Timely Reporting to Employer Archives

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 6, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues, pursuant to an agreement reached by the parties, by determining that: (1) the appellant (claimant) sustained a compensable injury on (date of injury); (2) the respondent (carrier) is not relieved from liability under Section 409.002 because the claimant timely notified his employer pursuant to Section 409.001; (3) the claimant had disability from September 16, 2020, through November 19, 2020, resulting from the (date of injury), compensable injury, but the claimant did not have disability from November 20, 2020, through the date of the CCH resulting from the (date of injury), compensable injury.

The claimant appealed that portion of the ALJ’s disability determination that he did not have disability from November 20, 2020, through the date of the CCH resulting from the (date of injury), compensable injury, contending the parties did not make an agreement concerning that period of disability. The appeal file does not contain a response from the carrier to the claimant’s appeal. The ALJ’s determinations that the claimant sustained a compensable injury on (date of injury); the carrier is not relieved from liability under Section 409.002 because the claimant timely notified his employer pursuant to Section 409.001; and the claimant had disability from September 16, 2020, through November 19, 2020, resulting from the (date of injury), compensable injury were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

Section 410.166 and 28 Tex. Admin. Code § 147.4(c) (Rule 147.4(c)) provide, in part, that an oral agreement of the parties that is preserved in the record is final and binding on the date made. As noted by the ALJ in her decision, Issue Number 3 was revised upon the agreement of the parties to determine whether the claimant had disability resulting from the (date of injury), compensable injury from September 16, 2020, through November 19, 2020. The record reflects that the parties agreed orally at the CCH that “the claimant did have disability resulting from the claimed injury from September 16, 2020, through November 19, 2020.” Although the decision and order correctly states that the claimant had disability from September 16, 2020, through November 19, 2020, the decision and order also states that the claimant did not have disability from November 20, 2020, through the date of the CCH. The record reflects there is no agreement by the parties regarding a disability period of November 20, 2020, through the date of the CCH. Therefore, we reform the ALJ’s decision by striking all references to a disability period of November 20, 2020, through the date of the CCH.

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

MR. RICHARD GERGASKO, PRESIDENT
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

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

DECISION

Affirmed in part and reversed and remanded in part.

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

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

DATE OF INJURY

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

COMPENSABLE REPETITIVE TRAUMA INJURY

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

DISABILITY

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

TIMELY NOTICE TO EMPLOYER

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

TIMELY FILING OF A CLAIM

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

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

SUMMARY

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

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

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

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

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

REMAND INSTRUCTIONS

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

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

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

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

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 4, 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 injury on (date of injury); and (2) the respondent (self-insured) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001.

The claimant appealed the ALJ’s compensability and timely notice determinations. The self-insured responded, urging affirmance of the appealed determinations.

DECISION

Reversed and remanded.

This case is remanded for the purpose of compliance with House Bill (H.B.) 2600 of the 77th Texas Legislature, Regular Session (R.S.) amending Section 410.164, effective June 17, 2001. Section 410.164 was amended by the addition of subsection (c), which provides as follows:

(c) At each [CCH], as applicable, the insurance carrier shall file with the [ALJ] and shall deliver to the claimant a single document stating the true corporate name of the insurance carrier and the name and address of the insurance carrier's registered agent for service of process. The document is part of the record of the [CCH].¹

In this case, the address provided on the carrier’s information form for the person identified as the registered agent was a post office box, where service of process cannot be effectuated. Therefore, we remand so that a street address may be provided by the self-insured for its registered agent, in order to carry out the purpose of the legislation. See Appeals Panel Decision (APD) 210080, decided March 12, 2021.

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.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

¹ Section 410.164 was amended effective September 1, 2017, to change “hearing officer” to “administrative law judge.” Acts 2017, 85th Leg., R.S., Ch. 839 (H.B. 2111), Sec. 8, eff. September 1, 2017.

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on October 28, 2020, and January 11, 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), for workers’ compensation purposes, was not an employee of (employer), at the time of the claimed injury on (date of injury); (2) the claimant did not sustain a compensable injury on (date of injury); (3) the respondent (carrier) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; and (4) because the claimant did not sustain a compensable injury, the claimant did not have disability from June 30, 2018, through September 1, 2018. The claimant appealed the ALJ’s determinations. The carrier responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified that on (date of injury), he was injured when he was rear-ended while driving his taxi. 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).

