This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 2, 2020, and May 17, 2021, with the record closing on June 8, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable repetitive trauma injury; (2) the date of injury is (date of injury); (3) respondent 1 (carrier 1) and respondent 2 (carrier 2) are relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (4) carrier 1 and carrier 2 are relieved from liability because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003; and (5) because the claimant did not sustain a compensable injury, the claimant did not have disability as a result of the claimed injury from March 9, 2020, to the date of the CCH. The claimant appealed, disputing the ALJ’s determinations of compensability, date of injury, timely notice to employer, timely filing of a claim, and disability. Both carrier 1 and carrier 2 responded, urging affirmance of the disputed determinations.

DECISION

Affirmed in part and reversed and remanded in part.

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

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.—Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

DATE OF INJURY

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

COMPENSABLE REPETITIVE TRAUMA INJURY

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

DISABILITY

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

TIMELY NOTICE TO EMPLOYER

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

TIMELY FILING OF A CLAIM

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

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

SUMMARY

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

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

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

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

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

REMAND INSTRUCTIONS

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

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

The true corporate name of the insurance carrier 1 is ACE AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is

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

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 1, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (2019, date of injury); (2) the date of injury (DOI) is (2018, date of injury); (3) the respondent (carrier) is relieved from liability under Section 409.002 because of a failure by the claimant to notify his employer pursuant to Section 409.001; and (4) the carrier is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003.

The claimant appealed, disputing the ALJ’s compensability, DOI, and timely notice to the employer determinations. The carrier responded, urging affirmance of the ALJ’s compensability, DOI, and timely notice to the employer determinations.

The ALJ’s determination the carrier is relieved from liability under Section
409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003 was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The claimant worked as a delivery driver for the employer for approximately 30 years. The evidence indicates that he attended an annual physical exam with a physician’s assistant on (2018, date of injury), in which one of the claimant’s chief complaints was lower abdominal pain. The medical record also indicates that the claimant stated that he had a tightening/cramping sensation in his lower abdomen while exercising. The physician’s assistant noted that all hernial sites were normal. The claimant testified that the physician’s assistant informed him that if his stomach popped out, it could be a hernia. The carrier argued at the hearing that (2018, date of injury), was the correct DOI because it was the date that the claimant knew or should have known that he had an injury that was related to the employment.

The claimant attended a subsequent annual exam the following year on (day before 2019, date of injury). The medical record indicates that the claimant had a medical history of possible inguinal hernia, and the claimant testified that he was told by the doctor at this visit that he had a possible hernia that should be evaluated by a specialist. The claimant indicated that he notified his employer the following day, (2019, date of injury), of the claimed injury. The claimant argued at the CCH that (2019, date of injury), was the correct DOI because he was told by the doctor that he had a hernia; however, as mentioned above, we note that the medical record shows that the exam at which he was informed of the hernia was on (date before 2019, date of injury).

The claimant was referred to a surgeon, (Dr. H), for a left inguinal hernia consult. The medical record from that visit dated February 1, 2019, states that the claimant noted that he had discomfort one year prior that began while running. Dr. H recommended repair for a non-recurrent unilateral inguinal hernia without obstruction or gangrene; however, the claimant stated he wanted to wait.

The ALJ stated in the Discussion section of her decision and order that the more persuasive evidence shows that the claimant’s DOI is (2018, date of injury), and she further made a determination that the DOI is (2018, date of injury). However, we note that the ALJ failed to make a conclusion of law or a determination regarding whether the claimant sustained a compensable injury on (2018, date of injury), the DOI as determined by the ALJ. Instead, Conclusion of Law No. 3 states that the claimant did not sustain a compensable injury on (2019, date of injury), which was not determined to be the DOI in this case. The ALJ made conflicting and inconsistent determinations regarding the issues of compensability and DOI.

Therefore, we reverse the ALJ’s determinations that the claimant did not sustain a compensable injury on (2019, date of injury), and that the DOI is (2018, date of injury), and remand those issues back to the ALJ for further action consistent with this decision.

