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 September 11, 2024, with the record closing on October 16, 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), does not extend to a cervical disc protrusion/herniation at C4-5 or C5-6 or an L4-5 disc protrusion/herniation; (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 9, 2024; (3) the claimant’s impairment rating (IR) is zero percent; (4) the claimant had disability from February 10, 2024, through March 6, 2024, but not from March 7, 2024, through the date of the CCH. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, IR, and that portion of the ALJ’s disability determination that was adverse to him. The respondent (carrier) responded, urging affirmance of the disputed determinations. That portion of the ALJ’s determination that the claimant had disability from February 10, 2024, through March 6, 2024, was not appealed and has become final pursuant to Section 410.169.
DECISION
Affirmed 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 cervical strain, thoracic strain, and lumbar strain, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. H) as designated doctor to address the issues of extent of injury, MMI, and IR. The claimant, a commercial driver for the employer, was injured on (date of injury), while driving an 18-wheeler truck. The claimant’s truck was hit on the driver’s side when another vehicle merged into the same lane as the claimant and collided with the claimant’s truck.
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).
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), does not extend to a cervical disc protrusion/herniation at C4-5 or C5-6 or an L4-5 disc protrusion/herniation is supported by sufficient evidence and is affirmed.
DISABILITY
That portion of the ALJ’s determination that the claimant did not have disability from March 7, 2024, through the date of the CCH is supported by sufficient evidence and is affirmed.
MMI/IR
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.
The ALJ determined the claimant reached MMI on February 9, 2024, with a zero percent IR as certified by Dr. H, the designated doctor. In evidence is a Report of Medical Evaluation (DWC-69) from Dr. H dated April 26, 2024, with an exam date of April 19, 2024, certifying the claimant reached MMI on February 9, 2024, with a zero percent IR. However, there is no narrative report from Dr. H corresponding with his April 26, 2024, DWC-69. In evidence is a narrative report from Dr. H dated May 31, 2024, in which he noted he had been asked to determine the claimant’s extent of injury. Dr. H also noted that he had “previously evaluated the [claimant] on [April 19, 2024]. It was my opinion that the [claimant] had reached [MMI] as of [February 9, 2024] with zero percent whole person impairment.” Dr. H did not otherwise discuss his MMI and IR opinion in the May 31, 2024, narrative report.
After the CCH the ALJ issued a letter of clarification to the designated doctor to clarify Dr. H’s opinion on extent of injury. Dr. H responded on October 10, 2024, maintaining his opinion on extent of injury and noting his certification was unchanged. However, Dr. H did not provide a narrative report that explained his determination of MMI and IR.
28 Tex. Admin. Code § 130.1(d)(1) (Rule 130.1(d)(1)) provides in part that a certification of MMI, determination of permanent impairment, and assignment of an IR (if permanent impairment exists) for the current compensable injury requires completion, signing, and submission of the DWC-69 and a narrative report.
There is no narrative report from Dr. H that corresponds with his DWC-69, which is required by Rule 130.1(d)(1). Dr. H’s certification is not in compliance with Rule 130.1(d)(1) and cannot be adopted. See Appeals Panel Decision (APD) 142708, decided February 23, 2025; 142282, decided December 18, 2014; and 111364, decided November 18, 2011. Consequently, we reverse the ALJ’s determinations that the claimant reached MMI on February 9, 2024, with a zero percent IR.
There is one other certification in evidence, which is from (Dr. Hw), a referral doctor acting in place of the treating doctor. Dr. Hw examined the claimant on June 27, 2024, and certified the claimant had not yet reached MMI. Dr. Hw’s attached narrative report reflects he considered, among other conditions, a cervical disc protrusion. The ALJ correctly noted in her decision that Dr. Hw’s certification was not adoptable because he considered a cervical disc protrusion, which is not part of the compensable injury.
There is no certification in evidence that can be adopted. Accordingly, we remand the issues of the claimant’s MMI and IR to the ALJ for further action consistent with this decision.
SUMMARY
We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a cervical disc protrusion/herniation at C4-5 or C5-6 or an L4-5 disc protrusion/herniation.
We affirm that portion of the ALJ’s determination that the claimant did not have disability from March 7, 2024, through the date of the CCH.
We reverse the ALJ’s determination that the claimant reached MMI on February 9, 2024, 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 zero percent and remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand the ALJ is to ensure a complete record, which includes an adoptable certification with a corresponding narrative report. The parties are to be provided with any additional evidence admitted and allowed an opportunity to respond. The ALJ is to consider all of the evidence in the record and make a determination 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 PROTECTIVE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
d/b/a CSC-LAWYERS INCORPORATING SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701.
Carisa Space-Beam – Appeals Judge
CONCUR:
Cristina Beceiro – Appeals Judge
Margaret L. Turner – Appeals Judge