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Appeals Panel Decision Manual - Liability/Compensability Issues

Acronym List

Liability/Compensability Issues Part 1

For sections C17-C21, please see Liability/Compensability Issues PART 2.

For section C00, please see Liability/Compensability Issues PART 3.

Existence of coverage. (C01)
Existence of employment relationship. (C02)
Timely contest by carrier. (C03)
Contest by employer. (C04)
Date of injury. (C05)
Compensability/Injury (existence). (C06)
Extent of injury. (C07)
Alcohol intoxication. (C08)
Drug intoxication. (C09)
Not in course and scope because of other grounds. (C10)
Willful attempt to injure. (C11)
Act of a third party/personal reasons. (C12)
Voluntary social/recreational activity. (C13)
Compensability/occupational disease. (C14)
Compensability/mental trauma. (C15)
Compensability/heart attack. (C16)

For sections, C17-C21, please see Liability/Compensability Issues PART 2.

For section C00, please see Liability/Compensability Issues PART 3.

Existence of Coverage (C01)

Section 401.011(44) lists three methods to provide workers' compensation insurance coverage:

  1. purchasing an insurance policy;
  2. providing certified self-insurance; or
  3. coverage provided by a governmental entity.

See also Section 406.003.

Except for public employers and as otherwise provided by law, whether or not an employer provides workers' compensation insurance coverage is optional with that employer. Section 406.002(a). If an employer elects to provide workers' compensation coverage, recovery of workers' compensation benefits is the exclusive remedy of an IW or his or her legal beneficiary against the employer for the death of or a work-related injury sustained by the IW. Section 408.001(a). However, exemplary damages by the surviving spouse or heirs of the deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence is not prohibited. Section 408.001(b).

Actual coverage of the IW is a threshold requirement for establishing the liability of an IC. APD 022268-s.

Cancellation or Non-Renewal of Coverage by the IC. An IC that cancels or does not renew a worker' compensation insurance policy by its anniversary date is required to deliver notice of the cancellation or non-renewal. The notice is required to be delivered by certified mail or in person to the employer and the Division not later than the 30 th day before the date on which the cancellation or non-renewal takes effect. However, notice is required not later than the 10th day before the date on which the cancellation or non-renewal takes effect if the cancellation or non-renewal is because of the following:

  1. fraud in obtaining coverage;
  2. misrepresentation of the amount of payroll for purposes of premium calculation;
  3. failure to pay the premium when due;
  4. an increase in the hazard for which an employer seeks coverage; or a determination made by the commissioner of insurance that the continuation of the policy would place the insurer in violation of the law; or
  5. would be hazardous to the interests of subscribers, creditors, or the general public.

The IC's failure to give notice as required results in an extension of the policy until the date on which the IC complies with the required notice. Section 406.008. The IC has the burden of proof to show compliance with Section 406.008. APD 981597.

IC Failed to Establish Cancellation or Non-Renewal.

The IW's date of injury was (Date of Injury). At issue was whether the subclaimant/employer had workers' compensation insurance coverage with the IC on the date of injury. In evidence was an IC's Notice of Coverage/Cancellation/Non-renewal of Coverage showing the effective dates of coverage and listing the type of transaction as "carrier 30 day cancellation/non-renewal." The date the IC notified the employer of cancellation was left blank in the notice. The subclaimant/employer denied receipt and no evidence to the contrary was presented. The HO determined that the IC did not provide workers' compensation coverage for the subclaimant/employer. The HO's determination was reversed and a new decision rendered that because the IC failed to establish that it gave notice as required by Section 406.008(a) the policy was extended pursuant to Section 406.008(c) and the employer did have workers' compensation coverage with the IC on (D. There was no evidence that the IC gave notice of non-renewal of coverage by certified mail or in person to either the employer or the Division at any time much less than the required time frames in Section 406.008. The AP held that the IC failed to comply with the requirements of Section 406.008 and therefore as a matter of law failed to establish either cancellation or non-renewal of coverage. APD 050931.

Cancellation or Non-Renewal of Coverage by the Employer.

An employer who terminates workers' compensation insurance coverage is required to file a written notice with the Division by certified mail not later than the 10th day after the date on which the employer notified the IC to terminate coverage. Termination of coverage takes effect the later of the 30 th day after the date of filing of notice with the division or the cancellation date of the policy. The coverage shall be extended until the date on which the termination of coverage takes effect, and the employer is obligated for premiums due for that period. Section 406.007.

Existence of Employment Relationship (C02)

To be eligible for benefits under the Act, the IW must have been an employee of an employer that carries workers' compensation insurance coverage at the time the work-related injury occurred. Section 406.031. [Cross reference. Course and Scope of Employment (C00)]. A dispute about an IW's employment status is one of compensability and is subject to judicial review under Section 410.301(a). Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514 (Tex. 2007). An employee is a person in the service of another under a contract of hire, whether expressed or implied, or oral or written. Section 401.012(a). An employer is a person who makes a contract of hire, employs one or more employees, and has workers' compensation insurance coverage. The term includes a governmental entity that self-insures, either individually or collectively. Section 401.011(18). The IW has the burden of proof to establish that he or she was an employee of the employer for purposes of the Act at the time the injury occurred. APD 000538.

Independent Contractors. In general, an independent contractor is not an employee for purposes of the Act. Section 401.012(b)(2). Whether an IW is an employee or independent contractor is a question of fact for the HO to resolve, and is determined in part by considering right to control. APD 032530. It must be determined whether the claimed employer has the right to control the IW in the details of the work to be performed. Texas Employers Insurance Association v. Bewley, 560 S.W.2d 147 (Tex. Civ. App.-Houston [1 st Dist.] 1977, no writ); APD 93110. Right of control is a factual question to be resolved by the HO. APD 92039. In addition to right of control, Section 406.121(2) sets out the factors to be considered when determining an IW's employment status. Each factor in Section 406.121(2) need not be established in order to find that an IW is an independent contractor. APD 93110.

Multiple Employers. An IW can have more than one employer for the same injury for purposes of the Act. In Wingfoot Enterprises D/B/A Tandem Staffing v. Alvarado, 111 S.W.3d 134 (Tex. 2003), the Supreme Court held that an IW could have more than one employer where a temporary agency furnished a worker to a client that controlled the details of the work at the time of the injury and where there was no written agreement between the temporary agency and the client as to workers' compensation coverage.

Borrowed Servant. Texas courts have recognized that a general employee of one employer may become the borrowed employee of another employer. APD 021771. The determinative question is which employer had the right of control of the details and manner in which the employee performed the necessary services at the time of the injury. Carr v. Carroll Co., 646 S.W.2d 561 (Tex. App.-Dallas 1982, writ ref'd n.r.e.) In Richmond v. L.D. Brinkman & Co. (Texas) Inc., 36 S.W.3d 903 (Tex. App.-Dallas 2001, pet. denied), the court determined that the common law borrowed servant right-of-control test is not superseded by Texas Labor Code Chapter 92 entitled Temporary Common Worker Employers. However, the Staff Services Leasing Act, Texas Labor Code Chapter 91, does supersede the common law borrowed servant right-of-control test in determining employer status of leased employees for workers' compensation purposes. Texas Workers' Compensation Ins. Fund v. DEL Industrial, Inc., 35 S.W.3d 591 (Tex. 2000); APD 021771.

Timely Contest by IC (C03)

Overview

In Continental Casualty Company v. Downs, 81 S.W.3d 803 (Tex. 2002), the Texas Supreme Court held that taking some action within seven days is what entitles the IC to a 60-day period to investigate or deny compensability. In Southwestern Bell Telephone Company L.P. v. Mitchell, 276 S.W.3d 443 (Tex. 2008), the Texas Supreme Court noted that less than nine months after Downs was decided the Legislature amended the statute to make clear that an IC who failed to comply with Section 409.021(a) did not waive the right to contest the compensability of the injury, and overruled the Downs case. Therefore, the determination of IC wavier based on a seven-day waiver period is error and must be reversed. Prior APDs applying the seven-day waiver period have been overruled by the Mitchell case. Any APDs cited within this manual that discuss a seven-day waiver period are not cited for that proposition.

An IC is liable for accrued benefits if it fails to dispute compensability of the injury within 15 days after receiving written notice of the claimed injury. Section 409.021; Section 124.3(a)(1). If the IC disputes compensability of the claimed injury after 15 days, but within 60 days of receiving written notice of the claimed injury, the IC is liable for all accrued benefits up until the time of dispute. Section 124.3(a)(2). Once the IC files a dispute with the Division, before the 60th day after receiving written notice of the injury, the IC is no longer liable for further benefits unless the Division determines that the injury is in fact compensable.

If the IC fails to dispute compensability of the claimed injury within 15 days of receiving written notice, but does successfully dispute compensability within 60 days of receiving written notice, and if the IW is being treated in a network as provided for in House Bill 7, Section 8.016, the IC's maximum liability for accrued medical benefits prior to the dispute is limited to $7,000.00. Texas Insurance Code Section 1305.153. The $7,000.00 limit is effective for claims with a DOI on and after the date of the contract establishing the certified network.

If the IC does not dispute the claimed injury within 60 days after it received written notice of the claimed injury, the IC waives the right to dispute the compensability of the claimed injury unless the IC can prove that there is newly discovered evidence that could not have reasonably been discovered earlier. Section 409.021(d). An IC that contests compensability of the claimed injury after 60 days on the basis of newly discovered evidence is liable for, and must continue to pay, all benefits due until the Division has made a finding that the evidence could not have been reasonably discovered earlier. Section 124.3(c)(2).

Defense Waived. If the IC waives the right to contest compensability of the claimed injury due to its failure to take the action required by Section 409.021, at a minimum the IC waives:

1. The exceptions (IC defenses) listed in Section 406.032. These include:

(A) The right to assert that the injury occurred while the IW was in a state of intoxication. APD 030663-s.
(B) The right to assert that the injury occurred by the IW's willful attempt to injure himself or to unlawfully injure another person. APD 992365.
(C) The right to assert that the injury was caused by a third person due to personal animosity. APD 992365.
(D) The right to assert that the injury arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the IW's work-related duties.
(E) The right to assert that the injury arose out of an act of God.
(F) The right to assert the IW's horseplay was a producing cause of the injury.

2. The right to assert that no injury occurred in the course and scope of employment. Cont'l Cas. Ins. Co. v. Williamson, 971 S.W.2d 108 (Tex. App.-Tyler 1998, no pet.); Zurich Am. Ins. Co. v. Gill, 173 S.W.3d 878 (Tex. App.-Fort Worth 2005, pet. denied); Alexander v. Lockheed Martin Corp., 188 S.W.3d 348 (Tex. App.-Forth Worth 2006, pet. denied); Lopez v. Zenith Ins. Co., 229 S.W.3d 775 (Tex. App.-Eastland 2007, pet. denied); State Office of Risk Mgmt. v. Peeples, No. 07-04-0408-CV, 2006 Tex. App. LEXIS 6511 (Amarillo July 25, 2006, pet. denied)(mem. op.); APD 041065; APD 032610. However, Williamson held that if the HO finds there was no injury and that finding is not against the great weight and preponderance of the evidence, the IC's waiver cannot create an injury as a matter of law.

In Zurich American Insurance Company v. Gill, 173 S.W.3d 878 (Tex. App.-Fort Worth 2005, pet. denied), the IW had suffered from allergy problems since childhood; however, in June 2000 she began suffering increased problems. The IW discovered tiles in the office she worked in contained stachybotrys mold, and the IW was medically diagnosed with allergic rhinitis and maxillary sinusitis. She filed a worker's compensation claim, and although the IC received notice of the IW's claim in May 2001 it did not contest compensability of the alleged injury until January 8, 2002. The HO found, among other things, that the IW sustained injuries that were ordinary diseases of life - specifically, chronic allergic rhinitis and maxillary sinusitis - and that these injuries were not an occupational disease. The court noted that Continental Casualty Insurance Company v. Williamson, 971 S.W.2d 108 (Tex. App.-Tyler 1998, no pet.), which held that if the IW does not have an injury the IC's failure to contest compensability cannot create an injury, did not apply to the facts of this case because the HO found that the IW sustained an injury. Williamson is limited to situations where there is a determination that the IW did not have an injury as opposed to cases where there is an injury that was determined by the HO not to have been causally related to the employment. Here the IW's condition met the definition of "injury", so she did sustain an injury, a key finding in the determination of whether the IC was liable for benefits when it did not meet the deadline for contesting compensability. The court held that although the IW's condition was an ordinary disease of life, not incident to a compensable injury or occupational disease, her condition was an "injury" under Section 401.011(26). The court concluded that the IW had an injury, the IC did not contest the compensability of the injury, and thus the IC owes medical benefits to the IW.

