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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 March 1, 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 (carrier) is liable for payment of accrued benefits pursuant to 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3) resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury; and (2) the respondent (claimant) had disability resulting from the compensable injury of (date of injury), from March 31, 2020, through the present. The carrier appealed, disputing the ALJ’s determinations. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), which extends to a lumbar strain. The claimant testified he was working with a coworker on (date of injury), inspecting a tank to be moved from its location in (state) to a different location. The claimant testified he was on top of the tank and injured his low back while reaching down and lifting up a heavy metal piece called a stinger his coworker handed up to him.

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).

DISABILITY

The ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), from March 31, 2020, through the present is supported by sufficient evidence and is affirmed.

CARRIER LIABILITY FOR BENEFITS UNDER RULE 124.3

Rule 124.3(a)(1) provides in pertinent part that if the carrier does not file a Notice of Denial by the 15th day after receipt of the written notice of the injury, the carrier is liable for any benefits that accrue and shall initiate benefits in accordance with this section. Rule 124.3(a)(2) provides that if the carrier files a Notice of Denial after the 15th day but on or before the 60th day after receipt of written notice of the injury: (A) the carrier is liable for and shall pay all income benefits that had accrued and were payable prior to the date the carrier filed the Notice of Denial and only then is it permitted to suspend payment of benefits; and (B) the carrier is liable for and shall pay for all medical services, in accordance with the 1989 Act and Texas Department of Insurance, Division of Workers’ Compensation (Division) Rules, provided prior to the filing of the Notice of Denial. Rule 124.3(a)(3) provides that the carrier shall not file notice with the Division that benefits will be paid as and when they accrue with the Division. Rule 124.3(a)(4) provides in pertinent part that a carrier’s failure to file a Notice of Denial by the 15th day after it receives written notice of an injury constitutes the carrier’s acceptance of the claim as a compensable injury, subject to the carrier’s ability to contest compensability on or before the 60th day after receipt of written notice of the injury, and that a carrier’s failure to do so results in the carrier being liable for all accrued income and medical benefits. Finally, Rule 124.3(a)(5) provides in pertinent part that a carrier commits an administrative violation if, not later than the 15th day after it receives written notice of the injury, it does not begin to pay benefits as required or file a Notice of Denial of the compensability of a claim.

The ALJ noted in his discussion that the carrier received written notice of the claimed injury on September 15, 2020, when the claimant’s attorney faxed the Employee’s Claim for Compensation for a Work-Related Injury or Occupational Disease (DWC-41) to the carrier, and that the 15th day after the carrier received notice was September 30, 2020. The ALJ further noted that the carrier filed a dispute on January 6, 2021. The ALJ found that the carrier did not file a denial disputing the claim with the Division by the 15th day after it received written notice of the injury and therefore determined that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.

The carrier argues on appeal that it had accepted compensability of the claimant’s (date of injury), injury, and contends that the ALJ in this case confuses a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) with a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11). The carrier also contends that because it had accepted the claimant’s (date of injury), injury as compensable, Rule 124.3 does not apply in this case.

In evidence is a PLN-11 dated January 6, 2021, in which the carrier stated it did not agree the “[claimant’s] work-related injury [of (date of injury),] stops [the claimant] from getting or keeping a job that pays what [the claimant] earned [prior to that injury] (existence, duration, or extent of disability).” The carrier also stated in this PLN-11 that it did not agree that “some of [the claimant’s] medical conditions were caused by [the claimant’s (date of injury),] work-related injury (extent of injury).” The carrier did not state in the PLN-11 that it was disputing compensability or liability of the (date of injury), injury, and the evidence does not contain a PLN-1 from the carrier denying compensability or liability of the (date of injury), injury. In Appeals Panel Decision (APD) 072002-s, decided December 20, 2007, the Appeals Panel noted that the “preamble to Rule 124.3 states a dispute of benefit entitlement, i.e.[,] disability and entitlement to [temporary income benefits], is not a dispute of compensability/liability. . . .” The carrier’s January 6, 2021, PLN-11 was a dispute of benefit entitlement, not a dispute of compensability or liability of the (date of injury), injury. The evidence did not establish that the carrier has filed a dispute of compensability or liability of that injury, and as noted above, the parties stipulated at the CCH that the claimant sustained a compensable injury on (date of injury). We reverse the ALJ’s determination that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3, resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury. We render a new decision that the carrier is liable for the payment of accrued benefits in accordance with this decision. See APD 101679, decided December 30, 2010.

SUMMARY

We affirm the ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), from March 31, 2020, through the present.

We reverse the ALJ’s determination that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3, resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury. We render a new decision that the carrier is liable for the payment of accrued benefits in accordance with this decision.

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

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.

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 October 10, 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/cross-respondent (carrier) specifically contested compensability of the claimed injury pursuant to Section 409.022 and 28 TEX. ADMIN. CODE § 124.2(f) (Rule 124.2(f)); (2) respondent/cross-appellant (claimant) sustained a compensable injury on (date of injury); (3) the claimant was not in a state of intoxication, as defined in Section 401.013, therefore, the carrier remains liable for compensation; (4) the claimant had disability resulting from the compensable injury of (date of injury), from May 15 through June 7, 2019; and (5) the claimant did not have disability resulting from the compensable injury of (date of injury), from June 8, 2019, to the date of the CCH.

The carrier appealed the ALJ’s determinations that the claimant was not in a state of intoxication; that the claimant sustained a compensable injury; and that the claimant had disability resulting from the compensable injury from May 15 through June 7, 2019. The appeal file does not contain a response from the claimant to the carrier’s appeal. The claimant cross-appealed, disputing that portion of the ALJ’s disability determination that the claimant did not have disability from June 8, 2019, to the date of the CCH. The carrier responded to the claimant’s cross-appeal, urging affirmance that the claimant did not have disability from June 8, 2019, to the date of the CCH.

