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 26, 2025, with the record closing on April 24, 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 of (date of injury), does not extend to cervical disc herniations at C5-6, C6-7, and C7-T1; lumbar radiculopathy; or lumbar disc herniation at L4-5; (2) the respondent (claimant) reached maximum medical improvement (MMI) on May 11, 2024; and (3) the claimant’s impairment rating (IR) is 27%. The appellant (carrier) appealed, disputing the ALJ’s IR determination. The carrier contends that the 27% IR was not made in accordance with the AMA Guides. The appeal file does not contain a response from the claimant to the carrier’s appeal. The ALJ’s determinations that the compensable injury of (date of injury), does not extend to cervical disc herniations at C5-6, C6-7, and C7-T1; lumbar radiculopathy; or lumbar disc herniation at L4-5 and that the claimant reached MMI on May 11, 2024, were not appealed and have become final pursuant to Section 410.169.
DECISION
Reversed and remanded.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to a left shoulder sprain, left shoulder strain, complex fracture of T1, and C3-4 herniated disc; the Texas Department of Insurance, Division of Worker’s Compensation (Division) appointed (Dr. C) as designated doctor to address the issues of extent of injury, MMI, and IR; and that the date of statutory MMI is May 11, 2024. The claimant was injured in a motor vehicle accident.
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. 28 Tex. Admin. Code § 130.1(c)(3) (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.
The ALJ determined the claimant reached MMI on May 11, 2024, with a 27% IR as certified by Dr. C. Dr. C initially examined the claimant on May 15, 2024, and certified the claimant reached MMI on May 11, 2024, with a 26%. However, Dr. C’s accompanying narrative report reflects he did not consider and rate the accepted complex fracture of T1. Dr. C next examined the claimant on January 30, 2025, and issued three alternate certifications. In two of these Dr. C certified the claimant reached MMI on May 11, 2024, with a 26% IR. In the third Dr. C certified the claimant reached MMI on May 11, 2024, with a 23% IR. However, Dr. C’s accompanying narrative report reflects the two certifications assigning 26% IR included ratings for an L4-5 disc herniation and lumbar radiculopathy, neither of which are part of the compensable injury. Dr. C’s narrative report reflects the certification assigning 23% IR included a rating for a thoracic sprain, which is not part of the compensable injury.
On March 10, 2025, the ALJ sent Dr. C a letter of clarification (LOC) requesting him to provide a certification considering only a left shoulder sprain, left shoulder strain, complex fracture of T1, and C3-4 herniated disc. Dr. C responded on March 15, 2025. Considering a left shoulder sprain, left shoulder strain, complex fracture of T1, and C3-4 herniated disc, Dr. C certified the claimant reached MMI on May 11, 2024, with an 18% IR. Regarding the complex fracture of T1 Dr. C stated in his narrative report that “[t]his would also include the fracture of T1, 25%. It is most appropriate to rate the thoracic spine under [Diagnosis-Related Estimate (DRE) Thoracolumbar Category II: Minor Impairment], 5% whole person.”
A second LOC was sent to Dr. C on April 7, 2025, requesting clarification of the impairment he assigned for the left shoulder sprain and left shoulder strain, to which he responded on April 16, 2025. A third LOC was sent to Dr. C on May 6, 2025, in which the ALJ noted that Dr. C stated in his report that the fracture of T1 is 25% and he assigned 5% whole person impairment under DRE II Thoracolumbar Category II: Minor Impairment, but the ALJ informed Dr. C that “a compression fracture would be a DRE II with a whole person impairment of 15%.” We note that 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) provide that DRE II Thoracolumbar Category II: Minor Impairment results in 5% impairment, while DRE Thoracolumbar Category III: Radiculopathy results in 15% impairment.
