This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 21, 2025, with the record closing on September 8, 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 transient global amnesia, traumatic brain injury with loss of consciousness 30 minutes or less, post concussional syndrome, post traumatic headache, C5-6 disc herniation, C6-7 disc herniation, C5-7 annular tear, cervical disc displacement, L3-4 disc herniation, L4-5 disc herniation, L3-5 annular tears, and lumbar disc displacements; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. G), designated doctor, on June 26, 2024, did not become final under Section 408.123 and 28 Texas Admin. Code § 130.12 (Rule 130.12); (3) the respondent (claimant) reached MMI on March 20, 2025; (4) the claimant’s IR is five percent; and (5) the claimant had disability resulting from the compensable injury from March 17, 2023, through the date of the CCH.
The appellant (carrier) appealed, disputing all of the ALJ’s determinations. The claimant responded, urging affirmance.
DECISION
Affirmed in part, reversed by striking in part, and reversed and remanded in part.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that includes at least a head contusion and concussion; the designated doctor selected by the Texas Department of Insurance, Division of Workers’ Compensation (Division) on the issues of extent of injury, MMI, IR, return to work, and disability was Dr. G; and the date of statutory MMI is March 20, 2025. The claimant was injured when a metal bar she was using to lift a ramp struck her on the right side of her head, causing her to lose consciousness.
EXTENT OF INJURY
The ALJ’s determination that the compensable injury of (date of injury), extends to transient global amnesia, traumatic brain injury with loss of consciousness 30 minutes or less, post concussional syndrome, post traumatic headache, C5-6 disc herniation, C6-7 disc herniation, C5-7 annular tear, cervical disc displacement, L3-4 disc herniation, L4-5 disc herniation, L3-5 annular tears, and lumbar disc displacements is supported by sufficient evidence and affirmed.
DISABILITY
The Benefit Review Conference (BRC) Report lists the disability period in question as March 17, 2023, through the present. However, during the CCH the parties agreed to amend the disability period to be June 30, 2023, through March 11, 2025. Despite noting this amendment, the ALJ determined the claimant had disability from March 17, 2023, through the date of the CCH. That portion of the ALJ’s determination that the claimant had disability from June 30, 2023, through March 11, 2025, is supported by sufficient evidence and affirmed. We reverse by striking that portion of the ALJ’s determination that the claimant had disability from March 17, 2023, through June 29, 2023, and from March 12, 2025, through the date of the CCH as exceeding the scope of the disability issue.
FINALITY
Section 408.123(e) provides that, except as otherwise provided by Section 408.123, an employee’s first valid certification of MMI and 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, including IRs related to extent-of-injury disputes. The notice must contain a copy of a valid Report of Medical Evaluation (DWC-69) as described in Rule 130.12(c).
Section 408.123 provides, in part:
(f) An employee’s first certification of [MMI] or assignment of an [IR] may be disputed after the period described by Subsection (e) if:
(1) compelling medical evidence exists of:
(A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the [IR];
(B) a clearly mistaken diagnosis or a previously undiagnosed medical condition; or
(C) improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid.
The ALJ found that Dr. G’s June 26, 2024, certification was the first valid certification of MMI and IR for the purposes of Section 408.123 and Rule 130.12. This finding is supported by sufficient evidence. The ALJ also found that the evidence does not establish that Dr. G’s certification was delivered to the claimant by verifiable means.
In Appeals Panel Decision (APD) 041985-s, decided September 28, 2004, the Appeals Panel noted the preamble to Rule 130.12 stated that written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party, and that this may include acknowledged receipt by the injured employee or insurance carrier, a statement of personal delivery, confirmed delivery by e-mail, confirmed delivery by facsimile transmission, or some other confirmed delivery to the home or business address. The goal of this requirement is not to regulate how a system participant makes delivery of a report or other information to another system participant, but to ensure that the system participant filing the report or providing the information has verifiable proof that it was delivered. 29 Tex. Reg. 2331, March 5, 2004. See also APD 091106, decided September 17, 2009, and APD 070533-s, decided May 21, 2007.
The ALJ stated the following in her discussion:
[t]he evidence does not establish a date certain on which [Dr. G’s] certification was delivered to the claimant by verifiable means. The insurance carrier’s Exhibit CR-L shows a United State[s] Postal Service [USPS] tracking number indicating that an item was delivered to an unknown address in [city], Texas and that the item was picked up at the post office on July 16, 2024, in [city], Texas. The proof of delivery does not indicate that what was enclosed in that mailing was [Dr. G’s] certification. Similarly, the Notice of [MMI] and No [IR] (PLN-3a) dated July 10, 2024, has no indication that it was sent to the claimant by verifiable means, nor does it have any indication of it corresponding with the tracking number provided in evidence. The evidence did not establish that [Dr. G’s] certification was delivered to the claimant by verifiable means, thus it did not become final pursuant to [Section 408.123] and [Rule 130.12].
