This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 7, 1999. The issue reported as unresolved from the benefit review conference was whether the appellant/cross-respondent (claimant) had disability resulting from her __________, compensable injury, and, if so, for what periods. The respondent/cross-appellant (carrier) filed a request to add an issue of whether the first certification of maximum medical improvement (MMI) and impairment rating (IR) became final pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)). The claimant opposed the motion. The hearing officer found good cause to add the issue and granted the carrier’s request. With respect to the disputed issues, the hearing officer determined that the first certification of MMI and IR became final under Rule 130.5(e) and that the claimant had disability as a result of her compensable injury from October 13, 1998, to January 8, 1999. In her appeal, the claimant argues that the hearing officer erred in finding that the first certification of MMI and IR became final and further argues that she had disability through the date of the hearing. The claimant does not challenge the hearing officer’s decision to add the Rule 130.5(e) issue on appeal. In its response, the carrier urges affirmance of the determination that the first certification of MMI and IR became final. The carrier cross-appeals contending that the hearing officer erred in finding that the claimant had disability from October 13, 1998, to January 8, 1999. Specifically, the carrier argues that its “position is that Claimant was entitled to temporary income benefits (TIBS) during this time period; however, it is the Carrier’s position that the Claimant was able to earn at least a portion of her pre-injury wages during this time period. Specifically, the evidence establishes that between October 13, 1998, and January 8, 1999 the Claimant was able to work 20 hours a week at $21.20 an hour. In this regard the Hearing Officer’s decision is ambiguous.” The appeals file does not contain a response to the carrier’s cross-appeal from the claimant.
DECISION
Reversed and rendered in part and reversed and remanded in part.
It is undisputed that the claimant sustained a compensable repetitive trauma injury, namely bilateral shoulder impingement and tendinitis, right carpal tunnel syndrome, left wrist tendinitis, and tendinitis of the low back, in the course and scope of her employment as a bookkeeper/office manager, with a date of injury of __________. The claimant’s treating doctor is (Dr. G). On August 24, 1998, Dr. G released the claimant to return to light-duty work, stating that she could work four hours per day and that she was limited to one hour of data entry work and one hour of manual writing in a four-hour work day. At that point, the claimant’s employer offered and she accepted a severance package, which included a confidentiality provision. The employer also gave the claimant the option to return to work in a light-duty position for a two-week probationary period. On October 13, 1998, the claimant had a follow-up appointment with Dr. G, where he again took the claimant off work, stating that “if she continues to perform her current job she is going to continue to worsen her condition.” Dr. G also recommended that the claimant contact the Texas Rehabilitation Commission to begin the process of retraining for another occupation.
The claimant testified that in December 1998 she discussed the possibility of surgery with Dr. G and that she told him that she did not want to have the surgery around Christmas. The hearing officer noted in his decision that Dr. G’s records did not reflect this. The hearing officer stated that the claimant had declined surgery; however, Dr. G’s records likewise do not reflect that surgery was offered and declined. Rather, they are silent as to the issue of surgery. In any event, on January 8, 1999, Dr. G certified that the claimant reached MMI as of that date, with an IR of 13%. The claimant testified that after Dr. G gave her a copy of his January 8, 1999, certification, she told Dr. G that she wanted to proceed with surgery. She stated that Dr. G told her that in that case, he would have to rescind the certification. The claimant testified that she contacted (Mr. L), the adjuster assigned to her claim, and told him that she needed to have surgery. She stated that Mr. L advised her that she would need to talk to Dr. G and ask him to request the surgery and rescind his certification of MMI and IR. The claimant testified that she contacted the doctor’s office and reported the instructions she had received from Mr. L. She stated that, thereafter, she received a telephone call from “(name),” who was identified as the clerk in Dr. G’s office who handles insurance, and was advised that Dr. G’s certification had been rescinded and that Mr. L had also approved surgery.
The claimant further testified that she contacted the Texas Workers’ Compensation Commission (Commission) and spoke to (Ms. C), a customer service representative, who agreed to contact Mr. L. The claimant stated that Ms. C called her back following her conversation with Mr. L and told her that Mr. L had agreed to Dr. G’s recission of his certification of MMI and IR, that Ms. C would make a notation of her conversation with Mr. L in the file, and that the claimant need not dispute Dr. G’s certification of MMI and IR because it had been rescinded. The claimant offered into evidence a Dispute Resolution Information System (DRIS) note of February 1, 1999, memorializing Ms. C’s conversation with Mr. L, which states in relevant part:
Spoke with [Mr. L] and he advised that carrier did accept [recission] by [treating doctor] but that he had spoken with Dr. and he stated he left the clmt on light duty status. (Emphasis added.)
In his affidavit, Mr. L states that he received a copy of Dr. G’s Report of Medical Evaluation (TWCC-69) on January 8, 1999; that he received a telephone call from “Sally” in Dr. G’s office on January 11, 1999; that she advised him that Dr. G had discussed his certification with the claimant on January 8, 1999; that the claimant consented to undergo surgery; and that Dr. G “was going to rescind” his TWCC-69. On February 3, 1999, Dr. G performed surgery on the claimant; specifically, an endoscopic carpal tunnel release on her right wrist, an arthroscopic subacromial decompression of the right shoulder, and an arthroscopic excision of the right distal clavicle. Mr. L also noted in his affidavit that he had a conversation with Ms. C of the Commission on February 1, 1999; that they discussed Dr. G’s certification of MMI and IR; and that “she asked whether I agreed with [Dr. G’s] recission. I indicated that I did.” However, Mr. L’s affidavit further states that he was waiting for verbal or written confirmation that the TWCC-69 had in fact been rescinded and that he did not receive that confirmation within 90 days of January 8, 1999. Finally, Mr. L states in his affidavit that he resumed TIBS payments to the claimant on February 11, 1999, when he received a report from Dr. G indicating that the claimant had surgery on February 3, 1999, and that when he received a response to a request for clarification of the claimant’s work status from Dr. G on March 8, 1999, stating that Dr. G had taken the claimant off work on January 8, 1999, he issued a check to the claimant for TIBS for the period from January 8 to February 2, 1999.
