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 September 5, 2007. The unresolved issues before the hearing officer were: (1) whether the respondent (claimant) sustained a compensable injury on ___________; (2) whether the claimant had disability resulting from the ___________, injury, and if so, for what period; and (3) whether the claimant gave timely notice to the employer of her injury.
The hearing officer determined that: (1) the claimant sustained a compensable injury on ___________; (2) the claimant sustained disability from April 5, 2006, to May 3, 2006, and from July 3, 2006, to September 30, 2006, but at no other times through the date of the CCH; and (3) the appellant (carrier) is not relieved from liability under Section 409.002 because the claimant did timely notify the employer pursuant to Section 409.001.
In addition the hearing officer made determinations that: (1) (Dr. B), (the designated doctor) found the claimant to be at maximum medical improvement (MMI) on February 18, 2006, with a 0% impairment rating (IR); (2) Dr. B’s assigned IR and MMI date are not supported by a preponderance of the evidence; and (3) the preponderance of the evidence is that the claimant did not reach MMI on February 18, 2006, and that no IR should be assigned. The carrier appeals, contending that MMI and IR were not certified as issues in dispute. The carrier also appeals the disputed issues on a sufficiency of the evidence basis. The claimant responds, urging affirmance.
DECISION
Affirmed in part and reversed and rendered in part.
COMPENSABLE INJURY, DISABILITY AND TIMELY NOTICE
The hearing officer’s determinations on the compensable injury, disability and timely notice to the employer issues are supported by sufficient evidence and are affirmed.
MMI/IR
The unresolved issues at the benefit review conference (BRC) dealt with whether the claimant had sustained a compensable injury, whether the claimant had disability, and if so, for what periods and whether the claimant gave timely notice of the injury to her employer. There were no certified issues regarding MMI and IR. Section 410.151(b) and 28 TEX. ADMIN. CODE § 142.7 (Rule 142.7) essentially provide that issues not considered at a BRC may only be added by consent of the parties or upon a showing of good cause. While consent may be inferred if the parties actually litigated an issue not otherwise identified, we do not believe that the record in this case establishes that the parties litigated MMI and/or IR. We consider all findings by the hearing officer concerning MMI and IR to be beyond the scope of the issues before him and consider them surplusage.
Accordingly, we hold that the hearing officer’s findings (Findings of Fact Nos. 8, 9 and 10) regarding MMI, 0% IR and that the claimant did not reach MMI on February 18, 2006, and that no IR should be assigned, exceeded the scope of the disputed issues before him. We reverse the hearing officer’s decision by striking Findings of Fact Nos. 8, 9 and 10, as surplusage.
The true corporate name of the insurance carrier is HARTFORD UNDERWRITERS INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
701 BRAZOS STREET, SUITE 1050
AUSTIN, TEXAS 78701.
Thomas A. Knapp
CONCUR:
Veronica L. Ruberto – Appeals Judge
Margaret L. Turner – Appeals Judge