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 October 17, 2024, with the record closing on January 10, 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 cervical sprain and strain with exacerbation of underlying spondylosis, shoulder impingement, shoulder strain, lumbar spine strain, disc protrusions at C5-6, C6-7, and C2-3, head contusion, and left shoulder contusion; (2) the compensable injury of (date of injury), does not extend to aggravation of disc protrusions at L5-S1, L2-3, T8-9, orT2-3; (3) the respondent (claimant) reached maximum medical improvement (MMI) on September 9, 2024; and (2) the claimant’s impairment rating (IR) is 21%. The appellant (self-insured) appealed the ALJ’s determinations of extent of injury that were favorable to the claimant as well as the issues of MMI and IR. The appeal file does not contain a response from the claimant to the self-insured’s appeal. That portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to aggravation of disc protrusions at L5-S1, L2-3, T8-9 or T2-3 was not appealed and has become final pursuant to §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), in the form of at least a lumbar sprain, thoracic sprain, cervical sprain, bilateral shoulder sprain, and bilateral hip sprain, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. X) as designated doctor for the issues of extent of injury, MMI, and IR.
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), extends to cervical sprain and strain with exacerbation of underlying spondylosis, shoulder impingement, shoulder strain, lumbar spine strain, disc protrusions at C5-6, C6-7, and C2-3, head contusion, and left shoulder contusion is supported by sufficient evidence and is affirmed.
MMI/IR
Dr. X examined the claimant on September 14, 2023, and certified that the claimant had not yet reached MMI. After the CCH, the ALJ requested a presiding officer’s directive (POD) requesting that the claimant be reexamined to determine whether the claimant had reached MMI. (Dr. K) was appointed by the Division as a successor designated doctor to address the issues of MMI and IR. Dr. K examined the claimant on December 11, 2024, and certified the claimant reached MMI on September 9, 2024, and assigned a 21% IR based on the compensable conditions listed in the POD 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). A Proceedings Resolution officer on behalf of the ALJ provided Dr. K’s narrative report and Report of Medical Evaluation (DWC-69) to the parties on December 19, 2024, giving the parties 10 days to review and respond. The ALJ found that the preponderance of the other medical evidence is not contrary to Dr. K’s certification and determined the claimant reached MMI on September 9, 2024, with a 21% IR.
The self-insured argues in its appeal that it obtained a peer review report from (Dr. C) dated December 20, 2024, and that on December 27, 2024, it sent its response and the peer review to the Division by email. The decision does not reflect that the ALJ received or considered the response from the self-insured. The CCH file does not contain a copy of the response or peer review report obtained by the self-insured and submitted to the Division before the ALJ’s deadline.
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, and APD 241524, decided December 20, 2024. The ALJ in this case erred by failing to consider the response submitted by the self-insured 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 September 9, 2024, and that the claimant’s IR is 21%. 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.
SUMMARY
We affirm the ALJ’s determination that the compensable injury of (date of injury), extends to cervical sprain and strain with exacerbation of underlying spondylosis, shoulder impingement, shoulder strain, lumbar spine strain, disc protrusions at C5-6, C6-7, and C2-3, head contusion, and left shoulder contusion.
We reverse the ALJ’s determination that the claimant reached MMI on September 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 21% and remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand the ALJ is to consider the response and peer review report timely submitted by the self-insured and allow 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 (a self-insured governmental entity) and the name and address of its registered agent for service of process is
(NAME)
(ADDRESS)
(CITY), TEXAS (ZIP CODE).
Margaret L. Turner
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Carisa Space-Beam
Appeals Judge