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 October 22, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) reached maximum medical improvement (MMI) on January 24, 2011, with five percent impairment rating (IR) per the report of [Dr. B], the Texas Department of Insurance, Division of Workers’ Compensation (Division)-selected designated doctor; and (2) due to his [date of injury], compensable injury, the claimant had disability from January 25 through February 1, 2011, and from April 20, 2011, through April 12, 2012, but did not have disability from February 2 through April 19, 2011, or on April 13, 2012. The claimant appealed, disputing the hearing officer’s determinations on MMI, IR, and that period of no disability adverse to the claimant. The respondent (self-insured) responded, urging affirmance of the disputed determinations.
That portion of the hearing officer’s determination that due to his [date of injury], compensable injury, the claimant had disability from January 25 through February 1, 2011, and from April 20, 2011, through April 12, 2012, was not appealed and has become final pursuant to Section 410.169.
Affirmed as reformed.
Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a)(1). Section 410.204(a) provides, in part, that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1). Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case: (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but does not affect the outcome of the hearing. This is a case involving an error at the CCH that requires correction but does not affect the outcome of the hearing.
The parties stipulated that on [date of injury], the claimant sustained a compensable low back injury in the form of an L5-S1 disc protrusion and that Dr. B, the designated doctor, was asked to address the issues of MMI/IR, extent of the compensable injury, ability to return to work, and whether the claimant’s disability is a direct result of the compensable injury.
The hearing officer’s determination that due to the [date of injury], compensable injury, the claimant did not have disability from February 2 through April 19, 2011, and on April 13, 2012, is supported by sufficient evidence and is affirmed.
Dr. B examined the claimant on April 20, 2011, and certified that the claimant reached MMI on January 24, 2011, with five percent IR based on a diagnosis of lumbar and cervical sprain/strain. Subsequent to that April 20, 2011, examination, the parties signed a Benefit Dispute Agreement (DWC-24) dated April 21, 2011, which states that the “[p]arties agree that the [[date of injury]], compensable injury extends to include an aggravation of the L5-S1 disc protrusion. . . .”
A letter of clarification (date unknown) was sent by the Division to Dr. B informing him that the [date of injury], compensable injury included a lumbar sprain/strain, a thoracic sprain/strain, and an aggravation of the L5-S1 disc protrusion but not a cervical sprain/strain. Dr. B was further informed that due to an aggravation of the L5-S1 disc protrusion, the claimant had “a second epidural steroid injection, and underwent chronic pain management. The sessions ended in April 2012.” Dr. B was requested to clarify “whether [Dr. B] considered the disc pathology at L5-S1 and thoracic sprain/strain in assessing [MMI/IR].” In a response dated May 17, 2012, Dr. B stated:
Following receipt of additional information and reviewing the original documentation and [claimant] evaluation which was performed on April 20, 2011, I do not see any condition that would change the [IR] on this [claimant].
The [claimant’s] [IR] was found upon [Diagnosis-Related Estimate (DRE) Lumbosacral Categories], Table 72, page 3/110, of 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)]. [The claimant] qualified for minor impairment . . . which gives him [five percent] whole person impairment.
Dr. B failed to consider the claimant’s thoracic sprain/strain and did not rate the entire compensable injury. Finding of Fact No. 3 states that the preponderance of the medical evidence is not contrary to Dr. B’s report. The hearing officer’s Finding of Fact No. 3 is against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.
However, there is only one certification of MMI/IR in evidence that rates the entire compensable injury of lumbar sprain/strain, thoracic sprain/strain, and aggravation of the L5-S1 disc protrusion. [Dr. M], a post-designated doctor required medical examination doctor, examined the claimant on October 11, 2012, and certified that the claimant reached MMI on January 24, 2011, with five percent IR. In his narrative report, Dr. M documented the claimant’s course of treatment in 2011 and 2012 following the designated doctor’s April 20, 2011, examination, which included injections and chronic pain management. Regarding MMI, Dr. M stated:
It is my opinion this [claimant] treated on a conservative basis should have reached MMI by [January 24, 2011]. This was more than adequate time to recover from a conservatively treated transient aggravation of an L5-S1 disc protrusion and a lumbar and thoracic sprain. Therefor[e] I would place him at MMI as of [January 24, 2011]. . . .
Regarding IR, Dr. M stated:
The [claimant] at no time had significant documentation of a major thoracic injury, therefore, he would be at most a Category I from the DRE category of the thoracolumbar spine with [zero percent] impairment. Referable to his lumbosacral spine, [the claimant] would be a Category II since there is not clearcut documentation of significant radiculopathy and on clinical examination today he has absolutely no evidence of any radiculopathy or abnormal neurological findings. Therefore, he would be placed referable to his lumbar spine as a Category II with [five percent] whole person impairment.
Because an MMI date of January 24, 2011, and an IR of five percent are supported by the evidence, based on the report of Dr. M, rather than based on the report of Dr. B, Conclusion of Law No. 3 and the hearing officer’s decision is affirmed but reformed as the claimant reached MMI on January 24, 2011, with five percent IR per the report of Dr. M.
The true corporate name of the insurance carrier is [a self-insured governmental entity] and the name and address of its registered agent for service of process is
[CITY], TEXAS [ZIP}.
Cynthia A. Brown
Thomas A. Knapp
Margaret L. Turner