In Alexander v. Lockheed Martin Corporation, 188 S.W.3d 348 (Tex. App.-Forth Worth 2006, pet. denied) the IW had a pre-existing condition but filed a workers' compensation claim asserting an injury occurred on October 17, 2002. The IC paid benefits within the seven-day waiver period but did not contest the compensability of the claimed injury within the 60-day waiver period set forth in Section 409.021(c). The IC later filed a dispute claiming that it should be able to reopen the issue of compensability because it had newly discovered evidence of a pre-existing condition which the IC did not receive until after the 60-day waiver period. The HO found that the IW had an injury but that the injury did not occur in the course and scope of employment. The HO also determined that the IC waived its right to contest compensability. The IC only appealed the waiver and disability determinations. The court held that the IC waived its right to contest compensability of the injury despite the HO's finding that the injury did not occur in the course and scope of employment.

In Lopez v. Zenith Insurance Company, 229 S.W.3d 775 (Tex. App.-Eastland 2007, pet. denied) the HO held that the IW did not sustain a compensable injury in the course and scope of employment on March 21, 2003, and that the IC did not waive the right to contest compensability because the IW did not have a compensable injury. The AP reversed because Continental Casualty Insurance Company v. Williamson, 971 S.W.2d 108 (Tex. App.-Tyler 1998, no pet.) applies when there is a finding of no injury but not when there is a finding of no compensable injury. Medical records showed the IW had an injury. The court agreed with the interpretation that there is a distinction between an injury and a compensable injury, at least in part to effectuate the legislative intent behind Section 409.021. The court pointed out that the statute requires an IC to make a prompt initial decision and creates an incentive for ICs to initially pay benefits if there is any question about the compensability of a claim. The court stated that pre-existing conditions are not normally compensable and the effect of a waiver holding is to require an IC to pay benefits for an injury that may be a non-compensable, pre-existing condition, however, the court noted that in Alexander v. Lockheed Martin Corporation, 188 S.W.3d 348 (Tex. App.-Forth Worth 2006, pet. denied) and Zurich American Insurance Company v. Gill, 173 S.W.3d 878 (Tex. App.-Fort Worth 2005, pet. denied) and in this case the medical records indicated that the IW had an injury, whereas in Williamson a doctor noted that there was no injury. The court further noted that the language of Section 409.021 does not support a construction that exempts medical issues from this process. The appeals court held that the trial court erred when it held that as a matter of law the HO's finding of no injury in the course and scope of employment prohibited the application of the waiver provision. In APD 162591, the AP rendered a new decision that the IC waived the right to contest compensability of the claimed injury because the medical records reflected that were was damage or harm to the physical structure of the IW’s body, therefore Williamson did not apply in this case.  

In State Office of Risk Management v. Peeples, No. 07-04-0408-CV, 2006 Tex. App. LEXIS 6511 (Amarillo, July 25, 2006, pet. denied)(mem. op.), the court noted that the IW had been medicated for pre-existing back problems at the time of the April 1, 2002 incident. The court stated that the HO made reference to his medications and to a diagnosis of a degenerative disc made by the IW's TD. The TD's report described the IW's "history of chronic low back pain" and commented that he exhibited all the classical findings of spinal stenosis. The court disagreed with the IC that the HO's finding that on April 1, 2002, during the course and scope of employment the IW did not injure himself or cause harm to his body was a determination that the IW had no injury. The court agreed with the AP that Continental Casualty Insurance Company v. Williamson, 971 S.W.2d 108 (Tex. App.-Tyler 1998, no pet.) did not apply.

3. The right to assert that the IW failed to give timely notice of the claimed injury in accordance with Section 409.002. Zurich Am. Ins. Co. v. Gill 173 S.W.3d 878 (Tex. App.-Fort Worth 2005, pet. denied); APD 022027-s; APD 160580; APD 162591.

4. The right to assert that the IW failed to timely file a claim for compensation in accordance with Section 409.004. Southern Ins. Co. v. Brewster, 249 S.W.3d 6 (Tex. App.-Houston [1st Dist.] 2007, pet. denied); APD 022091-s; APD 162591.

5. The right to assert that the IW has made an election of remedies. APD 030793-s.

Determination of Waiver. [Cross reference. Issue Not Previously Raised (P02)]. Whether an IC has waived the right to contest compensability pursuant to Section 409.021 is a distinct issue which must be properly raised. In evaluating a Section 409.021 waiver case, the fact finder must consider and resolve the following:

1. Was the issue timely and properly raised, and if not, does good cause exist to add the issue:

a. The IW raised the issue of IC waiver for the first time in his appeal of the HO's CCH decision. There was no evidence that the issue of IC waiver was raised at the BRC, or that the parties consented to adding the issue, or that good cause existed for not properly raising the issue. The AP refused to consider the issue because it was raised for the first time on appeal. APD 011436.

b. The HO resolved the disputed issues by determining that the IC did not waive the right to contest compensability of the claimed injury, but further determined that the IW sustained a compensable injury and had resulting disability. The IC appealed the injury and disability determinations to the AP. The IW did not file a response to the appeal, nor did she appeal the HO's waiver determination. The AP reversed the HO's injury and disability determinations, and rendered a decision that the IW did not sustain a compensable injury and, therefore, did not have disability. The IW filed a petition in district court seeking judicial review and asserted that the IC had waived the right to contest compensability. The IC filed a motion for summary judgment asserting that the IW was barred from raising the waiver issue because she failed to raise it before the AP. The district court granted summary judgment in favor of the IC. The IW appealed and the court of appeals affirmed the district court's ruling. Judicial review is limited to the issues decided by the AP. A party may not raise an issue in the trial court which was not raised before the AP. Krueger v. Atascosa County, 155 S.W.3d 614 (Tex. App.-San Antonio 2004, no pet.).

c. At the CCH on remand the issues before the HO were (1) who is the correct IC for the DOI and (2) does the IC have liability for benefits prior to the date the IC filed notice of denial pursuant to Section 124.3. The IW requested to add an issue of IC waiver of the claimed injury but the attorney representing both ICs at the CCH objected on the grounds that an IC waiver issue had not previously been raised. The HO declined to add the issue, and determined the correct IC and that the correct IC waived the right to contest compensability of or liability for the claimed injury because the IC failed to file a denial within 60 days of receiving first written notice of the injury. The IC appealed and argued that the HO decided an issue not before her by incorporating IC waiver in her decision. The AP disagreed, noting that Section 124.3 covers both IC liability for accrued benefits for failure to dispute by the 15th day after receiving first written notice of the claimed injury as well as IC waiver of the right to contest compensability of the claimed injury if not disputed on or before the 60th day after receiving first written notice of the claimed injury pursuant to Section 124.3(b). APD 081665-s. [Cross-reference: Other Procedural Issues (P00)]

2. When did the IC receive its first written notice of the claimed injury, thereby triggering the start of the period of time to contest compensability of the claimed injury:

a. When an IW asserts that the IC has waived the right to contest compensability, the IW has the burden to prove when the IC received the first written notice of injury; once that is done, the burden shifts to the IC to prove that it timely filed a dispute. APD 051656. The HO must make findings of fact as to when the IC received first written notice of the injury.  Without a finding as to when the 60-day period began, it cannot be determined whether or not the IC timely contested compensability of the claimed injury in accordance with Section 409.021.  APD 160580

i. Self-insured. For a claim for workers' compensation benefits based on a compensable injury that occurs on or after September 1, 2003, written notice to a certified self-insured occurs only on written notice to the qualified claims servicing contractor designated by the certified self insurer under Section 407.061(c). Section 409.021(f) (added by Acts 2003, 78th Leg., ch. 939, Section 1). See also Section 409.021(f)(1) (added by Acts 2003, 78th Leg., ch. 1100, Section 1)

ii. Political subdivision self-insured individually or collectively. For a claim for workers' compensation benefits based on a compensable injury that occurs on or after September 1, 2003, written notice to a political subdivision that self-insures, either individually or collectively through an interlocal agreement as described by Section 504.011, occurs only on written notice to the intergovernmental risk pool or other entity responsible for administering the claim. Section 504.002(d); APD 070912. See also Section 409.021(f)(2) (added by Acts 2003, 78th Leg., ch. 1100, Section 1).

b. Written notice to the IC does not have to be contained on an Employer's First Report of Injury. Written notice can be established by showing that the IC received any communication, regardless of its source, that fairly informs the IC of the IW's name, DOI, identity of the employer, and information asserting the injury was work related. Section 124.1(a); APD 032668.

c. If the IC receives an unwritten notice of injury which contains all of the information required by Section 124.1(a), the IC must immediately create a written record. Section 124.1(d).

3. On what date did the IC properly dispute compensability of the claimed injury:

a. Once it is established when the IC received the first written notice of injury, the IC has the burden to prove that it timely filed a proper dispute. APD 051656.

b. A dispute must be filed with the Division and the IW, and must contain the following information:

i. The IC must use plain language notices with language and content prescribed by the Division;

ii. Notice that the IW has the right to request a BRC and include the means for the IW to obtain additional information from the Division regarding the IW's claim;

iii. The notice must contain a full and complete statement describing the IC's actions and its reasons for such actions; and

iv. The statement must contain sufficient claim-specific information to enable the IW to understand the IC's position or action taken. Sections 409.022, 124.2, and 124.3.

c. To determine whether the IC's dispute is specific enough to comply with Sections 409.022 and 124.2(f), the AP will look at a fair reading of the reasoning listed to determine if the contest is sufficient. No magic words are required. The key point to be determined is whether, when read as a whole, any of the reasons listed by the IC would be a defense to compensability that could prevail in a subsequent proceeding and whether the grounds listed, when considered together, encompass a controversion or dispute on the basic issue that an injury was not suffered within the course and scope of employment. APD 022145. Whether an IC's dispute is sufficiently specific is a question of fact for the HO to resolve. APD 971404.

d. The grounds for denial of the claim specified in the IC's dispute constitute the only basis for the IC's defense on the issue of compensability in a subsequent proceeding, unless the defense is based on newly discovered evidence that could not reasonably have been discovered at an earlier date. Section 409.022(b).

An issue at the CCH was whether the IC is relieved of liability because the IW failed to file a claim within one year after the DOI as required by Section 409.003. The IC denied benefits in a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1); however, the IC did not contest compensability of the claim based on the IW's failure to file a claim within one year. The HO found that although the IW contended at the CCH the IC had waived the defense of the IW's untimely filing by not raising that defense in its PLN-1, that issue was not contained in the BRC report, was not requested in a response to the BRC report to be added as an issue at the CCH, and was not actually litigated at the CCH. The AP found evidence that the issue had been actually litigated by the parties and therefore addressed it. The HO determined that the IC is relieved of liability under Section 409.004 because the IW failed to file a claim within one year of the DOI. The AP reversed the HO's determination and rendered a decision that the IC is not relieved of liability under Section 409.004 because, under Section 409.022(b), the IC waived the right to contest based on failure to file a claim within one year. APD 060631-s.

For injuries occurring on or after September 1, 2003, an IC may file as many disputes as it wishes within the initial 15-day period, and does not have to prove that there was newly discovered evidence for the additional filings within that time period.

e. A dispute of benefit entitlement is not a dispute of compensability/liability.

The IC filed a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) within 15 days of receiving written notice of injury disputing entitlement to TIBs. The IC filed a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) after the 15th day but before the 60th day after receipt of written notice of the injury. The HO held that the IC's defense on compensability was limited to the disability defense listed on the PLN-11 filed within 15 days of receiving written notice of injury. The AP reversed and rendered a new decision that the IC's defense on compensability is not limited to the disability defense listed on the PLN-11 filed with the Division within 15 days of written notice. The dispute of benefit entitlement is not a dispute of compensability/liability, and in filing a dispute of benefit entitlement, the IC retains the right to contest compensability and liability of a claim within the 60-day period, subject to Section 124.3. APD 072002-s.

4. If the IC did not dispute compensability of the claimed injury within the waiver period, did the IC present newly discovered evidence that could not reasonably have been discovered earlier, which would allow the IC to reopen the issue of compensability?

a. An IC that has accepted an IW's claimed injury, either expressly or, for injuries that occurred on or after September 1, 2003, by failure to dispute within the 60-day time period, may still dispute compensability of the claim if the IC can prove that the dispute is based on evidence that could not reasonably have been discovered earlier with the exercise of due diligence. Section 409.021(d); APD 94224.

b. A two-prong test is used to determine whether an IC may reopen the issue of compensability. First it must be determined whether the IC exercised due diligence in obtaining the evidence. Second it must be determined whether the IC exercised due diligence in contesting compensability upon discovering the new evidence. Whether the IC should be allowed to re-open the issue of compensability pursuant to Section 409.021(d) is a question of fact for the HO to resolve. APD 002920.

5. Extent of injury disputes:

In State Office of Risk Management v. Lawton, 2009 Tex. LEXIS 629 (Tex. August 28, 2009), the Texas Supreme Court held that the 60-day period for challenging compensability of an injury does not apply to a dispute over the extent of injury if the basis for the extent of injury dispute could have been discovered by a reasonable investigation within the 60-day waiver period. Therefore, a determination that an IC has waived an extent of injury because that injury or condition was reasonably discoverable within the 60-day waiver period is error and must be reversed. Any prior APDs ruling that an IC has waived an extent of injury because the IC could have discovered that injury or condition by a reasonable investigation during the 60-day waiver period are overruled by the Lawton case, and future decisions will apply Lawton.

