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 November 5, 2018, 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 sustained on (date of injury), does not extend to the following conditions of the right upper extremity: a triangular fibrocartilage complex (TFCC) tear, ulnar abutment syndrome, Kienbock’s syndrome, tenosynovitis, carpal tunnel syndrome (CTS), and a ganglion cyst; (2) the appellant (claimant) reached maximum medical improvement (MMI) on July 16, 2016; and (3) the claimant’s impairment rating (IR) is zero percent. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded, urging affirmance of the disputed extent of injury, MMI, and IR determinations.
DECISION
Affirmed in part and reversed and remanded in part.
The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury at least in the form of a sprain and strain of the right wrist. The claimant testified that she was injured when she fell while performing a perimeter check of a building.
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 sustained on (date of injury), does not extend to the following conditions of the right upper extremity: a TFCC tear, ulnar abutment syndrome, Kienbock’s syndrome, tenosynovitis, CTS, and a ganglion cyst is supported by sufficient evidence and is affirmed.
MMI
The ALJ’s determination that the claimant reached MMI on July 16, 2016, is supported by sufficient evidence and is affirmed.
IR
The ALJ determined that the claimant’s IR is zero percent as certified by (Dr. F), the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division).
Dr. F examined the claimant on March 17, 2018. In a narrative report dated that same date Dr. F opined that the claimant reached MMI on July 16, 2016, and noted that the right wrist sprain/strain had resolved and determined that the claimant’s IR is zero percent. However, none of the Reports of Medical Evaluation (DWC-69) in evidence from Dr. F specify the claimant’s IR nor is the box checked that the claimant does not have any permanent impairment as a result of the compensable injury but rather the space provided to record the claimant’s IR is left blank.
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 part, 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. Rule 130.1(c)(3) also provides, in part, that an IR is invalid if it is based on the injured employee’s condition on a date that is not the MMI date. See also Rule 130.1(b)(2). Rule 130.1(d)(1) states that a certification of MMI and assignment of an IR requires completion, signing, and submission of the DWC-69 and a narrative report. Rule 130.12(c) provides, in part, that the certification on the DWC-69 is valid if there is an impairment determination of either no impairment or a percentage IR assigned.
As previously noted, Dr. F failed to specify any impairment in the DWC-69s in evidence. Accordingly, Dr. F’s zero percent IR cannot be adopted.
There are two other certifications from Dr. F in evidence that certify the claimant has not reached MMI. However, as noted above the ALJ’s determination that the claimant reached MMI on July 16, 2016, is affirmed. Additionally, those certifications consider conditions that have been determined not to be part of the compensable injury, including a right wrist TFCC tear and Kienbock’s syndrome.
There are three certifications in evidence from (Dr. D), a carrier-selected required medical examination doctor, based on a medical examination of the claimant that occurred on June 25, 2018. The first certification from Dr. D certified that the claimant reached MMI on September 1, 2016, with a zero percent IR. However, as noted above the ALJ’s determination that the claimant reached MMI on July 16, 2016, was affirmed. Consequently, the IR assigned from Dr. D cannot be adopted.
The remaining two certifications from Dr. D opined that the claimant had not yet reached MMI. As previously noted, the ALJ’s determination that the claimant reached MMI on July 16, 2016, is affirmed. Additionally, those certifications consider and rate conditions that have been determined not to be part of the compensable injury, including a TFCC tear and Kienbock’s syndrome.
There is no MMI/IR certification assigning a zero percent IR with an MMI date of July 16, 2016, in evidence that can be adopted. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is zero percent. As there is no other IR in evidence that can be adopted, we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision. See Appeals Panel Decision (APD) 170321, decided April 10, 2017.
SUMMARY
We affirm the ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to the following conditions of the right upper extremity: a TFCC tear, ulnar abutment syndrome, Kienbock’s syndrome, tenosynovitis, CTS, and a ganglion cyst.
We affirm the ALJ’s determination that the claimant reached MMI on July 16, 2016.
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
Dr. F is the designated doctor in this case. On remand the ALJ is to determine whether Dr. F is still qualified and available to be the designated doctor. If Dr. F is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s IR for the (date of injury), compensable injury as of the July 16, 2016, date of MMI.
The ALJ is to inform the designated doctor that the date of MMI is July 16, 2016, and request that the designated doctor assign an IR as of the date of MMI in accordance with Rule 130.1(c) and 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). The ALJ is to advise the designated doctor that the compensable injury extends to a sprain and strain of the right wrist but does not extend to the following conditions of the right upper extremity: a TFCC tear, ulnar abutment syndrome, Kienbock’s syndrome, tenosynovitis, CTS, and a ganglion cyst.
The parties are to be provided with the designated doctor’s new MMI/IR certification and are to be allowed an opportunity to respond. The ALJ is then to make a determination of IR consistent with this decision.
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 NEW HAMPSHIRE 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.
Margaret L. Turner – Appeals Judge
CONCUR:
Veronica L. Ruberto – Appeals Judge
Carisa Space-Beam – Appeals Judge