As the issue of timely reporting to the employer is contingent on the DOI
determination, we also reverse the ALJ’s determination that the carrier is relieved from liability under Section 409.002 because of a failure by the claimant to notify his employer pursuant to Section 409.001 and remand this issue back to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (2019, date of injury), and we remand the issue of compensability to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the DOI is (2018, date of injury), and we remand the issue of DOI to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ should amend the compensability issue to remove the DOI. The ALJ should determine which date is the correct DOI and make findings of fact, a conclusion of law, and a determination regarding the DOI in this case that is consistent and supported by the evidence. The ALJ should then make findings of fact, a conclusion of law, and a determination regarding whether the claimant sustained a compensable injury on the DOI as determined by the ALJ. Finally, the ALJ should make findings of fact, a conclusion of law, and a determination regarding whether the carrier is relieved from liability under Section 409.002 because of a failure by the claimant to notify his employer pursuant to Section 409.001.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 Appeals Panel Decision 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
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on February 27, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) (date of injury), is the date of injury pursuant to Section 408.007, the date the employee knew or should have known the disease may be related to the employment; (2) the appellant/cross-respondent (claimant) did not sustain a compensable repetitive trauma injury; (3) the respondent/cross-appellant (carrier) is not relieved from liability pursuant to Section 409.002 because the claimant timely notified her employer pursuant to Section 409.001; (4) because the claimant did not sustain a compensable injury, she does not have disability from July 3 through October 18, 2019; and (5) the carrier is not relieved from liability under Section 409.004 because the claimant timely filed a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003.

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

DECISION

Affirmed in part and reversed and remanded in part.

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

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

DATE OF INJURY

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

COMPENSABLE REPETITIVE TRAUMA INJURY

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

TIMELY NOTICE TO EMPLOYER

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

TIMELY FILING OF A CLAIM

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

DISABILITY

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due.

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

SUMMARY

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

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

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

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

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

REMAND INSTRUCTIONS

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

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

The true corporate name of the insurance carrier is XL INSURANCE AMERICA, INC. and the name and address of its registered agent for service of process is

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 3, 2019, in (city), Texas, with (administrative law judge), presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) sustained a compensable injury on (date of injury); (2) the compensable injury of (date of injury), extends to a left knee medial meniscus tear; (3) the appellant (carrier) is not relieved of liability under Section 409.002 because the claimant timely notified his employer pursuant to Section 409.001; and (4) the carrier is not relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003. The ALJ also determined that the carrier did not specifically contest compensability on the issue of relief of liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury pursuant to Section 409.022 and 28 TEX. ADMIN. CODE § 124.2(f) (Rule 124.2(f)), because the ALJ found that issue was actually litigated.

The carrier appealed, disputing all the ALJ’s determinations. The carrier contends that the ALJ abused his discretion in adding the issue of whether the carrier specifically contested compensability on the grounds of the claimant’s failure to timely file a claim for compensation with the Division within one year pursuant to Section 409.022 and Rule 124.2(f), because that issue was not actually litigated by the parties. The appeal file does not contain a response to the carrier’s appeal.

DECISION

Affirmed in part, reversed and rendered by striking in part, and reversed and remanded in part.

The claimant, a funeral director for the employer, testified that on (date of injury), he was carrying a box of flowers after a funeral when he tripped over a parking barrier. The claimant testified he threw the box of flowers and fell on his left knee then rolled onto his right forearm and sustained bruising to his left knee and right forearm. The claimant also testified he kept working, occasionally using a knee support sleeve. The claimant further testified that in March 2017 he went on a trip with his wife that involved a lot of walking and noticed an increase in his left knee pain. The claimant underwent an MRI on March 23, 2017, which revealed a left knee medial meniscal tear. The evidence reflects that on March 29, 2017, his employer prepared an Employer’s First Report of Injury or Illness (DWC-1) indicating that he had tripped and fallen on (date of injury), which resulted in an injury that he reported to the employer on (date of injury). The DWC-1 was sent to the carrier, and on April 21, 2017, the carrier prepared and filed with the Division a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1), in which the carrier stated it accepts an incident occurred on (date of injury), that was reported timely to the employer but the incident did not result in an injury. In evidence is an Employee’s Claim for Compensation for a Work-Related Injury or Occupational Disease (DWC-41) dated May 22, 2017, that indicates it was filed with the Division on June 5, 2017, which is more than one year after the date of injury.

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).

TIMELY NOTICE TO THE EMPLOYER

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

ISSUE ADDED BY THE ALJ

The Benefit Review Conference (BRC) Report does not mention an issue of carrier waiver of the defense of the claimant’s failure to file a claim within one year. Section 410.151(b) provides, in part, that an issue not raised at the BRC may not be considered at a CCH except in limited circumstances. Rule 142.7(a) states, in part, that disputes not expressly included in the statement of disputes will not be considered by the ALJ. Rule 142.7(c) provides, in part, that 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.  Rule 142.7(e) is a provision for adding disputes by permission of the ALJ. None of these provisions were applicable in this case.