On June 21, 1999, (Dr. W) examined the claimant at the request of the carrier. In a TWCC-69 of the same date, Dr. W certified that the claimant had not yet reached MMI. In her accompanying narrative report, Dr. W stated that “with appropriate accommodations at her worksite including improvement of equipment positioning and light duty restrictions (which apparently were given), the patient could have returned to work.”
Rule 130.5(e) provides that the first IR assigned to an employee is considered final if it is not disputed within 90 days after it is assigned. The 90 days begins to run on the date that the disputing party receives written notice of the certification. Texas Workers’ Compensation Commission Appeal No. 94354, decided May 10, 1994; Texas Workers’ Compensation Commission Appeal No. 950666, decided June 12, 1995. In this case, the claimant acknowledged that Dr. G gave her a copy of his TWCC-69 on January 8, 1999. The hearing officer determined that Dr. G’s certification became final, because Dr. G “has not rescinded his certification” and the claimant did not dispute the certification within the 90-day dispute period. As stated above, on January 11, 1999, Mr. L had a conversation with “Sally” in Dr. G’s office in which he was advised that Dr. G “was going to rescind” his certification of MMI and IR. Subsequent to that conversation, Mr. L had a conversation with Ms. C, a Commission employee. In his affidavit, Mr. L states that in that conversation, Ms. C asked him if he “agreed” with Dr. G’s recission and he responded that he did. However, in her memorialization of the same conversation, the February 1, 1999, DRIS note, Ms. C states that the carrier had “accepted” the recission. It is important to note that the carrier did not object to the admission of the DRIS note or offer evidence from Mr. L specifically denying that he told Ms. C that the carrier had “accepted” the recission. In addition, it is undisputed that the carrier resumed TIBS payments to the claimant. The action of resuming TIBS is consistent with an understanding on the part of the carrier that Dr. G’s certification had been rescinded, as opposed to an understanding that it may be rescinded in the future. Likewise, Ms. C’s statement to the claimant that she need not dispute the first certification demonstrates an understanding that the recission had already occurred. Ms. C’s uncontroverted statement in the DRIS note that the carrier “accepted” the recission, in conjunction with the evidence demonstrating that the claimant, the carrier, and the Commission, all proceeded in this case as if Dr. G’s certification had been rescinded, is the great weight and preponderance of the evidence demonstrating that Dr. G’s certification of MMI and IR was rescinded. The hearing officer’s determination that it was not rescinded is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Accordingly, we reverse that determination and render a new decision that Dr. G’s certification was rescinded within the 90-day period and, therefore, Rule 130.5(e) did not operate to finalize that certification. See Texas Workers’ Compensation Commission Appeal No. 990777, decided May 28, 1999; Texas Workers’ Compensation Commission Appeal No. 982002, decided October 5, 1999.
In his decision, the hearing officer ended the claimant’s disability on January 8, 1999, the date Dr. G certified as the claimant’s date of MMI. At the outset, we note that disability and MMI are different concepts under the 1989 Act. While a claimant’s entitlement to TIBS ends when he or she reaches MMI, disability, the inability to obtain and retain employment at wages equivalent to the preinjury wage (Section 401.011(16)), does not necessarily end on that date. Texas Workers’ Compensation Commission Appeal No. 980919, decided June 15, 1998; and Texas Workers’ Compensation Commission Appeal No. 91060, decided December 12, 1991. That is, disability may exist separately from entitlement to TIBS. Texas Workers’ Compensation Commission Appeal No. 950879, decided July 17, 1995. The hearing officer in this case confused these concepts and erred in ending disability on the date Dr. G had certified MMI. Thus, we reverse his disability determination and remand for him to determine the period, or periods of time, the claimant had disability as a result of her compensable injury. In its cross-appeal, and at the hearing, the carrier acknowledged that the claimant had disability for some period; however, it appears to assert that it is entitled to pay reduced TIBS based upon its apparent belief that the employer made a bona fide offer of light duty in August 1998, which the claimant rejected in favor of the severance package. See Section 408.103 and Rule 129.5. There was no bona fide offer of light duty issue before the hearing officer, thus, neither he nor the Appeals Panel has the authority to grant the relief the carrier requests.[1]
The hearing officer’s determination that Dr. G’s certification of MMI and IR became final pursuant to Rule 130.5(e) is reversed and a new decision rendered that the initial certification of MMI and IR was rescinded within the 90-day period, thus, Rule 130.5(e) did not operate to make it final. The hearing officer’s disability determination is likewise reversed and that issue is remanded for further consideration and resolution by the hearing officer. Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Elaine M. Chaney – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Philip F. O’Neill – Appeals Judge
- The carrier would have had the burden of proof on a bona fide offer issue had one been presented. Appeal No. 980919, supra. ↑