The ALJ’s determination that the carrier specifically contested compensability of the claimed injury pursuant to Section 409.022 and Rule 124.2(f) was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The claimant testified that he was injured when he fell from scaffolding on (date of injury). The claimant first sought medical treatment on May 17, 2019. The evidence indicates that a hair specimen was collected from the claimant on May 17, 2019, and a report dated May 23, 2019, reflects that the specimen tested positive for cocaine.  We note that in the decision and order the ALJ inadvertently listed the carrier exhibits admitted as A and F rather than A through F.

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).

INTOXICATION

Section 406.032(1)(A) provides that the carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication. Section 401.013(a)(2)(B) defines intoxication as not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of a controlled substance or controlled substance analogue, as defined by Section 481.002 of the Health and Safety Code. Section 401.013(c) provides that “[o]n the voluntary introduction into the body of any substance listed under Subsection (a)(2)(B), based on a blood test or urinalysis, it is a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.”

As previously mentioned, the claimant underwent a post-injury hair specimen test that tested positive for cocaine. The ALJ states the following in the Discussion section of the decision and order:

An injured employee is presumed to be sober at the time of injury. However, [the] [c]laimant underwent a hair sample drug test on May 17, 2019, and tested positive for cocaine. Under [Section] 401.013(c), this positive drug test creates a rebuttable presumption that [the] [c]laimant was intoxicated and did not have the normal use of his mental or physical faculties at the time of his alleged injury.

Section 401.013(c) does not say that any drug test creates the rebuttable presumption of intoxication. Rather, that section specifically only refers to a blood test or urinalysis to create the rebuttable presumption that a person is intoxicated and does not have the normal use of his or her mental or physical faculties. We hold that testing of a hair sample, 3 days after the accident, may be sufficient to raise the question of intoxication under Section 401.013(a)(2), but does not create a rebuttable presumption of intoxication under Section 401.013(c). The ALJ, by stating the positive hair sample drug test created a rebuttable presumption that the claimant was intoxicated, applied the wrong standard to determine whether the claimant was in a state of intoxication at the time of the claimed injury. This constituted legal error. Therefore, we reverse the ALJ’s determination that the claimed injury occurred while the claimant was not in a state of intoxication as defined in Section 401.013. We remand the intoxication issue to the ALJ for her to apply the correct standard as set out in Section 401.013 without applying the presumption of intoxication under Section 401.013(c). See Appeals Panel Decision (APD) 121062, decided August 6, 2012.

COMPENSABLE INJURY AND DISABILITY

Since the intoxication issue has been reversed and remanded for the ALJ to apply the correct legal standard, the ALJ’s determinations that the claimant sustained a compensable injury on (date of injury), the claimant had disability resulting from the compensable injury from May 15 through June 7, 2019, but not from June 8, 2019, to the date of the CCH, are also reversed and remanded for a decision consisted with the ALJ’s determination on the intoxication issue on remand.

On remand, the ALJ shall consider all the evidence, make findings of fact and conclusions of law regarding the intoxication, compensable injury, and disability issues consistent with this decision and the statute discussed herein.

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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

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 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 appellant (claimant) was not in the course and scope of his employment when involved in a motor vehicle accident (MVA) on (date of injury); (2) because there was no compensable injury, the claimant had no disability; and (3) the respondent (carrier) is not liable for the payment of accrued benefits pursuant to 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3) resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.

The claimant appealed, disputing all of the ALJ’s determinations. The carrier responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part, reformed in part, and reversed and remanded in part.

The parties stipulated, in part, that the claimant was involved in a MVA on (date of injury). The claimant testified that he was returning to the job site after a personal errand to a pharmacy to pick up a prescription when he was involved in a MVA on (date of injury). In evidence are the Employer’s First Report of Injury or Illness (DWC-1) dated January 19, 2018, and the Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) dated February 2, 2018. The carrier’s PLN-1 was filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division) on February 2, 2018.

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).

COURSE AND SCOPE OF EMPLOYMENT

The issue before the ALJ as reflected on the Benefit Review Conference (BRC) Report and as agreed to by the parties is “[w]as the [c]laimant in the course and scope of his employment when involved in a [MVA] on (date of injury)?” The ALJ found that the claimant did not sustain damage or harm to the physical structure of his body while in the course and scope of employment on (date of injury), as a result of the MVA; this finding is supported by sufficient evidence and is affirmed.

We note that the ALJ states in the summary paragraph on page one that the claimant was not in the course and scope of his employment when he was involved in a MVA on (date of injury); however, the ALJ states in the Decision section on page five that the claimant did not sustain a compensable injury on (date of injury). The ALJ also failed to make a conclusion of law of whether the claimant was in the course and scope of his employment on the date of injury, which was an issue properly before her to determine. Rather, in Conclusion of Law No. 3, she states (as she did in the Decision section) that the claimant did not sustain a compensable injury on (date of injury). We correct the Decision section on page five and Conclusion of Law No. 3 to correspond to the issue as stated and as determined by the ALJ. Accordingly, we reform the Decision section on page five and Conclusion of Law No. 3 to state that “the claimant was not in the course and scope of his employment when he was involved in a MVA on (date of injury).”

NOTICE OF DENIAL/DISPUTE

The ALJ’s determination that the carrier is not liable for the payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury 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. 4, the summary paragraph on page one and Decision section on page five that because there is no compensable injury, the claimant had no disability. Although the ALJ made a conclusion of law, decision, and discussed 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 there is no compensable injury, the claimant had no disability as being incomplete, and we remand the issue of whether the claimant had disability resulting from the claimed injury. See Appeals Panel Decision (APD) 132339, decided December 12, 2013, and APD 180839, decided, June 4, 2018.

SUMMARY

We reform the Decision section on page five and Conclusion of Law No. 3 to state that the claimant was not in the course and scope of his employment when he was involved in a MVA on (date of injury).

We affirm the ALJ’s determination, as reformed, that the claimant was not in the course and scope of his employment when he was involved in a MVA on (date of injury).

We affirm the ALJ’s determination that the carrier is not liable for the payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.

We reverse the ALJ’s determination that because there is no compensable injury, the claimant had no disability as incomplete, and we remand the issue of whether the claimant had disability resulting from the claimed injury 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 the claimant had disability 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 ZURICH AMERICAN 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.