As previously noted the ALJ added the issue of whether the carrier specifically contested compensability on the grounds of the claimant’s failure to timely file a claim for compensation with the Division within one year pursuant to Section 409.022 and Rule 124.2(f) because he found that issue was actually litigated. The carrier contends on appeal that this issue was not actually litigated and the ALJ abused his discretion in adding the issue. A review of the record reflects the timeliness of the carrier’s raising of the one-year limitation as a defense was not requested to be added by either party and in fact was not ever mentioned at the CCH. The ALJ added the issue in the decision and order after the CCH without notifying the parties that he was doing so. The only evidence relating to this issue is the DWC-41 and the carrier’s PLN-1. We do not believe this issue was actually litigated, and we hold that it was an abuse of discretion to add the issue. See Appeals Panel Decision (APD) 111095, decided October 13, 2011; see also APD 013100, decided February 6, 2002. Accordingly, we reverse the ALJ’s determination that the carrier did not specifically contest compensability on the issue of relief of liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury pursuant to Section 409.022 and Rule 124.2(f), and we render a new decision by striking that determination.

TIMELY FILING CLAIM WITH THE DIVISION

The ALJ determined the carrier is not relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim with the Division within one year of the injury as required by Section 409.003. The ALJ based this determination on his determination that the carrier did not specifically contest compensability on the issue of relief of liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury pursuant to Section 409.022 and Rule 124.2(f). However, given that we have reversed and rendered a new decision striking that determination, the ALJ erred in determining the carrier is not relieved of liability under Section 409.004 on that basis.

The ALJ found in Finding of Fact No. 9 that the DWC-1 dated March 29, 2017, and filed with the carrier that same day contains sufficient information to qualify as a claim for compensation in this case. Rule 122.2(a) provides, in part, that an injured employee, or a person acting on the injured employee’s behalf, shall file with the Division a written claim for compensation within one year after the date of the injury’s occurrence. Rule 122.2(c) lays out the information that should be contained in that written claim for compensation. Neither party disputes that a claim for compensation does not necessarily have to be on a DWC-41 if the claim contains the information listed in Rule 122.2(c). However, the evidence did not establish that the employer filed the March 29, 2017, DWC-1 with the Division on behalf of the claimant. Furthermore, the DWC-1 may not be used as substantive evidence against a carrier or employer. See Section 409.005(f) and APD 012728, decided December 31, 2001. The ALJ’s finding that the DWC-1 qualifies as a claim for compensation in this case is not supported by the evidence. The ALJ found that the claimant first filed his DWC-41 with the Division on June 5, 2017, which was not within one year of the date of the claimed injury. This finding was not appealed. Therefore, the evidence established that the claimant did not file a claim with the Division within one year of the injury as required by Section 409.003.

Rule 122.2(d) provides, in part, that failure to file a claim for compensation with the Division no later than one year from the incident shall relieve the employer and the employer’s carrier from liability under the Act unless good cause exists for failure to file a claim in a timely manner. The decision and order does not contain a discussion, finding of fact, conclusion of law, or a decision as to whether the claimant had good cause for not timely filing a claim for compensation with the Division within one year of the date of injury as required by Section 409.004, which is necessary to make a determination on this issue. Therefore, we reverse the ALJ’s determination that the carrier is not relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim with the Division within one year of the injury as required by Section 409.003, and we remand this issue to the ALJ for further action consistent with this decision.

COMPENSABILITY AND EXTENT OF INJURY

Given that we have reversed the ALJ’s determination that the carrier is not relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim with the Division within one year of the injury as required by Section 409.003, we reverse the ALJ’s determinations that the claimant sustained a compensable injury on (date of injury), and that the compensable injury of (date of injury), extends to a left knee medial meniscus tear. We remand these issues to the ALJ for further action consistent with this decision.

SUMMARY

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

We reverse the ALJ’s determination that the carrier did not specifically contest compensability on the issue of relief of liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury pursuant to Section 409.022 and Rule 124.2(f), and we render a new decision by striking that determination.

We reverse the ALJ’s determination that the carrier is not relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim with the Division within one year of the injury as required by Section 409.003, and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the compensable injury of (date of injury), extends to a left knee medial meniscus tear, and we remand this issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a decision whether the claimant had good cause for failing to timely file a claim with the Division within one year of the injury as required by Section 409.004. The ALJ is then to make a determination whether the carrier is relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim with the Division within one year of the injury as required by Section 409.003. The ALJ is then to determine whether the claimant sustained a compensable injury on (date of injury), and whether the compensable injury of (date of injury), extends to a left knee medial meniscus tear.

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 EMPLOYERS PREFERRED 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 18, 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 respondent (claimant) sustained a compensable work injury on (date of injury); and (2) the appellant (carrier) is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003. The carrier appealed, contending that because the ALJ properly determined the carrier is relieved of liability, the claimed injury cannot be a compensable injury. The appeal file does not contain a response from the claimant to the carrier’s appeal.

