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 September 4, 2024, with the record closing on January 13, 2025, 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 patellofemoral maltracking, iliotibial band friction syndrome, or a medial collateral ligament sprain of the right knee; (2) the appellant (claimant) reached maximum medical improvement (MMI) on August 11, 2023; and (3) the claimant’s impairment rating (IR) is two 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 determinations.
DECISION
Affirmed in part and reversed and remanded in part.
The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury that extends to at least a laceration of the right leg, a right fibular fracture, and post traumatic neuropathy[1] of the motor and sensory branches of the deep and common fibular nerve and peroneal nerve; the Texas Department of Insurance, Division of Workers’ Compensation (Division) initially appointed (Dr. Q) as designated doctor to address extent of injury, MMI, and IR; the Division subsequently appointed (Dr. D) as designated doctor to address MMI and IR, but Dr. D is unqualified to address the accepted conditions under 28 Tex. Admin. Code § 127.130(b)(8)(E) (Rule 127.130(b)(8)(E)); and the date of statutory MMI is October 24, 2024. The claimant, a material handler, testified that he was injured when he slipped on a beam while hooking up material to a crane, and his leg was caught and lacerated between the beams.
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), does not extend to patellofemoral maltracking, iliotibial band friction syndrome, or a medial collateral ligament sprain of the right knee is supported by sufficient evidence and is affirmed.
MMI AND 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 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 that the claimant reached MMI on August 11, 2023, with a two percent IR as certified by the third Division-appointed designated doctor, (Dr. L). The claimant contends on appeal that Dr. L’s assigned date of MMI is based on incorrect information. We agree.
Dr. L examined the claimant on November 21, 2024, and used 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) to rate the stipulated conditions of a laceration of the right leg, a right fibular fracture, and post traumatic neuropathy of the motor and sensory branches of the deep and common fibular nerve and peroneal nerve. In his narrative report, Dr. L stated that the claimant reached MMI on August 11, 2023, the date of his release by (Dr. V), the orthopedic surgeon who performed the right peroneal nerve decompression. In evidence is a medical record dated November 9, 2023, from Dr. V, which was also noted in Dr. L’s summary of medical records in his narrative report. The November 9, 2023, medical record indicates that Dr. V discharged the claimant from his care on that date, not on August 11, 2023, as indicated by Dr. L in the explanation of his assigned MMI date. Therefore, Dr. L’s certification is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust and cannot be adopted. We reverse the ALJ’s determinations that the claimant reached MMI on August 11, 2023, with a two percent IR.
There are two other certifications of MMI and IR in evidence. Dr. Q, the first designated doctor, examined the claimant on December 3, 2023, and certified that the claimant had not reached MMI based on the compensable conditions. As the parties stipulated, the date of statutory MMI is October 24, 2024, therefore this certification cannot be adopted.
Dr. D, the second designated doctor, examined the claimant on March 26, 2024, and certified the claimant reached MMI on that date with a four percent IR based on the conditions of a crush injury to the lower leg, lower leg laceration, right fibula fracture, and peroneal nerve entrapment. As this certification does not rate the entire compensable injury, it cannot be adopted.
Because there is no certification of MMI and IR that can be adopted, we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.
SUMMARY
We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to patellofemoral maltracking, iliotibial band friction syndrome, or a medial collateral ligament sprain of the right knee.
We reverse the ALJ’s determination that the claimant reached MMI on August 11, 2023, and we remand the MMI issue to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant’s IR is two percent and remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand, the ALJ is to determine whether Dr. L is still qualified and available to be the designated doctor. The ALJ is to inform Dr. L of the error in his report regarding the date the claimant was discharged from care. If necessary, then another designated doctor is to be appointed to determine MMI, which cannot be past the statutory date of October 24, 2024, and IR for the (date of injury), compensable injury.
The parties are to be provided with the designated doctor’s new MMI/IR certification and are to be allowed an opportunity to respond. The ALJ is then to make determinations on MMI and IR that are supported by the evidence and 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 AMERICAN ZURICH 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.
Cristina Beceiro
Appeals Judge
CONCUR:
Carisa Space-Beam
Appeals Judge
Margaret L. Turner
Appeals Judge
- We note that the parties stipulated to “neuropathic,” but the medical records in evidence reflect that the correct term is “neuropathy.” ↑