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 September 6, 2017, 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) (date of injury), is the date of the claimed injury pursuant to Section 408.007, the date the claimant knew or should have known the disease may be related to her employment; (3) the respondent (self-insured) is liable for the payment of accrued benefits pursuant to 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3) resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury; and (4) the claimant did not have disability. We note that the claimant’s name is misspelled in the style of the decision.

The claimant appealed the ALJ’s determinations that she did not sustain a repetitive trauma injury and that she did not have disability. The claimant contends the evidence does not support the ALJ’s determinations. The self-insured responded, urging affirmance of the appealed determinations.

The ALJ’s determinations that (date of injury), is the date of the claimed injury pursuant to Section 408.007, the date the claimant knew or should have known the disease may be related to her employment and that the self-insured is liable for the payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury were not appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH.  No audio recording of the CCH is available for review.  The file does not contain a transcript or an audio recording of the proceeding.  Consequently, we reverse and remand this case to the ALJ who presided over the September 6, 2017, CCH, if possible, for reconstruction of the CCH record.  See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

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 FEDEX GROUND PACKAGE SYSTEM, INC. (a certified self-insured) 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
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 July 13, 2016, in (city), Texas with hearing officer presiding as hearing officer. The hearing officer resolved the disputed issues by determining that: (1) the (date of injury), compensable injury does not extend to a left shoulder rotator cuff tear; (2) the respondent/cross-appellant (claimant) reached maximum medical improvement (MMI) on December 11, 2015; and (3) the claimant’s impairment rating (IR) is 15%. The hearing officer also determined that the appellant/cross-respondent (carrier) is not entitled to a reduction of the claimant’s impairment income benefits (IIBs) based on contribution from an earlier compensable injury.

The carrier appealed the hearing officer’s MMI and IR determinations, contending that the evidence does not support those determinations. The carrier also appealed the hearing officer’s determination that the carrier is not entitled to a reduction of the claimant’s IIBs based on contribution from an earlier compensable injury. The carrier contends that the issue of contribution was not requested by either party and was not actually litigated at the CCH. The appeal file does not contain a response from the claimant to the carrier’s appeal. The claimant cross-appealed the hearing officer’s extent of injury, MMI, and IR determinations, contending that the evidence does not support those determinations. The carrier responded, urging affirmance of the extent-of-injury determination.

DECISION

Affirmed in part, reformed in part, and reversed by striking in part.

The claimant testified he injured his left shoulder when he lifted a Prius car battery. The parties stipulated, in part, that the claimant sustained a compensable injury at least in the form of a left shoulder sprain/strain and a cervical sprain/strain.

STIPULATION CORRECTIONS

The parties stipulated the following at the CCH: on (date of injury), the claimant was the employee of (employer); on (date of injury), the employer provided workers’ compensation insurance with, (carrier); and on (date of injury), the claimant sustained a compensable injury at least in the form of a left shoulder sprain/strain and a cervical sprain/strain. However, Finding of Fact No. 1. B., C., and D. all incorrectly state a date of May 17, 2016, rather than the stipulated date of (date of injury). We reform Finding of Fact No. 1. B., C., and D. to state the correct date of (date of injury), as stipulated by the parties.

The parties also stipulated that the referral doctor, (Dr. C), certified that the claimant reached MMI on December 11, 2015, and she assigned a 15% IR. In evidence is Dr. C’s Report of Medical Evaluation (DWC-69) listing an MMI date of December 11, 2015. However, Finding of Fact No. 1. F. incorrectly states that Dr. C certified the claimant reached MMI on December 1, 2015. We reform Finding of Fact No. 1. F. to state the correct date of December 11, 2015.

EXTENT OF INJURY

The hearing officer’s determination that the (date of injury), compensable injury does not extend to a left shoulder rotator cuff tear is supported by sufficient evidence and is affirmed.

MMI/IR

We note the carrier correctly contended in its appeal that the hearing officer incorrectly stated that (Dr. N), the post-designated doctor required medical examination doctor, considered the noncompensable left shoulder rotator cuff tear in his MMI/IR certification. The hearing officer found that the MMI/IR certification from (Dr. R), is not contrary to the preponderance of the other medical evidence, and therefore determined that the claimant reached MMI on December 11, 2015, with a 15% IR. The hearing officer’s MMI/IR determinations are supported by the evidence and are not reversible. Accordingly, we affirm the hearing officer’s determinations that the claimant reached MMI on December 11, 2015, with a 15% IR as certified by Dr. R, the designated doctor.

CONTRIBUTION

The hearing officer noted in the Statement of the Case portion of the decision that:

At the request of the [c]arrier and for good cause, the following issue was added:

4. Is the [c]arrier entitled to a reduction of the [c]laimant’s [IIBs] based on contribution from an earlier compensable injury, and if so, by what proportion?

The hearing officer determined that the carrier is not entitled to a reduction of the claimant’s IIBs based on contribution from an earlier compensable injury. The carrier contends on appeal that it never requested the addition of this issue and that the parties never actually litigated the issue at the CCH.

In the recording of the July 13, 2016, CCH, the parties agreed the following issues as contained on the Benefit Review Conference (BRC) Report were the issues to be litigated at the CCH:

  1. 1.Does the compensable injury of (date of injury), extend to and include a left shoulder rotator cuff tear?

  2. 2.Has the claimant reached [MMI], and if so, on what date?

  3. 3.If the claimant has reached [MMI], what is the [IR]?

We note that in evidence is a Carrier’s Response to Benefit Review Officer’s Report dated June 14, 2016, which states the following:

At the [BRC] held May 17, 2016, the [c]arrier’s representative specifically requested that the issue of contribution be added for the [CCH]. The [BRC] Officer responded that the issue of contribution was not a separate issue for a CCH determination and could not be added. The [c]arrier asserts that it does not waive its request to seek contribution in the event that the [h]earing [o]fficer adopts an [IR] which includes an impairment from the [c]laimant’s prior workers’ compensation injury for which he was awarded a 3% [IR] for lost range of motion. Once the final [IR] in the current claim is determined, the [c]arrier intends to seek contribution for the compounded effect of the prior injury. If contribution is a separate issue for a CCH, the [c]arrier requests that the issue be set for a determination because it was raised at the [BRC].