The ALJ’s determination that the carrier is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003 was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The claimant testified that he was injured when he either missed a step or slipped as he was getting out of his truck and fell to the ground.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ).  As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

COMPENSABLE INJURY

The ALJ found that the claimant suffered harm to the physical structure of his body on (date of injury), in the course and scope of his employment. This finding was not appealed. As discussed above the ALJ’s determination that the carrier is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003 was not appealed and has become final pursuant to Section 410.169.

We hold that the ALJ erred in concluding the claimant sustained a compensable injury on (date of injury), because the carrier is relieved of liability under Section 409.004 based on the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003. Section 401.011(10) defines “compensable injury” as “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.”  See Appeals Panel Decision (APD) 060779, decided June 19, 2006; APD 070532, decided May 22, 2007.  Consequently, we reverse the ALJ’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 because the carrier was relieved from liability under Section 409.004 due to the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003.

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

2200 ALDRICH STREET

AUSTIN, TEXAS 78723.

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 December 12, 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 date of injury pursuant to Section 408.007, the date the respondent (claimant) knew or should have known that the claimed occupational disease may be related to his employment is (date of injury); (2) the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury); (3) the claimant timely notified his employer pursuant to Section 409.001; therefore, the appellant (self-insured) is not relieved from liability under Section 409.002; (4) the claimant timely filed a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003; therefore, the self-insured is not relieved from liability under Section 409.004; and (5) the claimant had disability resulting from the claimed injury from December 12, 2016, through December 24, 2016, but for no other period through the date of the CCH.

The self-insured appealed each of the ALJ’s determinations listed above as being contrary to the law and evidence. The appeal file contains no response from the claimant.

DECISION

Affirmed as reformed.

It is undisputed that the claimant has been employed as a firefighter for the City of (city) since August, 2002. The claimant testified that, in 2012, he felt a lump in his neck and, for such reason, underwent ultrasound testing and a biopsy which revealed that the lump was a benign thyroid nodule. The claimant indicated that on December 12, 2016, he underwent a surgical procedure to remove the nodule which had recently grown significantly. The nodule was tested and a pathology report generated on (date of injury), diagnosed papillary microcarcinoma of the thyroid.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

DATE OF INJURY

The ALJ’s determination that the date of injury is (date of injury), pursuant to Section 408.007 is supported by sufficient evidence and is affirmed.

TIMELY NOTICE TO EMPLOYER

The ALJ’s determination that the claimant timely notified his employer pursuant to Section 409.001 and, therefore, the self-insured is not relieved from liability under Section 409.002 is supported by sufficient evidence and is affirmed.

TIMELY FILING OF A CLAIM

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

COMPENSABLE INJURY

The ALJ’s determination that the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), is supported by sufficient evidence and is affirmed.

DISABILITY

Section 401.011(16) defines disability as the inability because of a compensable injury to obtain and retain employment at wages equivalent to the pre-injury wage. The ALJ determined that the claimant sustained disability resulting from the compensable injury beginning on December 12, 2016, the date upon which the claimant underwent surgery for removal of the thyroid nodule. The ALJ further determined, however, that the date of the compensable injury is (date of injury), the date the claimant received the diagnosis of papillary microcarcinoma following testing of the nodule and the date the ALJ found the claimant knew or should have known that the disease may be related to his employment.

The self-insured’s challenge to the ALJ’s disability determination is based, in part, on the argument that disability cannot predate the date of injury. With regard to the starting date of disability, Section 408.082(b) and (c) make clear that accrual of income benefits payable for disability begins "after the date of injury."  In Appeals Panel Decision (APD) 950521, decided May 18, 1995, we determined that temporary income benefits are to be paid for periods of disability beginning on the date of injury. However, employees who sustain occupational disease injuries may obtain medical benefits for treatment related to their compensable injury provided prior to the date determined to be the date of injury. See APD 94991, decided September 7, 1994.

Because the accrual of income benefits is a matter of statute, we reform the ALJ’s Conclusion of Law No. 7 and Decision to reflect that the claimant had disability resulting from the compensable injury, from December 12, 2016, through December 24, 2016, but for no other period through the date of the CCH; however, accrual of income benefits did not begin until after the (date of injury), date of injury. See APD 022231, decided October 16, 2002, and APD 022917, decided January 7, 2003.

SUMMARY

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

We affirm the ALJ’s determination that the claimant timely notified his employer pursuant to Section 409.001 and, therefore, the self-insured is not relieved from liability under Section 409.002.

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

We affirm the ALJ’s determination that the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury).

We affirm as reformed the ALJ’s determination that the claimant had disability resulting from the claimed injury from December 12, 2016, through December 24, 2016, but for no other period through the date of the CCH; however, accrual of income benefits did not begin until after the (date of injury), date of injury.