Extraterritorial Injury Waiver. [Cross reference: Extraterritorial Injury (C19)]. The IC waived the right to contest compensability when it did not timely contest compensability after receiving written notice of an injury that occurred in another state and the written notice listed the employer's Texas address and the IW's Texas address and the IW had already filed a claim for compensation in Texas. APD 031055-s.

Contest by the Employer (C04) [Cross Reference. Jurisdiction (P03)]

An employer may become a party in the Division's dispute resolution process and contest the compensability of an IW's injury only if the IC "accepts liability for the payment of benefits." Section 409.011(b)(4); APD 032473.

Employer Time Limit to Contest. The employer does not have a specific time limit for contesting the injury, but must use "reasonable diligence" in its investigation. APD 92280.

Timely Contested Found. The IC chose not to dispute the compensability of the IW's claimed injury and accepted liability. The employer contested compensability with the Division (previous Commission) less than two weeks after the IC's sixty-day period had expired. The HO found that "reasonable diligence" had been used by the employer. The AP affirmed. APD 92280.

Untimely Contested Found. "Reasonable diligence" was not found when an employer did not contest the claim for nine months after a BRC where the IC accepted liability for the injury. APD 991111.

Employer Contest Disallowed for Other Reasons. The employer may not contest the compensability of the injury when the IC has mistakenly missed the 60-day deadline to contest the compensability of the claim. Simplex Electric Corp., v. Holcomb, 949 S.W.2d 446 (Tex. Civ. App.-Austin 1997 pet. Denied).

Employer's Right to Appeal. Although the right to appear and offer evidence is sufficient to make the employer a participant at the CCH, the employer does not gain the status of a party unless the IC has accepted liability for the claim and it is the employer that contests compensability. APD 92479. If an employer is not a party at the CCH it does not have the right to appeal the HO's decision, and any appeal filed by a non-party employer will be dismissed by the AP for lack of standing. APD 92110; APD 041239.

Date Of Injury (C05)

[Cross reference: Compensability/Injury (Existence) (C06); Compensability/Occupational Disease (C14); Reporting Injury to Employer (C17).]

The DOI for a specific injury is the date the IW sustained the injury. The DOI for an occupational disease, which includes a repetitive trauma injury, is the date the IW knew or should have known the disease may be related to the IW's employment. Section 408.007; APD 972321. This is not necessarily the date on which symptoms first appeared, but is the date on which a reasonable person recognizes the nature, seriousness, and work-relatedness of the disease. Commercial Ins. Co. of Newark, New Jersey v. Smith, 596 S.W.2d 661, 665 (Tex. Civ. App.-Ft. Worth 1980, writ ref'd n.r.e.).

The HO is required to find a specific DOI. APD 080023. Establishing a DOI is essential in resolving the compensability of a claim. APD 012707. The IW bears the burden to prove the DOI by a preponderance of the evidence. APD 962650. The HO is given wide latitude in deciding a DOI. APD 021632. However, the HO may not refuse to resolve the issue before him by saying the IW has not proven a DOI. APD 080720. It is not necessary that the DOI found by a HO has to be the same as the date alleged by the IW when the evidence indicates otherwise. APD 080023.

Compensability/Injury (Existence) (C06)

Compensable injury means an injury that arises out of and in the course and scope of employment for which compensation is payable under the Workers' Compensation Act. Section 401.011(10) . Injury means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease. Section 401.011(26). [Cross reference: Not in Course and Scope Because of Other Grounds (C10); Other Compensability Issues - Course and Scope (C00)]

Aggravation. An injury includes the aggravation of a preexisting condition or injury. Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614 (Tex. App.-Amarillo 1999, no pet.); Peterson v. Continental Cas. Co., 997 S.W.2d 893 (Tex. App.-Houston [1st Dist.] 1999, no pet.). To prove an aggravation of a preexisting condition there must be some enhancement, acceleration, or worsening of the underlying condition from the injury. APD 002967.

Burden of Proof. The burden is on the IW to prove that an injury occurred within the course and scope of employment. APD 013018. As a general rule, the IW's testimony, if believed, can support a finding of injury in the course and scope of employment. Highlands Insurance Company v. Baugh, 605 S.W.2d 314 (Tex. Civ. App.- Eastland 1980, no writ). An injury arises out of employment if the employment is a producing cause. That means even if there are other causes of the injury, the employment need only be a cause. Texas Workers' Compensation Ins. Fund v. Simon, 980 S.W.2d 730, 736 (Tex.App. -San Antonio 1998, no pet.). Expert medical evidence may be required to establish a causal connection between the employment and an injury where the claimed injury is a disease which is beyond common knowledge or experience, such as cancer. Houston General Ins. Co. v. Pegues, 514 S.W.2d 492, 495 (Tex. Civ. App.-Texarkana 1974, writ ref'd n.r.e.).

An IW claiming a compensable injury, other than an occupational disease, must prove a definite time, place, and cause of the injury. Olson v. Hartford Accident & Indemnity Co., 477 S.W.2d 859 (Tex. 1972). The definite time, place, and cause requirement may be met if the IW can identify the work activity being performed when injured, such as moving heavy bags or boxes during the day, but is not able to relate the injury to the lifting of a specific bag or box. Hartford Accident & Indemnity Co. v. Contreras, 498 S.W.2d 419 (Tex. Civ. App.-Houston [1st Dist.] 1973, writ ref'd n.r.e.); Panola Junior College v. Estate of Thompson, 727 S.W.2d 677 (Tex. App.-Texarkana 1987, no writ). Whether or not an IW sustained a compensable injury is a question of fact for the HO to resolve. APD 970799.

Occupational Disease. Cross reference: Compensability Occupational Disease (C14).

PAIN. Mere pain is not compensable. Nat'l Union Fire Ins. Co. of Pittsburgh v. Janes, 687 S.W.2d 822 (Tex. App.-El Paso 1985, writ ref'd n.r.e.); APD 94084. However, pain accompanied by swelling and medical evidence of aggravation would support a finding of injury. Janes, supra. It should be noted that in cases where the AP has determined that pain alone is not an injury, no other objective or clinical indication of physical harm or damage to the IW was present. APD 032608.

Prosthetic and Orthotic Devices. Effective September 1, 2007, the 80th Legislature R.S. amended Section 401.011 by amending subsection (19) and adding subsections (34-a) and (35-a) to read as follows:

1. The term "health care" includes "a medical or surgical supply, appliance, brace, artificial member, or prosthetic or orthotic device, including the fitting of, change or repair to, or training in the use of the appliance, brace, member, or device." (The underlined text reflects the amended language). Section 401.011(19)(F).
2. ""Orthotic device" means a custom-fitted or custom-fabricated medical device that is applied to a part of the human body to correct a deformity, improve function, or relieve symptoms related to a compensable injury or occupational disease." Section 401.011(34-a).
3. ""Prosthetic device" means an artificial device designed to replace, wholly or partly, an arm or leg. Section 401.011(35-a).

Repetitive Trauma Injury. [Cross reference: Compensability Occupational Disease (C14)]

Walking. [Cross reference: Other Compensability Issues - Course and Scope (C00)] The IW was walking to a work meeting on the employer's premises when she experienced a pop in her right knee. The next day a doctor provided work injury diagnoses of a right knee strain and a tear of the calf muscle. The claimed injury was a specific injury, not a repetitive trauma injury. The HO determined that the IW did not sustain a compensable injury because the overwhelming evidence supported that the mechanism of injury was simply walking. The AP reversed and rendered a decision that the IW sustained a compensable injury. The injury occurred in the course and scope of employment and the injury arose from the employment. It was not necessary for the IW to prove that a pivot, twist, turn, or other type of untoward body motion occurred while walking to the work-related meeting to establish that the injury arose from the employment. In Lumberman's Reciprocal Ass'n v. Behnken, 112 Tex. 103, 246 S.W.72 (1922), the Texas Supreme Court stated that "an injury has to do with, and arises out of, the work or business of the employer, when it results from a risk or hazard which is necessarily or ordinarily or reasonably inherent in or incident to the conduct of such work or business." The AP declined to follow APD 980631, which held that a claimed specific injury was not compensable under similar facts. APD 070284-s.

Extent of Injury (CO7)

An IW who has sustained a compensable injury is not limited to compensation of merely the compensable injury itself if the injury, or any proper or necessary treatment of the injury, causes other injuries in addition to the original compensable injury. Western Cas. & Surety Co. v. Gonzales, 518 S.W.2d 524 (Tex. 1975); Maryland Casualty Co. v. Sosa, 425 S.W.2d 871 (Tex. Civ. App.-San Antonio 1968, writ ref'd n.r.e. per curiam, 432 S.W.2d 515 (Tex. 1968)). The question to be resolved in an extent of injury issue is whether the claimed condition is causally related to or is a part of the compensable injury. APD 971725. Where the matter of causation of the claimed injury is beyond common knowledge or experience, expert evidence to a reasonable degree of medical probability is required. Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.-Texarkana 1974, writ ref'd n.r.e.). The IW bears the burden to prove the extent of his or her compensable injury. APD 001602. Extent of injury is a question of fact for the HO to resolve. APD 960407; APD 050031-s.

Caused By Medical Care For The Compensable Injury. Medical care causing further injury must be instituted to cure or relieve the IW from the effects of his or her injury. Hartford Accident & Indemnity Co. v. Thurmond, 527 S.W.2d 180 (Tex.Civ.App.-Corpus Christi 1975, writ ref'd n.r.e.).

Medical Care Caused Injury. The IW was injured while picking up the tongue of a cement mixer. His neurosurgeon believed the IW ruptured a disc in his cervical spine and ordered a myelogram to determine the specific level. During the myelogram the IW felt three electrical sensations in his lower back and down both legs and immediately after experienced pain in his lower back. It was undisputed that the myelogram was required to treat the IW's compensable injury. The court held that although a myelogram is a complex medical procedure, a jury could infer a causal connection between the injection of the myelogram needle into the IW's spine and the immediate onset of back pain and numbness. Texas Employers Indemnity Company v. Etie, 754 S.W.2d 806 (Tex. App.-Houston [1st Dist.] 1988, no writ).

The IW sustained a compensable injury on April 18, 2001, to the cervical area and underwent cervical spinal surgery on August 7, 2002. On August 8, 2002, the IW began to have trouble communicating and weakness on the left side. It was determined that the claimant suffered from strokes. There was expert medical evidence in the record that the cervical surgery contributed to the strokes suffered by the IW shortly after the surgery. The AP affirmed the HO's determination that the IW's compensable injury extended to and includes strokes suffered after August 7, 2002. APD 032594.

The IW sustained a compensable injury on November 7, 2000. The IW received a pain block to treat her compensable injury of reflex sympathetic dystrophy. The IW contended that this medical treatment resulted in an extent of injury to her lumbar spine. The AP affirmed the HO's determination that the IW's compensable injury included injury to the low back. APD 012215.

Medical Care Did Not Cause Injury. The IW sustained a compensable injury to her back. She underwent various diagnostic tests in the treatment of her compensable injury including a myelogram, and a lumbar and abdominal CT scan. Following her diagnostic testing the IW went back to the hospital the following day with headaches and nausea. While at the hospital she had a seizure. There was conflicting medical evidence as to the cause of the IW's seizure disorder. The HO determined that the IW's seizure disorder did not arise from treatment for the compensable injury and the AP affirmed. The issue was a question of fact for the HO to resolve and the HO's determination was supported by sufficient evidence. APD 971288.

Naturally Resulting From The Compensable Injury. Injury is defined as damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. Section 401.011(26).

The Amarillo Court of Civil Appeals in the case of Maryland Casualty Co. v. Rogers, 86 S.W.2d 867 (Tex. Civ. App.-Amarillo 1935, writ ref'd), citing Travelers' Ins. Co. v. Smith (Tex.Civ.App.) 266 S.W. 574 (Tex. Civ. App.-Beaumont 1924, no writ), stated: "By the word `naturally', as used in the statute, it is not meant that the disease which is shown to have attacked the victim of the accident is such disease as usually and ordinarily follows the accident; but it is only meant that the injury or damage caused by the accident is shown to be such that it is natural for the disease to follow therefrom, considering the human anatomy and the structural portions of the body in their relations to each other." Id. at 871. However, the fact that an injury may affect a person's resistance will not mean that a subsequent injury outside the work place is compensable, where the subsequent disease or infection is not one which flowed naturally from the compensable injury. Texas Emp. Ins. Ass'n v. Burnett, 105 S.W.2d 200 (Tex. 1937); Traders & Gen. Ins. Co. v. Keahey, 119 S.W.2d 618 (Tex. Civ. App.-Amarillo 1938writ dism'd).

Injury Naturally Resulted from The Compensable Injury. The IW suffered compensable injuries to his left foot and right elbow. There was medical evidence that the IW subsequently suffered from neurosis. There was medical evidence that the IW's neurosis naturally flowed from his compensable injuries. The scope of an injury can encompass ancillary conditions which are connected to the injury. Hood v. Texas Indemnity Ins. Co., 209 S.W.2d 345 (Tex. 1948).