Dr. C responded on May 19, 2025, and amended his IR to 27%. Dr. C stated in his narrative report the following:
In answer to your question regarding the T1 compression fracture, this was a mild fracture, as noted on the MRI report of (date of injury). I believe that I was mistaken in the value that I gave to that [diagnosis-based estimate]. A mild compression fracture is one that is measured to be up to 25% of anterior wedging. The report was unclear as to the percentage of the fracture. The 25% value that was assigned was noted to be the higher end of the fracture, that would place it into a 15% thoracic radiculopathy category of DRE III.
The carrier argues on appeal that Dr. C improperly placed the claimant in DRE Thoracolumbar Cateogry III: Radiculopathy, because there is no evidence that the complex fracture of T1 resulted in 25% to 50% compression fracture of one vertebral body. The carrier points out in part that a thoracic MRI performed on May 25, 2022, established the compression fracture resulted in a 10% loss of vertebral height.
The May 25, 2022, MRI referenced by the carrier is in evidence. This MRI reflects findings of “acute appearing, comminuted, anterior compression fractures in the T1 and T2 vertebra with 10% loss of anterior vertebral body height,” and that the vertebra “remain in anatomic alignment and position.”
None of Dr. C’s reports in evidence reference the May 25, 2022, MRI, and this MRI is not included in the list of records he received. In his LOC response specifically discussing whether DRE Thoracolumbar Cateogry II or III was applicable in rating the complex fracture of T1, Dr. C points only to the (date of injury), MRI report that he found unclear as to the percentage of the fracture. The record does not reflect whether Dr. C ever received the May 25, 2022, MRI that showed a 10% loss of vertebral height. Rules 130.1(b)(4)(A) and 130.1(c)(3) specifically require that the certifying doctor, including the designated doctor, review the medical records before certifying an MMI date and assigning an IR. Rule 127.10(a)(1) provides, in part, that the treating doctor and insurance carrier shall provide to the designated doctor copies of all the injured employee’s medical records in their possession relating to the medical condition to be evaluated by the designated doctor. See Appeals Panel Decision (APD) 182809, decided February 7, 2019, and cases cited therein.
The AMA Guides provide on page 3/106 that placement in DRE Thoracolumbar Category III: Radiculopathy requires 25% to 50% compression fracture of one vertebral body. The evidence in the record does not establish that the complex fracture of T1 met this requirement, and Dr. C’s LOC response shows he based his assessment on a report reflecting an unclear percentage of compression fracture. Under the circumstances of this case Dr. C’s 27% IR cannot be adopted, and we reverse the ALJ’s determination that the claimant’s IR is 27%.
There is one other certification in evidence, which is from (Dr. S), the post-designated doctor required medical examination doctor. Dr. S examined the claimant on October 7, 2024, and certified the claimant reached MMI on May 11, 2024, with a 10% IR. However, Dr. S’s accompanying narrative report reflects that he considered and rated a C3-4 sprain, not a C3-4 herniated disc. The ALJ correctly noted in the Discussion portion of her decision that Dr. S’s certification did not rate the compensable injury and could not be adopted.
There is no certification in evidence that can be adopted. Accordingly, we remand this case to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. C is the designated doctor in this case. On remand the ALJ is to determine whether Dr. C is still qualified and available to be the designated doctor. If Dr. C is no longer qualified or available then another designated doctor is to be appointed to determine the claimant’s IR for the (date of injury), compensable injury. On remand the ALJ is to ensure that the required medical records, including the May 25, 2022, MRI, are sent to the designated doctor pursuant to Rule 127.10. The ALJ is to notify the designated doctor that the claimant reached MMI on May 11, 2024, and that the compensable injury extends to a left shoulder sprain, left shoulder strain, complex fracture of T1, and C3-4 herniated disc. The ALJ is to request the designated doctor rate the entire compensable injury as of the May 11, 2024, date of MMI, considering the claimant’s medical record and the certifying examination and in accordance with Rule 130.1(c)(3).
The parties are to be provided with the designated doctor’s new certification and allowed an opportunity to respond. The ALJ is then to determine the claimant’s 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 THE STANDARD FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
d/b/a CSC-LAWYERS INCORPORATING SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
Carisa Space-Beam
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Margaret L. Turner
Appeals Judge