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

STEPHEN DON CARLOS, MAYOR

2401 MARKET ST.

BAYTOWN, TEXAS 77520.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 28, 2017, in (city), Texas, with (administrative law judge (ALJ)) presiding as the (ALJ).^[1] The ALJ resolved the disputed issues by deciding that: (1) the date of injury is July 1, 2016; (2) the respondent (claimant) did not sustain a compensable injury on (date of injury); and (3) the claimant sustained a compensable injury in the form of an occupational disease on July 1, 2016.

The appellant (self-insured) appealed all of the ALJ’s determinations. The self-insured contends that the evidence does not support the ALJ’s determinations and that the claimant has failed to prove by a reasonable medical probability how he contracted Lyme disease. The claimant responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified he is a Texas State Trooper and in early July 2015 he was assigned to patrol near the United States/Mexico border to assist Border Patrol Agents with Operation Strong Safety. The claimant testified he was bitten by a tick and has been diagnosed with Lyme disease.

DATE OF INJURY

The ALJ’s determination that the date of injury is July 1, 2016, is supported by sufficient evidence and is affirmed.

(DATE OF INJURY) INJURY

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

JULY 1, 2016 INJURY

The self-insured asserts that the claimant did not meet his burden to prove causation of Lyme disease, citing Appeals Panel Decision (APD) 060798, decided June 19, 2006, and APD 93885, decided November 15, 1993. In APD 060798 the claimant, an animal services officer whose duties were to investigate animal/human interactions and work at a shelter caring for animals, was diagnosed with Rocky Mountain Spotted Fever (RMSF). The Appeals Panel reversed the ALJ’s determination that the claimant sustained a compensable injury in the form of the occupational disease of RMSF. The Appeals Panel noted that the claimant’s evidence indicated that RMSF is transmitted by several different species of ticks, and that the type of ticks in which the claimant came into contact was not established or tested and there was no evidence that the ticks in that area carried the bacteria that causes RMSF. That case, and the self-insured in the instant case, also cite APD 93885.  In APD 93885, an air conditioning/refrigeration maintenance worker alleged he contracted Lyme disease as a result of being bitten by ticks at work while working on an air conditioning unit on a hospital roof.  There was testimony that the claimant had to pull ticks off of himself following work.  There was testimony and reports in evidence regarding Lyme disease and the various types of ticks which transmit the disease.  The Appeals Panel commented:

The medical evidence demonstrates that not all ticks carry the bacteria that causes Lyme disease and that the bacteria has been detected in fleas, mosquitoes, and biting flies.  The claimant admitted that ticks from the hospital roof were not tested and there is no evidence that [(Dr. SG)] tested ticks from the hospital roof to determine if they in fact carried the bacteria that causes Lyme disease.  There is also no evidence of the type of tick specie[s] that was on the hospital roof.  In essence, Dr. SG assumes that the claimant contracted Lyme disease at work based on the fact that he was bitten by ticks at work on numerous occasions.  However, she admits that in Texas there is a low frequency of ticks carrying Lyme bacteria and “assumed” that in the location where the claimant lived and worked the frequency of ticks carrying Lyme disease is about one percent.  The claimant acknowledged that he had pulled ticks off of himself from occurrences other than work.  The absence of evidence in this case that the ticks at the claimant’s work carried the bacteria that causes Lyme disease is directly analogous to the (Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980)) case where there was an absence of evidence that the bacteria was present in the soil where Schaefer worked.  Thus, we conclude, as did the court in Schaefer under similar circumstances, that Dr. SG’s opinion, although couched in terms of probability, did no more than suggest a possibility as to how or when the claimant was exposed to or contracted Lyme disease.

The evidence in the instant case established the claimant was diagnosed with Lyme disease on July 1, 2016. In evidence is a medical narrative dated April 11, 2017, from (Dr. E). Dr. E opined that the tick bites sustained on (date of injury), brought forth the bacteria Borrelia burgdorferi that caused Lyme disease because the claimant’s symptoms after the tick bites improved while on treatment for Lyme disease. Dr. E pointed out that the claimant denied previous exposure or tick bites, which further supported her opinion that the tick bites on (date of injury), were the cause of the Lyme disease. Dr. E stated that the mechanism of injury of tick bites is consistent with the bacteria Borrelia burgdorferi that causes Lyme disease. Dr. E further stated that being bitten by infected ticks is the only way a human is infected, and that Lyme disease is not detectable until four or more months after the injurious exposure and symptoms can take weeks, months, or even longer to appear.