The IW sustained a compensable left ankle abrasion injury when she was struck by a pallet on a forklift. She later developed an infection (Pseudomonas Aeruginosa). The IW testified that she experienced pain, abrasions, and broken skin but no bleeding. There was no dispute that the site of the abrasion was where the infection occurred. There was expert medical evidence to support the hearing officer's determination that the infection naturally resulted from the compensable abrasion injury. The AP affirmed the hearing officer's determination that the IW sustained a compensable left ankle injury with resulting infection. APD 001287.

The IW sustained a compensable puncture wound to his right thumb in July 1998. The wound subsequently became infected, requiring three exploratory operations. Upon successful treatment of the infection, the IW continued to experience pain in his thumb, palm, and shoulder. Based upon the results of a bone scan indicating the presence of localized reflex sympathetic dystrophy (RSD) in the thumb, an aggressive RSD treatment program was recommended. The medical records reflect that the IW was examined by five doctors. Each of these doctors diagnosed RSD secondary to the thumb wound and resulting infection. The HO determined that the IW's compensable injury extended to include RSD and the AP affirmed. APD 010327.

Expert medical evidence.  Proof of causation must be established to a reasonable medical probability by expert evidence where the subject is so complex that a fact finder lacks the ability from common knowledge to find a causal connection.  APD 022301, decided October 23, 2002.  See also Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007).  To be probative, expert testimony must be based on reasonable medical probability.  City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.-San Antonio 2009, no pet.) citing Insurance Company of North America v. Meyers, 411 S.W.2d 710, 713 (Tex. 1966).  The mere recitation of the claimed conditions in the medical records without attendant explanation how those conditions may be related to the compensable injury does not establish those conditions are related to the compensable injury within a reasonable degree of medical probability.  APD 110054, decided March 21, 2011.

Insufficient expert medical evidence to establish causation. The IW injured her right shoulder while lifting clothing from a pallet and hanging them overhead.  The IW alleged the compensable injury includes right shoulder impingement. An MRI performed included an impression of significant impingement. The AP noted the evidence reflects that no doctor diagnosed the IW with right shoulder impingement.  The doctors only listed the MRI findings under tests performed. The AP further noted that there is no medical evidence explaining how a right shoulder impingement is related to the compensable injury. The AP reversed the HO’s determination that the compensable injury extended to right shoulder impingement because the finding in the MRI of impingement without attendant explanation how this condition may be related to the compensable injury does not establish the condition is related to the compensable injury within a reasonable degree of medical probability. APD 101323-s

The IW injured her lumbar spine when she slipped and fell at work. The HO determined that the compensable injury extends to an L4-5 disc protrusion with central stenosis, among other conditions. The AP found that although the designated doctor diagnosed the conditions at issue and then stated that the compensable injury should extend to those conditions, the AP noted that there was nothing in evidence that provides an explanation of how the mechanism of injury caused the L4-5 disc protrusion with central stenosis. APD 132953, see also APD 150750

The HO determined that the conditions at issue were compensable based on the DD’s opinion. The HO stated that the DD persuasively reasoned that the mechanism of injury was sufficient to cause the disputed conditions. The DD’s causation analysis stated that the IW indicated that an airplane chair closed on his arm and broke it. The DD went on to conclude that this mechanism of injury, along with the subsequent swelling and inflammation, was consistent with causing the disputed conditions. The AP noted that the DD’s opinion was based on an inaccurate understanding of the mechanism of injury, as neither the IW’s testimony nor the medical records showed that the chair closed on the IW’s arm and broke it. The AP reversed the HO’s extent determination as so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, and it rendered a new decision that the compensable injury did not extend to the disputed conditions. APD 171082

The IW testified that he injured his back while attempting to straighten a part of the production line that was bent. The HO found that the compensable injury extends to stenosis at L4-S1, disc protrusion at L5-S1 on the left, facet hypertrophy at L4-5, and S1 radiculopathy based on a letter of causation from the treating doctor. However, the AP noted that the treating doctor did not identify the specific findings he is referencing nor did he refer to a diagnostic test which would identify the specific conditions. The AP reversed the HO’s determination that the compensable injury extends to the conditions in dispute. APD 132180

Sufficient expert medical evidence to establish causation. The IW was injured when she fell and fractured her left ankle. The HO determined that the compensable injury did not include a stress fracture of the left second metatarsal, because the causation opinion in evidence failed to rule out other possible causes of the stress fracture. The AP noted that an analysis of other possible causes of an injury or illness is a factor to consider when determining causation, however, the Supreme Court in Crump did not hold that the only method to establish expert medical causation is by differential diagnosis. The AP reversed and remanded the HO’s determination because the HO misinterpreted and misapplied the law by requiring a differential diagnosis. APD 120311-s

The IW was injured when she stepped in a crack and rolled her right ankle. The HO determined that the compensable injury does not extend to plantar fasciitis and complex fasciitis, and complex regional pain syndrome/reflex sympathetic dystrophy (CRPS/RSD) of the right lower extremity. The HO found that the letter of causation in evidence from the treating doctor in regard to those conditions was conclusory because it merely recited the MRI findings, CRPS diagnosis, and a statement that they are related to the compensable injury. However, the AP noted that the causation letter additionally discussed the claimant’s mechanism of injury and how the torqueing forces caused the disputed conditions. The AP reversed the HO’s determination because the HO misread the causation letter and considered it as though there was no sufficient expert medical evidence regarding causation of the disputed conditions.  The extent- of-injury issue was remanded for the HO to fully consider the causation letter and give it proper weight. APD 130723

The IW testified that he injured his back while moving boxes at work and contended that the compensable injury extends to a 4 mm broad-based disc bulge at L5-S1, lumbar radiculopathy at L5-S1, or Grade I spondylolisthesis (approx. 6-7 mm of anterior displacement of L5). The HO determined that the IW did not meet his burden of proof on the issue because the designated doctor, whose opinion the IW relied on, did not provide a causation analysis. However, the AP noted that the designated doctor stated in part that the 4 mm broad-based disc bulge and L5-S1 radiculopathy were caused by the injury,  that the IW had Grade I spondylolisthesis on x-rays and stated the mechanism of lifting and twisting has resulted in the disc bulge and resulting spondylolisthesis, which in turn resulted in the nerve root injury. The AP reversed the HO’s extent-of-injury determination because the designated doctor did provide some analysis for his opinion that the conditions in dispute were part of the compensable injury. The HO misread the designated doctor’s causation opinion. The issue was remanded to the HO to consider the opinion. APD 142257

The IW injured her left knee and ankle when she tripped over the leg of a passenger as she was pulling a cart down the aisle of an airplane. The HO determined in part that the compensable injury extends to medial and lateral meniscus tears of the left knee, chondromalacia of the patellar femoral joint including femoral trochlea of the left knee, and Piriformis syndrome. However, in the Discussion portion of the decision, the HO noted that the IW’s physical therapist provided an explanation of how the Piriformis syndrome resulted from the compensable injury. The HO stated that the physical therapist’s opinion is not considered an expert medical opinion on causation because it is not from a physician. The HO went on to find sufficient causation evidence from the designated doctor to determine the compensability of the Piriformis syndrome. The AP affirmed the HO’s extent-of-injury determination, but explained that the HO erred in failing to consider the physical therapist’s opinion. Although a physical therapist is not listed under the definition of “doctor” in Section 401.011(17), medical evidence may be generated by a number of sources other than by individuals who are defined as “doctors” in Section 401.011(17).  That medical evidence may be in the form of a physical therapist’s reports and notes, and by any number of other health care providers. APD 150372

Expert medical evidence is not required. Conditions that are within the common knowledge and experience of the fact finder do not require expert medical evidence to establish causation.

The Appeals Panel has long held expert medical evidence is not required for strains.  See APD 120383, decided April 20, 2012, where the Appeals Panel rejected the contention that a cervical strain requires expert medical evidence, and APD 992946, decided February 14, 2000, where the Appeals Panel declined to hold expert medical evidence was required to prove a shoulder strain, and APD 952129, decided January 31, 1996, where the Appeals Panel declined to hold expert medical evidence was required to prove a back strain.

The IW testified he was injured when he fell from a ladder while painting. The HO determined in part that the compensable injury extends to a left knee injury in the form of a sprain, but does not extend to Grade II cervical sprain/strain at C3-4 and Grade II lumbar sprain/strain at L2-3, L3-4, and L4-5. The HO stated in the Discussion section of the decision that the disputed conditions appear to be called sprains/strains, but include a Grade II degree of those sprains/strains and are further classified as being tied to various disc levels as would be disc pathology in the nature of a herniation or protrusion.  The HO further stated that the disputed conditions would go beyond the accepted condition of sprains of the cervical and lumbar spine and would require expert testimony in order to determine the nature of the injury as described in the disputed issue. The AP disagreed that the disputed conditions go beyond the cervical sprain/strain and lumbar sprain/strain accepted by the carrier, especially in light of the fact that medical records in evidence use the same diagnosis codes interchangeably for cervical and lumbar sprain/strain and Grade II cervical and lumbar sprain/strain. The HO’s extent-of-injury determination was reversed and rendered in favor of the IW. APD 130808

The IW was injured when she stepped on an air conditioning vent in the floor that gave way. The HO determined in part that the compensable injury does not extend to a herniation at L4-5 with nerve root irritation [sciatica], sprained talofibular ligament, and fibromyalgia.  The HO stated in part that the sprained talofibular ligament was beyond common knowledge and that an expert medical opinion was required for a specific ligament despite the accepted ankle sprain/strain. The AP noted that since the alleged extent-of-injury condition to the left ankle at issue is specific to a particular ligament, the condition should be diagnosed in the medical records.  However, the AP further noted that it cannot agree that just because the alleged sprain/strain is to a particular ligament that it elevates the condition of a sprain/strain to a level that is so complex that a fact finder lacks the ability from common knowledge to find a causal connection.  The issue of extent to the sprained talofibular ligament was remanded to the HO because a higher standard than is required under the law to establish causation was required. APD 141478

The IW sustained a compensable injury in the form of at least a right ankle sprain and a left shin contusion. The HO determined that the compensable injury does not extend to a thoracic sprain/strain, a lumbar sprain/strain, and a right knee sprain/strain. The HO noted that there is an attenuation factor in this case and specifically stated that as such, expert medical causation evidence was necessary to establish a causal link between the claimed conditions and the compensable injury. The AP disagreed that an attenuation factor in and of itself would mandate expert medical evidence of causation to establish compensability of a sprain/strain.  The AP stated that a delay in the onset of symptoms was merely a factor for the HO to consider in determining whether the IW had sustained his burden of proving a causation connection between the disputed extent-of-injury conditions and the compensable injury. The HO’s determination was reversed and the issue of extent was remanded to the HO to consider the evidence and apply the proper evidentiary standard of causation.  APD 141688

The IW was injured when she was assaulted by a patient which resulted in loss of consciousness when her head hit a metal seclusion door frame. The HO determined in part that the compensable injury extends to concussion and impaired concentration but does not extend to post-concussion syndrome, left posterior parietal hematoma/contusion, post-traumatic stress disorder, headaches, and depression. Regarding the condition of headaches, the AP noted that it was undisputed that the claimant’s head struck a metal door frame with such force that she lost consciousness and numerous records in evidence from two days after the date of injury onward diagnose the claimant with headaches.  The AP stated that under the facts of this case and with the described mechanism of injury, we decline to hold that expert medical evidence was required to prove headaches.  That portion of the HO’s extent determination that the compensable injury does not extend to headaches was reversed and rendered as being against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. APD 142523

The IW was injured while he was working as a prison guard and was assaulted by an inmate on the date of injury. The stipulated compensable injuries were a nasal contusion, lip laceration, and cervical strain. The HO determined in part that the compensable injury does not extend to the diagnoses of cervical disc bulges at C2-3, C3-4, C4-5, C5-6, and C6-7, disc protrusion/herniation at C5-6, nasal bone fracture, concussion, traumatic brain injury with post-concussion syndrome/seizure disorder—epilepsy. Regarding the nasal fracture, the AP noted that the IW was punched to the face several times by an offender and went to the hospital where he received stitches to his lower lip area. Additionally, the first x-rays were taken of the IW’s nasal bones, six days after the date of injury, and noted that the IW had a fracture of the tip of the nasal bones.  The AP stated that under the facts of this case, with the described mechanism of injury, we decline to hold expert medical evidence was required to prove a nasal bone fracture. The HO’s determination that the compensable injury does not extend to a nasal bone fracture was reversed and rendered as being against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. APD 141556

Alcohol Intoxication (C08)

There are two definitions of alcohol intoxication under the 1989 Act. Under the first definition, intoxication is defined as having an alcohol concentration to qualify as intoxicated under Section 49.01, Penal Code. Section 401.013(a)(1). Under the second definition, intoxication is defined as the state of not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage, as defined by Section 1.04 of the Texas Alcoholic Beverage Code. Section 401.013(a)(2)(A). A finding that the IW was intoxicated at the time of the claimed injury under either definition will relieve the IC from liability and make the injury non-compensable. The IW is presumed to be sober at the time of the injury. Bender v. Federal Underwriters Exchange, 133 S.W.2d 214, (Tex.Civ.App.-Eastland, 1939, writ dism'd judgm't correct).

