This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 16, 2001. The hearing officer determined that the first certification of maximum medical improvement (MMI) and impairment rating (IR) certified by Dr. W on July 26, 1999, became final under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)). The appellant (claimant) appeals the determination, arguing that the hearing officer erred in finding that the claimant was not misdiagnosed or by not finding that since Dr. W never saw the claimant, he could not find the claimant at MMI and give an IR. The claimant included two multi-page attachments with her appeal; most of the pages are duplicates of exhibits admitted at the CCH. One item, a two-page affidavit from Dr. W with a jurat reflecting that it was sworn to on August 28, 2001, was not presented as an exhibit at the CCH. The respondent (carrier) replied, objecting to the affidavit because it was not presented at the CCH, and otherwise urging affirmance.
DECISION
Affirmed.
Documents submitted for the first time on appeal are generally not considered unless they constitute newly discovered evidence. Texas Workers’ Compensation Commission Appeal No. 92255, decided July 27, 1992. To determine whether evidence offered for the first time on appeal requires that the case be remanded for further consideration, we consider whether it came to appellant’s knowledge after the hearing, whether it is cumulative, whether it was through lack of diligence that it was not offered at the hearing, and whether it is so material that it would probably produce a different result. Texas Workers’ Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). The affidavit from Dr. W was in existence on August 28, 2001, some six weeks prior to the CCH. It thus appears that the affidavit was available to the claimant prior to the CCH, and we can only conclude that it was through lack of diligence that it was not offered at the CCH. Texas Workers’ Compensation Commission Appeal No. 980299, decided April 2, 1998. Accordingly, we decline to consider the affidavit.
At the outset of the CCH, the claimant sought to reform the issue to include whether Dr. W properly followed Rules 130.1(b) and (c) and gave the claimant a certifying examination prior to certifying MMI and IR. The hearing officer ruled that he would not allow the issue to be reformed, as such an issue was not considered at the benefit review conference, there was no good cause shown to add an issue at the CCH, and the requirement for the certifying examination came about from the new Rule 130.1, which was not in effect at the time that Dr. W certified MMI and IR. The hearing officer did not err in refusing to change the issue to be considered at the CCH, and we agree that he correctly decided that he was required to utilize the rules in effect at the time the events occurred, and not a new rule with a later effective date.
Dr. W, on a Report of Medical Evaluation (TWCC-69) dated July 26, 1999, certified MMI on July 23, 1999, with a zero percent IR. The carrier presented documentary evidence purporting to show that the claimant was notified of the MMI and IR decision by letter dated August 11, 1999, with an attached copy of the TWCC-69. However, there was no proof presented as to when the claimant may have received that documentation. The claimant did testify that she recalled receiving a notification that MMI was reached and that the IR was zero percent within a “week or two” of when the determination was made. The hearing officer determined that the “Claimant was aware, had personal knowledge, and had received written notice” of Dr. W’s first certification of MMI and IR “on September 19, 2000,” the date (apparently derived from Dispute Resolution Information System Contact Data Logs which were admitted as Hearing Officer Exhibit No. 6) as of which the hearing officer was satisfied that the claimant had received the notice. The hearing officer found that the claimant first disputed Dr. W’s first certification on February 20, 2001, more than 90 days after September 19, 2000. It was the claimant’s contention, both at the CCH and on appeal, that Dr. W’s first certification was invalid because it did not fully comply with Rule 130.1. As noted above, the hearing officer declined to add the issue of compliance with the requirements of Rule 130.1. We believe he did so correctly, especially considering that the claimant was urging that the requirements of new Rule 130.1, which has an effective date of June 7, 2000, were not met.
The claimant urged at the CCH and on appeal that her injury was misdiagnosed, and that the first certification of MMI and the assignment of an IR can be revisited for that reason. The version of Rule 130.5(e) applicable to this case provides that the “first [IR] assigned to an employee is considered final if the rating is not disputed within 90 days after the rating is assigned.” The case of Rodriguez v. Service Lloyds Insurance Company, 997 S.W.2d 248 (Tex. 1999) stands for the proposition that the plain language of Rule 130.5(e) does not contain exceptions and an IR is considered final if not disputed within 90 days. We hold that the hearing officer correctly applied the rule in this case.
Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is LIBERTY MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
C T CORPORATION SYSTEMS
350 NORTH ST. PAUL STREET, SUITE 2900
DALLAS, TEXAS 75201.
Michael B. McShane – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Gary L. Kilgore – Appeals Judge