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 17, 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 an L5-S1 disc bulge/protrusion with arthropathy or stenosis, lumbar radiculopathy, L2-3 disc bulge, L3-4 disc bulge, or L4-5 disc bulge; (2) the appellant (claimant) reached maximum medical improvement (MMI) on December 9, 2022; and (3) the claimant’s impairment rating (IR) is zero percent.
The claimant appealed the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the determinations.
DECISION
Affirmed in part and reversed and rendered in part.
The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury in the form of at least a lumbar sprain/strain; and (Dr. A) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor to address the issues of MMI, IR, and extent of injury. The claimant, a chef, was injured on (date of injury), while maneuvering a 50-pound box of potatoes to a bottom shelf in a walk-in cooler.
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 an L5-S1 disc bulge/protrusion with arthropathy or stenosis, lumbar radiculopathy, L2-3 disc bulge, L3-4 disc bulge, or L4-5 disc bulge is supported by sufficient evidence and is affirmed.
MMI
The ALJ’s determination that the claimant reached MMI on December 9, 2022, is supported by sufficient evidence and is affirmed.
IR
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 December 9, 2022, with a zero percent IR. Dr. A initially examined the claimant on April 21, 2023, and certified the claimant had not reached MMI based on the conditions of a lumbar sprain/strain, sciatica, lumbago with sciatica, and intervertebral disc displacement of the lumbar and lumbosacral regions. Dr. A re-examined the claimant on April 4, 2024, and following a letter of clarification, she issued three certifications. In the first certification, Dr. A certified the claimant reached MMI on December 9, 2022, with a five percent IR based on the accepted condition of a lumbar sprain/strain. In her second certification, Dr. A also certified the claimant reached MMI on December 9, 2022, with a five percent IR based on the accepted condition of lumbar sprain/strain and the disputed conditions. In the third certification, Dr. A certified the claimant had not reached MMI based on a lumbar sprain/strain, left-sided sciatica, L5-S1 disc bulge/protrusion with arthropathy and stenosis, and lumbar radiculopathy.
(Dr. M), a carrier-selected required medical examination doctor, examined the claimant on January 11, 2024, and certified the claimant reached MMI on December 9, 2022, with a five percent IR based on the accepted condition of a lumbar sprain/strain.
In the Discussion section of his decision, the ALJ stated that based on the compensable injury in the form of a lumbar sprain/strain, Dr. A and Dr. M both certified the claimant reached MM on December 9, 2022, and assigned a zero percent IR. We note there is no certification from any doctor in evidence that certified the claimant with a zero percent IR. The ALJ further stated that the report of the designated doctor is afforded presumptive weight and found the preponderance of the other medical evidence is not contrary to Dr. A’s certification; however, the ALJ mistakenly determined that Dr. A certified the claimant with a zero percent IR, rather than a five percent IR, the actual IR certified by Dr. A for the compensable injury.
It is clear from the ALJ’s discussion and the evidence that the ALJ was persuaded that Dr. A’s certification that the claimant reached MMI on December 9, 2022, with a five percent IR was not contrary to the preponderance of the other medical evidence. This is supported by sufficient evidence. Furthermore, there is no certification in evidence from any doctor certifying the claimant with a zero percent IR. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is zero percent, and we render a new decision that the claimant’s IR is five percent, as reflected by the evidence and the record. See Appeals Panel Decision (APD) 150665, decided May 21, 2015; see also APD 162622, decided February 27, 2017; and APD 221062, decided August 17, 2022.
SUMMARY
We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to an L5-S1 disc bulge/protrusion with arthropathy or stenosis, lumbar radiculopathy, L2-3 disc bulge, L3-4 disc bulge, or L4-5 disc bulge.
We affirm the ALJ’s determination that the claimant reached MMI on December 9, 2022.
We reverse the ALJ’s determination that the claimant’s IR is zero percent, and we render a new decision that the claimant’s IR is five percent.
The true corporate name of the insurance carrier is ALLMERICA FINANCIAL ALLIANCE 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 75201-3136.
Cristina Beceiro – Appeals Judge
CONCUR:
Carisa Space-Beam – Appeals Judge
Margaret L. Turner – Appeals Judge