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 February 11, 2025, and May 1, 2025, with the record closing on May 1, 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 appellant (claimant) reached maximum medical improvement (MMI) on November 5, 2024; (2) the claimant’s impairment rating (IR) is one percent; (3) the claimant had disability from September 25, 2024, through November 4, 2024, resulting from an injury sustained on (date of injury); and (3) the claimant did not have disability on November 5, 2024, resulting from an injury sustained on (date of injury). The claimant appealed, disputing the ALJ’s determinations of MMI, IR, and that portion of the disability determination that was not favorable to the claimant. The claimant contends on appeal that the designated doctor did not use the correct range of motion (ROM) measured for supination of the left elbow in assessing impairment. The respondent (carrier) responded, urging affirmance of the disputed MMI, IR, and disability determinations. The ALJ’s determination that the claimant had disability from September 25, 2024, through November 4, 2024, resulting from an injury sustained on (date of injury), was not appealed and has become final pursuant to Section 410.169.
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 partial medial meniscus tear of the left knee and a left elbow strain and that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. D) as designated doctor for the issues of MMI, IR, and return to work. The claimant testified that he was injured when he was lifting a heavy military bag off a conveyor belt and turned and stumbled over a safety ramp. The records reflect the claimant had a partial medial meniscectomy on July 3, 2024.
DISABILITY
The ALJ’s determination that the claimant did not have disability on November 5, 2024, resulting from an injury sustained on (date of injury), is supported by sufficient evidence and is affirmed.
MMI
The ALJ’s determination that the claimant reached MMI on November 5, 2024, 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. 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. D examined the claimant on November 5, 2024, and certified that the claimant reached MMI on November 5, 2024, with a one 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. D assessed one percent impairment for the left knee partial medical meniscus tear using Table 64 on page 3/85 of the AMA Guides for a partial medial meniscectomy. Dr. D assessed zero percent impairment for loss of ROM of the claimant’s left elbow. In his narrative report Dr. D provided the following ROM measurements of the claimant’s left elbow that were taken during his physical examination: flexion 139°, extension 0°, pronation 75°, and supination 56°.
On page 3/39 of the AMA Guides the directions for rating elbow flexion and extension state that measurements must be rounded to the nearest 10 degrees. When assessing impairment based on the measurements recorded in his physical examination, (flexion 139° and extension 0°) Dr. D correctly noted that both flexion and extension result in zero percent impairment.
On page 3/40 of the AMA Guides the directions for rating elbow pronation and supination state that measurements must be rounded to the nearest 10 degrees. However, in the portion of his narrative that assessed impairment Dr. D noted the following measurements: pronation 75° resulting in zero percent IR and 65° for supination resulting in zero percent IR. As previously noted, Dr. D recorded 56° for supination of the claimant’s left elbow in his physical examination findings in his narrative report.
The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgement or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See Appeals Panel Decision (APD) 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2012; and APD 101949, decided February 22, 2011. However, in the case on appeal, it is not clear which measurement for loss of ROM of supination of the left elbow is the correct measurement. Additionally, rounding the measurements for supination of the left elbow to derive the correct upper extremity impairment requires medical judgment or discretion, so we cannot recalculate the correct IR using Dr. D’s measurements. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is one percent.
There is no other certification in evidence. Accordingly 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 did not have disability on November 5, 2024.
We affirm the ALJ’s determination that the claimant’s date of MMI is November 5, 2024.
We reverse the ALJ’s determination that the IR is one percent and remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. D is the designated doctor in this case. On remand, the ALJ is to determine whether Dr. D is still qualified and available to be the designated doctor.
The ALJ is to request that the designated doctor rate the entire compensable injury based on the claimant’s condition as of the date of MMI, November 5, 2024. The designated doctor is to round ROM figures as required by the AMA Guides and clarify the inconsistent measurements provided in his narrative report.
The parties are to be provided with the correspondence to the designated doctor, the designated doctor’s response, and are to be allowed an opportunity to respond. The ALJ is then to make a determination on the IR 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 STARR SPECIALTY INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
1999 BRYAN STREET SUITE 900
DALLAS, TEXAS 75201-4284.
Margaret L. Turner
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Carisa Space-Beam
Appeals Judge