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 June 2, 2025, with the record closing on June 23, 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 April 11, 2024; and (2) the claimant’s impairment rating (IR) is 5%. The claimant appealed, disputing the ALJ’s determinations. 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 displaced fracture of the first metatarsal bone of the left foot, displaced fracture of the third metatarsal of the left foot, displaced fracture of the fourth metatarsal of the left foot, displaced fracture of the dorsum of the cuneiform, mild subluxation of the tarsometatarsal joints, and L5 dermatome lack of sensation of the left foot, and (Dr. B) was the designated doctor appointed on the issues of MMI, IR, return to work, and disability. The claimant was injured on (date of injury), when a heavy pipe fell on his left foot.
MMI
The ALJ’s determination that the claimant reached MMI on April 11, 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 Texas Department of Insurance, Division of Workers’ Compensation (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 April 11, 2024, with a 5% IR as assigned by Dr. B, the designated doctor. Dr. B examined the claimant on September 9, 2024. Considering the compensable conditions Dr. B certified the claimant reached MMI on April 11, 2024, and, 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), assigned a 5% IR. Dr. B noted in his accompanying narrative report the following physical exam findings:
Sensation was absent proximal to the third, fourth and fifth toes on the dorsum of the [left] foot. Sensation regained at the ankle level. Sensation was present proximal to the great toe. The left ankle dorsiflexion was to 5[°], plantar flexion of 10[°]. He had no perceptual motion of the great toe, second toe, third toe, fourth toe, or fifth toe. Inversion 10[°], eversion 10[°].
Dr. B stated that he used Table 42 Ankle Motion Impairments, Table 43 Hindfoot Impairments, Table 44 Ankle or Hindfoot Deformity/Impairments, and Table 45 Toe Impairments on page 3/78 of the AMA Guides to assess impairment for the compensable injury. Dr. B assigned 0% impairment under Table 44 for “mild loss of the arch of the foot without true pes planus or deformity (no [v]arus/[v]algus); 10% foot impairment for “the deficit in left ankle dorsiflexion and plantar flexion;” 3% impairment for “the deficit in inversion and eversion;” “3% for the loss of movement of the great toe and [1%] for the remaining toes;” and 0% for the L5 dermatome lack of sensation of the left foot. Combining the whole person impairment (WPI) for the foot Dr. B assessed 17% impairment, which he converted to 12% lower extremity impairment, which resulted in 5% WPI.
The ALJ sent a letter of clarification (LOC) to Dr. B on June 11, 2025, noting that the ROM measurements used by Dr. B resulted in a higher IR under the AMA Guides than the 5% IR he had assigned. The ALJ requested Dr. B to review his findings and recalculate the IR. Dr. B responded on June 12, 2025, and noted that upon reevaluation of the AMA Guides and the impairment values associated with his findings that:
A mild 3% WPI is assigned as the column includes both the 5° dorsiflexion (Table 42, page 3/78) and 10° plantar flexion. This is not additive as the combined column is 3% WPI.
Similarly, 10° inversion and 10° eversion is 1% WPI, mild impairment, the first column of Table 43, page 3/78. This is not additive (i.e. each) for both inversion and eversion.
Lastly, the great toe and lesser toes fall into a 1% WPI (Table 45, page 3/78).
Using the Combined Values Chart (AMA Guides, [page] 322), the [IR] is [5%].
Dr. B noted that his previous calculation was more elaborate but resulted in the same number, and maintained his previous 5% IR. The claimant contends on appeal that Dr. B’s IR was not made in accordance with the AMA Guides and points out that 10° plantar flexion results in 6% WPI under Table 42 on page 3/78.
Table 42 on page 3/78 provides that plantar flexion capability of 11° – 20° falls under the mild category for 3% WPI, while plantar flexion capability of 1° – 10° falls under the moderate category for 6% WPI. Dr. B noted in both his narrative report and LOC response that the claimant had 10° plantar flexion but determined this fell in the mild category for 3% WPI under Table 42.
In Section 3.2e entitled “[ROM],” page 3/77, the AMA Guides provides, in part, that “[e]valuating permanent impairment of the lower extremity according to its [ROM] is a suitable method.” Section 3.2e does not require that a certifying doctor must only use the most severe impairment for an individual direction of motion within the same table (Tables 40 through 43). See also Appeals Panel Decision (APD) 110741, decided July 25, 2011.
Dr. B offered no explanation why he determined 10° plantar flexion fell in the mild category for 3% WPI under Table 42 rather than the moderate category for 6% WPI as provided in that table. Dr. B did not accurately reflect the category and impairment assessed for the left ankle plantar flexion ROM, and because of this error it cannot be determined whether Dr. B would have used the most severe impairment. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 5%.
There is no other certification in evidence with an MMI date of April 11, 2024. 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 reached MMI on April 11, 2024.
We reverse the ALJ’s determination that the claimant’s IR is 5% and we remand the IR issue to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. B is the designated doctor in this case. On remand the ALJ is to determine whether Dr. B is still qualified and available to be the designated doctor. If Dr. B is still qualified and available, the ALJ is to advise Dr. B that Table 42 on page 3/78 of the AMA Guides provides that 10° plantar flexion falls under the moderate category for 6% WPI and request Dr. B provide a detailed explanation why he assigned 3% WPI under the mild category for 10° plantar flexion in this case.
The ALJ is to request the designated doctor to rate the entire compensable injury based on the claimant’s condition as of April 11, 2024, the date of MMI, in accordance with Rule 130.1(c)(3) and considering the medical records, the certifying examination, and rating criteria in the AMA Guides. The ALJ should inform the designated doctor that the compensable injury is a displaced fracture of the first metatarsal bone of the left foot, displaced fracture of the third metatarsal of the left foot, displaced fracture of the fourth metatarsal of the left foot, displaced fracture of the dorsum of the cuneiform, mild subluxation of the tarsometatarsal joints, and L5 dermatome lack of sensation of the left foot.
The parties are to be provided with the designated doctor’s new certification and allowed an opportunity to respond. The ALJ is then to make a determination of 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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
JEANETTE WARD, PRESIDENT AND CEO
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.
Carisa Space-Beam
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Margaret L. Turner
Appeals Judge