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At a Glance:
Title:
APD 121786
Date:
November 5, 2012

APD 121786

November 5, 2012

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 August 6, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [date of injury], extends to an acute lumbar muscular strain with right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease; (2) the respondent (claimant) has not yet reached maximum medical improvement (MMI) and no impairment rating (IR) may be assigned; and (3) the claimant had disability from November 2, 2011, through the present. The appellant (carrier) appeals the hearing officer’s determinations on extent of the compensable injury, MMI/IR, and disability. The carrier contends that the hearing officer erred in finding sufficient expert evidence establishing causation of the claimed extent-of-injury conditions, in finding that the claimant is not at MMI, and in finding that the claimant had disability for the claimed period because the compensable injury is limited to a lumbar sprain/strain only. Further, the carrier argues that the hearing officer should have adopted the certification of MMI/IR from the designated doctor, [Dr. S], appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) for purposes of MMI/IR, return to work, and extent of injury. The claimant responded, urging affirmance.

DECISION

Affirmed in part, reversed and rendered in part, and reversed and remanded in part.

The evidence reflects that the claimant sustained a compensable injury on [date of injury]. The claimant testified that he injured his back lifting a tire at work. Although the hearing officer failed to include all the parties’ stipulations in her decision, the recording of the CCH reflects that the parties stipulated that the carrier accepted a lumbar sprain/strain. That portion of the hearing officer’s extent-of-injury determination that the compensable injury of [date of injury], extends to an acute lumbar muscular strain is supported by sufficient evidence and is affirmed.

OTHER EXTENT-OF-INJURY CONDITIONS

In the Background Information section of her decision, the hearing officer states:

The more persuasive evidence from [Dr. L] [the claimant’s treating doctor] supports that the compensable injury does extend to include the . . . [claimed extent-of-injury] diagnoses.

In evidence is a letter from Dr. L dated March 5, 2012, which is a response to questions submitted to him by the claimant’s ombudsman. The questions are not in evidence, only Dr. L’s responses. In this letter, Dr. L states:

Question #3: As a direct result of the incident [[date of injury]], it is in my opinion, within reasonable medical probability [the claimant] suffered an acute [lumbar] spine musculoskeletal strain with a [right lower extremity] myelopathy and on initial exam, he had marked neurological deficits.

Question #4: [The claimant] did have a pre-exisiting condition dating to work-related incident in [April of 2001]. In [June of 2001] [the claimant] underwent a [right] L5-S1 laminectomy and diskectomy by [Dr. RL]. [The patient] did recover from this injury over a 14 month time period and had been back to full normal work duties until this injury which happened [[date of injury]].

Question #5: I arrived at my diagnosis based on the [claimant’s] past history, his physical exam findings on my first visit with him on [June 10, 2011], for this current injury. Further, on [July 13, 2011] [the claimant] underwent an MRI of the [lumbar] spine. . . . At L4-5 there is disk desiccation and mild disk height loss with mild circumferential disk bulging which minimally indents the thecal sac and causes no thecal sac stenosis. There is moderate facet arthrosis with no neural foraminal stenosis. At L5-S1 there is grade 1 posterior subluxation of L5 on S1 with disk desiccation and moderate disk height loss. There is mild generalized disk bulging with no thecal sac stenosis. There is mild facet arthrosis. There is no neural foraminal stenosis. . . .

* * * *

Question #12: Within reasonable medical probability, the injury occurring [date of injury], is the cause for the [claimant’s] current disability and current need for surgical intervention. I answer this knowing the [claimant] had a pre-existing condition that was 10 years old, that he had recovered from and had no true issues with his lumbar spine until this injury [date of injury]. Within reasonable medical probability, I feel this to be a new injury and whether you want to call this an aggravation to a pre-existing condition or not, this is still a new injury. This [claimant] did not have this disability/impairment prior to this injury on [date of injury]. Further [the claimant] has no hopes of recovery or improvement without a surgical intervention. In fact, the injury 10 years ago, the [claimant] was surgically managed and had proceeded on with normal activities of daily living and his normal work activities without any incident until the injury on [date of injury].

In a report dated November 2, 2011, Dr. S, the designated doctor appointed in part for extent of injury, states:

According to the [Request for Designated Doctor (DWC-32)] provided, the carrier accepts the compensable diagnosis of a lumbar strain. The mechanism of injury of lifting a heavy object, subjective complaints of low back pain radiating down the lower extremities in a non-dermatomal pattern, and objective physical exam evidence all support this diagnosis. This injury is superimposed upon pre-existing degenerative disease of the lumbar spine that was acutely exacerbated by the injury. The primary pathology identified at L4-5 and L5-S1 – to include spondylolisthesis at L5-S1 – was also present as early as 2001, and there are no new structural changes on the recent MRI [dated July 13, 2011], that would suggest that significant aggravation of these changes occurred.

The Appeals Panel has previously held that proof of causation must be established to a reasonable medical probability by expert evidence where the subject is so complex that a fact finder lacks the ability from common knowledge to find a causal connection.  Appeals Panel Decision (APD) 022301, decided October 23, 2002.  See also Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007).  To be probative, expert testimony must be based on reasonable medical probability.  City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.-San Antonio 2009, no pet.) citing Insurance Company of North America v. Meyers, 411 S.W.2d 710, 713 (Tex. 1966).