An IC is not liable for compensation if the injury "occurred while the IW was in a state of intoxication." Section 406.032(1)(A). The intoxication exception does not require a causal connection between the injury and the employee's intoxication and serves as an absolute exception to liability, regardless of the cause of injury. See Texas Indemnity Insurance Company v. Dill, 42 S.W.2d 1059 (Tex. App.-Eastland 1931), aff'd 63 S.W.2d 1016 (Tex. Comm'n App. 1933). Whether or not an IW was intoxicated due to the voluntary introduction into the body of an alcoholic beverage at the time of the injury is a question of fact for the HO to decide. APD 002818.

Affirmative Defense. Alcohol intoxication is an affirmative defense raised by an IC to contest the compensability of a claimed injury. An IC that fails to properly raise intoxication as a specific issue and defense to course and scope and/or compensability at the administrative level waives the right to do so in the future.

IC failed to raise intoxication as a defense at the BRC, CCH, and appeal to the AP. IC sought judicial review and attempted to assert an intoxication defense in district court. The trial court refused to allow evidence of intoxication because the IC had not properly raised the issue at the administrative level. The IC appealed to the court of appeals. The court of appeals ruled as follows:

We hold that the defense of intoxication must be raised by the employer in the administrative review process in order to preserve the issue for appeal to the trial court. In this case, ESIS failed to raise the defense of intoxication at any stage of the administrative review process. As a result, the defense was waived, and the trial court was barred from adjudicating the issue on appeal. Therefore, we hold that the trial court did not abuse its discretion in refusing to introduce evidence on the defensive issue of Johnson's intoxication. ESIS, Inc., Servicing Contractor v. Johnson, 908 S.W.2d 554 (Tex. App.-Fort Worth 1995, writ denied).

Burden of Proof. When an IC properly raises the defense of alcohol intoxication, there is a "shifting burden of proof." Since the IW is presumed to have been sober at the time the injury occurred, the initial burden is on the IC to present evidence that the IW was in a state of intoxication due the IW's voluntary introduction into the body of an alcoholic beverage. When the IC presents "probative evidence" of intoxication to rebut the presumption of sobriety, then the claimant has the burden to prove that he or she was not intoxicated at the time of the injury. March v. Victoria Lloyds Insurance Co., 773 S.W.2d 785 (Tex. Civ. App-Fort Worth 1989, writ denied).

Sufficient Evidence to Shift the Burden of Proof of Sobriety. An extrapolation of a blood-alcohol concentration can be sufficient evidence to shift the burden of proof to the claimant to prove that he was not intoxicated from the voluntary introduction into the body of alcohol. APD 002818. A test revealing a blood alcohol concentration which is less than that provided for in Penal Code Section 49.01(2), along with other evidence, may be sufficient to shift the burden of proof regarding sobriety to the IW. APD 982483.

Not Sufficient Evidence to Shift the Burden of Proof of Sobriety. An IW's refusal to submit to a drug or alcohol test does not shift the burden of proof on the issue of intoxication as a matter of law. That is not to say that a HO is precluded from finding, in light of all of the evidence presented, that the IW's refusal to submit to testing could be sufficient to overcome the presumption of sobriety. APD 033057.

Intoxicated from the Consumption of Alcohol: As a Matter of Law. An IW who tests at or above the legal limit for alcohol concentration at the time of the claimed injury is intoxicated for purposes of the 1989 Act as a matter of law.

For claims based on a compensable injury that occurs after September 1, 1999, Section 401.013(a)(1), provides an alcohol concentration meeting the stated limit contained in Penal Code Section 49.01(2) (currently 0.08 or more) is by definition intoxication, and there need be no further analysis of whether the claimant had the "normal use" of his faculties. APD 042113.

For claims based on a compensable injury that occurs on or before September 1, 1999, intoxication is defined in Section 401.013(a)(1)as having an alcohol concentration as defined by Section 49.01 of the Texas Penal Code, of 0.10 or more.

In such a case, an IW would still remain free to try to prove that the tested level was inaccurate or that the tested concentration was impacted by some other condition or medication (excessive blood loss or analgesic medications, for example). APD 022407 and APD 011341.

Intoxication from the Consumption of Alcohol: Not as a Matter of Law. There are many cases in which the IC asserts that the claimed injury is not compensable based upon the affirmative defense of alcohol intoxication. Often, the IC asserts that the IW was intoxicated from the voluntary consumption of alcohol at the time the injury occurred, but the testing upon which the IC relies was not performed until some time after the injury occurred.

This is not unusual in that most employers do not have the equipment or expertise to administer proper testing on the premises and immediately following a claimed injury. As such, the test may not have been administered until hours or days after the alleged injury. In these cases, either the IW's blood alcohol concentration may be too low to make a determination that the IW was intoxicated as a matter of law at the time of the injury, or so much time has elapsed that the blood alcohol concentration level could have occurred due to post-injury consumption of alcohol.

In such situations, the IC may present other evidence to show that at the time the claimed injury occurred, the IW did not have the normal use of his or her mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage.

In cases where the evidence fails to establish that at the time of the claimed injury, the IW was intoxicated as a matter of law due to the voluntary consumption of alcohol, but there is sufficient evidence to shift the burden of proving sobriety over to the IW, the issue of intoxication at the time of the claimed injury becomes a question of fact for the HO.

Evidence that IW was Intoxicated from Alcohol

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is not compensable because the IW was intoxicated from the consumption of alcohol at the time the injury was sustained. For each of these fact circumstances there are cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

It was undisputed that the IW was injured "while doing his job." The IW testified that the evening prior to the injury, he ate dinner, consumed 6-8 beers, and went to bed around 10:00 p.m. The following morning, the IW went to work and had been doing his job for at least two hours without incident when he sustained his injury at approximately 9:30 a.m. The IW was taken to the ER and a blood-alcohol test performed at 10:48 a.m. showed a blood alcohol level of 0.069. The IC presented expert testimony regarding the normal metabolism rate for alcohol by the liver. By using extrapolation, the IC's expert testified that the IW's blood alcohol level at the time of the injury was between 0.084 and 0.089, and that in reasonable medical probability the IW was intoxicated at the time of the injury. The IW testified that he was not intoxicated, and presented statements from coworkers to support that assertion. While the blood test failed to establish that the IW was intoxicated as a matter of law, the HO chose to give greater weight to the IC's evidence and determined that the injury occurred while the IW was in a state of intoxication. Whether or not the IW had the normal use of his mental and physical faculties at the time of the injury was a question of fact for the HO to resolve. APD 002818.

The IW was injured in an MVA. IW testified that the evening before he was injured, he drank one 24-ounce can of beer and part of a second, and then went to bed around 10:30 p.m.; that he arrived at the employer's yard around 6:00 a.m. the following morning and commenced his duties as a delivery driver; that about 45 minutes into the drive he pulled over to sleep for a while; that he recalled resuming the drive; and that he had no recollection of the MVA. The hospital records indicated a "heavy odor of alcohol" and the airlift report indicated that alcohol was a possible contributing factor. The ER blood-alcohol test indicated the IW's blood alcohol concentration was 0.015. The IC's expert extrapolated the IW's blood alcohol level at the time of the injury to be 0.045 on the low end, 0.067 in the middle, and 0.115 at the high end. The IC conceded that the IW's blood alcohol concentration at the time of the accident was not high enough to meet the presumptive level for alcohol intoxication, but asserted that the evidence did show that the IW did not have the normal use of his mental or physical faculties. Based upon the evidence, the HO made a factual determination that the injury was not compensable because it occurred while the IW was in a state of intoxication. APD 010982.

Evidence that the IW was Not Intoxicated from Alcohol

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is compensable because the IW was not intoxicated from the consumption of alcohol at the time the injury was sustained. For each of these fact circumstances there are cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

IW testified that around 9:00 p.m. his employer contacted him and told him they wanted him for a long-term job; that the IW informed the employer that he had been drinking and didn't want to go to work; that the employer said that was alright and not to drink anymore; that he was picked up and taken to the employer's drilling rig; that he started working at 11:00 p.m. that night; and that at 1:45 a.m. (2 hours and 45 minutes later) he sustained his injuries. IW testified that the employer's safety man arrived at the scene around 5:00 a.m.; asked the IW to give a urine sample in a clear plastic bag; that the bag was placed in the safety man's truck; that IW was taken to one hospital and then to a second where he arrived about 9:00 a.m.; and that the bag with the urine sample was still in the truck when he arrived at the second hospital. The individual that hired the IW for the job presented an affidavit that stated he contacted the IW regarding the job at about 8:45 p.m.; IW said he had drank three or four beers; that IW was told not to drink anymore and was picked up and taken to the work site; that he was with the IW from the time he picked the IW up until the time of the accident; and that he believed the IW had the normal use of his mental and physical faculties and was not in any way impaired from the time the IW was picked up until the time of the accident. Another co-worker also submitted an affidavit stating that the IW had the normal use of his mental and physical faculties, and the IW was in no way impaired. The IC presented evidence from a toxicologist who reviewed the drug test results and concluded that at the time of the injury, the IW's blood alcohol concentration was from 0.155 to 0.168 and that the IW was legally intoxicated. The urine sample tested was stated to have been in a sealed specimen bottle. The HO determined that the IW was not intoxicated at the time of the injury and was skeptical of the validity of the drug test because she believed the IW when he said he gave the sample in a bag. APD 000582.

IW was injured when he fell from a scaffold. A blood sample was collected approximately two hours and fifteen minutes after the fall at the ER. The blood test revealed that the IW had a blood alcohol level of 0.061. The IC presented evidence from a toxicologist who stated the normal metabolism rate for alcohol by the liver is about .015 to .020 gm/dl/hour. The toxicologist did not perform a retrograde extrapolation to determine the IW's blood alcohol level at the time of injury because the toxicologist did not know how much time had passed between the injury and the taking of the sample. The IC argued that the HO should have done the extrapolation on his own. The HO declined to do so and this was not error because in evaluating the reliability of a retrograde extrapolation the fact finder can consider whether several factors were considered, including weight, gender, typical drinking pattern and tolerance for alcohol, how much the person drank, and what and when the person had to eat. Based upon the IW's testimony, and that of his supervisor, the HO was likewise not persuaded that the IW did not have the normal use of his mental and physical faculties. These were questions of fact for the HO to resolve. APD 032338.

Drug Intoxication (C09)

[Cross reference. Course and scope (C00)]. Intoxication is defined as not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code; a dangerous drug as defined by Section 483.001, Health and Safety Code; an abusable glue or aerosol paint as defined by Section 485.001, Health and Safety Code; or any similar substance, the use of which is regulated under state law. Section 401.013(a) (2).

Drug intoxication does not include intoxication from drugs taken in accordance and as prescribed for the IW by the IW's doctor, and drug intoxication does not include inhalation or absorption of drugs incidental to the IW's work. Section 401.013(b)(1) and (2).

If there is a blood test or urinalysis in evidence showing the presence of a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code, the IW is presumed to have been intoxicated at the time of the injury and does not have the normal use of mental or physical faculties. Section 401.013(c). Otherwise, the IW is presumed to have been sober at the time of the injury. The IW's refusal to take a drug test does not as a matter of law rebut the presumption of sobriety. APD 033057.

Affirmative Defense. As with alcohol intoxication, drug intoxication is an affirmative defense raised by an IC to contest the compensability of a claimed injury. Section 406.032(1)(A) provides that an IC is not liable for compensation if the injury occurred while the IW was in a state of intoxication.

Burden of Proof. When an IC properly raises the defense of drug intoxication based on a blood test or urinalysis in evidence showing the presence of a controlled substance or controlled substance analogue, as defined by Section 481.002 of the Health and Safety Code, the burden of proof then shifts to the IW to prove the IW had normal use of his or her mental or physical faculties. Section 401.013(c).

Section 401.013, as amended, effective September 1, 2005, does not require that the rebuttable presumption of intoxication of Section 401.013(c) can only be rebutted by expert scientific or medical evidence and the AP declined to establish such a requirement. However, under the facts of APD 062507-s, the IW's one line statement that he was not intoxicated did not overcome the rebuttable presumption of intoxication established by the positive drug screen. It was error for the HO to apply a "common knowledge" standard on the metabolism rate of methamphetamine and to fail to comment or make findings on the rebuttable presumption of intoxication based on the positive amphetamine test result. APD 062507-s.

The HO erred in applying a "presumption of sobriety" standard, rather than a rebuttable presumption of intoxication standard, once a positive drug screen for marijuana was admitted into evidence. The HO applied the wrong legal standard to determine whether the IW was in a state of intoxication at the time of the claimed injury. This was legal error. APD 071008.

