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 March 17, 2025, with the record closing on May 29, 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 sustained on (date of injury), extends to cervicalgia; (2) the compensable injury of (date of injury), does not extend to concussion with loss of consciousness, bilateral sensory hearing loss, bilateral tinnitus, lumbar radiculopathy at L5-S1, or lumbar spondylolisthesis at L5-S1; (3) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. V) on June 12, 2024, did not become final under Section 408.123 and 28 Tex. Admin. Code §130.12 (Rule 130.12); (4) the appellant (claimant) reached MMI on May 30, 2024; and (5) the claimant’s IR is 0%. The claimant appealed, disputing the ALJ’s determinations of extent of injury that were not favorable to him, finality, MMI, and IR. The claimant argued in part that the exceptions in Section 408.123(f) did not apply. The respondent (carrier) responded, urging affirmance of the disputed extent-of-injury conditions, finality, MMI, and IR determinations. The ALJ’s determination that the compensable injury extends to cervicalgia was not appealed and has become final pursuant to Section 410.169.
DECISION
Affirmed in part and reversed and rendered in part.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that includes at least a cervical sprain, cervical strain, thoracic sprain, thoracic strain, lumbar sprain, and lumbar strain; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. P) as designated doctor to address extent of injury, MMI, and IR; on June 12, 2024, Dr. V certified that the claimant reached MMI on June 12, 2024, and assigned a 15% IR, and he was the first doctor to certify a MMI date and assign an IR; and for purposes of MMI and the IR, the diagnoses of sprain, strain, and sprain/strain are used interchangeably. The claimant testified that he was injured when he was rear-ended by another vehicle while driving to a work site.
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), does not extend to a concussion with loss of consciousness, bilateral sensory hearing loss, bilateral tinnitus, lumbar radiculopathy at L5-S1, or lumbar spondylolisthesis at L5-S1 is supported by sufficient evidence and is affirmed.
FINALITY
Section 408.123(e) provides that except as otherwise provided by this section, an employee’s first valid certification of MMI and the first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means and that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c). Rule 130.12(c) provides, in part, that a certification of MMI and/or IR assigned as described in subsection (a) must be on a [DWC-69]. The certification on the [DWC-69] is valid if: (1) there is an MMI date that is not prospective; (2) there is an impairment determination of either no impairment or a percentage [IR] assigned; and (3) there is the signature of the certifying doctor who is authorized by the [Division] under Rule 130.1(a) to make the assigned impairment determination.
Section 408.123(f)(1)(A) provides in pertinent part that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described in Subsection (e) if compelling medical evidence exists of a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the IR.
Dr. V examined the claimant on June 12, 2024, and certified that the claimant reached MMI on June 12, 2024, with a 15% IR. The ALJ found that the evidence presented failed to establish that the carrier disputed Dr. V’s certification within 90 days after being provided with written notice by verifiable means. That finding is supported by sufficient evidence. However, the ALJ found that Dr. V’s certification of MMI/IR did not become final because “there is compelling medical evidence of a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines.” Dr. V 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 calculate the claimant’s IR which was based on placing the claimant in Diagnosis-Related Estimate (DRE) Cervicothoracic Category II: Minor Impairment for the cervical spine assigning 5%; placing the claimant in DRE Lumbosacral Category III: Radiculopathy for the lumbar spine assigning 10%; and placing the claimant in DRE Thoracolumbar Category I: Complaints or Symptoms for the thoracic spine assigning 0%. In the Discussion portion of the decision, the ALJ stated the carrier asserted Dr. V incorrectly placed the claimant into DRE Category III for the lumbar spine because the claimant was diagnosed with only a lumbar sprain and strain and that the evidence is persuasive that compelling medical evidence of a significant error by the certifying doctor in applying the appropriate AMA Guides or in calculating the IR existed.
The AMA Guides provide on page 3/102 that for placement in DRE Lumbosacral Category III: Radiculopathy the claimant has significant signs of radiculopathy, such as loss of relevant reflexes or measured unilateral atrophy of greater than 2 cm above or below the knee, compared to measurements on the contralateral side at the same location. Regarding his choice of IR for the lumbar sprain, Dr. V explained that there is a loss of a relevant reflex involving the left patella and that understanding the importance of this finding, it was verified on three separate occasions. Dr. V’s placement of the claimant in DRE Lumbosacral Category III was in his discretion as a matter of medical judgment, and under the facts of this case, we disagree that it constitutes compelling medical evidence of a significant error by the certifying doctor in applying the appropriate AMA Guides or in calculating the IR per Section 408.123(f)(1)(A). See Appeals Panel Decision (APD) 132541, decided December 16, 2013. Further, there was no evidence of an exception to finality of a clearly mistaken diagnosis or a previously undiagnosed medical condition or improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid. See Section 408.123(f)(1)(B)(C). Therefore the ALJ erred in finding an exception to finality. Without a timely dispute by the carrier, and no evidence that an exception under Section 408.123(f) applied, Dr. V’s certification of MMI/IR on June 12, 2024, became final under Section 408.123 and Rule 130.12.
We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. V on June 12, 2024, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and assigned IR from Dr. V on June 12, 2024, became final under Section 408.123 and Rule 130.12.
MMI/IR
The ALJ determined that the first certification of MMI and IR assigned by Dr. V on June 12, 2024, did not become final and adopted the certification of MMI/IR by Dr. P, the designated doctor. However, because we have reversed the ALJ’s finality determination and rendered a new decision that Dr. V’s June 12, 2024, certification did become final, we reverse the ALJ’s determination that the claimant reached MMI on May 30, 2024, with a 0% IR. We render a new decision that the claimant reached MMI on June 12, 2024, and that the claimant’s IR is 15% based on Dr. V’s June 12, 2024, certification, which has become final.
SUMMARY
We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a concussion with loss of consciousness, bilateral sensory hearing loss, bilateral tinnitus, lumbar radiculopathy at L5-S1, or lumbar spondylolisthesis at L5-S1.
We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. V on June 12, 2024, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and assigned IR from Dr. V on June 12, 2024, became final under Section 408.123 and Rule 130.12.
We reverse the ALJ’s determination that the claimant reached MMI on May 30, 2024, and render a new decision that the claimant reached MMI on June 12, 2024.
We reverse the ALJ’s determination that the claimant’s IR is 0% and render a new decision that the claimant’s IR is 15%.
The true corporate name of the insurance carrier is ACE AMERICAN INSURANCE COMPANY 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 75201-3136.
Margaret L. Turner
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Carisa Space-Beam
Appeals Judge