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 October 18, 2001. With regard to the two issues before him, the hearing officer determined that (1) the first certification of maximum medical improvement (MMI) and impairment rating (IR) assigned by Dr. V did not become final pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)) and that the respondent (claimant) had disability from July 17, 2001, through October 8, 2001. The hearing officer’s determination on the disability issue has not been appealed and, therefore, has become final. Section 410.169.
The appellant (carrier) appealed, citing Texas Workers’ Compensation Commission Appeal No. 002317-S, decided November 9, 2000, for the proposition that a verbal dispute of MMI and IR to the Texas Workers’ Compensation Commission (Commission) under Rule 130.5(e) must be “evidenced in the Commission records.” The file does not contain a response from the claimant.
DECISION
Affirmed in part, reversed and rendered in part.
The facts are not in dispute. The parties stipulated that the claimant, a seamstress, sustained a compensable (right hand/wrist) injury on___________. The claimant treated with Dr. V, who in a Report of Medical Evaluation (TWCC-69) and narrative dated October 20, 2000, certified the claimant at MMI on that date with a zero IR. It is undisputed that that report was the first certification of MMI and IR and was sent to and received by the claimant. Further, the Commission sent the claimant an EES-19 letter dated November 2, 2000, which the claimant agreed she received shortly after that date. The claimant testified through a translator that her daughter, Ms. C, disputed Dr. V’s report on November 9, 2000 with the Commission. Ms. C testified that she lives with her mother and takes care of her mother’s affairs. Ms. C testified that she called the telephone number listed on the EES-19 letter on November 9, 2000 disputing the MMI/IR, and spoke with “J” in customer service who told her that the claimant would be referred to another doctor. Ms. C said she made a note to that effect on the EES-19 letter and noted that she had spoken with “J.” In evidence is the EES-19 letter with Ms. C’s note stating “called 11/9/000 [sic] need to refer to another Dr.” (possibly meaning a designated doctor), with the initials “CS” which Ms. C said stood for customer service. On the envelope, the name “J” is written.
Inexplicably, apparently no one ever asked if there was a “J” in the customer service section of the Commission field office nor did anyone ask for any Dispute Resolution Information System notes that may have existed. At the CCH, in closing argument, the carrier’s attorney cited Appeal No. 002317-S, supra, as the “leading case” in this area and asserted that there was no evidence “that such oral dispute was actually received by the Commission.”
The hearing officer, nonetheless, in the Statement of the Evidence portion of his decision, commented that he found Ms. C’s testimony credible, that he would “not draw conclusions as to the reason or reasons for the discrepancy in the Commission records and the oral communication from the Claimant’s daughter” and found:
FINDINGS OF FACT
6.The Commission records do not reflect an oral communication by anyone representing the interests of the Claimant on November 9, 2000.
7.Claimant affirmatively proved that the verbal communication with the Commission disputing [Dr. V’s] MMI and IR took place and that it was received by the Commission on November 9, 2000.
The hearing officer concluded that the first certification of MMI and IR assigned by Dr. V had not become final.
The pertinent portion of Rule 130.5(e) provides:
The first certification of MMI and [IR] assigned to an employee is final if the certification of MMI and/or [IR] is not disputed within 90 days after written notification of the MMI and IR is sent by the Commission to the parties, as evidence by the date of the letter… .
Appeal No. 002317-S was a Rule 130.5(e) case where a carrier purported to dispute the first certification of MMI and IR by first mailing a Notice of Maximum Medical Improvement/Impairment Rating Dispute (TWCC-32) by regular mail to the employee and the Commission within 90 days of the first certification and a few days later (still within 90 days) sent a Notification Regarding Maximum Medical Improvement and/or Impairment Rating (TWCC-28) by certified mail to the employee and the Commission. The claimant received both communications but the Commission apparently did not. Although the carrier was able to prove that it had sent the TWCC-28, there was no evidence that it was received by the Commission. The hearing officer found that the carrier had timely disputed the first certification and the Appeals Panel reversed and rendered a new decision that the first certification had become final. That case also had a discussion of the carrier’s obligation to file with the Commission certain matters pursuant to Rules 130.5(a) through (c). The key portion of the case, cited by the carrier in this case, states:
We reject the claimant’s assertion that Rule 130.5(a) restricts a carrier to a written dispute of the initial certification of MMI and IR and we do not preclude the filing by the carrier of such dispute through verbal communication to the Commission as we have not required the claimant to do so. However, it is incumbent upon either party who wishes to dispute an initial certification of MMI and IR to affirmatively prove that such verbal communication with the Commission took place and was evidenced in the Commission’s records.
We would first note that the last sentence of the quote constitutes dicta since the case before the hearing officer dealt with a written dispute to the Commission by the carrier, rather than verbal communications by either party. Certainly, the first part of that sentence contains good advice, however, the phrase “and was evidenced in the Commission’s records” constitutes an addition to the requirements of Rule 130.5(e) that the dispute must be evidenced in the Commission’s records. We distinguish Appeal No. 002317-S from the instant case in that Appeal No. 002317-S dealt with a carrier’s filing of written documents required by Rules 130.5(a)-(c) and 102.5, whereas the instant case involves an alleged verbal dispute by a claimant’s representative.
As Appeal No. 002317-S notes, the Appeals Panel has long allowed claimants to make verbal disputes to the carrier or even the carrier’s adjuster. Texas Workers’ Compensation Commission Appeal No. 961092, decided July 22, 1996; Texas Workers’ Compensation Commission Appeal No. 961326, decided August 21, 1996. Certainly, in those cases, there was no documentation of a dispute in the Commission’s records. While we wholeheartedly endorse the concept that a party should attempt to prove, by documentary evidence, any verbal communications which may be made or received, we stop short of making that a requirement. If a party chooses to rely on the testimony of an individual alone, that party takes the chance that a hearing officer may reject that testimony as not being credible or persuasive.
The basis on which the hearing officer made the finding that Commission records do not reflect an oral communication by anyone representing the claimant’s interest is not readily apparent. Certainly neither party offered the records and the hearing officer did not indicate that he was taking official notice of those records. Consequently, we reverse Finding of Fact No. 6 as not being supported by the evidence.
Evidence to support the hearing officer’s finding that the verbal communication disputing Dr. V’s MMI/IR was received by the communication is Ms. C’s testimony that she spoke with J in customer service at the Commission field office and that J told her that the claimant would be referred to another doctor. The hearing officer was free to believe that testimony or not and in this case he obviously believed the testimony and that J with the Commission had received the dispute.
The hearing officer’s decision and order are affirmed, with the exclusion of Finding of Fact No. 6, for the reasons stated.
The true corporate name of the insurance carrier is AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701.
Thomas A. Knapp – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Susan M. Kelley – Appeals Judge