The HO held that the claimed injury did not occur while the IW was in a state of intoxication, therefore the IC was not relieved from liability for compensation. Medical records in evidence reflected that a urinalysis was performed on the date of injury, and the IW tested positive for cannabinoids. The HO stated that the initial drug screen provided insufficient testing information and was not persuasive to create a rebuttable presumption of intoxication. The AP noted that Section 401.013(c) refers to a positive drug test based on a blood test or urinalysis but does not specify any other requirements to establish a rebuttable presumption of intoxication. The AP held that the HO’s failure to apply a rebuttable presumption to the facts of this case was legal error, and it reversed and remanded the issue of intoxication back to the HO to apply the presumption of intoxication under Section 401.013(c) based on the positive urinalysis for cannabinoids/marijuana in evidence. APD 171115.

Not in the Course & Scope Because of Other Grounds (C10)

Act of God. An IC is not liable for compensation if the injury arose out of an act of God, unless the employment exposes the IW to a "greater risk of injury from an act of God than ordinarily applies to the general public." Section 406.032(1)(E). The court of appeals has defined "act of God" as follows:

By the term "act of God" as used herein is meant any accident that is due directly and exclusively to natural causes without human intervention and which no amount of foresight, pain or care, reasonably exercised, could have prevented. The act must be one occasioned by the violence of nature, and all human agency is to be excluded from creating or entering into the cause of the resulting mischief. The term implies the intervention of some cause not of human origin and not controlled by human power. [Emphasis added]. Transport Insurance Co. v. Liggins, 625 S.W.2d 780, 782-83 (Tex. App.-Fort Worth 1981, writ ref'd n.r.e.).

The IW has the burden of proof to establish that his or her employment exposes the IW to a greater risk of injury from the act of God than ordinarily applies to the general public. Whether or not the IW's employment exposes him or her to a greater risk of injury than the general public is a question of fact for the HO to resolve. APD 002641.

Not An Act of God. The following are examples of situations where the IC has argued that it should be relieved from liability under the "act of God" provision of the 1989 Act. In each example it was determined that the cause of the injury was not an act of God. It should be noted that the mere fact that the injury was not caused by an act of God does not automatically make the injury compensable. The IW is required to prove that he or she was (1) in the course and scope of employment and that (2) the injury was of such kind and character as had to do with and originated in the employer's work, trade, business or profession. Both of these requirements present a question of fact for the HO to resolve.

Insect Bite. Insect bites and stings have been held not to be acts of God and have been held to be compensable when causation is established. It is not enough to show that the injury occurred while in the course and scope of employment. The IW must also prove that the injury was of such kind and character as had to do with and originated in the employer's work, trade, business or profession. Standard Fire Ins. Co. v. Cuellar, 468 S.W.2d 880 (Tex. Civ. App.-San Antonio 1971, writ ref'd n.r.e.). To show causation, the IW must prove that the conditions and obligations of the employment placed the IW in harm's way. Texas Workers' Comp. Ins. Fund v. Simon, 980 S.W.2d 730 (Tex. App.-San Antonio 1998, no writ.).

IW was employed as a school bus driver and sustained injuries when she was bitten on the knee by a brown recluse spider while driving her route. The HO found the injury to be compensable because the IW's employment as a school bus driver put her at a greater risk of being bitten by a brown recluse spider than the general public. The HO may consider factors such as the remote location of the bus barn in which the school buses were stored and the fact that the school bus door remained open at night while parked in the barn. From these facts, the HO could conclude that the IW's employment as a school bus driver put her at a greater risk of being bitten by a brown recluse spider than the public at large. APD 020446.

Ice. IW was driving a truck on the highway. It was dark out. IW sustained multiple injuries when he hit a patch of ice and was involved in a rollover MVA. IC argued that the injury was caused by an act of God because the ice on the road was not foreseeable, was caused by the forces of nature without human intervention, and that the employer did not have control over the road where the MVA occurred. It was determined that the injury was not caused by an act of God. The issue is not whether the employer could have taken some action to remove the ice, the issue is whether something can be done, through human intervention, to prevent accidents on ice. The HO may consider factors such as ice on the roads can be, and often are, covered with sand by crews, chains may be used by drivers, and warning signs may be posted by highway departments. APD 991714.

Evidence that the Injury Caused by an Act of God is Compensable

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is compensable, and that the "act of God" exception to compensability does not apply. For each of these fact circumstances there may be cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

Lightning. IW was employed by a retail store. The employer required all employees to park in a designated area beyond the "cart corrals." The employer further required that all employees enter the store through the main entrance, there were no exceptions to this policy. The IW exited her car and was headed toward the entrance of the store when she was struck by lightning near the first "cart corral." Also in the same area where the IW was struck by the lightning was a small tree supported by metal stakes four to five feet high. There was evidence that the lightning struck one of the stakes, traveled along the ground, went through the metal "cart corral," and struck the IW. The IW also presented expert evidence that she was at greater risk of being struck by lightning because she was required to park further out in the lot and was required to use a specific entrance, thereby increasing the likelihood of an employee being injured by lightning by increasing the amount of exposure time. The expert further noted that the metal stakes also increased the risk of injury from lightning. Whether or not the IW was at greater risk than the general public is a factual question. The HO determined that the IW in this case was, and that the injury was compensable. APD 002641.

Tornado. IW was employed as a truck driver. On the DOI, he was pulling two trailers on an interstate highway. The IW testified that he was unaware of any bad weather in the area, and that his truck was blown over by a tornado causing him injury. The trailers the IW was pulling were thirteen feet six inches tall. The HO determined that the IW was at a greater risk than the general public due to his job as an over-the-road truck driver and the size and relative weight of the trailers he was pulling. This was a factual determination for the HO to make. APD 002179.

Evidence that the Injury Caused by an Act of God is Not Compensable

The information under this heading merely indicates some types of evidence that may be a basis for affirming an appealed HO's CCH determination that the injury is not compensable, and that the "act of God" exception to compensability does apply. For each of these fact circumstances there may be cases where a HO reached the opposite result because of the manner in which the evidence was weighed.

Lightning. IW was employed as a custodian. Part of his usual duties was to pick up trash outside of the building. IW testified that on the DOI, there was lightning in the area but that his supervisor refused to allow him to seek shelter. IW testified that he was directed to use a metal stick to pick up the trash. IW was struck by lightning causing injury. The HO determined that the IW was not at greater risk of injury from lightning than the general public. The HO noted that at the time of the lightning strike, the IW was near a telephone pole and two buildings which were higher than the IW. The HO determined that the mere fact that the IW was using a metal stick was insufficient for him to prove he was at greater risk of injury from lightning than the general public. APD 951820.

Tornado. IW was working as a driver's education teacher. On the DOI, the weather deteriorated and strong winds were blowing, making it difficult for her students to control the self-insured's vehicle which she was using to instruct them. The IW decided to end the instruction early. IW testified that the self-insured's policy required her to return the drivers' education vehicle back to its premises and that she was not permitted to drive it home. The IW returned the vehicle to the self-insured's premises, got her own vehicle, and started for home. On the way home, the IW encountered a tornado and was injured by debris which crashed through her back window. The IW asserted that she was at a greater risk of injury from the tornado than the general public because she had to return the self-insured's vehicle to its premises before seeking the shelter of her home. The HO determined that the IW was not at a greater risk of injury from the tornado than the general public at the time of her injury. APD 002884.

Horseplay

Section 406.032(2) provides that an IC is not liable for compensation if the IW's horseplay was a producing cause of the injury. Horseplay is considered the producing cause of an injury where there is an unbroken chain of events showing that the horseplay did not cease before the injury, where the injured party participated in the horseplay, and where the horseplay was an active and not an outside force causing the injury. See United General Ins. Exchange v. Brown, 628 S.W.2d 505 (Tex. App.-Amarillo 1982, no writ); APD 91029. If an IW willingly engages in an act of horseplay which results in injury to the IW, then the horseplay is a deviation from the IW's course of employment. See Calhoun v. Hill, 607 S.W.2d 951 (Tex. Civ. App.-Eastland 1980, no writ) and APD 022324.

Although not defined by the 1989 Act and the Commission rules, horseplay involves "rough and boisterous play," "pranks," "fooling," or "friendly attacks," which take the IW out of the course and scope of employment. APD 982732; APD 982250. Whether the conduct in which an IW was engaged at the time of the injury was horseplay is a question of fact for the administrative law judge to resolve. APD 93013.

Evidence of Horseplay

IW's job did not involve chopping boards. He injured his wrist at work chopping a board with a Karate chop. That was found to be horseplay. APD 92072.

Not Evidence of Horseplay

A non-participating victim of horseplay may recover compensation for injuries sustained as a result of the horseplay of others. APD 92536.

Willful Attempt to Injure Another or Self (C11) [Cross reference. Course and scope of employment (C00)].

Willful Attempt to Injure Another or Self. An injury is not compensable if it was caused by the IW's willful intention to unlawfully injure another person. Section 406.032(1)(B). An injury caused by the IW' s willful intention and attempt to injure another person is not in the course of employment, unless the injury results from a dispute arising out of the IW's work or in the manner of performing it and the IW's acts growing out of such dispute are done in a reasonable attempt to prevent interference with the work or in reasonable self-defense. The IC has the initial burden of proof when asserting this affirmative defense. North River Insurance Company v. Purdy, 733 S.W.2d 630 (Tex. App.-San Antonio 1987, no writ). Whether such an injury is compensable is a question of fact for the HO to resolve. APD 971539.

In Course and Scope. The IW and his foreman got into an argument regarding the IW's job skills. The IW testified that after the argument he resigned, and as he was leaving the job site the foreman attacked him from behind thereby causing the claimed injury. In determining that the IW sustained a compensable injury, the HO found that the physical confrontation resulted from an argument over how the work should be done, and not from any personal disagreement unrelated to the work activities. Whether the cause of the altercation and subsequent injury arose out of the IW's work or the manner in which he was performing it was a question of fact for the HO to resolve. APD 011253.

The IW and his foreman got into a disagreement regarding the manner in which the work should be performed. The IW asserted that the foreman grabbed his arm and attacked him, so the IW defended himself by striking the foreman and placing him in a headlock. After the IW let go of the foreman, the foreman struck the IW multiple times with a hammer causing the claimed injuries. The injury HO found that the injury was compensable because it was not caused by the IW's willful attempt to unlawfully injure another person, the initial altercation had ceased when the foreman attacked the IW again causing the claimed injuries, and the altercation arose out of the manner in which the IW was performing his job, not because of any personal animosity. Whether the cause of the altercation and subsequent injury arose out of the IW's work or the manner in which he was performing it was a question of fact for the HO to resolve. APD 962472.

Not In Course and Scope. The IW sustained a broken wrist in a fight with a co-worker over the use of a piece of equipment. The IW testified that the co-worker had started the fight. The co-worker testified that the IW was the one that started the fight; that another co-worker broke up the fight; and that after the fight was broken up, he was returning to his work duties, and the IW attacked him again. The IW was not in the course and scope of his employment because after the initial fight had ended, the IW renewed the fight with the unlawful intent to injure another, and it was at that point that the IW sustained his injury. Whether the IW was injured while unlawfully trying to injure another was a question of fact for the HO to resolve. APD 962472.

The IW and the employer's owner got into a fight at work which resulted in the claimed injury. The evidence was sharply conflicting regarding the cause of the fight, and who had started the fight. The IW testified that he was operating a piece of equipment when the owner approached him and they began to argue. The IW further testified that the owner attacked him, ripped his shirt, and kicked him above the eye causing him to fall and sustain his injuries. The owner testified that the IW appeared to be intoxicated; was not operating the machinery properly; was told to get off the machine; and quit his employment. The owner and a supervisor both testified that the IW became angry and attacked the owner, and that the owner kicked the IW in self-defense. The HO determined that the IW did not sustain a compensable injury because the IW both started the fight and was unlawfully trying to injure another at the time the injury occurred. Whether the IW was injured while unlawfully trying to injure another was a question of fact for the HO to resolve. APD 992275.

Willful Attempt to Injure Self. The 1989 Act provides that an injury is not compensable if the injury was caused by the IW's willful intention and attempt to injure himself. Section 406.032(1)(B). The IC has the initial burden of proof when asserting this affirmative defense. Whether an IW was injured by a willful attempt to injure himself presents a question of fact for the HO to resolve. APD 971539.

In Course and Scope. The IW asserted that she sustained a compensable injury when she went outside on her break and slipped and fell on some ice while walking to a food vendor. The IC presented evidence that the IW had told co-workers earlier that day that she was going to stage a fall. The HO found the IW's assertion that the fall was not intentional or staged to be more credible than the IC's evidence to the contrary, and held that an injury occurred in the course and scope of employment. Whether the injury occurred as a result of a willful intent to injure oneself presented a question of fact for the HO to resolve. APD 971784.

Not In Course and Scope. In a case with conflicting evidence, the HO determined that the IW was injured when he intentionally fell down some stairs. The IC presented evidence that prior to the fall, the IW had been counseled regarding excessive absences; that the IW wanted the following day off; that the IW had previously joked about staging a slip and fall if he needed time off from work; and that he had questioned a co-worker's attorney spouse regarding how people get away with falling down stairs. Whether the injury occurred as a result of a willful intent to injure oneself presented a question of fact for the HO to resolve. APD 982048.

Act of a Third Person/Personal Reasons (C12) [Cross reference. Course and scope of employment (C00)].

