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 initially held on August 15, 2005, (hearing officer 1) presiding as hearing officer. The Appeals Panel in Appeals Panel Decision 052163, decided November 1, 2005, remanded the case for a new hearing. A hearing on remand was held on November 28, 2005, (hearing officer 2) presiding as hearing officer. The disputed issues were:
1.Did the [respondent (claimant)] have disability resulting from an injury sustained on ___, and if so, for what period?
2.Does the compensable injury of ___, include disc herniation at C4/5 and/or C5/6?
Hearing officer 2 determined that the compensable injury of ___, extends to herniated discs at C4-5 and C5-6 and that the claimant had disability from November 7, 2003, through the date of the hearing on remand (November 28, 2005).
The appellant (carrier) appeals both determinations, contending, among other things, that it had not agreed or stipulated that the claimant reached statutory maximum medical improvement (MMI) on October 25, 2005, but only agreed that “statutory MMI would occur on 10-25-05.” The file does not contain a response from the claimant.
DECISION
Affirmed in part and reversed and rendered in part.
We have carefully reviewed the record and the carrier’s appeal and find hearing officer 2’s determinations on the disputed issues supported by sufficient evidence and not reversible as a matter of law, the carrier’s contentions not withstanding.
Hearing officer 2, as part of the Findings of Fact, held that the “Claimant reached statutory [MMI] on October 25, 2005.” As noted the carrier objected to that finding. What is commonly referred to as statutory MMI is defined in Section 401.011(30)(B).
We would first note that MMI was not an issue in this case. We do note that the carrier sought to have an MMI/IR issue added, over the claimant’s objection, and that hearing officer 2 denied the carrier’s motion. We find no error in hearing officer 2’s ruling and in any event that was not an appealed matter. We further observe that reaching MMI does not necessarily end disability as defined in Section 401.011(16) although pursuant to Section 408.102(a) temporary income benefits (TIBs) only continue until the employee reaches MMI. In other words an injured employee may continue to have disability as defined in Section 401.011(16) after reaching MMI but would not be entitled to TIBs.
We have reviewed the record and find that on disc 1 at track 15:13 hearing officer 2 asks “when was statutory MMI?” The carrier responds that it was October 25, 2005, and the claimant (ombudsman) says it was October 25 or 26. A stipulation on MMI was not made at the time the other stipulations were entered into, however, after the claimant’s opening, on disc 1 (which had switched back to a new track at a recess) at track 4:42 hearing officer 2 asks “can both of you stipulate to statutory date of MMI?” Both parties agreed that October 25, 2005, would be the statutory date of MMI. We hold hearing officer 2 erred in finding that the parties stipulated that the claimant reached statutory MMI on October 25, 2005. We agree with the carrier that the stipulation was only that statutory MMI would occur on October 25, 2005. We reverse hearing officer 2’s finding to make clear that MMI in this case was not an issue and has not been determined.
We reverse hearing officer 2’s finding that the parties stipulated that the claimant reached MMI on October 25, 2005, and render a new decision that the parties stipulated that statutory MMI (in this case) would occur on October 25, 2005.
The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is
ROBIN M. MOUNTAIN
6600 CAMPUS CIRCLE DRIVE EAST, SUITE 300
IRVING, TEXAS 75063.
Thomas A. Knapp
CONCUR:
Robert W. Potts – Appeals Judge
Margaret L. Turner – Appeals Judge