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 July 10, 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 sustained on (date of injury), does not extend to cervical strain, left supraspinatus rotator cuff tear, left subscapularis rotator cuff tear, left infraspinatus rotator cuff tear, left shoulder subacromial impingement, left shoulder acromioclavicular (AC) joint derangement, left shoulder multiple adhesions, left shoulder AC or glenohumeral arthritis, left shoulder rotator cuff tendinitis, adjustment disorder with anxiety and depressed mood, or left shoulder posterior labral tearing; (2) the appellant (claimant) reached maximum medical improvement (MMI) on July 29, 2022; and (3) the claimant’s impairment rating (IR) is zero percent. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded, urging affirmance of the disputed extent of injury, MMI, and IR determinations.
DECISION
Reversed and remanded.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to at least a left shoulder strain. The claimant, an aircraft painter, was injured when sanding an airplane.
The ALJ determined the compensable injury did not extend to the claimed conditions. The ALJ stated in the discussion portion of the decision that “while walking down a ramp [the claimant] slipped and fell backwards, landing seated. The claimant further testified that he fell five feet and had pliers in his back pocket.”
However, the claimant did not testify he fell while walking down a ramp or that he fell five feet with pliers in his back pocket. The claimant testified he felt a sharp pain in his left shoulder while sanding a plane with his left arm on (date of injury). The claimant notes in his appeal that the mechanism of injury recited by the ALJ was incorrect and could not be found either in the testimony or in any of the medical records. The ALJ has misstated the claimant’s testimony in this case regarding the manner in which the compensable injury occurred. We view the ALJ’s description of the mechanism of the compensable injury as a material error in the statement of the evidence requiring reversal. While the ALJ can accept or reject in whole or in part the evidence regarding the claimed injury, his decision in this case is based upon an incorrect mechanism of injury and requires that we reverse his determination on the extent of the claimant’s compensable injury. See Appeals Panel Decision (APD) 172522, decided December 6, 2017, and APD 210449, decided May 24, 2021. We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to cervical strain, left supraspinatus rotator cuff tear, left subscapularis rotator cuff tear, left infraspinatus rotator cuff tear, left shoulder subacromial impingement, left shoulder AC joint derangement, left shoulder multiple adhesions, left shoulder AC or glenohumeral arthritis, left shoulder rotator cuff tendinitis, adjustment disorder with anxiety and depressed mood, or left shoulder posterior labral tearing and we remand the extent-of-injury issue to the ALJ for further action consistent with this decision.
Because we have reversed and remanded the extent-of-injury issue to the ALJ, we also reverse the ALJ’s determinations that the claimant reached MMI on July 29, 2022, and that the claimant’s IR is zero percent. We remand the issues of MMI and IR to the ALJ for further action consistent with this decision.
SUMMARY
We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to cervical strain, left supraspinatus rotator cuff tear, left subscapularis rotator cuff tear, left infraspinatus rotator cuff tear, left shoulder subacromial impingement, left shoulder AC joint derangement, left shoulder multiple adhesions, left shoulder AC or glenohumeral arthritis, left shoulder rotator cuff tendinitis, adjustment disorder with anxiety and depressed mood, or left shoulder posterior labral tearing, and remand the extent-of-injury issue to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant reached MMI on July 29, 2022, and 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 remand the issue of IR to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand the ALJ is to correct the material error regarding the description of the mechanism of the compensable injury in the statement of the evidence. The ALJ shall consider all of the evidence and make findings of fact, conclusions of law, and determinations of whether the compensable injury of (date of injury), extends to cervical strain, left supraspinatus rotator cuff tear, left subscapularis rotator cuff tear, left infraspinatus rotator cuff tear, left shoulder subacromial impingement, left shoulder AC joint derangement, left shoulder multiple adhesions, left shoulder AC or glenohumeral arthritis, left shoulder rotator cuff tendinitis, adjustment disorder with anxiety and depressed mood, or left shoulder posterior labral tearing; MMI; and IR that is supported by the evidence.
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 INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.
Margaret L. Turner – Appeals Judge
CONCUR:
Cristina Beceiro – Appeals Judge
Carisa Space-Beam – Appeals Judge