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 January 28, 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 date of maximum medical improvement (MMI) is February 27, 2024; and (2) the appellant’s (claimant) impairment rating (IR) is 3%. The claimant appealed, contending that the certification adopted by the ALJ did not consider and rate a distal clavicle resection that was performed as treatment for her compensable injury. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.
DECISION
Affirmed in part and reversed and remanded in part.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a right rotator cuff tear, right acromioclavicular arthropathy, right SLAP tear, and right biceps tendon partial tear, and (Dr. G) was the designated doctor selected by the Texas Department of Insurance, Division of Workers’ Compensation (Division) on the issues of MMI and IR. The claimant was injured while exiting a plane. The claimant’s foot slipped on a rung of a ladder from which she was descending so she grabbed the plane’s handle with her right hand, causing her to dangle from the handle with her right hand.
MMI
The ALJ’s determination that the claimant reached MMI on February 27, 2024, is supported by sufficient evidence and is affirmed.
IR
The ALJ determined the claimant reached MMI on February 27, 2024, with a 3% IR as certified by Dr. G, the designated doctor. Dr. G examined the claimant on April 17, 2024, and his accompanying narrative report reflects he considered the compensable injury in this case, which is a right rotator cuff tear, right acromioclavicular arthropathy, right shoulder SLAP tear, and partial tearing of the right biceps tendon. 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. G assessed 5% upper extremity (UE) impairment based on decreased right shoulder range of motion (ROM), which he then converted to 3% whole person impairment (WPI) using Table 3 on page 3/20 of the AMA Guides. Dr. G noted in his narrative report that the claimant had undergone distal clavicle excision, among other procedures, on June 5, 2023, and that the post-operative diagnoses included degenerative joint disease with acromioclavicular arthropathy, right rotator cuff tear, right shoulder SLAP tear, and partial tearing of the biceps tendon.
The claimant contends on appeal that Dr. G did not consider and include a rating for the right shoulder distal clavicle resection, which was treatment for her compensable injury. In Appeals Panel Decision (APD) 151158-s, decided August 4, 2015, the Appeals Panel held that impairment for a distal clavicle resection arthroplasty that was received as treatment for the compensable injury results in 10% UE impairment under Table 27 on page 3/61 of the AMA Guides. In evidence is the June 5, 2023, operative report referenced by Dr. G that confirms the claimant underwent a distal clavicle resection as treatment for the compensable injury. The evidence in this case established that the claimant underwent a distal clavicle resection as treatment for her compensable injury; therefore, Dr. G’s failure to include 10% UE impairment under Table 27 on page 3/61 was a misapplication of the AMA Guides. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 3%.
There is no other certification in evidence that certifies the claimant reached MMI on February 27, 2024. We therefore remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.
SUMMARY
We affirm the ALJ’s determination that the claimant reached MMI on February 27, 2024.
We reverse the ALJ’s determination that the claimant’s IR is 3% and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. G is the designated doctor in this case. On remand the ALJ is to determine whether Dr. G is still qualified and available to serve as the designated doctor. If Dr. G is still qualified and available, the ALJ is to inform Dr. G that a distal clavicle resection given as treatment for the compensable injury results in 10% UE impairment under Table 27 on page 3/61 of the AMA Guides, which can be combined with impairment assessed for decreased ROM according to page 3/62 of the AMA Guides.
If Dr. G is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to opine on the IR issue for the (date of injury), compensable injury. The ALJ is to inform the designated doctor that the date of MMI is February 27, 2024, and that the compensable injury extends to a right rotator cuff tear, right acromioclavicular arthropathy, right SLAP tear, and right biceps tendon partial tear.
The parties are to be provided with the ALJ’s letter to the designated doctor, the designated doctor’s response, and allowed an opportunity to respond. If another designated doctor is appointed, the parties are to be provided with the Presiding Officer’s Directive to Order Designated Doctor Examination, the designated doctor’s report, and are to be allowed an opportunity to respond. The ALJ is 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 INDEMNITY INSURANCE COMPANY OF NORTH AMERICA 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.
Carisa Space-Beam
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Margaret L. Turner
Appeals Judge