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 13, 2014, 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], does not extend to cauda equina, right hip condition, L4-5 disc protrusion, and L4-5 spinal stenosis; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. S) on July 2, 2012, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (3) the appellant (claimant) reached MMI on July 2, 2012; (4) the claimant’s IR is 26%; (5) the claimant did not have disability resulting from the [Date of Injury], compensable injury beginning on July 3, 2012, and continuing through February 6, 2013; and (6) the claimant is not entitled to supplemental income benefits (SIBs) for the first quarter, December 31, 2013, through March 31, 2014.
The claimant appealed all of the hearing officer’s determinations, contending that the hearing officer erred in making his determinations. The claimant also contended that numerous stipulations contained in the hearing officer’s decision and order do not reflect the actual stipulations made by the parties at the CCH. The respondent (carrier) responded, urging affirmance of the hearing officer’s determinations. The carrier also noted that the hearing officer’s decision contains typographical errors regarding the stipulations made by the parties at the CCH.
DECISION
Reformed in part, affirmed in part, reversed and rendered in part, and reversed and remanded in part.
The claimant testified that he was injured when the three-foot ladder on which he was standing to install roof molding in the rear door of a van was blown over by a sudden gust of wind, causing the claimant to fall on his right side onto the concrete below.
ISSUE STATEMENT 2
The Benefit Review Conference (BRC) report lists the following finality issue:
Did the first certification of [MMI] and assigned [IR] from [Dr. S] on [July 2, 2012], become final under [Section 408.123] and Rule 130.12?
At the CCH the parties agreed to Issue Statement 2, the finality issue, as stated on the BRC report. However, the hearing officer’s decision lists Issue Statement 2, the finality issue, as follows:
Did the first certification of [MMI] and assigned [IR] from [Dr. S] on July 7, 2012, become final under [Section 408.123] and Rule 130.12?
Issue Statement 2 as listed in the decision and order is incorrect. We reform the hearing officer’s decision to state the following to reflect the actual issue as stated on the BRC report and agreed to by the parties at the CCH:
2. Did the first certification of [MMI] and assigned [IR] from [Dr. S] on [July 2, 2012], become final under [Section 408.123] and Rule 130.12?
STIPULATIONS
The parties stipulated to the following at the CCH:
1.Venue is proper in the [City] Field Office of the Texas Department of Insurance, Division of Workers’ Compensation [Division].
2.The claimant was the employee of [Employer], employer.
3.On [Date of Injury], the employer carried workers’ compensation insurance through Hartford Insurance Company of the Midwest, carrier.
4.The Division selected Dr. S as its designated doctor on the issues of MMI and IR.
5.On July 2, 2012, Dr. S certified that the claimant reached MMI on July 2, 2012, with an assigned IR of 26%.
6.The Division selected [Dr. R] as its designated doctor on the issue of return to work.
7.The Division selected [Dr. C] as its designated doctor on the issue of extent of injury.
8.The compensable injury includes at least a right shoulder rotator cuff tear, right wrist fracture, lumbar strain, and cervical strain.
9.The date of statutory MMI is September 26, 2013.
However, the stipulations contained in the hearing officer’s decision as Finding of Fact No. 1 are the following:
A.Venue is proper in the [City] Field Office of the [Division].
B.On [Date of Injury], Claimant was the employee of [Employer], Employer.
C.On [Date of Injury], Employer provided workers’ compensation insurance as a certified Carrier.
D.The Division selected [Dr. S] as its designated doctor with regard to MMI, IR, and extent of injury.
E.[Dr. S] certified that Claimant reached MMI on July 2, 2012, with an IR of 26%.
F.The compensable injury includes at least a right knee medial meniscus tear and sprain/strain.
The decision does not list the correct stipulations made by the parties at the CCH. Accordingly, we reform the hearing officer’s decision by striking Finding of Fact No. 1. B through F, and replace with the following as Finding of Fact No. 1. B through I:
B.The claimant was the employee of CH Holding Corporation, employer.
C.On [Date of Injury], the employer carried workers’ compensation insurance through Hartford Insurance Company of the Midwest, carrier.
D.The Division selected Dr. S as its designated doctor on the issues of MMI and IR.
E.On July 2, 2012, Dr. S certified that the claimant reached MMI on July 2, 2012, with an assigned IR of 26%.
F.The Division selected [Dr. R] as its designated doctor on the issue of return to work.
G.The Division selected [Dr. C] as its designated doctor on the issue of extent of injury.
H.The compensable injury includes at least a right shoulder rotator cuff tear, right wrist fracture, lumbar strain, and cervical strain.
I.The date of statutory MMI is September 26, 2013.
EXTENT OF INJURY, DISABILITY, AND MMI
The hearing officer’s determination that the compensable injury of [Date of Injury], does not extend to cauda equina, right hip condition, L4-5 disc protrusion, and L4-5 spinal stenosis is supported by sufficient evidence and is affirmed.
