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 November 1, 2001. With regard to the sole issue before him, the hearing officer determined that the first certification of maximum medical improvement (MMI) by Dr. D, the appellant’s (claimant) treating doctor, became final under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE §130.5(e) (Rule 130.5(e)) on July 21, 1992. The claimant appealed, arguing that “Rule 130.5(e) is not equitable or just since injuries can become worse and more painful, and I was not informed of the rule and the right to appeal [claimant means dispute]. I was not provided a requested ombudsman.” The respondent (carrier) filed a response, urging affirmance of the hearing officer’s determination.
DECISION
Affirmed.
The claimant testified that she had worked for the employer for three years in the accounts receivables department. The claimant stated that on ___________, she sustained a neck and shoulder injury from typing and holding the phone on her neck and shoulder. The claimant was diagnosed with a herniated disk at C6-7. In evidence is the Report of Medical Evaluation (TWCC- 69) filed on August 3, 1992, which indicates that Dr. D certified that the claimant reached MMI on July 21, 1992, with a 13% impairment rating (IR). On February 4, 1994, Dr. D recommended that the claimant undergo spinal surgery at C6-7. The Required Medical Report: Spinal Surgery Recommendation (TWCC-63) faxed on February 7, 1994, to the Texas Workers’ Compensation Commission shows that the carrier waived its right to a second opinion. On April 4, 1994, the claimant had surgery at C6-7. Dr. D, in a post-surgery TWCC-69, dated May 26, 1994, certified that the claimant reached MMI on the statutory date, with a 17% IR. The carrier paid additional impairment income benefits that were due “based on 17% rating.” In 1994, the claimant had a second surgery at C6-7, and a third surgery (date unknown) performed by Dr. K. On March 27, 2000, the carrier filed a Notice of [MMI/IR] Dispute (TWCC-32), contending that “MMI from previous treating doctor [was] paid in full.” A third TWCC-69 was filed on March 13, 2000, in which Dr. W certified that the claimant was at statutory MMI and assigned a 29% IR. The claimant testified that she needs a fourth surgery at C6-7.
The hearing officer did not err in determining that the first certification of MMI/IR assigned by Dr. D on July 21, 1992, became final under Rule 130.5(e). The version of Rule 130.5(e) which is applicable to the time period under consideration, and which was effective January 25, 1991, provided:
The first [IR] assigned to an employee is considered final if the rating is not disputed within 90 days after the rating is assigned.
In Rodriguez v. Service Lloyds Insurance Company, 997 S.W.2d 248, 254 (Tex. 1999), the Supreme Court of Texas held that the above-cited version of Rule 130.5(e) “has no exceptions and that an [IR] is final if not disputed within ninety days.” Consequently, under the undisputed facts of the instant case, the hearing officer did not err in determining that the first certification of MMI and IR assigned by Dr. D became final under Rule 130.5(e). The claimant testified that she did not dispute the IR within 90 days pursuant to Rule 130.5(e).
It is the hearing officer, as the sole judge of the weight and credibility of the evidence (Section 410.165(a)), who resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). The Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. 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).
To the extent that the claimant premises her appeal on ignorance of the terms of Rule 130.5(e), we note that, in general, ignorance of the law does not excuse noncompliance with its terms. Texas Workers’ Compensation Commission Appeal No. 94269, decided April 20, 1994.
We note that the claimant argues on appeal that she was not provided an ombudsman to inform her of Rule 130.5(e) and of the right to appeal. The Appeals Panel does not consider issues raised for the first time on appeal. Texas Workers’ Compensation Commission Appeal No. 951196, decided August 28, 1995; Texas Workers’ Compensation Commission Appeal No. 91100, decided January 22, 1992.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is EMPLOYERS INSURANCE OF WAUSAU and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEMS
350 NORTH ST. PAUL
SUITE 2900
DALLAS, TEXAS 75201.
Michael B. McShane – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Gary L. Kilgore – Appeals Judge