This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). Contested case hearings were held on October 23, 2023, and February 28, 2024, with the record closing on August 12, 2024, in (city), Texas, with (administrative law judge). presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to a right knee sprain, a right knee tear of the posterior horn of the medial meniscus, a right knee recurrent undersurface longitudinal horizontal oblique tear of the posterior horn of the medial meniscus, and altered gait, but does not extend to a right knee lateral meniscus sprain, lateral meniscus fraying, degenerative joint disease, chondral thinning, loose bodies, or chondromalacia patella; (2) the statutory date of maximum medical improvement (MMI) is January 15, 2024; (3) the appellant (claimant) reached MMI on July 22, 2022; and (3) the claimant’s impairment rating (IR) is one percent.
The claimant appealed the ALJ’s MMI and IR determinations. There was no response from the respondent (carrier) in the appeal file.
The ALJ’s determinations that: the compensable injury of (date of injury), extends to a right knee sprain, a right knee tear of the posterior horn of the medial meniscus, a right knee recurrent undersurface longitudinal horizontal oblique tear of the posterior horn of the medial meniscus, and altered gait, but does not extend to a right knee lateral meniscus sprain, lateral meniscus fraying, degenerative joint disease, chondral thinning, loose bodies, or chondromalacia patella; and the statutory date of MMI is January 15, 2024, were not appealed and have become final pursuant to Section 410.169.
DECISION
Reversed and remanded.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of at least the carrier-accepted conditions of right knee sprain, and the conditions agreed to by the parties in a Benefit Dispute Agreement (DWC-24) approved on July 17, 2023, of right knee tear of the posterior horn of the medial meniscus, but not right knee lateral meniscus sprain, lateral meniscus fraying, degenerative joint disease, chondral thinning, loose bodies, or chondromalacia patella; (Dr. V) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor on the issues of MMI, IR, and extent of injury; (Dr. L) was appointed as the successor designated doctor on the issue of extent of injury; and the date of statutory MMI is January 15, 2024. The claimant, a lead installer of commercial air conditioning and plumbing equipment, was injured on (date of injury), while unloading equipment from a trailer and his right foot fell through a hole in the trailer.
MMI AND 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 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, in part, 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 that the claimant reached MMI on July 22, 2022, with a one percent IR in accordance with the certification of Dr. L, the designated doctor. Dr. L initially examined the claimant for the purpose of determining MMI and IR on December 15, 2023, following a Presiding Officer’s Directive to Order Designated Doctor Exam (POD) dated October 23, 2023, sent by the ALJ. The ALJ requested that Dr. L provide a certification of MMI and IR that rates the compensable conditions of right knee sprain, right knee tear of the posterior horn of the medial meniscus, and altered gait. Although the ALJ failed to include the compensable condition of a right knee recurrent undersurface longitudinal horizontal oblique tear of the posterior horn of the medial meniscus, Dr. L did consider it in determining that the claimant had not reached MMI. Dr. L stated that the claimant still needs a right knee arthroscopy to address the recurrent medial meniscus tear, which was diagnosed after the claimant underwent an MRI on July 22, 2022. As the parties stipulated that the date of statutory MMI was January 15, 2024, this certification cannot be adopted.
The ALJ issued another POD on February 28, 2024, informing Dr. L that the statutory date of MMI was determined to be January 15, 2024, and requested him to provide another report certifying the claimant at MMI on or before the statutory date of MMI. The ALJ again informed Dr. L that the compensable injury extends to right knee sprain, right knee tear of the posterior horn of the medial meniscus, and altered gait but failed to include the compensable condition of a right knee recurrent undersurface longitudinal horizontal oblique tear of the posterior horn of the medial meniscus as one of the conditions for Dr. L to consider. Dr. L re-examined the claimant on April 5, 2024, and, in the report that was adopted by the ALJ, certified the claimant reached MMI on July 22, 2022, with a one percent IR considering only the conditions listed in the POD. Dr. L explained in his corresponding narrative report that the claimant reached MMI on July 22, 2022, because this was the date of an MRI of the right knee which revealed additional pathology that was likely the source of his ongoing symptoms and that the adjudicated compensable injuries had resolved by this time. Dr. L assigned a one percent IR for a partial medial meniscectomy under Table 64 on page 3/85 of 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. L failed to consider the compensable condition of a right knee recurrent undersurface longitudinal horizontal oblique tear of the posterior horn of the medial meniscus. As this certification fails to consider and rate the entire compensable injury, it cannot be adopted. Therefore, we reverse the ALJ’s determinations that the claimant reached MMI on July 22, 2022, and the claimant’s IR is one percent.
There are two more certifications in evidence, which are both from Dr. V, the first designated doctor. Dr. V examined the claimant on December 16, 2022, and issued alternate certifications which both certified the claimant reached MMI on July 11, 2022, with a four percent IR. The first certification is based on a right knee medial meniscus tear and right knee sprain. As this certification does not consider or rate the compensable conditions of a right knee recurrent undersurface longitudinal horizontal oblique tear of the posterior horn of the medial meniscus or altered gait, it cannot be adopted. In the second certification, Dr. V considers and rates a right knee medial meniscus tear, right knee sprain, lateral meniscus fraying, degenerative joint disease, chondral thinning, chondromalacia patella, and loose bodies. As this certification again fails to rate a right knee recurrent undersurface longitudinal horizontal oblique tear of the posterior horn of the medial meniscus and altered gait and considers conditions which have been determined not to be compensable, it 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 reverse the ALJ’s determination that the claimant reached MMI on July 22, 2022, and remand the MMI issue to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant’s IR is one percent and remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. L is the designated doctor in this case. The ALJ is to determine whether Dr. L is still qualified and available to be the designated doctor. If Dr. L is no longer qualified or available to serve as the designated doctor, then 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 right knee sprain, a right knee tear of the posterior horn of the medial meniscus, a right knee recurrent undersurface longitudinal horizontal oblique tear of the posterior horn of the medial meniscus, and altered gait, but does not extend to a right knee lateral meniscus sprain, lateral meniscus fraying, degenerative joint disease, chondral thinning, loose bodies, or chondromalacia patella. The ALJ is to request that the designated doctor give an opinion on the claimant’s date of MMI, which cannot be past the statutory date of January 15, 2024, 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 MMI and IR certification and allowed an opportunity to respond. The ALJ is then to make a determination on the claimant’s MMI and IR for the (date of injury), compensable injury.
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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
JEANETTE WARD, PRESIDENT AND CEO
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.
Cristina Beceiro – Appeals Judge
CONCUR:
Carisa Space-Beam – Appeals Judge
Margaret L. Turner – Appeals Judge