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At a Glance:
Title:
APD 220255
Date:
April 1, 2022

APD 220255

April 1, 2022

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 January 20, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant’s (claimant) maximum medical improvement (MMI) date is March 29, 2021; and (2) claimant’s impairment rating (IR) is zero percent.

The claimant appealed the ALJ’s determinations of MMI and IR determinations. The respondent (carrier) responded, urging affirmance of those determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that: (1) the claimant sustained a compensable injury on (date of injury); (2) the carrier has accepted a chest contusion and nondisplaced fracture of four ribs on the right side in the midaxillary line; and (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. D) as the designated doctor on the issues of MMI and IR. The claimant testified that he was injured when he fell striking his right side on a support between two of the legs of a machine.

MMI/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, in part, 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.

The ALJ determined that the claimant reached MMI on March 29, 2021, with a zero percent IR as certified by Dr. D, the designated doctor appointed by the Division. However, Dr. D did not sign the DWC-69. Rule 130.1(d)(1) provides that a certification of MMI and assignment of an IR for the compensable injury requires the “completion, signing, and submission of the Report of Medical Evaluation [DWC-69] and a narrative report.” See Appeals Panel Decision (APD) 100510, decided June 24, 2010, and APD 101734, decided January 27, 2011. Because the DWC-69 was not signed by Dr. D, it was error for the ALJ to adopt her certification. Consequently, we reverse the ALJ’s determinations that the claimant’s MMI date is March 29, 2021, and that the claimant’s IR is zero percent.

There are no other MMI/IR certifications in evidence. As there is no MMI/IR certification in evidence that can be adopted, we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determinations that the claimant’s MMI date is March 29, 2021, and that the claimant’s IR is zero percent, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. D is the designated doctor in this case. The ALJ is to determine whether Dr. D is still qualified and available to be the designated doctor. If Dr. D 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.

The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a chest contusion and nondisplaced fracture of four ribs on the right side in the midaxillary line. The ALJ is to request the designated doctor to give an opinion on the claimant’s MMI and rate the entire compensable injury in accordance with 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) considering the medical record and the certifying examination.

The parties are to be provided with the designated doctor’s new MMI/IR certification and are to be allowed an opportunity to respond. The ALJ is then to make a determination on 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 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 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 SENTRY CASUALTY COMPANY 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.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

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