This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 19, 2014, with the record closing on January 12, 2015, in Tyler, 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 facet arthrosis; (2) the compensable injury of [Date of Injury], extends to L4-5 annular disc tear with central canal narrowing and L4-5 disc bulge; (3) the respondent (claimant) reached maximum medical improvement (MMI) on December 26, 2013; and (3) the claimant’s impairment rating (IR) is five percent.

The appellant (carrier) appeals the hearing officer’s determinations that the compensable injury extends to L4-5 annular disc tear with central canal narrowing and L4-5 disc bulge; the MMI date; and the IR. The carrier contends that the claimant did not meet his burden of proof to establish that the disputed conditions determined by the hearing officer were part of the compensable injury. Additionally, the carrier contends that the hearing officer improperly found the claimant reached MMI on December 26, 2013, with a five percent IR. The claimant responded, urging affirmance of the disputed issues.

The hearing officer’s determination that the compensable injury does not extend to facet arthrosis was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The claimant testified that he injured his low back on [Date of Injury], when he was changing tires on a motor vehicle. The parties stipulated in part that (Dr. H) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor and that the claimant reached statutory MMI on December 26, 2013.^[1]

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury of [Date of Injury], extends to L4-5 annular disc tear with central canal narrowing and L4-5 disc bulge is supported by sufficient evidence and is affirmed.

MMI AND IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.”  Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Division shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.

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.  28 TEX. ADMIN. CODE § 130.1(c)(3) (Rule 130.1(c)(3)) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

Dr. H, the Division-appointed designated doctor, initially examined the claimant on August 29, 2013, and certified that the claimant had reached clinical MMI on April 16, 2013, with a five percent IR 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. H noted in his narrative report that he was limiting his certification of MMI/IR to a lumbar sprain/strain. As previously noted the hearing officer’s determination that the compensable injury of [Date of Injury], extends to an L4-5 annular disc tear with central canal narrowing and an L4-5 disc bulge was affirmed.

A letter of clarification was subsequently sent to Dr. H which requested that Dr. H prepare certification of MMI/IR which rates the complete injury, which has been administratively determined to include not only the low back sprain/strain but also the L4-5 annular disc tear and the L4-5 disc bulge. Dr. H re-examined the claimant on December 16, 2014. Dr. H stated that at the date of his examination the claimant had still not received an epidural steroid injection and had been referred for a physical rehabilitation program. Dr. H noted that the claimant was currently participating in a multidisciplinary functional rehabilitation program. Dr. H explained that he chose the statutory date of MMI rather than a clinical date because a great deal of treatment was recommended but not rendered or performed because of the dispute regarding the disc injury. However, Dr. H mistakenly believed that the date of statutory MMI was December 29, 2013, rather than December 26, 2013, as stipulated by the parties.

The hearing officer found that the IR and date of MMI assigned by Dr. H following his December 16, 2014, re-examination, and as contained in his December 17, 2014, Report of Medical Evaluation (DWC-69) and report, are not contrary to the preponderance of the other medical evidence. However, the parties stipulated that the claimant reached statutory MMI on December 26, 2013. While it is clear Dr. H intended to certify the claimant reached MMI on the statutory date both his narrative and his DWC-69 state the claimant reached statutory MMI on December 29, 2013. The hearing officer determined that the claimant reached MMI on December 26, 2013, but there is no certification from Dr. H in evidence that the claimant reached MMI on December 26, 2013. Accordingly, we reverse the hearing officer’s determination that the claimant reached MMI on December 26, 2013, with a five percent IR.

The initial certification from Dr. H cannot be adopted because it did not consider and rate the entire compensable injury. The only other certifications in evidence are from the carrier-selected required medical examination doctor, (Dr. M). Dr. M examined the claimant on May 15, 2014. Dr. M provided a certification that only considered the lumbar sprain/strain, certifying the claimant reached MMI on January 21, 2012, with a zero percent IR. This certification did not consider and rate the entire compensable injury and cannot be adopted. Dr. M provided an alternate certification that considered and rated an annular tear and disc herniation at the L4-5 level. For these conditions, Dr. M stated the claimant would have reached MMI on May 21, 2012, which should have been more than adequate time for a lumbar disc small herniation to have resolved itself and stabilized. Dr. M assessed a five percent IR.

The hearing officer was persuaded that the evidence presented established that further material recovery from or lasting improvement to an injury was reasonably anticipated after May 21, 2012, because the various treatments that had been recommended for the claimant’s lumbar spine injury had not yet been received. We agree. Consequently, the alternate certification from Dr. M that the claimant reached MMI on May 21, 2012, with a five percent IR cannot be adopted.

Since there are no certifications in evidence that can be adopted we remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of [Date of Injury], extends to an L4-5 annular disc tear with central canal narrowing and an L4-5 disc bulge.

We reverse the hearing officer’s determinations that the claimant’s date of MMI is December 26, 2013, with an IR of five percent and remand the issues of MMI and IR to the hearing officer.

REMAND INSTRUCTIONS

Dr. H is the designated doctor in this case.  On remand, the hearing officer is to determine whether Dr. H is still qualified and available to be the designated doctor.  If Dr. H 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 MMI and 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], includes a lumbar sprain/strain, an L4-5 annular disc tear with central canal narrowing and an L4-5 disc bulge. Further, the hearing officer is also to advise the designated doctor that the compensable injury does not extend to facet arthrosis.

The certification of MMI can be no later than the statutory date of MMI, which the parties have stipulated is December 26, 2013.  The certification of MMI should be the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated considering the physical examination and the claimant’s medical records.

The assignment of an IR is required to be based on the claimant’s condition as of the MMI date considering the medical records and the certifying examination and according to the rating criteria of the AMA Guides and the provisions of Rule 130.1(c)(3).  After a new certification of MMI/IR is submitted, the parties are to be provided with the designated doctor’s DWC-69 and narrative report. The parties are to be allowed an opportunity to respond.  The hearing officer is to determine the issues of MMI and IR 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 Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is OLD REPUBLIC INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

1. We note that the hearing officer’s decision and order contains an incorrect zip code for the carrier’s registered agent for service.

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