The carrier’s response to the BRC Report was not discussed at the CCH, and neither party requested that the contribution be added as an issue at the July 13, 2016, CCH. Although the carrier argued in part at the CCH for the adoption of one of the MMI/IR certifications from Dr. N, which subtracted the 3% IR awarded for the previous compensable injury, the issue of contribution itself was not actually litigated at the CCH.

We review the hearing officer’s ruling to add an issue on an abuse-of-discretion standard, that is, whether the hearing officer acted without reference to any guiding rules or principles.  Appeals Panel Decision (APD) 031719, decided August 11, 2003, Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).

Section 410.151(b) provides that an issue that was not raised at a BRC may not be considered unless the parties consent or the Texas Department of Insurance, Division of Workers’ Compensation determines that good cause existed for not raising the issue at the BRC.  Rule 142.7(a) provides, in part, that a dispute not expressly included in the statement of disputes will not be considered by the hearing officer.  Rule 142.7(c) provides, in part, that a party may submit a response to the disputes identified as unresolved in the benefit review officer’s report in writing no later than 20 days after receiving the benefit review officer’s report.  Rule 142.7(d) provides, in part, that the parties may, by unanimous consent, submit for inclusion in the statement of disputes one or more disputes not identified as unresolved in the benefit review officer’s report. Rule 142.7(e) provides:

Additional disputes by permission of the hearing officer.  A party may request the hearing officer to include in the statement of disputes one or more disputes not identified as unresolved in the benefit review officer’s report.  The hearing officer will allow such amendment only on a determination of good cause.

The Appeals Panel has strictly applied Rule 142.7 unless there is a knowing waiver of its provisions by both parties. APD 93593, decided August 31, 1993.  See also APD 081791, decided February 12, 2009.

In this case the hearing officer abused her discretion in adding the contribution issue. The issue was not certified out of the BRC, neither party requested the issue be added at the CCH, and the issue of contribution itself was not actually litigated at the CCH. Accordingly, we reverse the hearing officer’s decision by striking the determination that the carrier is not entitled to a reduction of the claimant’s IIBs based on contribution from an earlier compensable injury.

SUMMARY

We reform Finding of Fact No. 1. B., C., and D. to state the correct date of (date of injury), as stipulated to by the parties.

We reform Finding of Fact No. 1. F. to state the correct date of December 11, 2015, as stipulated to by the parties.

We affirm the hearing officer’s determination that the (date of injury), compensable injury does not extend to a left shoulder rotator cuff tear.

We affirm the hearing officer’s determination that the claimant reached MMI on December 11, 2015.

We affirm the hearing officer’s determination that the claimant’s IR is 15%.

We reverse the hearing officer’s decision by striking the determination that the carrier is not entitled to a reduction of the claimant’s IIBs based on contribution from an earlier compensable injury.

The true corporate name of the insurance carrier is SAFETY NATIONAL CASUALTY CORPORATION 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:

K. Eugene Kraft
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 March 9, 2015, in Austin, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) the claimed injury occurred while the claimant was in a state of intoxication, as defined in Section 401.013, thereby relieving the respondent (carrier) of liability for compensation; (3) the carrier specifically contested compensability on the issue of compensability pursuant to Section 409.022 and 28 TEX. ADMIN. CODE § 124.2(f) (Rule 124.2(f)); and (4) the claimed injury occurred while the claimant was in a state of intoxication, thereby relieving the carrier of liability for compensation.

The claimant appealed, disputing the hearing officer’s determinations of compensability, carrier waiver, and intoxication for both alcohol and drug. The claimant contends that the hearing officer’s determinations are against the great weight of the evidence. The carrier responded, urging affirmance of the disputed determinations.

DECISION

Affirmed as reformed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a-1).  Section 410.204(a) provides, in part, that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1).  Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case:  (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but do not affect the outcome of the hearing.  This case is a situation that requires correction but does not affect the outcome of the hearing.

The hearing officer’s determinations that: (1) the claimant did not sustain a compensable injury on (date of injury); (2) the claimed injury occurred while the claimant was in a state of intoxication, as defined in Section 401.013, thereby relieving the carrier of liability for compensation; (3) the carrier specifically contested compensability on the issue of compensability pursuant to Section 409.022 and Rule 124.2(f); and (4) the claimed injury occurred while the claimant was in a state of intoxication, thereby relieving the carrier of liability for compensation are supported by sufficient evidence and are affirmed.

In Finding of Fact No. 4, the hearing officer found that the carrier disputed the claim by filing a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) with the Texas Department of Insurance, Division of Workers’ Compensation (Division) on January 2, 2014, denying the claim in its entirety and offering the affirmative defenses of alcohol and drug intoxication. However, a review of the record reflects that the carrier filed its PLN-1 on June 25, 2013, rather than January 2, 2014, as found by the hearing officer. We reform Finding of Fact No. 4 to reflect the date the carrier disputed the claim by filing a PLN-1 with the Division on June 25, 2013, to conform to the evidence.

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.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
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 October 29, 2014, in Austin, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) Travis McConnell (decedent) sustained a compensable injury on [Date of Injury], resulting in his death; (2) “the claimed injury did not occur while the [decedent] was in a state of intoxication, as defined in [Section 401.013], thereby not relieving the [respondent/cross-appellant (carrier)] of liability for compensation;” and (3) the carrier is not liable for the payment of death benefits from [Date of Injury], to August 5, 2013, resulting from its failure to dispute or initiate the payment of benefits pursuant to  28 TEX. ADMIN. CODE § 132.17(f) (Rule 132.17(f)).

The appellant/cross-respondent (claimant beneficiary) appealed, disputing the hearing officer’s determination that the carrier is not liable for the payment of death benefits from [Date of Injury], to August 5, 2013, resulting from its failure to dispute or initiate the payment of benefits pursuant to Rule 132.17(f). The carrier responded, urging affirmance of the determination disputed by the claimant beneficiary.