The conditions of right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease are conditions that require expert evidence to establish a causal connection with the compensable injury.

In APD 110054, decided March 21, 2011, the Appeals Panel stated that “[a]lthough the claimed conditions are listed in the record, there is not any explanation of causation for the claimed conditions in the record.  We hold that in this case the mere recitation of the claimed conditions in the medical records without attendant explanation how those conditions may be related to the compensable injury does not establish those conditions are related to the compensable injury within a reasonable degree of medical probability.”

There are no medical records in evidence, neither those of Dr. L or of Dr. S, the designated doctor, that explain how the work injury of [date of injury], caused the claimed right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease. [Dr. SU], a peer review doctor, testified at the CCH as to what each of these claimed conditions were, and why, in his medical opinion, the medical records of the claimant did not establish the claimed conditions resulted from the work injury, within reasonable medical probability. In contrast, Dr. L’s letter of causation is a mere recitation of the claimed extent-of-injury diagnoses and is conclusory.

Accordingly, that portion of the hearing officer’s finding that the claimant’s right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease arose out of and naturally flowed from the compensable injury of [date of injury], is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

We reverse that portion of the hearing officer’s determination that the compensable injury of [date of injury], extends to right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease and render a new decision that the compensable injury of [date of injury], does not extend to right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease.

MMI/IR

There is only one certification of MMI/IR in evidence. Dr. S, the designated doctor, examined the claimant on November 2, 2011, and certified that the claimant reached MMI on that date with five percent IR. Dr. S considered and rated a compensable lumbar strain.

As previously discussed, we have reversed the hearing officer’s extent-of-injury determinations as to all claimed lumbar conditions with the exception of a lumbar sprain/strain. We have affirmed that portion of the determination that the compensable injury extends to an acute lumbar muscular strain.

In the Background Information section of her decision, the hearing officer states that Dr. S did not give an explanation as to why the claimant reached MMI on November 2, 2011, and did not take into consideration that the claimant is pending spinal surgery for the compensable injury. The hearing officer’s determination that the claimant is not at MMI and therefore, no IR can be assigned is predicated on her extent-of-injury determination that the compensable injury of [date of injury], exceeded a lumbar sprain/strain.

The hearing officer found that the preponderance of the evidence did not support Dr. S’s certification of MMI/IR. We disagree. Dr. S, in his narrative report dated November 2, 2011, states that the claimant’s clinical condition is stabilized and not likely to improve with surgical intervention and that he has reached a plateau despite appropriate treatment therefore, the date of MMI is the date of the certifying examination, with no objective evidence to support an earlier date. Dr. S further explains that he has placed the claimant in Diagnosis-Related Estimate Lumbosacral Category II: Minor Impairment according to the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides) due to the presence of muscle spasm documented by his treating provider. Dr. S provided an explanation of the certified date of MMI and provided an IR according to the AMA Guides.

The hearing officer’s findings that “‘[f]urther material recovery from and lasting improvement to’ [the] [c]laimant’s injury could reasonably be anticipated after November 2, 2011,” and that “[a] preponderance of the evidence does not support Dr. [S’s] certification of MMI or assignment of IR” is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

Accordingly, we reverse the hearing officer’s determination that the claimant has not reached MMI and no IR may be assigned and render a new decision that the claimant reached MMI on November 2, 2011, with five percent IR.

DISABILITY

Because we have reversed the hearing officer’s determination that the claimant’s compensable injury of [date of injury], extends to right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease, we remand the disability issue to the hearing officer to determine whether the claimant has disability resulting from the compensable injury, an acute muscular strain, for the claimed period of November 2, 2011, through the date of the CCH (August 6, 2012). We note that the hearing officer failed to include in her decision the parties’ stipulations that the claimant did not have disability from June 4 through June 25, 2011, and that the claimant’s average weekly wage is $552.75.

On remand, the hearing officer is to include in her decision all the parties’ stipulations entered into at the CCH. The hearing officer is not to allow the parties to offer additional evidence at the CCH on remand. The hearing officer is to consider the evidence already admitted at the August 6, 2012, CCH and make findings of fact and conclusions of law on the issue of disability consistent with this decision.

SUMMARY

We affirm that portion of the hearing officer’s decision that the compensable injury of [date of injury], extends to an acute lumbar muscular strain.

We reverse that portion of the hearing officer’s decision that the compensable injury of [date of injury], extends to right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease and render a new decision that the compensable injury of [date of injury], does not extend to right lower extremity myelopathy, arthrosis at L4-5, disc bulge at L5-S1, and aggravation of degenerative disc disease.

We reverse the hearing officer’s decision that the claimant has not reached MMI and no IR can be assigned and render a new decision that the claimant reached MMI on November 2, 2011, with five percent IR.

We reverse the hearing officer’s decision that the claimant had disability resulting from the compensable injury from November 2, 2011, to the present, and remand the disability issue to the hearing for further action consistent with this decision.

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 Division, 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. RON O. WRIGHT, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

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