However, as in APD 93885, supra, there was no evidence to establish the type of tick to which the claimant was exposed or that the tick or ticks carried the bacteria that causes Lyme disease. Dr. E assumed that because the claimant was bitten by ticks those ticks transmitted Lyme disease. Her opinion merely suggests a bare possibility of how the claimant was exposed to Lyme disease. Accordingly, we reverse the ALJ’s determination that the claimant sustained a compensable injury in the form of an occupational disease on July 1, 2016, and we render a new decision that the claimant did not sustain a compensable injury in the form of an occupational disease on July 1, 2016.

SUMMARY

We affirm the ALJ’s determination that the date of injury is July 1, 2016.

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

We reverse the ALJ’s determination that the claimant sustained a compensable injury in the form of an occupational disease on July 1, 2016, and we render a new decision that the claimant did not sustain a compensable injury in the form of an occupational disease on July 1, 2016.

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

For service in person the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 WEST 15TH STREET

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

AUSTIN, TEXAS 78701.

 

For service by mail the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

1. Section 410.152 was amended in House Bill 2111 of the 85th Leg., R.S. (2017), effective September 1, 2017, changing the title of hearing officer to ALJ.

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This appeal after remand arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act).

STATEMENT OF THE CASE

A contested case hearing (CCH) was held in this matter on November 8, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. In a Decision and Order dated November 8, 2016, the hearing officer determined:

(1) the respondent’s (claimant) date of injury is (date of injury);

(2) the appellant (carrier) is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001;

(3) the carrier is not relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003;

(4) the carrier did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021;

(5) the claimant did not sustain a compensable repetitive trauma injury; and

(6) the claimant did not have disability from May 1, 2015, and continuing through the date of the CCH.

The claimant appealed the hearing officer’s determinations on compensability, date of injury, carrier waiver of the right to contest compensability under Section 409.021, as well as the hearing officer’s finding of fact that the work injury was not a producing cause of the claimant’s inability to obtain and retain employment at wages equivalent to his pre-injury wage from May 1, 2015, through the date of the CCH. The carrier responded, urging affirmance of the determinations appealed by the claimant. The carrier cross-appealed the hearing officer’s determinations on the date of injury, timely notice to the employer, and timely filing a claim with the Division. The appeal file did not contain a response from the claimant to the carrier’s cross-appeal.

After review of all determinations appealed, the Appeals Panel remanded the case on February 16, 2017, for further proceedings on the issue of disability. On remand the hearing officer determined that the claimant had disability from (date of injury), and continuing through the date of the November 8, 2016, CCH.

The carrier appealed the hearing officer’s decision on remand that the claimant had disability from (date of injury), contending that the evidence does not support that decision. The claimant responded, urging affirmance.

DECISION

We incorporate by reference the determinations in Appeals Panel Decision 162591, decided February 16, 2017, as set forth below:

DATE OF INJURY

We affirm the hearing officer’s determination that the claimant’s date of injury is (date of injury).

TIMELY NOTICE TO EMPLOYER

We affirm the hearing officer’s determination that the carrier is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001.

TIMELY FILING CLAIM WITH THE DIVISION

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

WAIVER OF COMPENSABILITY UNDER SECTION 409.021

We reverse the hearing officer’s determination that the carrier did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021, and we render a new decision that the carrier waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021.

COMPENSABLE INJURY

We reverse the hearing officer’s determination that the claimant did not sustain a compensable repetitive trauma injury based on the carrier’s waiver of the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021, and render a new decision that the claimant sustained a compensable repetitive trauma injury based on the carrier’s waiver of the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021.

DISABILITY

On remand the hearing officer determined that the claimant had disability from (date of injury), and continuing through the date of the November 8, 2016, CCH. A review of the record in this case established that the hearing officer’s determination that the claimant had disability from (date of injury), and continuing through the date of the November 8, 2016, CCH is supported by sufficient evidence and is affirmed.

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

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 November 29, 2016, with the record closing on February 9, 2017, 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 (self-insured) did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021; (2) the self-insured is not relieved from liability under Section 409.002 because the respondent/cross-appellant (claimant) timely notified his employer pursuant to Section 409.001; (3) the claimant timely filed a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003; and (4) the claimant did not sustain a compensable injury in the form of an occupational disease.

The self-insured appealed the hearing officer’s determinations that the claimant timely notified his employer pursuant to Section 409.001 and that the claimant timely filed a claim for compensation as required by Section 409.003. The claimant responded, urging affirmance of the determinations disputed by the self-insured. The claimant cross-appealed, disputing the hearing officer’s determinations that he did not sustain a compensable injury and that the self-insured did not waive its right to contest compensability of the claimed injury pursuant to Section 409.021. The self-insured responded to the claimant’s appeal, urging affirmance for the issues on which it prevailed.

DECISION

Affirmed in part and reversed and remanded in part.

