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 March 26, 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 appellant (claimant) reached maximum medical improvement (MMI) on October 31, 2023; and (2) the claimant’s impairment rating (IR) is 12%. The claimant appealed, disputing the ALJ’s determinations of MMI and IR. The claimant contends on appeal that the designated doctor did not have all the medical records to review and that the designated doctor failed to rate the entire compensable injury. The respondent (carrier) responded, urging affirmance of the disputed MMI and IR determinations.
DECISION
Reversed and remanded.
The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury that extends to at least a right talus closed fracture, right calcaneus fracture, sacrum fracture, fifth lumbar vertebra fracture, lumbosacral IVD, right thigh strain, left elbow osteochondritis dissecans, left lateral epicondylitis, left medial epicondylitis, right sided lumbar radiculitis, depression, anxiety, polyneuropathy, L2-4 disc herniation with annular tear resulting in mild central canal stenosis, and left ankle pilon fracture; the compensable injury of (date of injury), does not extend to a traumatic brain injury or sleep disorders; (Dr. K) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor for the issues of MMI and IR; and the date of statutory MMI is October 31, 2023. The records reflect the claimant was injured in a motor vehicle accident while in the course and scope of his employment.
MMI/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 Texas Department of Insurance, Division of Workers’ Compensation (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 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 the claimant reached MMI on October 31, 2023, with a 12% IR as certified by Dr. K, the designated doctor. Dr. K examined the claimant on January 30, 2024. In his accompanying narrative report, Dr. K specifically noted the compensable conditions he considered in assessing impairment as follows: left ankle pilon fracture, neuropathy, closed fracture for right talus and calcaneus, osteocondritis of the left elbow, epicondylitis of the left elbow, sacrum fracture, radiculitis, L2-4 disc herniation with annular tear resulting in mild central canal stenosis, and anxiety. Based on these conditions, Dr. K opined the claimant reached MMI on October 31, 2023. 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), Dr. K placed the claimant in Diagnosis-Related Estimate (DRE) Lumbosacral Category II: Minor Impairment for 5% IR. Further, Dr. K assessed 5% impairment for anxiety, 2% impairment for the left lower extremity, and 0% impairment for the right lower extremity and left upper extremity. However, as previously noted the parties stipulated the compensable injury extends to at least a right talus closed fracture, right calcaneus fracture, sacrum fracture, fifth lumbar vertebra fracture, lumbosacral IVD, right thigh strain, left elbow osteochondritis dissecans, left lateral epicondylitis, left medial epicondylitis, right sided lumbar radiculitis, depression, anxiety, polyneuropathy, L2-4 disc herniation with annular tear resulting in mild central canal stenosis, and left ankle pilon fracture. Dr. K’s certification fails to consider and rate the 5th lumbar vertebrae fracture, lumbosacral IVD, right thigh strain, and depression. Dr. K’s certification fails to consider and rate the entire compensable injury. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on October 31, 2023, and that the claimant’s IR is 12%.
There is one other certification in evidence, which is from (Dr. E), a referral doctor selected by the treating doctor to act in his place. Dr. E examined the claimant on August 9, 2024, and opined that the claimant reached MMI on October 31, 2023, with a 15% IR. Dr. E specifically assessed 5% impairment for the claimant’s sleep disturbance. As noted above, the parties stipulated that the compensable injury of (date of injury), does not extend to sleep disorders. The certification from Dr. E cannot be adopted because it considers and rates, in part, conditions that have been determined to not be part of the compensable injury.
We note that there is also a narrative report in evidence from (Dr. B) who examined the claimant on March 14, 2025. Dr. B noted the MMI date was statutory “per the [Division]”. Dr. B listed the following diagnoses in assessing impairment: left ankle pilon fracture, fracture of the right ankle talus and calcaneus, nondisplaced sacral and L5 transverse fractures, low back pain with annular tear, and gait derangement. Dr. B failed to consider a right thigh strain, left elbow osteochondritis dissecans, left lateral epicondylitis, left medical epicondylitis, right sided lumbar radiculitis, depression, anxiety, or polyneuropathy. 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 Report of Medical Evaluation (DWC-69) and a narrative report. There was no DWC-69 from Dr. B.
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 October 31, 2023, and we 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 12% and we remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. K is the designated doctor in this case. The ALJ is to determine whether Dr. K is still qualified and available to be the designated doctor. If Dr. K 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 talus closed fracture, right calcaneus fracture, sacrum fracture, fifth lumbar vertebra fracture, lumbosacral IVD, right thigh strain, left elbow osteochondritis dissecans, left lateral epicondylitis, left medial epicondylitis, right sided lumbar radiculitis, depression, anxiety, polyneuropathy, L2-4 disc herniation with annular tear resulting in mild central canal stenosis, and left ankle pilon fracture, but does not extend to a traumatic brain injury or sleep disorders. 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 October 31, 2023, and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination. On remand, the ALJ should ensure that the designated doctor be forwarded the claimant’s medical records that were not provided to the designated doctor, if any.
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 determinations 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.
According to information provided by the carrier 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 & CEO
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.
Margaret L. Turner
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Carisa Space-Beam
Appeals Judge