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 August 18, 2025, with the record closing on September 9, 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), extends to seizure, mild traumatic brain injury with loss of consciousness, and concussion with loss of consciousness; (2) the respondent (claimant) has not reached maximum medical improvement (MMI); and (3) because the claimant has not reached MMI, an impairment rating (IR) cannot be assessed at this time. The appellant (carrier) appealed the ALJ’s determinations of extent of injury, MMI, and IR. The carrier argued in part that since the claimant had reached statutory MMI as of the date the hearing record closed, the ALJ should not have determined the claimant was not yet at MMI. The claimant responded, urging affirmance.
DECISION
Affirmed in part as reformed and reversed and remanded in part.
The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury that includes at least a scalp laceration and head contusion; the initial designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) for the purpose of extent of injury, return to work, and disability was (Dr. Q); the subsequent Division-selected designated doctor appointed for the purpose of MMI and IR was (Dr. M); and the most recent Divison-selected designated doctor appointed for the purpose of MMI and IR was (Dr. X). The ALJ noted that the record was re-opened to clarify a stipulation and ALJ exhibit 2 was admitted. ALJ exhibit 2 reflects that the parties agreed that the statutory date of MMI is September 9, 2025. The carrier states in its request for review the parties stipulated the statutory MMI date was September 9, 2025, and the claimant notes in his response that the parties did agree that the statutory date of MMI was September 9, 2025. However, the ALJ failed to add the stipulation of the parties regarding the date of statutory MMI in the decision. We reform the decision to conform to the agreement of the parties and add Finding of Fact 1.H. as follows: The date of statutory MMI is September 9, 2025. The claimant testified he was injured when working on a cellular tower.
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), extends to seizure, mild traumatic brain injury with loss of consciousness, and concussion with loss of consciousness 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. 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.
Dr. X, the most recent Division-selected designated doctor, examined the claimant on November 26, 2024, and certified that for the compensable injury of (date of injury), the claimant has not reached MMI and the ALJ found that the preponderance of the other medical evidence was not contrary to this certification. As noted above, the parties stipulated that the date of statutory MMI is September 9, 2025. The decision and order was signed on September 17, 2025. The Appeals Panel has previously held that it is legal error to determine a claimant has not reached MMI in a Decision and Order dated after the date of statutory MMI. See Appeals Panel Decision (APD) 131554, decided September 3, 2013; and APD 172017, decided October 3, 2017; see also APD 200978, decided August 25, 2020. Therefore, we reverse the ALJ’s determinations that the claimant has not reached MMI and because the claimant has not reached MMI, an IR cannot be assessed at this time
In the first certification, Dr. X certified that the claimant reached MMI on (date of injury), with a zero 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). However, Dr. X considered and rated only a scalp laceration. This certification did not consider and rate the entire compensable injury and cannot be adopted.
There are three other certifications in evidence. (Dr. Mc), a carrier-selected required medical examination doctor, examined the claimant on June 18, 2025, and certified that the claimant reached MMI on August 28, 2023, with a zero percent IR. However, Dr. Mc only considered and rated a scalp laceration and head contusion. This certification did not consider and rate the entire compensable injury and cannot be adopted.
(Dr. S), a doctor selected by the treating doctor to act in his place, examined the claimant on July 26, 2024, and certified that the claimant reached MMI on June 21, 2024, with an eight percent IR. Dr. S considered and rated seizures, mild traumatic brain injury with loss of consciousness, and concussion with loss of consciousness. Dr. S did not consider and rate a scalp laceration or head contusion. This certification did not consider and rate the entire compensable injury and cannot be adopted.
Dr. M, a designated doctor, examined the claimant on May 15, 2023, and certified that the claimant reached MMI on August 28, 2023, with a zero percent IR. Dr. M only considered and rated a scalp laceration and seizure. The certification from Dr. M did not consider and rate the entire compensable injury and cannot be adopted.
As there is no MMI/IR certification in evidence that can be adopted, we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.
SUMMARY
We affirm the ALJ’s determination that the compensable injury of (date of injury), extends to seizure, mild traumatic brain injury with loss of consciousness, and concussion with loss of consciousness.
We reform the ALJ’s decision to add Finding of Fact 1.H as follows to conform to the stipulations made by the parties: The date of statutory MMI is September 9, 2025.
We reverse the ALJ’s determinations that the claimant has not reached MMI and because the claimant has not reached MMI, an IR cannot be assessed at this time, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. X is the designated doctor in this case. The ALJ is to determine whether Dr. X is still qualified and available to be the designated doctor. If Dr. X is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s MMI and IR.
The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a scalp laceration, head contusion, seizure, mild traumatic brain injury with loss of consciousness, and concussion with loss of consciousness. The ALJ is to request the designated doctor to give an opinion on the claimant’s MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination. The ALJ should inform the designated doctor that the date of MMI cannot be later than the statutory date of September 9, 2025.
The parties are to be provided with the designated doctor’s new MMI/IR certification and are to be allowed an opportunity to respond. The ALJ is then to make a determination on MMI and 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 BENCHMARK 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