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 February 24, 2025, with the record closing on March 5, 2025, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). With regard to the four issues before him, the ALJ determined that: (1) the compensable injury of (date of injury), does not extend to Charcot’s arthropathy; (2) the appellant/cross-respondent (claimant) reached maximum medical improvement (MMI) on November 2, 2023; (3) the claimant’s impairment rating (IR) is two percent; and (4) the claimant did not have disability from December 15, 2023, through the date of the CCH resulting from an injury sustained on (date of injury).
The claimant appealed the ALJ’s determinations of extent of injury, MMI, IR, and disability. The claimant argues that the appealed determinations are against the great weight of the evidence and/or are supported by no evidence and should be reversed. The respondent/cross-appellant (carrier) responded to the claimant’s appeal urging affirmance for the issues on which it prevailed. The carrier filed a cross-appeal, arguing that the ALJ’s Finding of Fact No. 4 is incorrect and inconsistent with his Decision and Order and with the evidence. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.
DECISION
Affirmed as reformed.
The parties stipulated that on (date of injury), the claimant sustained a compensable injury in the form of at least a closed fracture of the right fifth metatarsal with nonunion and closed fracture of the right fourth toe middle phalanx; the Texas Department of Insurance, Division of Workers’ Compensation (Division) selected designated doctor appointed on the issues of MMI, IR, disability/direct result, and return to work is (Dr. K); and the successor Division-selected designated doctor appointed on extent of injury, MMI, IR, disability/direct result, and return to work is (Dr. X). The claimant testified he injured his right foot while stepping out of his truck.
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), does not extend to Charcot’s arthropathy is supported by sufficient evidence and is affirmed.
DISABILITY
The ALJ’s determination that the claimant did not have disability from December 15, 2023, through the date of the CCH resulting from an injury sustained on (date of injury), is supported by sufficient evidence and is affirmed.
MMI/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.
Dr. K was initially appointed by the Division as designated doctor on the issues of MMI, IR, disability/direct result, and return to work. Dr. K examined the claimant on May 9, 2024, and certified that for the compensable conditions of closed fracture of the right fifth metatarsal with nonunion and closed fracture of the right fourth toe middle phalanx the claimant reached MMI on November 2, 2023, with a two percent 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. K assessed one percent impairment for the right fourth toe based on loss of range of motion (ROM) of metatarsophalangeal extension and one percent impairment for the right fifth metatarsal, based on loss of ROM of metatarsophalangeal extension using Table 45 on page 3/78 of the AMA Guides.
Dr. X was appointed by the Division as a successor designated doctor on the issues of extent of injury, MMI, IR, disability/direct result, and return to work. Dr. X examined the claimant on September 19, 2024, and certified that the claimant had not yet reached MMI. Dr. X considered the following conditions: closed fracture of fifth metatarsal with nonunion, closed fracture of the right fourth toe middle phalanx, and Charcot’s arthropathy. As noted above, the ALJ’s determination that the compensable injury of (date of injury), does not extend to Charcot’s arthropathy is affirmed. Accordingly, the certification from Dr. X cannot be adopted because it considers a condition that has been determined not to be part of the compensable injury. We note Dr. X specifically stated that in his opinion the compensable injury does not extend to Charcot’s arthropathy but it was included in the certification per the Presiding Officer’s Directive.
(Dr. N) examined the claimant on December 17, 2024, and certified that the claimant had not yet reached MMI. The ALJ correctly noted in his discussion of the evidence that the certification from Dr. N was based on changes related to Charcot’s arthropathy.
The ALJ correctly noted in his discussion of the evidence that Dr. K certified the claimant reached MMI on November 2, 2023, and assigned a two percent IR. The ALJ further stated that Dr. K explained the basis for the date chosen and how she calculated the IR. The ALJ found, in part, that the certification from Dr. K is not contrary to the preponderance of the other medical evidence. That portion of the finding is supported by the evidence. The ALJ determined in Conclusion of Law Nos. 4 and 5 that the claimant reached MMI on November 2, 2023, and the claimant’s IR is two percent. There is no certification from Dr. K in evidence that certified that the claimant had not reached MMI for the compensable conditions. It is clear from the discussion of the evidence that ALJ was persuaded that the claimant reached MMI on November 2, 2023, with a two percent IR as certified by Dr. K. However, in Finding of Fact No. 4 the ALJ inadvertently found that Dr. K certified that the claimant had not reached MMI rather than Dr. K certified that the claimant reached MMI on November 2, 2023, with a two percent IR. Accordingly, we reform Finding of Fact No. 4 to conform to the evidence and to read as follows: Dr. K, the designated doctor, certified that the claimant reached MMI on November 2, 2023, with a two percent IR; this certification is not contrary to the preponderance of the other medical evidence. The ALJ’s determination that the claimant reached MMI on November 2, 2023, is supported by sufficient evidence and is affirmed. The ALJ’s determination that the claimant’s IR is two percent is supported by sufficient evidence and is affirmed.
SUMMARY
We affirm the ALJ’s determination that the compensable injury of does not extend to Charcot’s arthropathy.
We affirm the ALJ’s determination that the claimant did not have disability from December 15, 2023, through the date of the CCH resulting from an injury sustained on (date of injury).
We reform Finding of Fact No. 4 to conform to the evidence and read as follows: Dr. K, the designated doctor, certified that the claimant reached MMI on November 2, 2023, with a two percent IR; this certification is not contrary to the preponderance of the other medical evidence.
We affirm the ALJ’s determination that the claimant reached MMI on November 2, 2023.
We affirm the ALJ’s determination that the claimant’s IR is two percent.
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.
Margaret L. Turner
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Carisa Space-Beam
Appeals Judge