The hearing officer’s determination that the claimant did not have disability resulting from the [Date of Injury], compensable injury beginning on July 3, 2012, and continuing through February 6, 2013, is supported by sufficient evidence and is affirmed.
The hearing officer’s determination that the claimant reached MMI on July 2, 2012, is supported by sufficient evidence and is affirmed. It is clear from the decision that the hearing officer made findings of MMI and IR independent of finality.
FINALITY
Section 408.123(e) provides that except as otherwise provided by Section 408.123, an employee’s first valid certification of MMI and first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means; that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both. Section 408.123(f) provides, in part, that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described in Subsection (e) if: (1) compelling medical evidence exists of: (A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the [IR].
It was undisputed that Dr. S’s July 2, 2012, MMI/IR certification was provided to the claimant by verifiable means on July 20, 2012, and that the claimant did not dispute that certification within 90 days. The hearing officer determined that Dr. S’s July 2, 2012, MMI/IR certification became final under Section 408.123 and Rule 130.12. The claimant argued that the exception found in Section 408.123(f)(1)(A) applies; that is, there is compelling medical evidence of a significant error by Dr. S in calculating the IR, and therefore Dr. S’s July 2, 2012, MMI/IR certification did not become final.
Dr. S examined the claimant on July 2, 2012, and certified that the claimant reached MMI on July 2, 2012, with a 26% IR. Dr. S noted in his attached narrative report diagnoses of a right rotator cuff tear, right wrist fracture, and cervical and lumbar strains. Using 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), Dr. S placed the claimant in Diagnosis-Related Estimate (DRE) Cervicothoracic Category II: Minor Impairment for 5% whole person impairment (WPI) of the claimant’s cervical spine. Dr. S also placed the claimant in DRE Lumbosacral Category II: Minor Impairment for 5% WPI of the lumbar spine.
Dr. S noted in his narrative report his measurements for loss of range of motion (ROM) of the right wrist, which resulted in 11% upper extremity (UE) impairment for the right wrist. Dr. S correctly assessed impairment for the claimant’s loss of ROM of the right wrist using the AMA Guides based on the measurements listed in his narrative report.
Dr. S noted in his narrative report his measurements for loss of ROM of the right shoulder as follows: flexion at 45degrees (6% impairment); extension at 25degrees (1% impairment); abduction at 38degrees (6% impairment), and adduction at 10degrees (1% impairment); external rotation at 0degrees (2% impairment); and 0degrees internal rotation (5% impairment). Based on Dr. S’s measurements and the AMA Guides, the assigned impairment for extension, abduction, adduction, and internal and external rotation are correct. However, the assigned impairment for flexion is incorrect.
The instructions for assessing impairment for loss of ROM for flexion and extension stated that the measurements are to be rounded to the nearest 10degrees. The instructions go on to state that Figure 26 is to be used to match the measured angles of flexion and of extension to the corresponding impairments for flexion and extension. The impairments for flexion and extension are then to be added to obtain the percent of UE impairment.
According to Figure 38 on page 3/43 of the AMA Guides, a measurement for flexion at 45degrees results in either 9% or 10% impairment, depending on how the measurement is rounded. Using Dr. S’s impairments for extension, abduction, adduction, and external and internal rotation with the correct 9% or 10% for flexion results in either 24% or 25% UE impairment rather than 21% UE impairment as assessed by Dr. S.
Combing 24% UE impairment for the right shoulder with 11% UE impairment for the right wrist results in 32% UE. Using Table 3 on page 3/20 of the AMA Guides, 32% UE impairment converts to 19% WPI. Combining 19% impairment with 5% impairment for the cervical spine and 5% impairment for the lumbar spine results in 27% WPI rather than 26% WPI as assessed by Dr. S.
Combining 25% UE impairment for the right shoulder with 11% UE impairment for the right wrist results in 33% UE impairment. Using Table 3 on page 3/20 of the AMA Guides, 33% UE impairment converts to 20% WPI. Combining 20% impairment with 5% impairment for the cervical spine and 5% impairment for the lumbar spine results in 28% WPI rather than 26% WPI as assessed by Dr. S.
We hold that in this case there is compelling medical evidence of a significant error by Dr. S in calculating the claimant’s IR. Accordingly, we reverse the hearing officer’s determination that the first MMI/IR certification from Dr. S on July 2, 2012, became final under Section 408.123 and Rule 130.12, and we render a new decision that the first MMI/IR certification from Dr. S on July 2, 2012, did not become final under Section 408.123 and Rule 130.12.
IR
Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. See Rule 130.1(c)(3).
The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See Appeals Panel Decision (APD) 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011. However, in the case on appeal Dr. S’s 26% IR cannot be corrected. As previously discussed, 45degrees of flexion results in either 9% or 10% impairment. Rounding flexion to derive the correct UE impairment requires medical judgment or discretion, so we cannot recalculate the correct IR using Dr. S’s figures. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 26%.