EMPLOYEE OR INDEPENDENT CONTRACTOR

The ALJ’s determination that the claimant, for workers’ compensation purposes, was not an employee of (employer), at the time of the claimed injury on (date of injury), is supported by sufficient evidence and is affirmed.

COMPENSABLE 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.

DISABILITY

The ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability from June 30, 2018, through September 1, 2018, is supported by sufficient evidence and is affirmed.

TIMELY NOTICE TO EMPLOYER

The ALJ noted in her discussion that the claimant credibly testified he notified his dispatcher on the date of injury and that his dispatcher provided transportation for him from the hospital. The ALJ further noted that if the claim was found to be compensable, the carrier is not relieved of liability since the claimant contacted his employer, or someone in a supervisory position with the employer, within 30 days of the date of injury. The ALJ found in Finding of Fact No. 8 that the claimant notified the employer, or an employee holding a supervisory or management position, of the (date of injury), injury within 30 days of the date of injury. The ALJ also found in Finding of Fact No. 9 that because there is no compensable injury, the issue as to the timely reporting of an injury to the claimed employer is moot. However, Conclusion of Law No. 5, the Decision, and the Decision and Order paragraph on the first page of the decision all state that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001. The ALJ made inconsistent and conflicting findings of fact and determinations regarding the issue of timely notice to the employer. Usually, a case in which the ALJ makes inconsistent and conflicting findings of fact and determinations on a disputed issue will be remanded to the ALJ to make determinations that are consistent and supported by the evidence. See generally Appeals Panel Decision 171955, decided October 17, 2017. However, in the instant case we have affirmed the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury). The ALJ’s finding of fact that because there is no compensable injury the issue as to the timely reporting of an injury to the claimed employer is moot is legally correct. Therefore, under the circumstances in this case, we reverse the ALJ’s determination that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001, and we render a new decision that because there is no compensable injury the issue as to the timely reporting of an injury to the claimed employer is moot.

SUMMARY

We affirm the ALJ’s determination that the claimant, for workers’ compensation purposes, was not an employee of (employer), at the time of the claimed injury on (date of injury).

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

We affirm the ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability from June 30, 2018, through September 1, 2018.

We reverse the ALJ’s determination that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001, and we render a new decision that because there is no compensable injury the issue as to the timely reporting of an injury to the claimed employer is moot.

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:
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 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.

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 September 5, 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 appellant (carrier) is not relieved of liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; and (3) the claimant had disability “from May 7, 2019, but at no other times through the date of the hearing, resulting from a compensable injury sustained on (date of injury).” The carrier appealed, disputing the ALJ’s determinations of compensability, timely notice, and disability. The claimant responded, urging affirmance.

DECISION

Affirmed as reformed.

The claimant testified that on (date of injury), there was an explosion at the plant where he was working, and he sustained injuries after lifting a gate to allow others to pass under the gate.

The ALJ is the sole judge of the weight and credibility to 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’s determination that the claimant sustained a compensable injury on (date of injury), is supported by sufficient evidence and is affirmed.

TIMELY NOTICE TO EMPLOYER

The ALJ’s determination that the carrier is not relieved of 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.

DISABILITY

Disability means the inability to obtain and retain employment at wages equivalent to the pre-injury wage because of a compensable injury. Section 401.011(16). The claimant has the burden to prove that he had disability as defined by Section 401.011(16). Disability is a question of fact to be determined by the ALJ. See Appeals Panel Decision (APD) 042097, decided October 18, 2004. Disability can be established by a claimant’s testimony alone, even if contradictory of medical testimony. APD 041116, decided July 2, 2004.

In the Background Information section of the decision, the ALJ stated that “[b]ased on the totality of the evidence presented, [the] [c]laimant was unable to earn wages equivalent to his pre-injury wage from May 7, 2019, through the date of the hearing in this matter. [The] [c]laimant’s last date of work was May 6, 2019. Therefore, [the] [c]laimant did have disability from May 7, 2019, through the date of the hearing, resulting from an injury sustained on (date of injury).” However, in Finding of Fact No. 5, Conclusion of Law No. 5, and the decision the ALJ inadvertently left out the ending date of disability. It is clear from her discussion that the ALJ was persuaded based on the evidence presented at the CCH that the claimant had disability from May 7, 2019, through the date of the CCH. Accordingly, we reform Finding of Fact No. 5, Conclusion of Law No. 5, and the decision to include the ending date of disability to reflect the claimant had disability from May 7, 2019, through the date of the CCH.