The carrier cross-appealed, arguing that the evidence was legally insufficient to support the hearing officer’s determination that the claimed injury did not occur while the decedent was in a state of intoxication. The carrier also disputed the hearing officer’s determination that the decedent sustained a compensable injury on [Date of Injury], resulting in his death. The claimant beneficiary responded, urging affirmance of the determinations disputed by the carrier.

DECISION

Affirmed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a-1).  Section 410.204(a) provides, in part, that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1).  Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case:  (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but do not affect the outcome of the hearing.  This case is a situation that requires correction by clarification of the hearing officer’s decision but does not affect the outcome of the hearing.

The parties stipulated that on [Date of Injury], the decedent sustained an injury at work which resulted in his death. The evidence reflects the decedent was teaching a co-worker how to operate equipment and was struck by an auger. The decedent’s death certificate lists the immediate cause of death as traumatic injury to the head and neck.

COMPENSABILITY AND INTOXICATION

The hearing officer’s determination that the decedent sustained a compensable injury on [Date of Injury], resulting in his death is supported by sufficient evidence and is affirmed.

The hearing officer’s determination that the claimed injury did not occur while the decedent was in a state of intoxication, as defined in Section 401.013 and the carrier is not relieved of liability for compensation is supported by sufficient evidence and is affirmed.

RULE 132.17

Rule 132.17(a) provides that upon being notified of a death resulting from an injury, the carrier shall investigate whether the death was a result of the injury, and if the carrier has not already done so in compliance with Rule 124.3 due to the injury being reported separately, conduct an investigation relating to the compensability of the death, the carrier’s liability for the death, and the accrual of benefits.  The carrier shall have 60 days from notification of the death or from written notice of the injury that resulted in the death (whichever is greater) to conduct its investigation.

Rule 132.17(f) provides that if the carrier believes that the claimant is eligible to receive death benefits, the carrier shall begin payment of death benefits. If the carrier believes that the claimant is not eligible to receive death benefits, the carrier shall file the notice of dispute of eligibility (notice of dispute) in the form and manner required by Rule 124.2.

Rule 132.17(f) further provides:

(1) the carrier shall either begin the payment of death benefits or file the notice of dispute not later than the 15th day after the latest of:

(A) receiving the claim for death benefits;

(B) final adjudication of the carrier’s denial of compensability or liability under Rule 124.2 and subsection (b) of this section; or

(C) the expiration of the carrier’s right to deny compensability/liability under subsection (a) of this section.

Rule 132.17(f)(2) provides that: if the notice of dispute is not filed within 15 days as required, the carrier is liable for and shall pay all benefits that had accrued and were payable prior to the date the carrier files the notice of dispute and only then is the carrier permitted to suspend payment of benefits.

In the instant case the hearing officer found that the carrier received notice of “this claim” on [Date of Injury], and that the carrier disputed the claim by filing a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) on August 5, 2013. The hearing officer then determined that the carrier is not liable for the payment of death benefits from [Date of Injury], to August 5, 2013, resulting from its failure to dispute or initiate the payment of benefits pursuant to Rule 132.17(f).

Rule 132.17(f)(1) specifically defines the 15-day period in which the carrier shall either begin the payment of death benefits or file a notice of dispute in a case where death benefits are at issue. In the instant case Rule 132.17(f)(1)(C) applies and the carrier had 15 days from the expiration of the 60-day time period provided in Rule 132.17(a) for investigation, to begin the payment of death benefits or file a notice of dispute. The preamble to the adopted Rule 132.17, found at 25 Tex. Reg. 2110-2113, makes clear that the Texas Department of Insurance, Division of Workers’ Compensation intended to preserve a 60-day time frame for investigating and disputing the compensability of a death. The carrier’s liability for death benefits in this case is not due to its failure to dispute or initiate the payment of benefits pursuant to Rule 132.17(f). However, an affirmance is written in this case to clarify that although the carrier timely disputed the claim pursuant to Rule 132.17(f), the carrier is liable for the payment of death benefits because we have affirmed the hearing officer’s determination that the decedent sustained a compensable injury on [Date of Injury], resulting in his death.

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

JOSEPH KELLY-GRAY, PRESIDENT

6907 CAPITOL OF TEXAS HIGHWAY NORTH

AUSTIN, TEXAS 78755.

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 February 6, 2014, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant/cross-respondent (claimant) did not sustain a compensable injury on [date of injury]; (2) the claimant had no disability from July 12 through September 8, 2012; and (3) the respondent/cross-appellant (carrier) is liable for payment of accrued benefits for the period prior to the date the carrier filed its notice of denial pursuant to 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3).

The claimant appealed the hearing officer’s determinations that the claimant did not sustain a compensable injury on [date of injury], and that the claimant had no disability from July 12 through September 8, 2012. The claimant contended that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The claimant also alleged that the hearing officer abused her discretion in admitting Carrier’s Exhibit I page one, that the hearing officer misread that document, and that the hearing officer’s reliance on a document that she misread in making her determinations renders those determinations erroneous and as such require reversal. The carrier responded to the claimant’s appeal and urged affirmance of those determinations. The carrier also cross-appealed the hearing officer’s determination that the carrier is liable for payment of accrued benefits for the period prior to the date the carrier filed its notice of denial pursuant to Rule 124.3. The carrier contended it had filed a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) to dispute Temporary Income Benefits. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.

DECISION

Affirmed in part and reversed and remanded in part.

The claimant testified that he was injured when he was exposed to benzene while building an enclosure on an open scaffolding at work.

RULE 124.3

The hearing officer’s determination that the carrier is liable for payment of accrued benefits for the period prior to the date the carrier filed its notice of denial pursuant to Rule 124.3 is supported by sufficient evidence and is affirmed.