It is undisputed that the claimant was employed as a firefighter for the city of Austin from 1985 to his retirement in 2007. The evidence reflects that in 2002 the claimant was diagnosed with gastric adenocarcinoma and on July 23, 2002, underwent a total gastrectomy, splenectomy, and distal pancreatectomy. In evidence at the CCH was the Benefit Review Conference (BRC) Report which reflected that the parties agreed that the date of injury is (date of injury). No stipulation was made regarding the date of the injury at the CCH. We note that the issue regarding compensability in the Decision and Order incorrectly listed the date of injury as (date), rather than (date of injury), the date of injury listed in the BRC Report and agreed to by the parties as part of the issue. Section 408.007 provides that the date of injury for an occupational disease is the date on which the employee knew or should have known that the disease may be related to the employment. The hearing officer states in her discussion that the claimant testified that he became aware that he could file a claim in January 2015, subsequent to changes in Texas law.

The hearing officer did not add the date of injury as a disputed issue. However, in Finding of Fact No. 9 the hearing officer found that on January 26, 2015, the claimant knew or should have known that the condition may be related to the employment. Accordingly, we reverse the hearing officer’s decision and remand to the hearing officer to add the date of injury as a disputed issue or have the parties stipulate as to the date of injury.

CARRIER WAIVER

Section 409.021 provides that for claims based on a compensable injury that occurred on or after September 1, 2003, that no later than the 15th day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall:  (1) begin the payment of benefits as required by the 1989 Act; or (2) notify the Division and the employee in writing of its refusal to pay.  Section 409.021(c) provides that if an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability.

The hearing officer found that the self-insured received written notice of the claimed injury on March 11, 2015, and that the self-insured failed to file a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) disputing the injury on March 25, 2015. The hearing officer’s determination that the self-insured did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021 is supported by sufficient evidence and is affirmed.

TIMELY NOTICE TO EMPLOYER

A “compensable injury” is defined in Section 401.011(10) and a “repetitive trauma injury” is defined in Section 401.011(36).  An occupational disease includes a repetitive trauma injury.  Section 401.011(34).  Section 409.001(a) provides that if the injury is an occupational disease, an employee or a person acting on the employee’s behalf shall notify the employer of the employee of an injury not later than the 30th day after the date on which the employee knew or should have known that the injury may be related to the employment. The BRC Report reflects that the parties agreed that the date of injury was (date of injury). However, as previously noted, the hearing officer made a specific finding on the date the claimant knew or should have known that the condition may be related to employment, which is defined as the date of injury, without specifically adding the date of injury as a disputed issue or making a determination on the date of injury. The hearing officer therefore erred in failing to add the date of injury issue. Given that we have reversed the hearing officer’s decision and remanded the decision to the hearing officer to make a determination or obtain a stipulation of the parties regarding the date of injury, we also reverse the hearing officer’s determination that the self-insured is not relieved from liability under Section 409.002 because the claimant timely notified his employer pursuant to Section 409.001. We remand the issue of timely notice to the employer to the hearing officer to make a determination of the timely notice issue after making a determination of the date of injury.

TIMELY FILING OF A CLAIM

The claimant had the burden to prove that he filed his claim of injury within one year of the date of his injury pursuant to Section 409.003, or had good cause for not timely filing.  Section 409.003 requires that a claimant file a claim for compensation with the Division not later than one year after the date of injury.  Pursuant to Section 409.004, failure to do so, absent a showing of good cause or actual knowledge of the injury by the employer, relieves the carrier and employer of liability for the payment of benefits for the injury.  The test for good cause is that of ordinary prudence; that is, whether the employee has prosecuted his or her claim with the degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances.  Hawkins v. Safety Casualty Company, 207 S.W.2d 370 (Tex. 1948).

Given that we have reversed the hearing officer’s decision and remanded the decision to the hearing officer to make a determination or obtain a stipulation of the parties regarding date of injury, we also reverse the hearing officer’s determination that the claimant timely filed a claim for compensation with the Division within one year of the injury as required by Section 409.003 and remand to the hearing officer for further action consistent with this decision.

COMPENSABLE INJURY

The hearing officer determined that the claimant did not sustain a compensable injury in the form of an occupational disease. However as noted above the date of injury is being remanded to the hearing officer to add and resolve as a disputed issue or resolve by stipulation of the parties. The date of injury will govern whether the presumption set forth in Texas Government Code Section 607.055 (effective September 1, 2005) potentially applies to the facts of this case. Consequently, we reverse the hearing officer’s decision that the claimant did not sustain a compensable injury in the form of an occupational disease and remand to the hearing officer for further action consistent with this decision.

