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 November 3, 2009. The hearing officer decided that the appellant (claimant) reached maximum medical improvement (MMI) on May 11, 2009, with a five percent impairment rating (IR).
The claimant appealed the hearing officer’s MMI and IR determinations. The respondent (carrier) responded, urging affirmance.
DECISION
Reversed and remanded for reconstruction of the record.
Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The CCH was recorded on one audiotape. The audiotape is blank on both sides A and B. The appeal file does not indicate that a court reporter was present and the file does not contain a transcript or other recording of the proceeding. Consequently, we remand the case for reconstruction of the CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.
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 Texas Department of Insurance, Division of Workers’ Compensation, 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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
MR. RUSSELL R. OLIVER, PRESIDENT
6210 EAST HIGHWAY 290
AUSTIN, TEXAS 78723.
Veronica L. Ruberto
CONCUR:
Thomas A. Knapp
Appeals Judge
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(1)Does the _________, compensable injury extend to include injuries to the cervical and/or thoracic spines and, if so, to what extent?
The hearing officer determined that the compensable injury of _________, extends to a cervical sprain/strain with cervical radiculitis, a thoracic sprain/strain and thoracic neuritis, but does not extend to displacement of thoracic intervertebral disc without myelopathy, lumbosacral neuritis, and thoracic spine protrusions at T3-4, T5-6 and T7-8.
The appellant (claimant) appealed that portion of the hearing officer’s extent-of-injury determination that the compensable injury of _________, does not extend to displacement of thoracic intervertebral disc without myelopathy, lumbosacral neuritis, and thoracic spine protrusions at T3-4, T5-6 and T7-8 on a sufficiency of the evidence basis. The claimant also contends that the hearing officer exceeded the scope of the extent-of-injury issue limited to the cervical and thoracic spine and erred by finding that the compensable injury does not extend to lumbosacral neuritis. The respondent (carrier) responded, urging affirmance. The carrier contends that the claimant agreed to expand the extent-of-injury issue (to the cervical and thoracic spine), thereby waiving “any right to complain of” the hearing officer’s extent-of-injury determination.
That portion of the hearing officer’s extent-of-injury determination that the compensable injury of _________, extends to a cervical sprain/strain with cervical radiculitis, a thoracic sprain/strain and thoracic neuritis was not appealed and has become final pursuant to Section 410.169.
DECISION
Affirmed in part and reversed and rendered in part.
The parties stipulated that the claimant sustained a compensable injury to at least his right shoulder on _________.
EXTENT OF INJURY OF
THORACIC INTERVERTEBRAL DISC WITHOUT MYELOPATHY
AND THORACIC SPINE PROTRUSIONS AT T3-4, T5-6 AND T7-8
The hearing officer’s determination that the compensable injury of _________, does not extend to displacement of thoracic intervertebral disc without myelopathy and thoracic spine protrusions at T3-4, T5-6 and T7-8 is supported by the evidence and is affirmed.
EXTENT OF INJURY TO LUMBOSACRAL NEURITIS
The hearing officer amended the extent-of-injury issue to expand it to include the cervical and thoracic spine and the parties agreed to that issue. The hearing officer in a finding of fact and conclusion of law determined that the compensable injury does not extend to lumbosacral neuritis. There was no mention of lumbosacral neuritis in argument at the CCH and that condition was not actually litigated. The carrier contends that the lumbosacral neuritis was one of the claimant’s diagnosed conditions and that the claimant “had the burden of proof to prove by a preponderance of the evidence, that his compensable injury extends to and includes anything beyond his right shoulder, cervical sprain/strain, thoracic sprain/strain, and thoracic neuritis.” We note that the extent-of-injury issue was limited to the cervical and thoracic spine. Regardless of whether other conditions are listed in the medical records, that does not expand the specific condition listed in, and agreed to by the parties, in the extent-of-injury issue. Accordingly, we reverse so much of the hearing officer’s Finding of Fact No. 5 that finds that the lumbosacral neuritis did not arise from or flow naturally from the compensable injury, and Conclusion of Law No. 4 that determines that the compensable injury does not include lumbosacral neuritis as exceeding the scope of the issue before the hearing officer. We render a new decision by striking the terms “lumbosacral neuritis” from Finding of Fact No. 5, Conclusion of Law No. 4 and the decision.[1] Our reversal on this point is not to be read as a holding that the claimant does or does not have lumbosacral neuritis, but only that the condition was not a part of the extent-of-injury issue.
SUMMARY
We affirm the hearing officer’s determination that the compensable injury of _________, does not extend to displacement of thoracic intervertebral disc without myelopathy and thoracic spine protrusions at T3-4, T5-6 and T7-8.
We reverse so much of the hearing officer’s Finding of Fact No. 5 that finds that the lumbosacral neuritis did not arise from or flow naturally from the compensable injury, and Conclusion of Law No. 4 that determines that the compensable injury does not include lumbosacral neuritis as exceeding the scope of the issue before the hearing officer. We render a new decision by striking the terms “lumbosacral neuritis” from Finding of Fact No. 5, Conclusion of Law No. 4 and the decision, because that condition exceeded the scope of the issue before the hearing officer.
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 75063-2732.
Veronica L. Ruberto
CONCUR:
Thomas A. Knapp
Appeals Judge
Margaret L. Turner
Appeals Judge
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We note that Finding of Fact No. 3 finds that the claimant was diagnosed with lumbosacral neuritis.