This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). An expedited contested case hearing (CCH) was held on March 28, 2024, with the record closing on April 23, 2024, 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 first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. K) on September 8, 2023, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); and (2) (Dr. E) was appointed to serve as designated doctor in accordance with Section 408.0041 and Texas Department of Insurance, Division of Workers’ Compensation (Division) rules. The appellant (carrier) disputed the ALJ’s determinations. The appeal file does not contain a response from the respondent (claimant) to the carrier’s appeal.
DECISION
Reversed and remanded.
The carrier stipulated at the CCH that the claimant sustained a compensable injury that extends to at least a cervical strain and thoracic myofascial strain, and that on September 8, 2023, Dr. K was authorized to perform IR evaluations in accordance with Rule 130.1. The record reflects that the claimant was injured on (date of injury), when she was closing empty racks.
FINALITY OF DR. K’S CERTIFICATION
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, including IRs related to extent-of-injury disputes, and that the 90-day period to dispute the first MMI/IR certification “begins on the day after the written notice is delivered to the party” wishing to dispute the MMI/IR certification. The notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c). The preamble to Rule 130.12 discusses how written notice is verifiable and goes on to state at 29 Tex. Reg. 2331, March 5, 2004, that “. . . a party may not prevent verifiable delivery. For example, a party who refuses to take personal delivery or certified mail has still been given verifiable written notice.”
Section 408.123(f) provides in part:
(f) An employee’s first certification of [MMI] or assignment of an [IR] may be disputed after the period described by 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];
(B) a clearly mistaken diagnosis or a previously undiagnosed medical condition; or
(C) improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid.
The ALJ found that Dr. K’s September 8, 2023, certification that the claimant reached MMI on September 8, 2023, with no permanent impairment was not provided to the claimant by verifiable means, and on that basis determined Dr. K’s certification did not become final under Section 408.123 and Rule 130.12. The ALJ stated the following in the discussion portion of the decision:
The credible evidence further established the certification was sent to the claimant by certified mail and returned to sender as unclaimed. However, there was no date when delivery was attempted, or when the parcel was returned. There was no tracking information submitted into evidence. Verifiable delivery on a date certain is necessary to trigger the 90-day deadline. Consequently, the certification of [Dr. K] did not become final.
The carrier contends on appeal that the certified mail envelope sent to the claimant, which is in evidence, shows a yellow sticker was placed on the envelope by the United States Postal Service that states, “Return to Sender – Unclaimed,” and that the “Return to Sender” sticker on the envelope shows the envelope was returned to the carrier on October 30, 2023. The carrier argues that October 30, 2023, would have been the latest date the claimant would have received Dr. K’s certification, and that the carrier met its obligation under Section 408.123 to provide the claimant Dr. K’s certification by verifiable means.
In Appeals Panel Decision (APD) 050031-s, decided March 3, 2005, the green card, which indicated the first valid certification of MMI and assignment of IR was sent to the claimant at his correct address and identified the contents as the certification, was in evidence and had the word “Returned” written across, but did not have any date of its return on it. The carrier in that case presented no further evidence to show the dates of attempted delivery by the post office. The Appeals Panel stated that the carrier failed to provide evidence of a date certain sufficient to begin the 90-day period of Section 408.123 and Rule 130.12. The Appeals Panel reversed the ALJ’s determination that the first certification of MMI and assigned IR became final under Section 408.123, and rendered a new decision that the first certification of MMI and assigned IR did not become final under Section 408.123.
The facts in the case on appeal are distinguishable from APD 050031-s, supra. It is undisputed in this case that Dr. K’s certification was sent to the claimant by certified mail and returned to sender as unclaimed. As pointed out by the carrier, the envelope in evidence contains a yellow sticker that states “Return to Sender – Unclaimed.” The yellow sticker also shows a computer-generated date of October 30, 2023. Unlike the green card described in APD 050031-s, which did not show any date that the first valid certification was returned to the carrier, the evidence in the case on appeal reflects Dr. K’s certification was returned to the carrier on October 30, 2023. Under the facts of this case, we hold the evidence established that the claimant was provided Dr. K’s MMI/IR certification by verifiable means on October 30, 2023.
Because the ALJ found that Dr. K’s September 8, 2023, certification was not provided to the claimant by verifiable means, the ALJ made no further findings regarding the date of the dispute of the first certification or the applicability of any exceptions to finality as provided in Section 408.123(f). We remand the issue of whether the first certification of MMI and assigned IR from Dr. K on September 8, 2023, became final under Section 408.123 and Rule 130.12.
APPOINTMENT OF DR. E AS DESIGNATED DOCTOR
Because we are remanding the issue of whether Dr. K’s certification became final, we also reverse the ALJ’s determination that Dr. E was appointed to serve as designated doctor in accordance with Section 408.0041 and Division rules, and we remand that issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand, the ALJ is to make findings of fact regarding the date of the claimant’s dispute of Dr. K’s certification as well as any applicable exceptions to finality as provided in Section 408.123. The ALJ is then to make a determination of whether the first certification of MMI and assigned IR from Dr. K on September 8, 2023, became final under Section 408.123 and Rule 130.12 consistent with the evidence and this decision.
The ALJ is then to make a determination of whether Dr. E was appointed to serve as designated doctor in accordance with Section 408.0041 and Division rules consistent with the evidence and 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 CHEROKEE INSURANCE 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.
Carisa Space-Beam – Appeals Judge
CONCUR:
Cristina Beceiro – Appeals Judge
Margaret L. Turner – Appeals Judge