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 19, 2001. With regard to the issues before him, the hearing officer determined that the first impairment rating (IR) assigned to the respondent (claimant) on May 1, 1996, did not become final under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)) (because that report had a prospective date of maximum medical improvement (MMI) and therefore was invalid on its face), and that the claimant had a 7% IR, as assessed by the treating doctor in May 1996. The Rule 130.5(e) issue has not been appealed and has become final pursuant to Section 410.169; however, it may be referenced as it relates to the IR issue.
The appellant (self-insured) appeals, asserting that the claimant’s IR should be 0%, as assessed by the treating doctor in a report dated July 15, 1996, and that the claimant had not timely disputed that IR. The file does not contain a response from the claimant.
DECISION
Reversed and remanded.
The facts are relatively undisputed. The parties stipulated that the claimant sustained a compensable low back injury on ___________; that the claimant missed more than seven days of work; and that the treating doctor issued a Report of Medical Evaluation (TWCC-69) on May 1, 1996. The doctor’s TWCC-69 was dated May 1, 1996, and certified MMI on May 6, 1996, with a 7% IR, which was the first rating and “was not disputed within 90 days.” The self-insured noted the prospective MMI date and sent the report back to the doctor asking him to correct the MMI date so that it was not prospective. The claimant testified that his supervisor had told him that he could not return to work unless he had a 0% IR and that he (the claimant) contacted the doctor and requested a 0% IR so that he could return to work. The claimant testified (and is supported by a subsequent September 2001 note from the doctor) that the doctor was reluctant to give a 0% IR because it did not comply with the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides). The doctor nonetheless issued a second TWCC-69, dated July 15, 1996, certifying MMI on that date with a 0% IR. It is not clear whether the claimant had been getting income benefits, but the claimant returned to work shortly after July 15, 1996; worked about six weeks; and then was off work for six months (the reason is not clear). Some years later, the claimant was advised to collect his 7% IR as assessed by the treating doctor.
The hearing officer correctly found that the doctor’s chronologically first in time IR of 7% was invalid on its face as having a prospective MMI date and that Rule 130.5(e) applies only to the chronologically first in time report. The self-insured argues that the claimant did not timely dispute the treating doctor’s second report assessing a July 15, 1996, MMI date and 0% IR. The self-insured, in its appeal, correctly notes that “[n]either the [1989] Act nor the Rules prescribe a time within which a party must dispute a subsequent IR by a Treating Doctor, as opposed to a first chronological IR subject to Rule 130.5(e).” This is so because if there is a dispute of the treating doctor’s MMI and/or IR, the 1989 Act clearly requires that a designated doctor be appointed (or agreed upon) to resolve that dispute. Sections 408.122(c) and 408.125.
In this case, there is both a disputed MMI date and IR of the treating doctor. The hearing officer comments:
Since Claimant would have reached [MMI] back in 1998, appointment of a designated doctor three years subsequent to statutory [MMI] does not seem appropriate. Therefore, the hearing officer is going to adopt one of the two ratings assigned by [Dr. M] in May and July of 1996. Based on [Dr. M’s] letter of September 10, 2001, the first rating, while not becoming a final under Rule 130.5(e) does seem to be appropriate.
Neither the 1989 Act nor the Texas Workers’ Compensation Commission (Commission) rules provide for using an “appropriate” rating once the treating doctor’s MMI date and/or IR have been disputed.
This case is reversed and remanded for the appointment of a designated doctor pursuant to Sections 408.122(c) and 408.125. The designated doctor is to be provided all of the reports and records of the treating doctor or doctors (see Rule 130.6(h)) and is to make his assessment using the third edition of the AMA Guides pursuant to Rule 130.1(2)(B)(ii). However, before the case is sent to a designated doctor, the hearing officer must first determine, the eighth day of disability and the date of statutory MMI (see Section 401.011(30)(B)). The designated doctor is to be advised that he is to make his IR assessment, as best as possible as of the date the designated doctor assesses MMI or the date of statutory MMI, whichever is earlier. In this case, it may be necessary for the hearing officer to conduct a hearing on remand in two parts. The first part would be to get evidence to establish the statutory MMI date so the designated doctor can properly determine whether the MMI date is the statutory date or an earlier date based on the claimant’s medical condition. The second part would be to give the parties the opportunity to develop and present evidence on the MMI and IR issues after receiving the designated doctor’s MMI/IR certification. The hearing officer will then determine the correct MMI date 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 hearing officer, 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 Commission’s Division of Hearings, pursuant to Section 410.202 (amended June 17, 2001). See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993. Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code are not included in the computation of the time.
The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is
For service in person the address is:
RON JOSSELET, EXECUTIVE DIRECTOR
STATE OFFICE OF RISK MANAGEMENT
300 W. 15TH STREET
WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR
AUSTIN, TEXAS 78701.
For service by mail the address is:
RON JOSSELET, EXECUTIVE DIRECTOR
THE STATE OFFICE OF RISK MANAGEMENT
P.O. BOX 13777
AUSTIN, TEXAS 78711-3777.
Thomas A. Knapp
CONCUR:
Gary L. Kilgore – Appeals Judge
Robert E. Lang
Appeals Panel
Manager/Judge