An injury is not compensable if it was caused by an act of a third person intended to injure the IW because of a personal reason and not directed at the IW in his or her capacity as an employee or because of the employment. Section 406.032(1)(C). This is commonly referred to as the personal animosity doctrine. The purpose of the doctrine is to exclude from coverage under the Act, injuries resulting from a dispute which has been transported into the place of employment from the IW's private or domestic life. However, if the conditions of employment worsens or is a factor contributing to the event that causes the injury, the injury is compensable. Nasser v. Security Insurance Company, 724 S.W.2d 17 (Tex. 1987).

Burden of Proof. The IC has the initial burden of proof when asserting this affirmative defense. Once the IC produces probative evidence that the IW's injuries were caused due to personal reasons unrelated to the employment, the IW has the burden to establish by a preponderance of the evidence that the injuries were caused due to his or her capacity as an employee or because of the employment. APD 971538. Whether such an injury is compensable is a question of fact for the HO to resolve. APD 971051.

Personal Animosity Found. The IW and coworker A had a history of arguments from other jobs and problems working together. On the morning of the DOI, the IW was upset with the coworker because he had incorrectly placed a tub too close to where the IW needed to work. A second coworker moved the tub for the IW. At some point after that, the IW challenged coworker A to a fight, but no fight occurred at that time. The IW and coworker A continued to have words with each other. The IW testified that he returned to work and coworker A struck him in the head with a hammer. Other testimony reflected that the IW and coworker A continued to taunt each other and then went outside where coworker A struck the IW with a hammer. Both the IW and coworker A ran to the IW's car (where the IW had a gun); coworker A got there first; and the IW was shot in the foot. The HO determined that the IW's injuries were not compensable because they were caused by the long-standing ill feelings between the IW and coworker A, and had nothing to do with the employment. The determination of whether the injury was caused by personal animosity, and unrelated to the employment, presented a question of fact for the HO to resolve. APD 001802.

Personal Animosity Not Found. Several nurses alleged that a doctor had sexually harassed them while at work and brought suit against their hospital employer. However, the court found that the nurses' problems with the doctor were not transported into the workplace from their private or domestic lives; rather, their problems with the doctor only occurred while at work in the hospital. The hospital was the exclusive setting for the doctor's harassment of the nurses. The personal animosity exception did not apply. Walls Regional Hospital v. Bomar, 9 S.W.3d 805 (Tex. 1999).

The IW was harassed by coworkers. The injury was sustained when the IW had a fight with one of the coworkers that had harassed him. The HO determined that there was no relationship or contact between the IW and any of the harassing coworkers other than at the workplace during work hours. The HO determined that the injury was compensable and that the personal animosity exception did not apply. The determination of whether the injury was not caused by personal animosity, and was related to the employment, presented a question of fact for the HO to resolve. APD 011962-s.

Voluntary Social/Recreational Activity (C13) [Cross reference. Course and scope of employment (C00)].

Generally, an injury is not compensable if it arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the IW's work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employer. Section 406.032(1)(D). Such an injury is compensable if (1) participation in the activity is expressly or impliedly required by the employer; or (2) the employer derives some benefit from the activity, other than the health or morale of the IW; or (3) where the injury takes place at the place or immediate vicinity of employment while the IW is required to hold himself or herself in readiness for work, and the activity takes place with the employer's express or implied permission. Mersch v. Zurich Insurance Co., 781 S.W.2d 447 (Tex. App.-Fort Worth 1989, writ den'd). If the IW establishes that any one of the above three factors was present at the time of the injury, the injury is compensable. APD 000062. Whether the IW's injury is compensable under one of the three factors is a question of fact for the HO to resolve. APD 971330.

Injury Found Compensable. It is undisputed that the IW was injured while attending a mandatory company picnic. The injury occurred when the IW fell while playing volleyball. The IC asserted that while the IW' s attendance at the picnic was mandatory, his participation in the volleyball game was not. The HO determined that the IW's injury is compensable because attendance at the picnic was mandatory. The HO declined to carve the picnic up into individual activities. Whether the IW was injured during a required social activity was a question of fact for the HO to resolve. APD 000621.

Injury Not Found Compensable. The IW was injured at home while lifting a cooler of meat for the company picnic into her car. The IW testified that she felt she was required to participate in the preparation for the picnic. The IW felt the requirement was implied and that even though she had a choice of whether to participate, she felt to keep up good relations with her boss and to maintain company morale she really had no choice. The IW's boss testified that the IW's participation in the preparations was entirely voluntary. The HO determined that the injury is not compensable because it occurred while the IW was voluntarily participating in an off duty social activity. Whether the IW's participation in the preparations was voluntary or impliedly required was a question of fact for the HO to resolve. APD 971330.

Compensability/Occupational Disease (C14) [Cross reference: Date of Injury (C05)]

The term "injury" includes an occupational disease. Section 401.011(26). An occupational disease is defined as a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment unless that disease is an incident to a compensable injury or occupational disease. Section 401.011(34).

An injury or disease may be compensable provided the IW shows a causal connection between the injury or disease and the work. APD 91002. It is not enough for the IW to show there was potential exposure to the illness or disease due to his or her work. The IW must establish the injury was actually caused by his or her employment. APD 94103. Whether or not the necessary causation exists is a question of fact for the HO to resolve. APD 94266.

Insufficient Evidence Of Causal Connection. In his work as a plumber, the IW was frequently exposed to various animal, bird, and human feces. Following a separate work-related injury the IW was hospitalized. During this hospitalization, he was diagnosed with atypical tuberculosis. The IW filed a claim based on this diagnosis. The case proceeded to a jury trial. The jury found the IW suffered a compensable injury that caused disability. At the trial the IW failed to present evidence showing the presence of bacterium in the soil the IW worked in. The Court of Appeals reversed the jury's decision based on this lack of evidence. The Supreme Court affirmed this ruling, indicating evidence showing a mere possibility of a connection between the injury and the employment is not sufficient to establish an occupational disease. Schaefer v. Texas Employers' Ins. Assoc., 612 S.W.2d 199 (Tex. 1980).

The deceased worker's (DW's) beneficiaries filed a claim for death benefits, contending that the DW died of a compensable occupational disease because the asthma attack causing his death was exacerbated or triggered by exposure to chemicals at his work. The court held that expert medical testimony is necessary to prove the cause of asthma, and is also necessary to prove that employment aggravated a pre-existing disease such as asthma. The court found no evidence from a qualified medical expert that workplace emissions were a producing cause of the DW's fatal asthma attack. Marts v. Transp. Ins. Co., 111 S.W.3d 699 (Tex. App.-Fort Worth 2003, pet. denied).

Sufficient Evidence Of Causal Connection. In his work as a sandblaster, the IW was exposed to silica and dust particles for approximately 20 years. The IW's physician diagnosed the IW with chronic obstructive pulmonary disease (COPD). The court found there was sufficient evidence to determine that the IW's exposure to silica and other dusts in his work caused his COPD based on the testimony of the work conditions and the expert medical opinion of the IW's doctor. Texas Workers' Compensation Ins. Fund v. Lopez, 21 S.W.3d 358 (Tex. App.-San Antonio, 2000 pet. denied).

While working as an electrician in the attic of a vacant house, the IW was exposed to bacteria and other substances. Following the exposure, the IW was diagnosed with interstitial lung disease caused by exposure to bacterium. A CCH was held to determine compensability, and the HO ruled in favor of the IW. At the CCH, the IW presented evidence showing that cultures taken from the attic tested positive for bacteria, that the IW suffered an immediate onset of symptoms, and that prior to the exposure the IW had had no history of lung disease. The record contained medical opinions relating the IW's condition to his exposure to the substances in the attic. On appeal the AP affirmed the HO, concluding the IW had presented sufficient evidence for the HO to find a causal connection between the IW's lung disease and his work. APD 000651.

Ordinary Disease Of Life. Ordinary diseases of life are those illnesses the general public are exposed to outside the scope of employment. APD 93885. An IW with an injury considered an ordinary disease of life is generally not entitled to receive benefits. An illness or injury is considered an ordinary disease of life, and therefore not compensable, when there is

1. no causal connection between the injury and the work, and
2. the disease is not indigenous to the workplace or present at an increased degree with the employment. APD 93744, APD 941659.

Repetitive Trauma Injury. A repetitive trauma injury, as opposed to a specific injury, occurs when there is repeated exposure to harmful activities in the work place. In order to recover for an occupational disease of this type, an IW must prove that repetitious, physically traumatic activities occurred while on the job, and that there is a causal connection between those activities and the harm or injury complained of. Davis v. Employer's Ins. of Wausau, 694 S.W.2d 105 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). Once the causal connection is proven, the IW does not need to further prove that the disease is inherent in or present in the IW's employment to a greater degree than employment generally. APD 961008. Proof of a repetitive trauma injury should consist of some presentation of the duration, frequency, and nature of the activities claimed to be traumatic. APD 960929.

Sufficient Evidence Of Repetitive Trauma Injury. The IW, a seamstress, was diagnosed with carpal tunnel syndrome (CTS). Although the IW failed to present any expert testimony on the causation of her CTS, the IW presented her own testimony regarding causation. The IW testified that her wrists became sore after she began sewing elastic bands into "rain pants" in 1997. The IW asked her employer for a pair of wristbands to ease the pain. The wristbands did not alleviate the pain so the IW went to a doctor. The IW testified that she had previously suffered from CTS in 1994, but that the pain was not as severe as the pain she felt in 1997. The court believed this evidence established a sequence of events from which the jury might have inferred, without the aid of expert medical testimony, that the IW's work was a cause of her CTS. Saenz v. Ins. Co. of the State of Pennsylvania, 66 S.W.3d 444 (Tex. App.-Waco 2001, no pet.).

The Date Of Injury. The date of injury for an occupational disease is the date on which the employee knew or should have known the disease may be related to the employment. Section 408.007; APD 972321. This is not necessarily the date on which symptoms first appeared, but is the date on which a reasonable person recognizes the nature, seriousness, and work-relatedness of the disease. Commercial Ins. Co. of Newark, New Jersey v. Smith, 596 S.W.2d 661, 665 (Tex. Civ. App.-Ft. Worth 1980, writ ref'd n.r.e.).

Last Injurious Exposure. If an injury is an occupational disease, the employer in whose employ the employee was last injuriously exposed to the hazards of the disease is considered to be the employer of the employee. Section 406.031(b). The date of injury controls which IC is liable for compensation of an occupational disease. However, when an IW has worked for several employers over a period of time and was exposed to similar causes of the occupational disease throughout his or her employment but had no distinct manifestation of the disease, the employer's IC liable for compensation will be the employer the IW worked for when last injuriously exposed to the causes of the disease. Hernandez v. Travelers Indemnity Co. of Rhode Island, 855 S.W.2d 786 (Tex. App.-El Paso 1993, no writ).

Firefighter and Cancer.  Pursuant to Government Code § 607.055, “Cancer”, a firefighter who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter.  Government Code § 607.055(a)(1) and (2) must be satisfied in order for a presumption to be established that the firefighter developed cancer during the course and scope of employment.  See Chapter 607 of the Government Code, Subchapter B, Disease or Illnesses Suffered by Firefighters and Emergency Medical Technicians, effective September 1, 2005.  See also Government Code § 607.058(b), added by amendment, effective May 15, 2015 (to include a statement by person offering the rebuttal). 

Sec. 607.055.  CANCER. 

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

(1)  the firefighter or emergency medical technician:

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

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

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

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

Cancer Associated with Firefighting (IARC) under Government Code § 607.055.  DW developed pancreatic cancer during the course and scope of his employment as a firefighter.  DW’s certificate of death listed cause of death as “metastic pancreatic undifferentiated carcinoma.”  The hearing officer determined that DW met the requirements of Government Code § 607.055(a)(1), however DW did not establish that pancreatic cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as determined by the IARC, based on the written opinion and testimony of a doctor.  In evidence was a publication by the IARC, entitled “IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Volume 98, Painting, Firefighting, and Shiftwork,” (2010), which referenced evidence-based medicine on firefighters developing types of cancer that included pancreatic cancer. The Appeals Panel held that there was sufficient evidence to establish that the DW met the statutory presumption that the DW’s cancer is known to be associated with firefighting or exposure to heat, smoke, radiation, or a known or suspected carcinogen, as determined by the IARC. The hearing officer misplaced the burden of proof on the DW to show causation, and by doing so applied the wrong legal standard to determine whether the DW sustained a compensable injury in the form of an occupational disease resulting in his death.  APD 151156.  

Once the IW has established he or she has met the presumption and Government Code § 607.055(a)(1) and (2), the burden then shifts to the IC to rebut that presumption by a preponderance of the evidence as provided by Government Code § 607.058.  APD 150098-s.  In that case, the HO correctly determined that the DW met the presumption under under Government Code § 607.055.  However, rather than shifting the burden of proof to the IC as provided for in Government Code § 607.058, the hearing officer required the IW to provide “direct and unequivocal evidence” that IW’s multiple myeloma is caused by heat, smoke, radiation or a known or suspected carcinogen of which the IW was exposed during the course and scope of her employment as a firefighter. The AP held that the HO applied the wrong legal standard when she failed to shift the burden of proof and remanded the case to the HO to apply the proper legal standard.

