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 January 8, 2025, with the record closing on February 5, 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 first certification of maximum medical improvement (MMI) and impairment rating (IR) from designated doctor, (Dr. J), on April 22, 2024, did not become final under Section 408.123 and Tex. Admin. Code §130.12 (Rule 130.12); (2) the appellant (claimant) reached MMI on December 21, 2023; and (3) the claimant’s IR is 11%. The claimant appealed, disputing the ALJ’s determinations of MMI and IR. The respondent (carrier) responded, urging affirmance of the disputed MMI and IR determinations. The ALJ’s determination that the first certification of MMI and IR from Dr. J on April 22, 2024, 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
Affirmed in part, and reversed and remanded in part.
The claimant did not appear at the CCH. The carrier agreed that: on (date of injury), the claimant sustained a compensable injury that extends to a left shoulder sprain, left shoulder multiple muscle tears, and left shoulder post-surgical pain; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed Dr. J as designated doctor for the issues of MMI and IR; and the statutory date of MMI is December 21, 2023. The medical evidence reflects that the claimant was injured when he fell on his hands and knees.
We note that the name and address of the carrier’s registered agent stated in the carrier information sheet in evidence does not match the name and address of the carrier’s registered agent provided in the decision.
MMI
The ALJ’s determination that the claimant reached MMI on December 21, 2023, 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.
The only certification in evidence was from Dr. J. Dr. J examined the claimant on April 17, 2024. Dr. J certified that the claimant reached MMI on the statutory MMI date of December 21, 2023, with an 11% IR using 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). Dr. J based his assessment of impairment on range of motion (ROM) measurements of the claimant’s left shoulder taken during physical therapy on September 1, 2022. Dr. J noted the following ROM measurements for the left shoulder on that date: flexion 35°, extension 20°, abduction 26°, internal rotation 50°, and “internal rotation lacking 8°.” The AMA Guides on pages 3/42 through 3/44 provide directions for ROM figures to be rounded to the nearest 10°. Dr. J’s narrative referenced figure 1 as allocating impairment for the specific ROM measurement. However, figure 1 was not in evidence.
Using Figure 38, page 3/43 of the AMA Guides the impairment assessed for the claimant’s ROM of flexion would be 10% upper extremity (UE) impairment whether Dr. J rounded up or down to the nearest 10°. Figure 38, page 3/43 of the AMA Guides provides that ROM of 20° of extension results in 2% UE impairment. Figure 41, on page 3/44 of the AMA Guides provides that ROM of 26° of abduction results in 7% UE impairment whether Dr. J rounded up or down to the nearest 10°. No ROM measurement was provided for adduction. Figure 44, page 3/45 of the AMA Guides provides that ROM of 50° of internal rotation results in 2% UE impairment. No ROM measurement was provided for external rotation. An additional ROM measurement was noted as “internal rotation lacking 8°.”
The AMA Guides provide on page 3/45 that the impairment values for loss of each shoulder motion are added to determine the impairment of the UE and Table 3 is used to relate impairment of the UE to impairment of the whole person. Using the values stated by Dr. J: 10% would be added to 7%, 2%, and 2% for a total of 21% UE impairment. Using Table 3 on page 3/20 of the AMA Guides 21% UE impairment is converted to 13% whole person impairment (WPI) not the 11% WPI assessed by Dr. J. Therefore, Dr. J’s assessment that the claimant’s IR is 11% was not made in accordance with the AMA Guides. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 11%. Because ROM measurements were not provided for adduction or external rotation and it is unclear whether or not Dr. J assessed impairment for “internal rotation lacking 8°” this is not a case that can be mathematically corrected. There was no other certification in evidence. Therefore, we remand the IR issue to the ALJ for further action consistent with this decision.
SUMMARY
We affirm the ALJ’s determination that the claimant reached MMI on December 21, 2023.
We reverse the ALJ’s determination that the claimant’s IR is 11% and remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. J is the designated doctor in this case. The ALJ is to determine whether Dr. J is still qualified and available to be the designated doctor. If Dr. J is still qualified and available, the ALJ is to ask Dr. J to clarify the ROM measurements used to assess impairment noting that no measurements were given for adduction or external rotation. If Dr. J is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Division rules to opine on the issue of IR. The ALJ is to inform the designated doctor that the compensable injury extends to a left shoulder sprain, left shoulder multiple muscle tears, and left shoulder post-surgical pain and that the date of MMI is December 21, 2023. The ALJ is to request that the designated doctor rate the entire compensable injury 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 new IR certification and allowed an opportunity to respond. The ALJ is then to make a determination on the claimant’s IR for the (date of injury), compensable injury.
On remand the ALJ is to ensure that the correct carrier information is provided and included in the decision on remand.
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.
According to the carrier information sheet in evidence, 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
C T CORPORATION SYSTEM
1999 BRYAN STREET SUITE 900
DALLAS, TEXAS 75201.
Margaret L. Turner
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Carisa Space-Beam
Appeals Judge