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 May 6, 2024, with the record closing on May 8, 2024, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues in (Docket No. 1) by deciding that: (1) the compensable injury of (date of injury), does not extend to lumbar radiculopathy, lumbar annular tear, or a disc protrusion/extrusion at L5-S1; (2) the appellant/cross-respondent (claimant) reached maximum medical improvement (MMI) on April 3, 2023; (3) the claimant’s impairment rating (IR) is 10%. The ALJ resolved the disputed issues in (Docket No. 2) by deciding that the claimant is not entitled to any amount of reimbursement of travel expenses from December 6, 2022, through November 3, 2023, for medical treatment at the direction of (Dr. N) or (Dr. S).
The claimant appealed Docket Nos. 1 and 2, disputing all of the ALJ’s determinations. The respondent/cross-appellant (carrier) responded, urging affirmance of the ALJ’s determinations on extent of injury and reimbursement of travel expenses. The carrier also cross-appealed Docket No. 1, disputing the ALJ’s MMI and IR determinations. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.
DECISION
Affirmed in part, reformed in part, and reversed and remanded in part.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to at least a lumbar sprain/strain, and the date of statutory MMI is August 30, 2024. The claimant was injured on (date of injury), while helping a coworker remove drill protectors with a chisel and large hammer.
The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
REIMBURSEMENT OF TRAVEL EXPENSES
The ALJ determined the claimant is not entitled to any amount of reimbursement of travel expenses from December 6, 2022, through November 3, 2023, for medical treatment at the direction of Dr. N or Dr. S. The ALJ’s determination is supported by sufficient evidence and is affirmed. However, we note that Conclusion of Law No. 6 incorrectly states the November date is November 3, 2024, rather than November 3, 2023. We reform Conclusion of Law No. 6 to state the claimant is not entitled to any amount of reimbursement of travel expenses from December 6, 2022, through November 3, 2023, for medical treatment at the direction of Dr. N or Dr. S to conform to the issue as certified by the parties.
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), does not extend to lumbar radiculopathy, lumbar annular tear, or a disc protrusion/extrusion at L5-S1 is supported by sufficient evidence and is affirmed.
MMI/IR
Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.” Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.
Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.
The ALJ determined the claimant reached MMI on April 3, 2023, with a 10% IR as certified by (Dr. R), the designated doctor. Dr. R examined the claimant on August 8, 2023. In his accompanying narrative report, Dr. R noted that the compensable conditions as determined by him included a lumbar sprain, lumbago, lumbar radiculopathy, L5-S1 disc protrusion/extrusion, and a lumbar annular tear. Based on these conditions, Dr. R opined the claimant reached MMI on April 3, 2023. Using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides), Dr. R placed the claimant in Diagnosis-Related Estimate (DRE) Lumbosacral Category III: Radiculopathy for 10% IR. However, as previously noted the parties stipulated the compensable injury extends to at least a lumbar sprain/strain, and the ALJ’s determination that the compensable injury of (date of injury), does not extend to lumbar radiculopathy, lumbar annular tear, or a disc protrusion/extrusion at L5-S1 is supported by sufficient evidence and is affirmed. Dr. R’s certification considers and rates, in part, conditions that have been determined to not be part of the compensable injury. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on April 3, 2023, and that the claimant’s IR is 10%.
There is one other certification in evidence, which is also from Dr. R. Dr. R examined the claimant on March 5, 2024, and opined on that same date that the claimant had not reached MMI considering the same conditions as he had in his prior certification, as well as failed back surgery, which has not been determined to be part of the compensable injury at this time. Dr. R’s March 5, 2024, certification cannot be adopted.
There is no certification in evidence that can be adopted. Accordingly, we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.
SUMMARY
We reform Conclusion of Law No. 6 to state the claimant is not entitled to any amount of reimbursement of travel expenses from December 6, 2022, through November 3, 2023, for medical treatment at the direction of Dr. N or Dr. S to conform to the issue as certified by the parties.
We affirm the ALJ’s determination that the claimant is not entitled to any amount of reimbursement of travel expenses from December 6, 2022, through November 3, 2023, for medical treatment at the direction of Dr. N or Dr. S.
We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to lumbar radiculopathy, lumbar annular tear, or a disc protrusion/extrusion at L5-S1.
We reverse the ALJ’s determination that the claimant reached MMI on April 3, 2023, and we remand the issue of MMI to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant’s IR is 10%, and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. R is the designated doctor in this case. On remand the ALJ is to determine whether Dr. R is still qualified and available to be the designated doctor. If Dr. R is no longer qualified or available to serve as the designated doctor, another designated doctor is to be appointed pursuant to Division rules to opine on the issues of MMI and IR.
The ALJ is to inform the designated doctor that the compensable injury extends to a lumbar sprain/strain, but does not extend to lumbar radiculopathy, lumbar annular tear, or a disc protrusion/extrusion at L5-S1. The ALJ is to request the designated doctor give an opinion on the claimant’s date of MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination.
The parties are to be provided with the designated doctor’s new certification and allowed an opportunity to respond. The ALJ is then to make a determination on MMI and IR consistent with the evidence and this decision.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See Appeals Panel Decision 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY OF ILLINOIS and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
Carisa Space-Beam – Appeals Judge
CONCUR:
Cristina Beceiro – Appeals Judge
Margaret L. Turner – Appeals Judge