EVIDENTIARY RULING

At the CCH the carrier sought to admit a witness statement from [Mr. S] dated July 16, 2012. The claimant objected on the basis of relevance and an improper attempt to impeach the claimant. The hearing officer admitted the exhibit over the claimant’s objection. To obtain a reversal of a judgment based on the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment.  Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ).  In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles.  Appeals Panel Decision (APD) 043000, decided January 12, 2005; APD 121647, decided October 24, 2012; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).  We hold that the hearing officer did not abuse her discretion in admitting this statement. The claimant’s remaining contentions regarding this exhibit are discussed below.

COMPENSABLE INJURY AND DISABILITY

Exposure to toxic chemicals through inhalation, and the resultant effect on the body, are matters beyond common experience, and medical evidence should be submitted which establishes the connection as a matter of reasonable medical probability as opposed to a possibility, speculation, or guess. See APD 080787, decided August 12, 2008. See also APD 110404, decided May 31, 2011. In the Discussion portion of the decision, the hearing officer notes medical records from [Dr. P], [Dr. S], and [Dr. M], and stated that “. . . a preponderance of the evidence is contrary to [the] [c]laimant having sustained an injury.” The hearing officer also correctly noted that an objective urine test was negative and that the claimant’s blood studies were all within normal limits.

The hearing officer further stated the following:

[The] [c]arrier presented a persuasive statement from [Mr. S] that contradicted that [the] [c]laimant was injured in an exposure to Benzene at this employer. The statement reported that upon [the] [c]laimant’s initial start date on May 22, 2012, that [the] [c]laimant requested a day off to go to court because [the] [c]laimant had a case where he was exposed to Benzene for another employer.

However, the statement in evidence from Mr. S does not discuss the claimant at all; rather, Mr. S’ statement is in regards to [Mr. R], the claimant’s coworker on the date of injury. The statement reads as follows:

[Mr. R] started working in my crew around May 21, 2012. When he introduced himself to me, the very first day he asked for a day off in advance, he told me he was going to court and said he tought (sic) he was going to get a big chunk of money, because he had a case going on because a benzene leak exposure at BP in [City 2]. . . .

The hearing officer based her determination that the claimant did not sustain a compensable injury on [date of injury], and that the claimant did not have disability from July 12 through September 8, 2012, in part on Mr. S’ statement. However, the hearing officer has misread Mr. S’ statement. We therefore reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on [date of injury], and that the claimant did not have disability from July 12 through September 8, 2012, and we remand these issues to the hearing officer for further action consistent with this decision.

SUMMARY

We affirm the hearing officer’s determination that the carrier is liable for payment of accrued benefits for the period prior to the date the carrier filed its notice of denial pursuant to Rule 124.3.

We reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on [date of injury], and remand this issue to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determination that the claimant had no disability from July 12 through September 8, 2012, and we remand this issue to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to fully consider the evidence and make a determination on whether the claimant sustained a compensable injury on [date of injury], and whether the claimant sustained disability from July 12 through September 8, 2012. No new evidence is to be taken.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH 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 75201.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
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 July 5, 2011. With regard to the five issues before him (the fifth issue being added by the hearing officer on his own motion), the hearing officer determined that: (1) the appellant/cross-respondent (claimant) did not sustain a compensable injury in the form of an occupational disease; (2) the claimant did not 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, but did have good cause for failing to timely file a claim; (3) the respondent/cross-appellant (self-insured) is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify the employer pursuant to Section 409.001; (4) because the claimant did not sustain a compensable injury, the claimant had no disability; and (5) the self-insured waived the defense of the claimant’s failure to file a claim within one year of the date of injury by not timely filing the grounds for refusing to pay benefits in accordance with Section 409.022.

The claimant appealed the hearing officer’s determinations on compensability and disability. The self-insured cross-appealed the determinations that the claimant had good cause for failing to file her claim for compensation within one year; that the self-insured was not relieved of liability under Section 409.002 because of the claimant’s failure to timely notify the employer pursuant to Section 409.001; and that the hearing officer improperly added the issue of “whether the self-insured waived the defense of the claimant’s failure to file a claim within one year of the injury by not timely stating this as a defense to paying benefits in accordance with [Section] 409.022?” The self-insured responded to the claimant’s appeal urging affirmance for the issues on which it prevailed. The appeal file does not contain a response by the claimant to the self-insured’s cross-appeal.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant is alleging an occupational disease in the form of chemical sensitivity headaches, allergic reactions, and asthma as a result of exposure to carbon monoxide and/or mold. The parties stipulated that the date of injury is (date of injury).

COMPENSABLE INJURY, TIMELY FILING A CLAIM WITHIN ONE YEAR, DISABILITY AND TIMELY NOTICE TO THE EMPLOYER

The hearing officer’s determinations that: (1) the claimant did not sustain a compensable injury in the form of an occupational disease; (2) the self-insured is not relieved of liability because of the claimant’s failure to timely file a claim; (3) the claimant did not have disability; and (4) the self-insured is not relieved of liability because of the claimant’s failure to timely notify the employer are supported by sufficient evidence and are affirmed.

WHETHER THE SELF-INSURED WAIVED THE DEFENSE OF THE CLAIMANT’S FAILURE TO FILE A CLAIM WITHIN ONE YEAR OF THE INJURY BY NOT TIMELY STATING THIS DEFENSE

The hearing officer, under the Issues section of his decision stated:

Though not certified, the following issue was added because it was actually litigated before this [CCH] and should have been certified after the fifth [b]enefit [r]eview [c]onference (BRC), on May 17, 2011:

5.Whether the self-insured waived the defense of the [c]laimant’s failure to file a claim within one year of the injury by not timely stating this as a defense to paying benefits in accordance with [Section] 409.022?

A BRC held on May 17, 2011, lists the issue “[i]s the [self-insured] relieved from liability under [Section] 409.004 because of [c]laimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by [Section] 409.003?” The claimant’s position was that the “[self-insured] has waived the right to raise this defense [sic] as they [the self-insured] first raised this in 2009.” The claimant did not file a response to the BRC report or otherwise request that “carrier waiver” be added as an issue.