Compensability/Mental Trauma (C15)

An accidental mental trauma injury may be compensable when there is evidence of an undesigned, untoward event traceable to a definite time, place, and cause. Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334 (Tex. 1979). However, repetitive mental trauma resulting in injury is not compensable, nor is it considered an occupational disease. Maksyn. A mental trauma injury is not compensable if it arises principally from a legitimate personnel action, including a transfer, promotion, demotion or termination. Section 408.006(b); GTE Southwest Incorporated v. Bruce, 998 S.W.2d 605 (Tex. 1999); APD 030169.

Burden of Proof. The IW has the burden of proof to establish the existence of a compensable mental trauma injury. APD 970292. To establish the existence of a compensable mental trauma injury, the IW must prove the following elements:

That a mental trauma injury does in fact exist. Whether an IW in fact has a mental trauma injury must be proven through medical evidence. APD 061729-s. The cause, progression, and aggravation of mental disease is a subject of such a technical nature that expert medical evidence is required. APD 950633 citing APD 941551. The causal connection between the mental trauma injury and a specific incident at work must be proven through expert medical evidence. APD 960966;

That the injury arose within the course and scope of the IW's employment. Chavis v. Director, State Workers' Compensation Div., 924 S.W.2d 439 (Tex. App.-Beaumont 1996, no writ); APD 060176;

That the claimed mental trauma injury is traceable to a definite time, place, and cause. APD 060176;

That the claimed mental trauma injury is not the result of a legitimate personnel action pursuant to Section 408.006. APD 060176.

Elements.

Causal Connection Established. The IW and her husband worked for a temporary agency and were assigned to a sheet metal company. On December 6, the IW was working 15 to 20 feet from her husband when his hand got caught in a machine. The IW testified that she tried to rush to his aid, but that she felt as though someone was holding her back and she was in shock. The injury was very severe and left the IW's husband with little to no use of his right hand. The IW testified that she felt that her husband blamed her for not helping and that she developed guilt about going into shock. The IW presented medical evidence from two health care providers which related her mental problems to the events of December 6. The HO determined that the IW sustained a compensable mental trauma injury. The AP affirmed this determination as being supported by the evidence. APD 000445.

Causal Connection Not Established. The IW testified that he was employed at a public service agency as an eligibility specialist whose duties involved interviewing people applying for welfare benefits. The IW testified that on a specific date he was interviewing a difficult client who was accompanied by an unruly child. The IW told the child to listen to his mother and the client misunderstood what he said, or meant, and became very irate. The client threatened the IW's job and told him that her husband would be waiting for him after work. After the interview the IW became physically ill due to the threats. The IW reported the incident to his employer, who referred him to a psychologist, who in turn referred him to a psychiatrist. The IW testified that prior to that time, he had never consulted a mental health specialist. The IW presented reports from the psychologist and psychiatrist which addressed his condition, treatment, and inability to work. The HO determined that the IW sustained a compensable mental trauma injury. The AP reversed and rendered a decision that the IW did not sustain a compensable mental trauma injury. None of the medical reports mentioned a specific incident at work on the date of the claimed injury. The IW failed to establish a causal connection between his mental trauma injury and a specific incident at work through expert medical evidence. APD 94785.

Course and Scope of Employment Established. The IW testified that she became the target of unwelcomed affection from an unknown coworker sometime in 1997. Gifts and cards would be left at her desk and sent to her home. When the IW discovered the identity of the coworker, she and her supervisor confronted him and his attitude towards her became threatening. Because both the IW and her supervisor were afraid the coworker would attack her, the IW was transferred to another building, but the harassment began again. The IW's coworker was becoming more violent so she filed a sexual harassment complaint against him, which resulted in his termination the same day. The IW wanted to go home out of fear, but her supervisor wanted her to stay so that she could be protected. After his termination, and prior to leaving the employer's premises, the coworker came to the IW's work area and attacked her with a knife. The coworker was subdued by several employees, arrested, and convicted. The IW was diagnosed with PTSD as a result of the incident and has not worked since the attack. The HO determined that the IW sustained a mental trauma injury in the course and scope of her employment. The IC asserted that the injury did not occur in the course and scope of the IW's employment because it arose out of personal animosity. Whether the IW was in the course and scope of her employment was a question of fact for the HO to resolve. APD 022091-s.

Course and Scope Not Established. The IW was a firefighter who was involved in fighting a large fire on October 3, 2000. The IW became involved in a threatening situation and was overcome by heat and smoke. He managed to get to safety, cool off, and return to fighting the fire. The IW testified that he had a breakdown on October 13, 2000. In his first discussion with a Dr. B, a psychiatrist, the IW attributed his depression and suicidal thoughts to feelings of isolation due to being unmarried, having no relatives living within 1,200 miles, and having no friends outside of work. There was no mention at that time of the October 3, 2000, fire being a cause of the IW's depression. The IW presented a letter dated March 23, 2001, from Dr. F, his treating psychiatrist, which attributed the IW's mental condition to the October 3, 2000, fire. The HO determined that the concurrent report from Dr. B was more credible and determined that the IW did not sustain a mental trauma injury in the course and scope of his employment. Whether the IW's mental trauma injury arose out of the course and scope of his employment was a question of fact for the HO to resolve. APD 011026.

Definite Time, Place, and Cause Established. The IW was employed as a paralegal and notarizing documents was part of her duties. On July 25 the IW received a letter from the Secretary of State informing her that a complaint had been filed alleging she had notarized a document improperly. The IW was given 20 days to respond to the allegation of misconduct. The IW testified, and presented medical evidence, that she suffered anxiety and depression as a result of the letter. The IC argued that the IW's mental condition was a result of the investigation, thereby making it a case of repetitive mental trauma. The HO determined that the IW sustained a compensable mental trauma injury as a result of receiving the letter. Whether the IW's mental trauma injury arose out of an event which occurred at a definite, time, place, and cause was a question of fact for the HO to resolve. APD 990261.

Definite Time, Place, and Cause Not Established. The IW was employed as an administrative clerk. The IW testified that she had been diagnosed with depression and attention deficit disorder prior to her claimed mental trauma injury, but that these conditions did not affect her work. The IW testified that on the date of the claimed injury, a coworker had told her that everybody knew about a sexual harassment claim the IW had filed, that coworkers were calling her names behind her back, and that her phone at work was being tapped. The IW worked for two more days until she saw her doctor and was taken off work and given antianxiety medication. Additional evidence showed that the IW had been written up for tardiness prior claimed date of injury. The HO determined that the IW did not sustain a compensable mental trauma injury because her stress was due to repetitively stressful events at work. The evidence supported a determination that the IW's mental trauma involved several different mentally traumatic events, including being written up for tardiness prior to the claimed date of injury, the alleged sexual harassment itself, and gossip about her sexual harassment complaint. Whether the IW sustained a compensable mental trauma injury is a question of fact for the HO to resolve. APD 980074.

Legitimate Personnel Action Established. The IW testified that she worked in a laboratory. The IW testified that she was terminated, but added that the termination was not the cause of her depression, mental trauma, and inability to work, but rather, it was the manner in which Dr. B terminated her. The IW described shouting, waiving of arms, and a slapping of her hand when she sought to take her rolodex. The IW testified that she became very afraid of Dr. B and ran from the building. The IW was later diagnosed with a mental trauma injury attributable to the events surrounding the firing. The IC presented evidence from the personnel director, who was present at the time of the firing, and Dr. B. Both denied the events that the IW testified to. The IC witnesses denied any shouting, arm waiving, slapping or grabbing. The personnel director testified that she walked out the building with the IW. The HO determined that the claimant did not sustain a compensable mental trauma injury, and that the termination was a legitimate personnel action. Whether the IW sustained a compensable mental trauma injury is a question of fact for the HO to resolve. APD 980583.

Compensability/Heart Attack (C16)

Pursuant to Section 408.008, a heart attack is a compensable injury only if the following requirements are proven:

(1) the attack can be identified as:

(A) occurring at a definite time and place; and
(B) caused by a specific event occurring in the course and scope of the IW's employment;

(2) the preponderance of the medical evidence regarding the attack indicates that the IW's work rather than the natural progression of a preexisting condition or disease was a substantial contributing factor of the attack; and
(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.

Burden Of Proof. The IW has the burden to prove by a preponderance of the evidence that the heart attack is a compensable injury. As such, the IW must establish each of the above elements. Proof establishing requirement (1) may be made through lay testimony, however, proof establishing requirement (2) must be established through expert medical evidence. APD 94448. The preponderance of the medical evidence must indicate that the IW's work was a substantial contributing factor of the attack rather than the natural progression of any heart disease or condition. Allen v. Employer's Casualty Co., 888 S.W.2d 219 (Tex. App.-Amarillo 1994, no writ). While there can be more than one substantial contributing factor to the attack, the IW must prove that the work was the greater factor over the natural progression of an underlying heart condition or disease in order to establish compensability of the attack. APD 93582.

Section (1)(A) And (B): Definite Time And Place/Specific Event Established. The IW was employed as a firefighter. The IW testified that on February 26, he was called out to a grass fire; that he was required to use a heavy, 300 foot long, fully charged hose, which he was required to carry, sometimes alone; and that after fighting the fire for between a half hour and an hour he began to experience chest pain and fatigue. The IW continued to work for a short time before being taken to the hospital where he was diagnosed with acute inferior myocardial infarction. The HO determined that the IW established that the heart attack occurred at a specific time and place during a specific event, that is while fighting the fire. The HO's determination was supported by sufficient evidence. (Note. The HO's determination regarding the compensability of the heart attack was reversed on other grounds). APD 012157.

Section 408.008(1)(A) And (B): Definite Time And Place/Specific Event Not Established. The IW was employed as a kitchen helper. The IW testified that on August 24, she began to experience low back, chest, and arm pain approximately a half hour into her shift; that she next began to operate the dishwasher on her own and that this is normally a two person job; that two hours later she was in such pain that she received permission to go home; and that she reported to work the next two days before she saw her doctor on August 26. The IW was referred to a cardiologist who opined that the IW had had a heart attack at some time during the previous 48-72 hours. While the IW testified that she believed the heart attack occurred while she was operating the dishwasher alone on August 26, medical records in evidence stated that the IW's heart attack could not be established as occurring at a definite time/place, nor could any specific event be named as the cause. The HO determined that the IW failed to establish that her heart attack occurred at a definite time and place, and that it was due to a specific work-related event. These determinations presented questions of fact for the HO to resolve. APD 93653.

Section 408.008(2): Work Was A Substantial Contributing Factor Established. The IW was employed as a flight attendant. On February 5, she was on an airport tram in route to the departing flight she was working. The tram broke down with the doors locked so that no one could exit. Once she was able to exit the tram, the IW had to run to her departure gate with her luggage. Upon boarding the plane, the IW complained of upper arm pain and difficulty breathing. The captain advised the IW not to fly and she was transported to the ER where she was diagnosed as having had a heart attack. The IW had a family history of heart disease, preexisting high cholesterol, and atherosclerosis in three arteries. The opinions of three doctors were introduced into evidence, and all three opined that the IW's work was the major cause of the heart attack. The HO determined that the IW's heart attack was compensable. There was sufficient medical evidence to establish that the IW's work rather than the natural progression of a preexisting condition or disease was a substantial contributing factor of the attack. APD 970148.

Section 408.008(2): Work Was A Substantial Contributing Factor Not Established. The IW was employed as a mechanic and sustained a heart attack while at work. Medical evidence regarding the causation of the heart attack was offered into evidence and showed that the IW had a family history of heart disease, a 31-year smoking history, high blood pressure, and hypercholesterolemia. The IW's treating doctor stated that work was a contributing cause of the heart attack. The IC's peer review doctor concluded that the IW's employment was not a factor in the heart attack. The HO determined that the IW failed to meet his burden of proof to establish that the work rather than the natural progression of his preexisting heart condition was a substantial contributing factor of the heart attack. Causation of the heart attack presented a question of fact for the HO to resolve. APD 971012.

Section 408.008(3): Attack Not Triggered Solely By Emotional Or Mental Stress Factors, Unless Precipitated By A Sudden Stimulus Not Established. The IW was employed as a hospital administrator, and the evidence reflected that the job was inherently stressful. The IW sustained a fatal heart attack after work, while at home, on March 7. It was undisputed that the IW had preexisting heart disease and continued to smoke. The IW's beneficiary asserted three causes of the IW's heart attack, (1) the IW had been told to fire two employees or he would be terminated; (2) the IW's boss was generally abusive to him; and (3) the IW had been unduly upset by a memo he had received on the date of his death. An IC peer review doctor issued a report stating that it was the IW's severe preexisting coronary disease, along with continued smoking and obesity which caused the heart attack, not work stress. The HO determined that the beneficiary failed to establish that the IW's heart attack was caused by a sudden stimulus. Whether the heart attack was caused by a sudden stimulus was a question of fact for the HO to resolve. APD 970045.

For sections C17-C00 please see Liability/Compensability Issues PART 2.



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