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 May 8, 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 compensable injury of (date of injury), does not extend to right long trigger finger, right shoulder adhesive capsulitis, osteoporosis, osteopenia, degenerative disc disease of the cervical spine, osteopenia of the right humerus, osteoarthritis of the right shoulder, or osteoarthritis of the right elbow; (2) the respondent (claimant) reached maximum medical improvement (MMI) on May 23, 2023; and (3) the claimant’s impairment rating (IR) is 11%.
The appellant (self-insured) appealed, disputing the ALJ’s MMI and IR determinations. The appeal file does not contain a response from the claimant to the self-insured’s appeal. The ALJ’s determination that the compensable injury of (date of injury), does not extend to right long trigger finger, right shoulder adhesive capsulitis, osteoporosis, osteopenia, degenerative disc disease of the cervical spine, osteopenia of the right humerus, osteoarthritis of the right shoulder, or osteoarthritis of the right elbow was not appealed and has become final pursuant to Section 410.169.
DECISION
Reversed and rendered.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that includes at least a right shoulder fractured scapula, a right distal radius fracture, a right shoulder sprain, and a right wrist sprain. The claimant was injured on (date of injury), when she slipped on wax remaining on a floor she was cleaning. The claimant fell to the ground and landed on her right side.
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 Texas Department of Insurance, Division of Workers’ Compensation (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. 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 the claimant reached MMI on May 23, 2023, with an 11% IR as certified by (Dr. M), the designated doctor. Dr. M examined the claimant on November 9, 2023. In his accompanying narrative report, Dr. M noted that the self-insured had accepted a fracture of high shoulder scapula, displaced fracture of the shaft of radius of right arm, a right shoulder sprain, and a right wrist sprain. However, Dr. M also noted in his report diagnoses of a fracture of radius and a fracture of scapula, as well as strain of neck and right knee contusion. Dr. M assigned 11% whole person impairment based on range of motion (ROM) measurements of the claimant’s right wrist, right elbow, and right shoulder, and 0% impairment based on ROM of the claimant’s right knee. Dr. M also placed the claimant in Diagnosis-Related Estimate (DRE) Cervicothoracic Category I: Complaints or Symptoms for 0% impairment for the claimant’s cervical spine.
As discussed above, the parties stipulated that the compensable injury includes a right shoulder fractured scapula, a right distal radius fracture, a right shoulder sprain, and a right wrist sprain, and the ALJ’s extent-of-injury determination that the compensable injury does not extend to right long trigger finger, right shoulder adhesive capsulitis, osteoporosis, osteopenia, degenerative disc disease of the cervical spine, osteopenia of the right humerus, osteoarthritis of the right shoulder, or osteoarthritis of the right elbow was not appealed and has become final. Dr. M considered and rated a cervical strain and a right knee contusion, both of which have not been determined to be part of the compensable injury at this time. Dr. M did not consider and rate the compensable injury in this case, and as such his certification cannot be adopted. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on May 23, 2023, and that the claimant’s IR is 11%.
There is one other certification in evidence, which is from (Dr. G), a doctor acting in place of the treating doctor. Dr. G examined the claimant on January 26, 2024, and certified the claimant reached MMI on August 24, 2023, with a 1% IR. Dr. G’s accompanying narrative report reflects he considered a right shoulder scapular fracture, right radius fracture, right shoulder sprain, and right wrist sprain. Dr. G noted in his review of the claimant’s records that on May 23, 2023, (Dr. S) indicated the claimant was “three months comminuted right distal radius status post [open reduction internal fixation] and is attending therapy three times a week with improvement noted,” and that the exam summary included right wrist ROM that continues to improve. Dr. G noted that the August 24, 2023, date of MMI was chosen because as of that date the claimant had plateaued with Official Disability Guidelines treatment and there was no longer an expectation of additional lasting material recovery in her condition. Using the claimant’s ROM measurements taken on August 24, 2023, and 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. G assigned 0% upper extremity (UE) impairment for the claimant’s right wrist. Dr. G noted that “[s]ince there was a fracture of the right wrist in this case, we will rate the right elbow supination and pronation [ROM] as those can be limited post fracture in the wrist.” Using those ROM measurements, Dr. G assigned 0% UE impairment. Dr. G also assigned 2% UE impairment based on ROM measurements of the claimant’s right shoulder. Dr. G combined the 0% UE impairment and 2% UE impairment for a total 2% UE impairment, and, using Table 3 on page 3/20 of the AMA Guides, converted the 2% UE impairment to 1% whole person impairment. Dr. G’s IR was made in accordance with the AMA Guides.
As Dr. G’s certification considers and rates the compensable injury in this case and was made in accordance with the AMA Guides, we render a new decision that the claimant reached MMI on August 24, 2023, with an 1% IR as certified by Dr. G.
The true corporate name of the insurance carrier is TEXAS ASSOCIATION OF SCHOOL BOARDS OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is
MARY BARRETT, AED RISK MANAGEMENT SERVICES
TEXAS ASSOCIATION OF SCHOOL BOARDS RISK MANAGEMENT FUND
12007 RESEARCH BOULEVARD
AUSTIN, TEXAS 78759.
Carisa Space-Beam – Appeals Judge
CONCUR:
Cristina Beceiro – Appeals Judge
Margaret L. Turner – Appeals Judge