Our review of the record indicates that the “carrier waiver” issue had not been litigated at the CCH and in fact had been first brought up in the claimant’s closing argument. The hearing officer, before the closing arguments began, had reminded the parties that closing argument is not evidence and the hearing officer doesn’t even need to have closing arguments. The claimant then in closing, for the first time at the CCH, brought up the matter of the self-insured’s waiver of the defense of failure to file a claim within one year of the injury in its denial of benefits filed on September 11, 2002, or any time thereafter. The self-insured began it’s closing by saying “waiver [of the defense of failure to file a claim within one year] is not an issue so that is out.” Subsequently, the self-insured’s attorney discussed the issue with the hearing officer but certainly the self-insured never agreed to the addition of an issue on the waiver of the defense of failure to file a claim within one year. The self-insured alleges that it was prejudiced by the addition of this issue and that it objected, opposing the claimant’s position regarding carrier waiver of the claimant’s failure to file a claim within one year defense.

While perhaps the issue of carrier waiver of the defense of claimant’s failure to file a claim within one year should have been certified at or after the BRC, the fact of the matter is that it was not requested to be added by either party and indeed was not even mentioned at the CCH until the claimant’s closing argument. The claimant did not request that the waiver issue be added for good cause nor did the hearing officer make a ruling on whether the waiver of the defense was to be added as an issue. The hearing officer on his own motion added the issue in the decision and order after the CCH.

28 TEX. ADMIN. CODE § 142.7 (Rule 142.7) states that disputes not expressly included in the statement of disputes will not be considered by the hearing officer. Rule 142.7(c) provides a party may submit a response to the disputes identified as unresolved in the BRC report. Rule 142.7(d) is a provision for adding disputes by unanimous consent. Neither of these provisions were applicable in this case. Rule 142.7(e) provides in part:

Additional disputes by permission of the hearing officer. A party may request the hearing officer to include in the statement of disputes one or more disputes not identified as unresolved in the benefit review officer’s report. The hearing officer will allow such amendment only on a determination of good cause.

[omission]

(2)An unrepresented claimant may request additional disputes to be included in the statement of disputes by contacting the [Division] in any manner no later than 15 days before the hearing.

Neither party requested the issue of carrier waiver of a defense to be added nor was there a determination of good cause by the hearing officer.

It was an abuse of discretion to add an issue of carrier waiver of a defense over the self-insured’s objection because: (1) it was not certified out of the BRC and (2) no good cause was shown for the addition of this issue. The hearing officer erred in the addition of an issue that had not been raised as an issue at the BRC nor reported by the benefit review officer in the BRC report. Accordingly, we reverse the hearing officer’s determination in Conclusion of Law No. 6 and the Decision that the self-insured waived the defense of the claimant’s failure to file a claim within one year of the injury by not timely filing the grounds for refusing to pay benefits in accordance with Section 409.022 and render a new decision by striking Conclusion of Law No. 6 and the sentence in the Decision which states the self-insured waived the defense of the claimant’s failure to file a claim within one year of the injury by not timely filing the grounds for refusing to pay benefits in accordance with Section 409.022.

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).

Thomas A. Knapp
Appeals Judge

CONCUR:

Cynthia A. Brown
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 October 7, 2010.

The issues at the CCH were:

  1. 1.Is the [appellant (self-insured)] liable for the payment of accrued benefits pursuant to [28 TEX. ADMIN. CODE § 124.3 (Rule 124.3)] resulting from its failure to dispute or initiate the payment of benefits within [15] days of the date it received written notice of the injury?

  2. 2.Does the compensable injury of ___________, extend to include an injury to the left knee consisting of post-traumatic osteoarthritis and loose bodies?

The hearing officer determined that the “compensable injury of ___________ . . . include[s] an injury [to the left knee] consisting of post-traumatic osteoarthritis and loose bodies” and that the self-insured is liable for the payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.

The self-insured appealed, contending that the hearing officer misapplied Rule 124.3 and that the evidence does not support the hearing officer’s extent-of-injury determination. The respondent (claimant) responded, urging affirmance.

DECISION

Reversed and a new decision rendered.

The parties stipulated that on ___________, the claimant sustained a compensable injury. The claimant testified that as she was walking down some stairs at her workplace, she heard a “pop” and felt immediate pain in her left knee. The claimant reported her injury and was referred to an orthopedic clinic for treatment. Medical records indicate that the claimant had prior reconstructive left knee surgery in 1985.

RULE 124.3

The hearing officer made an unappealed finding that the self-insured received (first) written notice of the claimant’s injury on February 3, 2010. The self-insured’s attorney represented that the self-insured began payment of benefits. In a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) dated March 15, 2010, filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division) on March 16, 2010, the self-insured accepted a “left knee strain only” and disputed entitlement to benefits for “post-traumatic arthritis resulting from previous non-work related surgery and extensive pre-existing arthritic and degenerative changes.”

The claimant had left knee surgery on March 22, 2010. The pre- and post-operative diagnoses were “[l]eft knee osteoarthritis with numerous loose bodies.” The procedure was an arthroscopic removal of loose bodies from the anterior intracondylar region. In a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) dated March 22, 2010, and filed with the Division on March 24, 2010, the self-insured stated that they are denying the claim for workers’ compensation benefits “in its entirety.”

As previously noted, the parties stipulated that on ___________, the claimant sustained a compensable injury. The hearing officer, in the Background Information of her decision wrote:

With regard to the carrier liability issue, the [self-insured] received first written notice of the injury on February 3, 2010. [The self-insured] had until February 18, 2010, to file a [PLN-1]. Because the [self-insured] did not do so until March 24, 2010, according to Rule 124.3(a)(2)(B) the [self-insured] is liable for medical services provided to the claimant prior to the March 24, 2010, date.

Rule 124.3(a) provides in pertinent part that upon receipt of first written notice of injury the carrier “shall conduct an investigation relating to the compensability of the injury, the carrier’s liability for the injury, and the accrual of benefits.” If the carrier believes that it is not liable for payments the carrier is to file the notice of denial of the claim in the form and manner required by Rule 124.2 of this title. Rule 124.3(2) provides that when the carrier files a notice of denial after the 15th day but on or before the 60th day after receipt of written notice of the injury; (B) the insurance carrier is liable for and “shall pay” for all medical services, in accordance with the Act and rules, provided prior to the filing of the notice of denial. Rule 124.3(e) further provides in part, that this section does not apply to disputes of extent of injury.

