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 August 15, 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. H) on October 24, 2023, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (2) the appellant (claimant) reached MMI on October 5, 2023; and (3) the claimant’s IR is seven percent. The claimant appealed, disputing the ALJ’s MMI and IR determinations. The appeal file does not contain a response from the respondent (carrier) to the claimant’s appeal. The ALJ’s determination that the first certification of MMI and assigned IR from Dr. H on October 24, 2023, did not become final under Section 408.123 and Rule 130.12 was not appealed and has become final pursuant to Section 410.169.
DECISION
Reversed and remanded.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of an open fracture of the shaft of the left tibia, an open fracture of the shaft of the left fibula, a left thigh laceration, and a left knee contusion. The claimant was injured on (date of injury), when a large, heavy pipe fell on top of him and pinned him to the ground.
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 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 stated in the discussion portion of the decision that “[t]he preponderance of the evidence showed that there is only one certification of [MMI] and [IR] in evidence,” and therefore the ALJ adopted Dr. H’s certification that the claimant reached MMI on October 5, 2023, with a seven percent IR. Dr. H’s Report of Medical Evaluation (DWC-69) reflects she is a referral doctor acting in place of the treating doctor. The evidence in the record shows there has not been a designated doctor appointed in this case to address MMI and IR.
Section 408.125(a) provides if an IR is disputed, the commissioner shall direct the employee to the next available doctor on the Division’s list of designated doctors, as provided by Section 408.0041. In Appeals Panel Decision (APD) 020385, decided March 18, 2002, the Appeals Panel stated that “[u]nder the provisions of Section 408.125, no determination can be made regarding the claimant’s IR because there is no report from a designated doctor.” In APD 132423, decided December 19, 2013, the ALJ mistakenly found that the treating doctor was the designated doctor appointed on the issues of MMI and IR; however, there was no designated doctor appointed on the issues of MMI and IR. In that case, the Appeals Panel reversed the ALJ’s MMI and IR determinations and remanded the issues of MMI and IR. In APD 222017, decided February 9, 2023, the Appeals Panel reversed the ALJ’s determination that the first certification of MMI and assigned IR became final under Section 408.123 and Rule 130.12, and rendered a new decision that the first certification did not become final under Section 408.123 and Rule 130.12. The Appeals Panel noted there was no designated doctor appointed on the issues of MMI and IR because of the finality issue, and therefore also reversed the ALJ’s MMI and IR determinations because a designated doctor had not been appointed on those issues.
In the case on appeal the ALJ’s determination that the first certification from Dr. H on October 24, 2023, did not become final under Section 408.123 and Rule 130.12 was not appealed and has become final. The evidence reflects that a designated doctor has not been appointed on the issues of MMI and IR. Accordingly, we reverse the ALJ’s determination that the claimant reached MMI on October 5, 2023, and the ALJ’s determination that the claimant’s IR is seven percent and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand, the ALJ is to request the appointment of a designated doctor for the issues of MMI and IR. The ALJ is to advise the designated doctor that the claimant sustained a compensable injury on (date of injury), which includes an open fracture of the shaft of the left tibia, an open fracture of the shaft of the left fibula, a left thigh laceration, and a left knee contusion. The ALJ is to request the designated doctor to give an opinion on MMI and IR in accordance with the AMA Guides considering the medical record and the certifying examination.
The parties are to be provided with the designated doctor’s MMI and IR certification and are to be allowed an opportunity to respond. The ALJ is to consider the evidence on MMI and IR. 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 LIBERTY MUTUAL FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
Carisa Space-Beam – Appeals Judge
CONCUR:
Cristina Beceiro – Appeals Judge
Margaret L. Turner – Appeals Judge