SUMMARY

We affirm the ALJ’s determination that the claimant sustained a compensable injury on (date of injury).

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

We affirm as reformed Finding of Fact No. 5 that the (date of injury), compensable injury was a cause of the claimant’s inability to obtain and retain employment at wages equivalent to his pre-injury wage throughout the period from May 7, 2019, through the date of the CCH, but at no other times.

We affirm as reformed Conclusion of Law No. 5 that the claimant had disability from May 7, 2019, through the date of the CCH, but at no other times.

We affirm as reformed that portion of the decision that the claimant had disability from May 7, 2019, through the date of the CCH, but at no other times resulting from a compensable injury sustained on (date of injury).

The true corporate name of the insurance carrier is HARTFORD CASUALTY 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 75201-3136.

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 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.

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

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

DECISION

Reversed and remanded.

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

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

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

SUMMARY

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

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

REMAND INSTRUCTIONS

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

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

The true corporate name of the insurance carrier is STARR INDEMNITY & LIABILITY COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal after remand arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 23, 2018, with the record closing on October 25, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). Appeals Panel Decision (APD) 182682, decided January 28, 2019, was issued as a result of the ALJ’s decision and order following that hearing. The case was remanded to the ALJ to correct the carrier information for the registered agent of respondent 1/cross-appellant 1 (carrier), correct inconsistencies and omissions, and make determinations on the compensable injury and employer issues supported by the evidence. No further hearing was held on remand. The ALJ issued a decision and order on remand which resolved the disputed issues by deciding that: (1) appellant/cross-respondent (claimant) sustained a compensable injury on (date of injury); (2) on (date of injury), (Employer) (Employer ) was the claimant’s employer for purposes of the Texas Workers’ Compensation Act; (3) on (date of injury), (employer) (Employer ) was the claimant’s employer for purposes of the Texas Workers’ Compensation Act; and (4) respondent 2/cross-appellant 2 (self-insured) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify Employer or the self-insured pursuant to Section 409.001.

The claimant appealed, disputing the ALJ’s determination that the self-insured is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify Employer or the self-insured pursuant to Section 409.001. The claimant contends that the ALJ’s prior decision and order contained an unappealed finding that the claimant notified her employer, or an employee holding a supervisory or management position, of the claimed injury within 30 days of (date of injury), and that the finding should be applicable to both the carrier and the self-insured. The claimant further argues that the ALJ confuses notice to employer with notice to the self-insured and therefore misapplies the notice provisions. The carrier responded to the claimant’s appeal, arguing that notice to Employer is irrelevant because the claimant was not in the paid service of Employer and therefore could not be its employee. The self-insured responded, contending that the claimant could not be an employee of Employer as a matter of law.

The carrier cross-appealed, contending that the ALJ erred by determining that the claimant was an employee of Employer . Additionally, the carrier disputes the ALJ’s determination that the claimant sustained a compensable injury on (date of injury). The appeal file does not contain a response from the claimant or the self-insured to the carrier’s request for review.

The self-insured cross-appealed, disputing the ALJ’s determination that Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act. The self-insured argues that the claimant was not an employee of Employer as a matter of law. The carrier responded to the self-insured’s appeal. In its response, the carrier agreed with the self-insured’s position that the claimant was not an employee of Employer . The appeal file does not contain a response from the claimant to the self-insured’s request for review.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that on (date of injury), Employer was an employer of the claimant. The claimant testified that she was injured when she was struck by a car walking to her car.

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

COMPENSABLE INJURY

The claimant testified that upon her arrival at work on the date of injury, she parked as directed by a traffic attendant for Employer . It was undisputed that upon finishing her duties the claimant was walking to the parking lot to retrieve her vehicle when she was struck by a car while crossing the street. The ALJ determined the claimant sustained a compensable injury applying the access doctrine.

