause existed to add the requested issue, did not specifically state that he added the requested issue, but said that to receive benefits a claimant must show damage to the physical structure of the body. Injury is defined as damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. Section 401.011(26). If a hearing officer determines that there is no injury and that determination is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust, the carrier’s failure to contest compensability in a timely manner cannot result in a compensable injury since there was no injury. Continental Casualty Company v. Williamson, 971 S.W.2d 108 (Tex. App.-Tyler 1998, no pet. h.).

In Finding of Fact No. 4, the hearing officer found that the claimant did not suffer an injury to his neck or shoulder on or about ______________, while working on the motor as the claimant contended. That finding of fact is beyond what is required in Williamson, supra. The hearing officer also made a finding of fact that a TWCC-21 filed by the carrier on December 15, 1999, is sufficient to notify the claimant that an issue of whether there was an injury was in dispute. That TWCC-21 indicates that the carrier received first written notice of the claimed injury on December 9, 1999, and states:

Carrier disputes injury in course of employment with [employer]. Our investigation reveals that the claimant was not an employee, but a seller of property to [employer] and had contracted to test and set up equipment sold to our insured. Claimant was never hired as an employee and not subject to direction and control by our insured, and not furthering the interest of [employer], and, thus, not an employee. Further, no injury was reported to [employer] within the statutory 30-day limit.

In a TWCC-21 dated December 29, 1999, the carrier wrote “[word cut off because of the way the copy in the record was made] continues to deny claim in its entirety. Carrier further disputes change of treating Dr. to. . . .” The hearing officer should have made a determination of whether good cause existed to add the requested issue. The test for error in making a determination on good cause is whether the hearing officer abused his discretion. The testimony of Mr. M is sufficient to show that the hearing officer did not abuse his discretion in making an implied determination that good cause existed to add the issue.

We next address the determination that the claimant was not injured in the course and scope of his employment on______________. The claimant testified that on __________, he was rebuilding an engine that was on an engine stand; that it is necessary to turn the engine so that at times the top is up and at other times the bottom is up; that he pushed on the engine to rotate it; that it was temporarily stuck; that it then began to move; that he thought the engine stand was going to go over; that he pushed and leaned against the engine to keep it from going over; that his neck and shoulder started hurting; that he was not able to work after that day; and that he told the owner of the employer what had happened. He said that the first doctor he went to for the injury was (Dr. N). A report from Dr. N dated November 15, 1999, states that he had previously treated the claimant for a lumbar injury; that the claimant told him that a couple of weeks ago he had injured his left side, left shoulder, and low back at work; and that the claimant had severe muscle tenderness up to the scapular area on the left and decreased range of motion (ROM) of the left shoulder. On December 15, 1999, (Dr. HB) reported that the claimant told him the injury occurred when he caught an engine that started to roll; stated the results of his examination; diagnosed cervical radiculopathy, herniated nucleus pulposus of the cervical spine, and rotator cuff tear of the left shoulder; prescribed therapy; and stated that the claimant should remain off work. In a report dated January 4, 2000, (Dr. KB), an orthopedic surgeon, stated that the claimant had diminished cervical spine ROM and palpable muscular spasm, diminished sensation along the forearm and ulnar two digits of the hand, limited abduction of the left shoulder with tenderness over the AC joint and posterolateral shoulder; noted that x-rays demonstrated a narrowed C5-6 disc; diagnosed left shoulder rotator cuff strain, cervical spine strain, and cervical radiculopathy; and said that the claimant’s injuries are consistent with the mechanism of the injury and are directly related to the __________, injury.

An adjuster interviewed four persons who worked for the employer. Transcripts of the interviews indicate that each of them said they did not see the claimant get hurt and none of them heard the claimant say he had been injured. (Mr. L) testified that he is a friend of the owner of the employer, that he and the owner bought and sold vehicles, that the employer worked on vehicles he had, that he went to the employer’s business every day, that he talked with the claimant, and that the claimant did not tell him he was injured. Mr. L said that he owns two engine stands, is familiar with the engine stand the claimant was using, that the engine stand has four legs and would not be tipped over unless a car ran into it, and that an experienced person like the claimant would not try to keep a heavy engine like the one the claimant was working on from tipping over.