In its PLN-11 dated March 15, 2010, filed with the Division on March 16, 2010, the self-insured disputed post-traumatic arthritis and degenerative changes but “accepts [a] left knee sprain only.” In another PLN-11, dated March 23, 2010, filed with the Division on March 24, 2010, the self-insured disputed “pre-existing arthritis with multiple loose bodies” and again “accepts left knee sprain only.” A PLN-1 dated March 22, 2010, also filed with the Division on March 24, 2010, denies “this claim in its entirety,” stating that there was no causal connection between the alleged injury and the employment. The self-insured’s stipulation at the CCH that on January 10, 2010, the claimant sustained a compensable injury negated the self-insured’s PLN-1 in which the self-insured denied the claim in its entirety.

We reverse the hearing officer’s determination that the self-insured is liable for the payment of accrued benefits pursuant to Rule124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury because the self-insured had accepted a left knee sprain and had stipulated to a compensable injury at the CCH. We render a new decision that the self-insured is liable for the payment of accrued benefits in accordance with this decision.

EXTENT OF INJURY

The hearing officer in her Background Information stated that:

[(Dr. S), the claimant’s treating doctor] provided a letter to the Division, indicating that claimant’s incident at work exacerbated or aggravated her preexisting left knee osteoarthritis and foreign bodies. [(Dr. L)], [self-insured’s] peer review doctor, disagreed with [Dr. S]. The preponderance of the evidence is that the compensable injury extends to include post-traumatic osteoarthritis and loose bodies.

Actually, Dr. S was responding to a letter dated June 3, 2010, from the claimant’s ombudsman in which Dr. S was asked for an opinion whether the traumatic occurrence in question (walking when she felt a pop) caused the diagnosed conditions. Dr. S replied:

While it is impossible to be exact, my opinion is that the patient’s knee symptoms are most likely related to her chronic knee problem and they were exacerbated by the more recent injury in January 2010. Certainly twenty-five years out from reconstructive type surgery that she had on the left knee, it would be quite common to have fairly severe or advanced degenerative arthritis including possible loose bodies.

Conversely, in another letter dated July 16, 2010, responding to questions from the carrier’s adjustor, Dr. S was asked to indicate specific objective medical evidence of further damage or harm to the physical structure of the claimant’s body as a result of the incident of ___________. Dr. S answered “[n]one available.” In another portion of the letter, Dr. S is asked “[i]f there is no specific physical change, is the evidence you are relying on pain symptomology” to which Dr. S replied “Yes.” The last comments were initialed “7/20/10.”

Also, in evidence is a peer review report dated March 19, 2010, from Dr. L. Dr. L opined that there was no evidence that any damage to the claimant’s knee occurred as a result of walking down the steps and feeling a pop. Dr. L stated that the claimant “clearly had pre-existing arthritis with multiple loose bodies, and simply noticed crepitation in her knee while walking down the stairs” and that there is “no evidence that walking down the stairs caused any worsening of [the claimant’s] pre-existing arthritis.”

The Appeals Panel has previously held that proof of causation must be established to a reasonable medical probability by expert medical evidence where the subject is so complex that a fact finder lacks the ability from common knowledge to find a causal connection. Appeals Panel Decision (APD) 022301, decided October 23, 2002. See also Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007). To be probative, expert testimony must be based on reasonable medical probability. City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.-San Antonio 2009, no pet.) In this case, the claimant proceeds on a theory that her pre-existing chronic degenerative knee conditions (also arthritis and loose bodies) were aggravated by walking down the stairs and a near fall. How a near fall can cause post-traumatic osteoarthritis and loose bodies requires expert medical evidence.

Section 401.011(26) defines “injury” as damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm and that the term includes an occupational disease.  See Peterson v. Continental Casualty Company, 997 S.W.2d 893 (Tex. App.-Houston [1st Dist.] 1999, no pet.), in which the court held that the aggravation of a pre-existing condition is a compensable injury for purposes of the 1989 Act. See also APD 062010, decided December 4, 2006, in which the Appeals Panel held that to prove an aggravation of a pre-existing condition, there must be some enhancement, acceleration, or worsening of the underlying condition from the injury and not just a mere recurrence of symptoms inherent in the etiology of the pre-existing condition.

Although Dr. S’s reply to a letter states that the claimant’s symptoms “are most likely related to her chronic knee problem” and “were exacerbated by the more recent injury” in a subsequent response letter Dr. S stated there was no medical evidence of further damage or harm to the physical structure of the claimant’s body. We hold that Dr. S’s contradictory responses to letters do not prove to a reasonable medical probability by expert evidence that the pop in the knee and immediate pain caused an aggravation of the claimant’s post-traumatic osteoarthritis and loose bodies. Also in evidence is Dr. L’s peer review report which medically explains the cause of the pop and pain as crepitation and no worsening of the pre-existing left knee arthritis.

In reviewing a “great weight” challenge, we must examine the entire record to determine if: (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence. See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). The hearing officer’s determination that the claimant’s compensable injury of ___________, includes post-traumatic osteoarthritis and loose bodies is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Accordingly, we reverse the hearing officer’s determination that the claimant’s compensable injury of ___________, includes post-traumatic osteoarthritis and loose bodies and render a new decision that the claimant’s compensable injury of ___________, does not include an injury consisting of post-traumatic osteoarthritis and loose bodies.

SUMMARY

We reverse the hearing officer’s determination that the compensable injury of ___________, includes an injury consisting of post-traumatic osteoarthritis and loose bodies and render a new decision that the compensable injury of ___________, does not include post-traumatic osteoarthritis and loose bodies.

We reverse the hearing officer’s determination that the self-insured is liable for payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury. We render a new decision that the self-insured is liable for the payment of accrued benefits in accordance with this decision.

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

EXECUTIVE DIRECTOR

(NAME)

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

 

Thomas A. Knapp

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

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