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 February 5, 2025, 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 wrist sprain and right wrist strain; (2) the compensable injury of (date of injury), does not extend to cervical radiculopathy, C6-7 disc herniation, right thumb sprain, lumbar radiculopathy, or L4-5 disc herniation; (3) the appellant (claimant) reached MMI on October 5, 2022; (4) the claimant’s impairment rating (IR) is 13%; and (5) the claimant is not entitled to supplemental income benefits (SIBs) for the first quarter, from October 7, 2024, through January 5, 2025.
The claimant appealed the ALJ’s extent-of injury determination that was against her, as well as the MMI, IR, and SIBs determinations. The respondent (carrier) filed a response urging affirmance of the appealed determinations.
The ALJ’s determination that the compensable injury of (date of injury), extends to a right wrist sprain and right wrist strain 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 right shoulder infraspinatus tear, cervical sprain, cervical strain, lumbar contusion, lumbar sprain, lumbar strain, right hand sprain, right hand strain, left hand sprain, left hand strain, right shoulder sprain, right shoulder strain, right hip contusion, right knee sprain, right knee strain; (Dr. C) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor to determine MMI, IR, extent of injury, and return to work; the date of statutory MMI is September 24, 2023; the dates of the qualifying period for the first quarter of SIBs were June 25, 2024, through September 23, 2024; and the minimum number of job applications or work search contacts required for the first quarter qualifying period is three per week for (County), the claimant’s county of residence. The claimant, an office manager, was injured on (date of injury), when she fell backwards off a countertop while she was putting away medical supplies.
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), does not extend to cervical radiculopathy, C6-7 disc herniation, right thumb sprain, lumbar radiculopathy, or L4-5 disc herniation is supported by sufficient evidence and is affirmed.
MMI
The ALJ’s determination that the claimant reached MMI on October 5, 2022, is supported by sufficient evidence and is affirmed.
IR
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 pertinent part, that the assignment of an IR shall be based on the injured employee’s condition on the MMI date considering the medical record and the certifying examination, and the doctor assigning the IR shall:
(A) identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;
(B) document specific laboratory or clinical findings of an impairment;
(C) analyze specific clinical and laboratory findings of an impairment;
(D) compare the results of the analysis with the impairment criteria and provide the following:
(i) [a] description and explanation of specific clinical findings related to each impairment, including zero percent [IRs]; and
(ii) [a] description of how the findings relate to and compare with the criteria described in the applicable chapter of the AMA Guides. The doctor’s inability to obtain required measurements must be explained.
The ALJ determined that the claimant reached MMI on October 5, 2022, with a 13% IR in accordance with a certification from (Dr. M), the carrier-selected required medical examination doctor. Dr. M initially examined the claimant on January 25, 2024, and certified the claimant reached MMI on October 4, 2022, with a 4% IR based on the condition of a right shoulder rotator cuff tear. As this certification does not rate the entire compensable injury, it cannot be adopted. Dr. M re-examined the claimant on August 22, 2024, and issued three alternate certifications. In the first certification, which was adopted by the ALJ, (Dr. M) certified the claimant reached MMI on October 5, 2022, with a 13% IR based on the compensable injury as decided by the ALJ in this case. The claimant’s appeal contends that Dr. M’s report fails to identify the range of motion (ROM) figures used and how they are applied to reach the IR assigned, as required by Rule 130.1(c)(3). We agree. The right upper extremity ROM figures taken from Dr. M’s physical exam do not result in the impairment assigned for that body part, and it is unclear what ROM measurements he used in calculating the assigned 13% IR. As Dr. M’s certification fails to comply with the requirements in Rule 130.1(c)(3), it cannot be adopted. We reverse the ALJ’s determination that the claimant’s IR is 13%.
Dr. M’s second certification states that claimant reached MMI on March 21, 2022, and assigns a 0% IR based on the conditions of lumbar sprain/strain, grade 1, right thumb sprain, and bilateral wrist sprain/strain. As we have affirmed the claimant reached MMI on October 5, 2022, and this certification does not rate the entire compensable injury, it cannot be adopted. Dr. M’s third certification states the claimant reached MMI on October 5, 2022, with a 13% IR based, in part, on cervical radiculopathy. As we have affirmed the ALJ’s determination that cervical radiculopathy is not part of the compensable injury, this certification cannot be adopted.
There are three certifications from Dr. C, the designated doctor, in evidence as well. However, all three place the claimant at MMI on the statutory date of September 24, 2023. Additionally, all three certifications are partially based on the condition of cervical radiculopathy. As we have affirmed the claimant reached MMI on October 5, 2022, and these certifications rate conditions that are not compensable, they cannot be adopted.
There is no certification in evidence that can be adopted. Accordingly, we remand the issue of IR to the ALJ for further action consistent with this decision.
SIBS
Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Section 408.142(a)(1) as amended by the 79th Legislature, effective September 1, 2005, provides that an employee must have an IR of 15% or more in order to be entitled to SIBs.
The ALJ determined that the claimant is not entitled to SIBs for the first quarter because she does not have an IR of 15% or more. As we have reversed and remanded the issue of IR to the ALJ, we also reverse the ALJ’s determination that the claimant is not entitled to SIBs for the first quarter and remand the issue of first quarter SIBs to the ALJ for further action consistent with this decision.
We note that in Finding of Fact No. 9, the ALJ stated, “the claimant demonstrated an active effort to obtain employment each week during the entire qualifying period by performing the requisite number of job searches or work search contacts.” The possible conflation of “work search contacts” and “active work search efforts” suggested by this discussion might constitute an error of law per the Third Court of Appeals’ decision in Texas Dep’t of Ins., Div. of Workers’ Comp. v. Accident Fund Ins. Co. of Am., No. 03-21-00074-CV, 2023 WL 2286662 (Tex. App. Feb. 28, 2023, review denied), No. 23-0273, 2025 WL 421009 (Tex. Feb. 7, 2025).
SUMMARY
We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to cervical radiculopathy, C6-7 disc herniation, right thumb sprain, lumbar radiculopathy, or L4-5 disc herniation.
We affirm the ALJ’s determination that the claimant reached MMI on October 5, 2022.
We reverse the ALJ’s determination that the claimant’s IR is 13%, and remand the issue of IR to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the first quarter and remand the SIBs issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. C is the designated doctor in this case. The ALJ is to determine whether Dr. C is still qualified and available to be the designated doctor. If Dr. C 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 issue of IR. The ALJ is to inform the designated doctor that the compensable injury extends to a right shoulder infraspinatus tear, cervical sprain, cervical strain, lumbar contusion, lumbar sprain, lumbar strain, right hand sprain, right hand strain, left hand sprain, left hand strain, right shoulder sprain, right shoulder strain, right hip contusion, right knee sprain, right knee strain, a right wrist sprain, and a right wrist strain, but does not extend cervical radiculopathy, C6-7 disc herniation, right thumb sprain, lumbar radiculopathy, or L4-5 disc herniation. The ALJ is to inform the designated doctor that the date of MMI is October 5, 2022, and request that the designated doctor 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 certification and allowed an opportunity to respond. The ALJ is then to make a determination on the claimant’s IR for the (date of injury), compensable injury.
The ALJ is then to make a determination regarding whether the claimant is entitled to SIBs for the first quarter.
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 AMERICAN ZURICH INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
Cristina Beceiro
Appeals Judge
CONCUR:
Carisa Space-Beam
Appeals Judge
Margaret L. Turner
Appeals Judge