The general rule is that workers’ compensation benefits do not apply to injuries received going to and from work. Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex. 1963). An exception is those cases which come within the access doctrine, where “the employer has evidenced an intention that the particular access route or area be used by the employee in going to and from work, and where such access route or area be used by the employee in going to and from work, and where such access route or area is so closely related to the employer’s premises as to be fairly treated as a part of the premises.” Texas Compensation Insurance Co. v. Matthews, 519 S.W.2d 630 (Tex. 1974). Matthews concerned an employee who was injured when she fell in a street on her way to work. In that case, the Supreme Court briefly summarized prior cases concerning the access doctrine, including Kelty v. Travelers Insurance Co., 391 S.W.2d 558 (Tex. Civ. App.-Dallas 1965, writ ref’d n.r.e.) which held that whether the employee was within the course and scope of her employment at the time of her injury presented a fact question, which precluded the rendition of summary judgment in favor of the carrier. In Kelty, the employee sustained injuries after she slipped on an icy sidewalk 10 to 12 feet from the employer’s building, which sidewalk was found to be an appurtenance to the premises leased by the employer who was responsible for maintaining it. However, the Matthews court wrote that Kelty had carried the access exception “as far as it reasonably could be, without an amendment to the Workmen’s Compensation Act,” stating that “no case has extended the ‘access exception’ out into the public streets where other members of the public are subject to the same hazard.” In the instant case, the claimant’s injury occurred while she was walking in the roadway of a public street and was thus “a consequence of risk and hazards to which all members of the traveling public are subject rather than risk and hazards having to do with and originating in the work or business of the employer.” See Kelty.

Accordingly, the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), is reversed and a new decision rendered that the claimant did not sustain a compensable injury on (date of injury).

EMPLOYER AS EMPLOYER

The ALJ’s determination that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act is supported by sufficient evidence and is affirmed.

EMPLOYER AS EMPLOYER

The ALJ determined that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act. The parties stipulated at the CCH that Employer was an employer of the claimant on the date of injury. Section 501.002(a) provides, in part, that enumerated provisions of Subtitle A and B apply to this chapter except to the extent that they are inconsistent with Chapter 501. Chapter 401 was an enumerated provision that applied to Chapter 501 but specifically excepted Section 401.012, which defined employee. Chapter 501, which provides for workers’ compensation coverage for state employees, (…), specifically provides a definition of employee in Section 501.001(5). Section 501.001(5) defines an employee, in part, as a person who is: paid from state funds but whose duties require that the person work and frequently receive supervision in a political subdivision of the state.

It was undisputed that the claimant did not receive payment from Employer for work performed on (date of injury). At the CCH, the self-insured argued that as a matter of law the claimant could not be an employee of Employer because she did not receive payment from Employer . In her discussion of the evidence in the decision and order on remand, the ALJ acknowledged this argument but stated that it was “not supported by persuasive authority.” We disagree. There was no evidence that the claimant was paid from state funds in relation to her work on the date of injury. Accordingly, under the facts of this case, it was legal error for the ALJ to determine that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act. We reverse the ALJ’s determination that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act and render a new decision that on (date of injury), Employer was not the claimant’s employer for purposes of the Texas Workers’ Compensation Act.

NOTICE TO EMPLOYER

In APD 182682, supra, it was noted that the ALJ’s initial determination in this case on the issue of timely notice to the employer was not appealed and that determination became final pursuant to Section 410.169. The ALJ noted in her decision and order on remand that the timely notice issue became final for the carrier and would not be addressed, but the decision would address the timely notice issue for the self-insured. The claimant contends in her appeal that the finding of fact regarding timely notice to the employer in the initial CCH was not limited specifically to the carrier and therefore also became final for the self-insured. As set forth above, we have reversed the ALJ’s determination that Employer was the claimant’s employer. Consequently, the issue of timely notice to Employer is moot.

SUMMARY

We affirm the ALJ’s determination that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act.

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 on (date of injury).

We reverse the ALJ’s determination that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act and render a new decision that on (date of injury), Employer was not the claimant’s employer for purposes of the Texas Workers’ Compensation Act.

We have reversed the ALJ’s determination that Employer was the claimant’s employer; consequently, the issue of timely notice to Employer is moot.

According to the information provided by the self-insured, 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

300 W. 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

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

According to the information provided by the carrier, 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 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge