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 September 28, 2017, with the record closing on April 17, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the compensable injury of (date of injury), does not extend to lumbar intervertebral disc disorders; (2) the appellant/cross-respondent (claimant) reached maximum medical improvement (MMI) on April 15, 2016; (3) the claimant’s impairment rating (IR) is zero percent; (4) the first certification of MMI and assigned IR from (Dr. H), on April 15, 2016, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (5) the claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH.
The claimant appealed, disputing the ALJ’s extent of injury, MMI, and IR determinations. The respondent/cross-appellant (carrier) responded, urging affirmance of the ALJ’s extent-of-injury determination. The carrier cross-appealed, disputing the ALJ’s MMI, IR, and finality determinations. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.
The ALJ’s determination that the claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH was not appealed and has become final pursuant to Section 410.169.
DECISION
Affirmed in part, reformed in part, and reversed and remanded in part.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that includes a lumbar sprain/strain, and the statutory date of MMI is March 25, 2018. The claimant testified he was injured when he lifted a hot water heater.
The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), does not extend to lumbar intervertebral disc disorders is supported by sufficient evidence and is affirmed.
DISABILITY
The parties stipulated at the CCH that the claimant did not have disability due to the (date of injury), compensable injury from March 8, 2016, to the date of the CCH. The ALJ determined in the Decision portion of the decision and order that the claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH. However, the summary paragraph on the first page of the decision and order omits the disability determination, and the decision does not contain a conclusion of law on disability. We reform the decision and order to include the following language as Conclusion of Law No. 7 as well as the summary paragraph on the first page of the decision:
The claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH.
FINALITY UNDER SECTION 408.123 AND RULE 130.12
Section 408.123(e) provides that except as otherwise provided by this section, an employee’s first valid certification of MMI and the 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.
At the CCH the carrier contended it mailed Dr. H’s MMI/IR certification to the claimant at (address), (city), Texas (zip code), which is the only address the carrier had for the claimant. The claimant contended at the CCH that he did not live at that address at the time the carrier sent Dr. H’s MMI/IR certification, and that he received the certification at Dr. H’s office in June 2017. In evidence is a Notification of MMI/First Impairment Income Benefit Payment (PLN-3) dated April 29, 2016, notifying the claimant the carrier had received the attached DWC-69 from Dr. H and that the claimant had 90 days from the date he received the certification to file a dispute. Also in evidence is a “green card” addressed to the claimant at (address), (city), Texas (zip code), that states the carrier’s PLN-3 and Dr. H’s DWC-69 were contained in the mailing. Also in evidence is track and confirm information from the United States Postal Service showing the tracking number corresponding to the carrier’s mailing and that notice was left at the claimant’s mailing address on May 4, 2016, because an authorized recipient was not available.
The ALJ states the following in her discussion:
[The] [c]arrier failed to establish delivery of [Dr. H’s] certification through verifiable means. [The] [c]arrier did not provide a green card verifying delivery of [Dr. H’s] certification. [The] [c]arrier argued that, on May 4, 2016, [the] [c]laimant rejected delivery of [Dr. H’s] certification. [The] [c]laimant contends that, on June 22, 2017, [Dr. H’s] office provided a copy of her certification. On September 19, 2016, [the] [c]laimant filed a [Request for Designated Doctor Examination (DWC-32)] to timely challenge [Dr. H’s] certification and to request a [designated doctor] examination and certification. Thus, the certification of MMI and assigned IR by [Dr. H] on April 15, 2016, did not become final under [Section 408.123] and [Rule 130.12].
It is unclear from the ALJ’s discussion whether or not she believed the claimant lived at the address to which the carrier sent Dr. H’s MMI/IR certification on May 4, 2016, or whether she was requiring a “green card” signed by the claimant to verify delivery of the certification to establish delivery by verifiable means. The Appeals Panel has held that verifiable written notice of the first MMI/IR certification has been given in cases where the PLN-3 and DWC-69 were mailed to the claimant’s correct address by certified mail, return receipt requested, and delivery was attempted and the “green card” indicates that the PLN-3 and DWC-69 were included. See Appeals Panel Decision (APD) 070913, decided July 2, 2007; APD 080745, decided July 25, 2008; APD 100316, decided May 7, 2010. We note that Rule 102.4(a) provides that all non-Division written communications to a claimant shall be sent to the most recent address or facsimile number supplied by the claimant, and if an address has not been supplied by the claimant the most recent address provided by the employer shall be used.
The ALJ made no findings of fact regarding whether Dr. H’s MMI/IR certification was provided to the claimant by verifiable means or whether any exceptions to finality under Section 408.123 applied. Section 410.168 provides that an ALJ’s decision shall contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due. Because the ALJ’s decision contains no findings of fact regarding the issue of finality of Dr. H’s April 15, 2016, MMI/IR certification under Section 408.123 and Rue 130.12, which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16. We therefore reverse the ALJ’s determination that the certification of MMI and assigned IR from Dr. H on April 15, 2016, did not become final under Section 408.123 and Rule 130.12, and we remand this issue to the ALJ for further action consistent with this decision.
MMI/IR
Because we have remanded the issue of whether Dr. H’s April 15, 2016, MMI/IR certification became final under Section 408.123 and Rule 130.12, we reverse the ALJ’s determinations that the claimant reached MMI on April 15, 2016, with a zero percent IR and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.
SUMMARY
We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to lumbar intervertebral disc disorders.
We reform the decision and order to include the following language as Conclusion of Law No. 7 as well as the summary paragraph on the first page of the decision:
The claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH.
We reverse the ALJ’s determination that the certification of MMI and assigned IR from Dr. H on April 15, 2016, did not become final under Section 408.123 and Rule 130.12, and we remand the issue of whether the certification of MMI and assigned IR from Dr. H on April 15, 2016, became final under Section 408.123 and Rule 130.12 for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant reached MMI on April 15, 2016, and we remand the issue of MMI to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant’s IR is zero percent, and we remand the issue of IR to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand the ALJ is to make findings of fact, conclusions of law, and a decision on whether the first certification of MMI and assigned IR from Dr. H on April 15, 2016, became final under Section 408.123 and Rule 130.12. The ALJ is then to make findings of fact, conclusions of law, and a decision on the claimant’s date of MMI and IR.
(Dr. M) is the most recently appointed designated doctor in this case. If necessary on remand the ALJ is to determine whether Dr. M is still qualified and available to be the designated doctor. If Dr. M 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 date of MMI and IR for the (date of injury), compensable injury. The ALJ is to inform the designated doctor that the statutory date of MMI in this case is March 25, 2018. The parties are to be provided with any new MMI/IR certification from the designated doctor and are to be allowed an opportunity to respond.
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 ALJ, 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
RICHARD J. GERGASKO
6210 EAST HIGHWAY 290
AUSTIN, TEXAS 78723.
Carisa Space-Beam – Appeals Judge
CONCUR:
Veronica L. Ruberto – Appeals Judge
Margaret L. Turner – Appeals Judge