This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 3, 2024, with the record closing on October 14, 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 respondent (claimant) reached maximum medical improvement (MMI) on November 30, 2022; and (2) the claimant’s impairment rating (IR) is 26%. The appellant (carrier) appeals the ALJ’s determinations of MMI and IR, contending that the certification adopted by the ALJ does not rate the correct conditions and lacked the proper measurements and calculations required by 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). The appeal file does not contain a response from the claimant.
DECISION
Reversed and rendered.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a right orbital floor fracture, nasal fracture, bilateral shoulder dislocations, cervical strain, lumbar strain, left ankle sprain, puncture wound of the right thigh, puncture wound of the right shoulder, laceration of the left wrist, traumatic subconjunctival hemorrhage bilateral eyes and diplopia in the right eye, left shoulder labrum tear, and situational anxiety; the Texas Department of Insurance, Division of Workers’ Compensation (Division)-selected designated doctor to determine MMI and IR was (Dr. W); and the statutory date of MMI was November 30, 2022. The claimant was injured in a motor vehicle accident.
The ALJ found that “[t]he preponderance of the other medical evidence is not contrary to Dr. W’s certification that the claimant reached MMI on November 30, 2022, with a 26% 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 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.
Dr. W, the designated doctor, examined the claimant on April 25, 2023, and certified that the claimant reached MMI on November 30, 2022, with a 26% IR. Dr. W assessed 18% impairment for a “traumatic brain injury with anxiety, per the [September 22, 2022] Neuropsychological Evaluation by (physician) PsyD.” Dr. W assessed 0% for the claimant’s nose, eyes, left wrist, right thigh, left ankle, and cervical spine. Dr. W assessed 2% impairment for the claimant’s left shoulder based on loss of range of motion (ROM) and 2% impairment for the claimant’s right shoulder based on loss of ROM. Dr. W placed the claimant in Lumbosacral Diagnosis Related Estimate (DRE) Category II: Minor Impairment and assessed 5% impairment for the lumbar spine.
After the CCH, the ALJ sent a letter of clarification (LOC) dated April 10, 2024, to Dr. W specifying the conditions that comprise the compensable injury. The LOC informed Dr. W that his certification rates a traumatic brain injury with anxiety, rather than situational anxiety and requested that Dr. W provide a rating for situational anxiety. Additionally, the LOC stated it did not appear that the impairment assessed for the claimant’s eye injuries was performed in accordance with the AMA Guides. The LOC requested that the measurements, source of the measurements, and the calculations for each step be included in a response to determine the visual system impairment. In response, Dr. W requested a re-examination of the claimant.
In an amended narrative report dated August 8, 2024, Dr. W stated he referred the claimant out for both a psychological evaluation and an ophthalmology exam to obtain the appropriate criteria for rating situational anxiety and the eye conditions that are a part of the compensable injury. Dr. W stated that when the claimant was contacted to schedule these tests, he refused to undergo the testing. Since Dr. W had no objective criteria to rate these conditions, he assigned 0% impairment for the situational anxiety as well as the traumatic subconjunctival hemorrhage bilateral eyes, right orbital fracture, and diplopia in the right eye. Dr. W again assessed 0% for the claimant’s nose, left wrist, right thigh, left ankle, and cervical spine. Dr. W assessed 2% impairment for the claimant’s left shoulder; 2% impairment for the claimant’s right shoulder; and assessed 5% impairment for the lumbar spine. Dr. W certified that the claimant reached MMI on November 30, 2022, with a 9% IR.
A second LOC was sent to Dr. W on September 3, 2024, that stated the claimant indicated he never refused to attend the exams and was willing to submit to them. In evidence was a response from Dr. W that acknowledged receipt of the LOC stating he resubmitted referrals for the psychological evaluation and the ophthalmology exam following the instructions of the LOC. Subsequent to the CCH, the ALJ conducted a phone conference with the claimant and the carrier to discuss the claimant’s failure to attend the referral examinations. Correspondence dated September 27, 2024, from the ALJ to the parties requested that the claimant advise if he would attend the referral examinations. In response the claimant requested that the 26% IR be adopted. The carrier refused to enter an agreement regarding the 26% IR, and the evidence reflected that after numerous attempts to reschedule the psychological evaluation the claimant was unwilling to attend. The ophthalmology examination was never rescheduled.
Rule 127.10(c)(6) provides: If the injured employee fails or refuses to attend the designated doctor’s requested additional testing or referral examination within 15 working days or within the additional time the division approved, the designated doctor must complete the report based on the designated doctor’s examination of the injured employee, the medical records received, and other information available to the doctor and indicate the injured employee’s failure or refusal to attend the testing or referral examination in the report.
The ALJ found that the preponderance of the other medical evidence is not contrary to Dr. W’s certification that the claimant reached MMI on November 30, 2022, with a 26% IR. However, the ALJ correctly pointed out in the first LOC sent on April 10, 2024, that the report from Dr. W that certifies the claimant reached MMI on November 30, 2022, with a 26% IR provides a rating for a traumatic brain injury with anxiety. A traumatic brain injury was not one of the conditions that the parties stipulated to as part of the compensable injury. Additionally, the LOC pointed out that the correct steps were not used regarding assessment of impairment for the eyes. Accordingly, this certification cannot be adopted. The ALJ’s determination that the claimant reached MMI on November 30, 2022, with a 26% IR is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.
The only other certification in evidence is the one from Dr. W that certified the claimant reached MMI on November 30, 2022, with a 9% IR. This certification was performed in accordance with the AMA Guides and Rule 127.10(c). We render a new decision that the claimant reached MMI on November 30, 2022, with a 9% IR.
The true corporate name of the insurance carrier is LIBERTY INSURANCE CORPORATION 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.
Margaret L. Turner
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Carisa Space-Beam
Appeals Judge