The burden is on the claimant to prove by a preponderance of the evidence that an injury occurred in the course and scope of employment. Texas Workers’ Compensation Commission Appeal No. 91028, decided October 23, 1991. The testimony of the claimant alone may be sufficient to satisfy the burden of proof. Texas Workers’ Compensation Commission Appeal No. 91013, decided September 13, 1991. The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). While a claimant’s testimony alone may be sufficient to prove a claim, the testimony of a claimant is not conclusive but only raises a factual issue for the trier of fact. Texas Workers’ Compensation Commission Appeal No. 91065, decided December 16, 1991. The trier of fact may believe all, part, or none of any witness’s testimony because the finder of fact judges the credibility of each and every witness, determines the weight to assign to each witness’s testimony, and resolves conflicts and inconsistencies in the testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). An appeals level body is not a fact finder, and it does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). The hearing officer could believe the claimant’s testimony concerning the issue of whether the claimant was an employee of the employer and not believe his testimony concerning the issue of whether the claimant was injured in the course and scope of his employment. The determination of the hearing officer that the claimant was not injured in the course and scope of his employment on ___________, is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Since we find the evidence sufficient to support that determination of the hearing officer, we will not substitute our judgment for his. Texas Workers’ Compensation Commission Appeal No. 94044, decided February 17, 1994.

Disability means the "inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage." Section 401.011(16). The determination as to an employee’s disability is a question of fact for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 92147, decided May 29, 1992. When an employee sustains a compensable injury, receives a light-duty release, returns to her employer at light duty and then is terminated by the employer, we must consider whether her termination was for cause. Texas Workers’ Compensation Commission Appeal No. 91027, decided October 24, 1991. If the termination was for cause, the employee must establish her disability after the termination by credible evidence. Id. Disability, by definition, depends upon there being a compensable injury. Appeal No. 92147, supra.

We affirm the decision and order of the hearing officer.

Tommy W. Lueders
Appeals Judge

CONCUR:

Alan C. Ernst
Appeals Judge

Robert E. Lang

Appeals Panel

Manager/Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 1, 2000. The hearing officer determined that the respondent (carrier) was entitled to a statutory subrogation lien in the amount of the appellant's (claimant) recovery from a third party. The claimant appeals this determination, expressing his disagreement with it. The carrier replies that the decision is correct, supported by sufficient evidence, and should be affirmed.

DECISION

Affirmed.

The claimant sustained a compensable injury in a motor vehicle accident on __________. The carrier disputed various issues until resolved in hearings in 1995, 1996, and 1999. Eventually, the carrier paid $19,875.76 for temporary income benefits and impairment income benefits. As of the CCH, the carrier had not yet paid any medical benefits. Such benefits have been largely paid by the claimant's group health insurance policy. The claimant reached a settlement agreement in the amount of $4,233.75 with the party responsible for the motor vehicle accident. The carrier asserts a statutory subrogation lien in this amount for presently accrued but include unpaid benefits and for future medical benefits.

Section 417.002(a) provides that the "net amount recovered by a claimant in a third-party action shall be used to reimburse the insurance carrier for benefits, including medical benefits, that have been paid for the compensable injury." Amounts of the settlement in excess of benefits paid are considered "an advance against future benefits." There was no dispute that the $4,235.75 represented the "net amount" of the claimant's settlement. He contended both at the CCH and again on appeal that he should be entitled to keep this money because of the carrier's long delay in paying any benefits, because of the "numerous problems" he encountered with this carrier, and because the carrier has yet to pay any medical benefits.

We assume that at least as of the CCH the only benefits remaining to be paid to the claimant were medical benefits. From the evidence presented there were medical bills which have been paid, but not by the carrier, medical bills still owed, and possible medical bills in the future. The hearing officer, consistent with Section 417.002, found that the carrier was entitled to a lien in the net amount of the settlement until medical bills are paid in this amount, at which time the carrier will again be liable for medical benefits. The claimant expressed his frustration at this provision of the 1989 Act and questioned its fairness. The hearing officer and we are bound by the law which provides for this subrogation lien.

Finding no error of law and sufficient evidence to support the decision and order of the hearing officer, we affirm the decision and order of the hearing officer.

Alan C. Ernst
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Elaine M. Chaney
Appeals Judge