In evidence is a PLN-3a dated July 10, 2024, from the carrier addressed to the claimant. The claimant verified at the CCH that the address contained in the PLN-3a in (city), Texas is her correct address. Although the PLN-3a does not state the doctor’s name, it does state that a certification from a doctor gave the claimant a zero percent IR, and that the doctor’s report was attached. We note that Dr. G’s June 26, 2024, certification reflects an MMI date June 30, 2023, and a zero percent IR, and there is no other certification with a zero percent IR in evidence. The PLN-3a shows the adjuster’s name as (ER).
In evidence is a USPS printout containing a tracking number and confirms that an item was delivered to (city), Texas on July 16, 2024. Also in evidence is an email from ER dated July 10, 2024, to the carrier’s attorney with a subject line as “RE: S41810 (claimant) – DD report received.” The email states it contained a copy of what was sent to the claimant and her attorney via USPS. The email shows the tracking number associated with the mailing to the claimant and a separate tracking number associated with the mailing to her attorney. Also in evidence are USPS track and confirm forms listing the same certified mail number associated with the claimant’s mailing that the item had been delivered at 10:41 a.m. on July 16, 2024, in (city), Texas, and the same certified mail number associated with her attorney’s mailing that the item had been delivered at 12:12 p.m. on July 15, 2024. There is no evidence that the certified letter to the claimant was returned as undelieverable.
Under the facts in this case Dr. G’s certification was delivered to the claimant on July 16, 2024, as evidenced by the PLN-3a addressed to the claimant’s correct address in (city), Texas, stating that the report assigning a zero percent IR was attached, and the printout from USPS bearing the same tracking number confirming delivery to (city), Texas, as reflected in the adjuster’s email. We reverse the ALJ’s determination that the first certification from Dr. G was not delivered to the claimant through verifiable means as being against the great weight and preponderance of the evidence. See APD 210405, decided May 27, 2021, and APD 091106, decided September 17, 2009. We hold that the first certification from Dr. G was delivered to the claimant through verifiable means on July 16, 2024.
Because the ALJ found that there was insufficient evidence to establish delivery to the claimant by verifiable means, the ALJ made no further findings regarding the date of the dispute of the first certification or the applicability of any exceptions to finality as provided in Section 408.123(f). We remand the issue of whether the first certification from Dr. G on June 26, 2024, became final under Section 408.123 and Rule 130.12 for further consideration consistent with this decision.
MMI/IR
Because we have reversed the ALJ’s determination that the first certification from Dr. G on June 26, 2024, did not become final under Section 408.123 and Rule 130.12 and remanded the issue of finality of Dr. G’s June 26, 2024, certification, we also reverse the ALJ’s determinations that the claimant reached MMI on March 20, 2025, with a five percent IR, and remand the issues of MMI and IR to the ALJ for further consideration consistent with this decision.
SUMMARY
We affirm the ALJ’s determination that the compensable injury of (date of injury), extends to transient global amnesia, traumatic brain injury with loss of consciousness 30 minutes or less, post concussional syndrome, post traumatic headache, C5-6 disc herniation, C6-7 disc herniation, C5-7 annular tear, cervical disc displacement, L3-4 disc herniation, L4-5 disc herniation, L3-5 annular tears, and lumbar disc displacements.
We affirm that portion of the ALJ’s determination that the claimant had disability from June 30, 2023, through March 11, 2025.
We reverse by striking that portion of the ALJ’s determination that the claimant had disability from March 17, 2023, through June 29, 2023, and from March 12, 2025, through the date of the CCH as exceeding the scope of the disability issue.
We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. G on June 26, 2024, did not become final under Section 408.123 and Rule 130.12, and remand the issue of whether Dr. G’s June 26, 2024, certification became final under Section 408.123 and Rule 130.12 to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant reached MMI on March 20, 2025, and remand the issue of MMI to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant’s IR is five percent and remand the issue of IR to the ALJ for further action consistent with this decision.
REMAND INSTRUCTIONS
On remand, the ALJ is to make findings of fact regarding the date of the claimant’s dispute of the first certification as well as any applicable exceptions to finality as provided in Section 408.123. The ALJ is to then make a determination of whether the first certification of MMI and assigned IR from Dr. G on June 26, 2024, became final under Section 408.123 and Rule 130.12 consistent with the evidence and this decision.
The ALJ is to then to make a determination of MMI and IR consistent with the evidence and 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 GREAT WEST CASUALTY COMPANY and the name and address of its registered agent for service of process is
CSC-LAWYERS INCORPORATING SERVICES 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