There is one other MMI/IR certification in evidence, which is from (Dr. H), the treating doctor. Dr. H examined the claimant on April 17, 2013, and certified that the claimant reached MMI on February 6, 2013, with a 55% IR. However, given that we have affirmed the hearing officer’s determination that the claimant reached MMI on July 2, 2012, Dr. H’s 55% IR cannot be adopted. Furthermore, we note that Dr. H placed the claimant in DRE Lumbosacral Category VI: Cauda Equina-like Syndrome Without Bowel or Bladder Signs for 40% impairment, and DRE Cervicothoracic Category III: Radiculopathy for 15% impairment. We have affirmed the hearing officer’s determination that the compensable injury does not extend to cauda equina, and cervical radiculopathy was neither agreed to by the parties as part of the compensable injury nor was it actually litigated. Dr. H considered and rated conditions that are not part of the compensable injury.
As there is no IR in evidence that can be adopted, we remand the issue of IR to the hearing officer for further action consistent with this decision.
FIRST QUARTER SIBs
Eligibility criteria for SIBs entitlement are set forth in Section 408.142 and includes, among other things, an IR of 15% or more. Because we have reversed the hearing officer’s determination that the claimant’s IR is 26% and have remanded the IR issue to the hearing officer, we must also reverse the hearing officer’s determination that the claimant is not entitled to SIBs for the first quarter. The determination regarding first quarter SIBs is remanded pending a determination on remand of whether the claimant has an IR of 15% or more.
SUMMARY
We reform the hearing officer’s decision to state the following to reflect the actual issue as stated on the BRC report and agreed to by the parties at the CCH:
2. Did the first certification of [MMI] and assigned [IR] rating from [Dr. S] on [July 2, 2012], become final under [Section 408.123] and Rule 130.12?
We reform the hearing officer’s decision by striking Finding of Fact No. 1. B through F, and replace with the following as Finding of Fact No. 1. B through I:
A.The claimant was the employee of [Employer], employer.
B.On [Date of Injury], the employer carried workers’ compensation insurance through Hartford Insurance Company of the Midwest, carrier.
C.The Division selected Dr. S as its designated doctor on the issues of MMI and IR.
D.On July 2, 2012, Dr. S certified that the claimant reached MMI on July 2, 2012, with an assigned IR of 26%.
E.The Division selected [Dr. R] as its designated doctor on the issue of return to work.
F.The Division selected [Dr. C] as its designated doctor on the issue of extent of injury.
G.The compensable injury includes at least a right shoulder rotator cuff tear, right wrist fracture, lumbar strain, and cervical strain.
H.The date of statutory MMI is September 26, 2013.
We affirm the hearing officer’s determination that the compensable injury of [Date of Injury], does not extend to cauda equina, right hip condition, L4-5 disc protrusion, and L4-5 spinal stenosis.
We affirm the hearing officer’s determination that the claimant did not have disability resulting from the [Date of Injury], compensable injury beginning on July 3, 2012, and continuing through February 6, 2013.
We affirm the hearing officer’s determination that the claimant reached MMI on July 2, 2012.
We reverse the hearing officer’s determination that the first MMI/IR certification from Dr. S on July 2, 2012, became final under Section 408.123 and Rule 130.12, and we render a new decision that the first MMI/IR certification from Dr. S on July 2, 2012, did not become final under Section 408.123 and Rule 130.12.
We reverse the hearing officer’s determination that the claimant’s IR is 26%, and we remand the issue of IR to the hearing officer for further action consistent with this decision.
We reverse the hearing officer’s determination that the claimant is not entitled to SIBs for the first quarter, December 31, 2013, through March 31, 2014, and we remand the issue of first quarter SIBs pending a determination on remand of whether the claimant has an IR of 15% or more.
REMAND INSTRUCTIONS
Dr. S is the designated doctor in this case. On remand, the hearing officer is to determine whether Dr. S is still qualified and available to be the designated doctor. If Dr. S is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s IR for the [Date of Injury], compensable injury.
The hearing officer is to advise the designated doctor that the compensable injury of [Date of Injury], extends to a right shoulder rotator cuff tear, right wrist fracture, lumbar strain, and cervical strain. The hearing officer is also to advise the designated doctor that the compensable injury of [Date of Injury], does not extend to cauda equina, right hip condition, L4-5 disc protrusion, and L4-5 spinal stenosis. The hearing officer is further to advise the designated doctor that the date of MMI in this case is July 2, 2012.
The hearing officer is to request the designated doctor rate the entire compensable injury as of the July 2, 2012, date of MMI, in accordance with the AMA Guides considering the medical record and the certifying examination.
The parties are to be provided with the designated doctor’s new certification of IR and are to be allowed an opportunity to respond. The hearing officer is then to make a determination on the IR consistent with this decision. Upon the hearing officer’s determination on the IR, the hearing officer is then to make a determination whether the claimant is entitled to first quarter SIBs based on the evidence and 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 HARTFORD INSURANCE COMPANY OF THE MIDWEST and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201.
Carisa Space-Beam – Appeals Judge
CONCUR:
Veronica L. Ruberto – Appeals Judge
Margaret L. Turner – Appeals Judge