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 17, 2024, with the record closing on September 23, 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 respondent (claimant) reached maximum medical improvement (MMI) on December 11, 2023; and (2) the claimant’s impairment rating (IR) is 15%. The appellant (carrier) appealed the ALJ’s determinations of MMI and IR. The appeal file does not contain a response from the claimant to the carrier’s appeal.
DECISION
Reversed and remanded.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a right tibia fracture, traumatic brain injury (TBI) with left frontal subdural hematoma, a Grade 1 liver laceration, a lumbar contusion, a left knee contusion, a left shoulder contusion, a lung contusion, a right eye contusion, L3-4 herniated disc, L4-5 herniated disc, L5-S1 herniated disc, and lumbar radiculopathy at L5-S1; and the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed as designated doctor regarding the issues of MMI and IR.
Dr. C examined the claimant on January 22, 2024, and certified that the claimant reached MMI on December 11, 2023, and assigned a 16% IR based on the compensable conditions 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). Following the CCH, the ALJ provided a letter of clarification (LOC) to Dr. C requesting that he review his findings noting that “[t]he issue appears to be related to the application of the [AMA Guides] and the conversion from lower extremity values to a whole person impairment based upon the findings.” Dr. C responded to the LOC and the ALJ admitted Dr. C’s response as ALJ exhibit 3. In his response, Dr. C acknowledged he had made an error and submitted an amended Report of Medical Evaluation (DWC-69) which certified the claimant reached MMI on December 11, 2023, with a 15%. The ALJ found that the preponderance of the other medical evidence is not contrary to Dr. C’s certification that the claimant reached MMI on December 11, 2023, with a 15% IR and determined the claimant reached MMI on December 11, 2023, and that the claimant’s IR is 15%.
The carrier argues in its appeal that neither the LOC nor the response to the LOC from Dr. C was sent to the parties for review or comment. The carrier contends that the amended certification from Dr. C was admitted into evidence after the CCH and was adopted by the ALJ without any communication with the parties. The decision does not reflect that the ALJ sent the LOC or Dr. C’s response to the parties or provided the parties with an opportunity to respond. The record does not contain any correspondence to or from the parties that show the LOC or Dr. C’s response to the LOC was sent to the parties.
In administrative hearings, due process requires that parties be accorded a full and fair hearing, including the right to present and rebut evidence on disputed fact issues. Richardson v. City of Pasadena, 513 S.W.2d 1, 3-4 (Tex. 1974) and Geeslin v. State Farm Lloyds, 255 S.W.3d 786, 802 (Tex.App.-Austin 2008, no pet.) citing City of Corpus Christi v. Pub. Util. Comm’n, 51 S.W.3d 231, 238 (Tex. 2001). The reviewing court must find that the error “probably prevented the appellant from properly presenting the case [on appeal].” G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam). We have previously held that it is reversible error to solicit a response from a designated doctor and write an opinion based thereon without having afforded the parties the opportunity to comment on additional evidence. Appeals Panel Decision (APD) 011128, decided June 25, 2001. The ALJ in this case erred by failing to provide the parties an opportunity to review and respond to the new evidence depriving them of a full and fair hearing that amounts to reversible error. APD 93323, decided June 9, 1993.
Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on December 11, 2023, and that the claimant’s IR is 15%. We remand the issues of MMI and IR to the ALJ for further consideration, to establish a complete record, and for further proceedings consistent with this decision.
Pursuant to Section 410.203(c), the Appeals Panel may not remand a case more than once. Given that we are remanding this case for the ALJ to provide the LOC response from Dr. C to the parties and allow them an opportunity to comment on the evidence, we note that the narrative from Dr. C states there is full ROM in the claimant’s right hip. However, in the worksheet used by Dr. C to assess impairment he notes loss of ROM of the right hip and assesses impairment. Additionally, Dr. C’s narrative states that the loss of ROM for the right ankle dorsiflexion was 15° although the worksheet used to assess impairment for the right ankle used the ROM measurement of 10°.
SUMMARY
We reverse the ALJ’s determination that the claimant reached MMI on December 11, 2023, 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 15% and remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand the ALJ is to allow comment on any newly submitted evidence and/or submission of closing arguments from the parties. The ALJ is to rule on the admissibility of any further evidence offered by the parties. The ALJ is to consider all of the evidence in the record and make a decision on the disputed issues of MMI and IR.
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 APD 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is UNITED WISCONSIN INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.
Margaret L. Turner – Appeals Judge
CONCUR:
Cristina Beceiro – Appeals Judge
Carisa Space-Beam – Appeals Judge