SUMMARY

We affirm the hearing officer’s determination that the self-insured did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021

We reverse the hearing officer’s determination that the self-insured is not relieved from liability under Section 409.002 because the claimant timely notified his employer pursuant to Section 409.001 and remand to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determination that the claimant timely filed a claim for compensation with the Division within one year of the injury as required by Section 409.003 and remand to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s decision that the claimant did not sustain a compensable injury in the form of an occupational disease and remand to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to add the date of injury as an issue and resolve by stipulation of the parties or make findings of fact, conclusions of law, and a decision on the date of injury. After resolving the date of injury, the hearing officer is to make findings of fact, conclusions of law, and a decision on the issues of timely notice to employer, timely filing of a claim, and compensability, applying the correct legal standard.

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 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 Appeals Panel Decision 060721, decided June 12, 2006.

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

LESLIE MILVO

505 BARTON SPRINGS ROAD, SUITE 600

AUSTIN, TEXAS 78704.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 12, 2017, in (city), Texas, with (hearing officer) as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) Mr S. (decedent) did not sustain a compensable occupational disease on (date of injury), which resulted in his death; (2) Ms S. (claimant beneficiary 1), Mr S. Jr. (claimant beneficiary 2), and Kadarian Martin (claimant beneficiary 3) are proper legal beneficiaries of the decedent but are not entitled to death benefits because the claim is not compensable; and (3) because the claim is not compensable, respondent 1 (carrier) is relieved from liability for death benefits under Section 409.007.

Claimant beneficiary 1 appealed the hearing officer’s decision arguing that the evidence supports a determination that the decedent sustained a compensable occupational injury on (date of injury), which resulted in his death. The carrier responded, urging affirmance. The appeal file does not contain a response from claimant beneficiary 2 or claimant beneficiary 3.

The hearing officer’s determination that claimant beneficiary 1, claimant beneficiary 2, and claimant beneficiary 3 are proper legal beneficiaries of the decedent was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

It was undisputed that the decedent died on June 11, 2012, due to widespread lung cancer.

The hearing officer’s determination that the decedent did not sustain a compensable occupational injury on (date of injury), resulting in his death is supported by sufficient evidence and is affirmed.

In Finding of Fact No. 7, the hearing officer stated:

7.[Claimant beneficiary 3] is the biological child of [the] [d]ecedent, born on February 16, 2014.

We note, however, that a copy of the birth certificate of claimant beneficiary 3 in evidence establishes that the correct date of birth is February 16, 2012. Accordingly, we reform Finding of Fact No. 7 as follows:

7.[Claimant beneficiary 3] is the biological child of [the] [d]ecedent, born on February 16, 2012.

In evidence is a Notice of Fatal Injury or Occupational Disease and Claim for Compensation for Death Benefits (DWC-42) claiming death benefits for each of the claimant beneficiaries. Although no evidence was offered concerning the date of filing with the Texas Department of Insurance, Division of Workers’ Compensation (Division), the DWC-42 is dated April 8, 2016, a date more than three years following the date of the decedent’s death. A second DWC-42 prepared only on behalf of claimant beneficiary 3 is also in evidence. No evidence was offered concerning the date the second DWC-42 was filed with the Division; however, the form was signed on July 28, 2016, a date more than four years following the date of the decedent’s death.

Section 409.007 provides in pertinent part that:

a.  A person must file a claim for death benefits [DWC-42] with the [D]ivision not later than the first anniversary of the date of the employee’s death.

b.  Failure to file in the time required by Subsection (a) bars the claim unless:

1.  the person is a minor or incompetent; or

2.  good cause exists for the failure to file a claim under this section.

Pursuant to Section 409.007(a), a DWC-42 must be filed by the first anniversary of the decedent’s death, which in this case was June 11, 2013.  However, the evidence established that as of the first anniversary of the decedent’s death, claimant beneficiary 2 and claimant beneficiary 3 were both minor children and pursuant to Section 409.007(b), their failure to file a DWC-42 not later than the first anniversary date of the decedent’s death does not bar their claims.

In her Conclusion of Law No. 7, and in her decision, the hearing officer stated:

Because this claim is not compensable, [the] [c]arrier is relieved from liability for death benefits to [claimant beneficiary 1], [claimant beneficiary 2], and [claimant beneficiary 3] under [Section] 409.007.

Because the evidence established that both claimant beneficiary 2 and claimant beneficiary 3 were minor children as of the date of the CCH, we strike that portion of the hearing officer’s Conclusion of Law No. 7 and Decision which determine that the carrier is relieved from liability for death benefits to claimant beneficiary 2, and claimant beneficiary 3 under Section 409.007.

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 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

K. Eugene Kraft
Appeals Judge

CONCUR

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge