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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 November 30, 2020, with the record closing on January 7, 2021, 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 cervical sprain, cervical strain, and post-traumatic headaches but does not extend to lumbar disc protrusion/herniation at L3-4, L4-5, and L5-S1, mild lateral recess stenosis at L4-5, lumbosacral radiculitis, cervical disc herniation at C4-5, C5-6, and C6-7, central stenosis at C4-5, central stenosis at C5-6, central stenosis and left foraminal narrowing at C6-7, vertigo, tinnitus, bilateral hearing loss, traumatic brain injury, major neurocognitive disorder due to traumatic brain injury, major depressive disorder, post-traumatic stress disorder (PTSD), concussion, or bleeding in the brain; (2) the appellant (claimant) reached maximum medical improvement (MMI) on November 1, 2018; and (3) claimant’s impairment rating (IR) is zero percent.

The claimant appealed that portion of the ALJ’s extent-of-injury determination that was adverse to him, and the ALJ’s MMI and IR determinations. The respondent (carrier) responded urging affirmance of the ALJ’s extent of injury, MMI, and IR determinations. The ALJ’s determination that compensable injury of (date of injury), extends to cervical sprain, cervical strain, and post-traumatic headaches was not appealed and has become final pursuant to Section 410.169. We note that the parties stipulated on the record that the (date of injury), compensable injury does not extend to bleeding in the brain.

DECISION

Reversed and remanded for reconstruction of the record.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibits 1 through 3; Claimant’s Exhibits 1 through 14 (except Claimant’s Exhibit 6, pages 24-25), and Carrier’s Exhibits A through O (except Carrier’s Exhibit F, pages 24-25). The claimant’s Exhibit 9 contains 16 pages of medical records from The BES Group & Associates Inc.; however, the case file sent for review does not contain a Claimant’s Exhibit 9, page 10. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibit. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

Additionally, we note that in Issue No. 1, Finding of Fact No. 4, Conclusion of Law No. 3, the Decision section, and the Decision and Order section, the ALJ incorrectly wrote one of the conditions at issue as “mild lateral recess stenosis at L4-5.” However, the condition in the Benefit Review Conference report and as agreed to by the parties on the record is mild left lateral recess stenosis at L4-5.

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 Texas Department of Insurance, Division of Workers’ Compensation, 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

RICHARD J. GERGASKO, PRESIDENT
2200 ALDRICH ST.
AUSTIN, TEXAS 78723.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 December 30, 2020, with the record closing on January 19, 2021, 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 a lumbar disc bulge at L4-5 or L5-S1 or lumbar radiculopathy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on June 28, 2018; and (3) the claimant’s impairment rating (IR) is zero percent. The claimant appealed the ALJ’s decision. The respondent (carrier) responded, urging affirmance of the ALJ’s decision.

DECISION

Reversed and remanded.

A CCH was called to order on December 30, 2020, to hear the disputed issues. The carrier was present, and although the claimant’s attorney appeared for the CCH the claimant did not. Due to the claimant’s nonattendance at the CCH, the ALJ issued a 10-day letter dated December 30, 2020, to the claimant. On January 19, 2021, the ALJ issued a decision and order because the “[c]laimant failed to timely respond in writing to the 10-day letter. . . .” We note the carrier stipulated at the CCH that (Dr. W) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine MMI, IR, and extent of the claimant’s compensable injury. However, the stipulation as written in Finding of Fact No. 1.E. omits Dr. W being appointed to determine extent of injury.

The claimant through his attorney appealed the ALJ’s decision. The claimant’s appeal states that the claimant’s attorney responded on January 4, 2021, to the 10-day letter on the claimant’s behalf by forwarding to the Division an email the attorney received from the claimant regarding his absence at the December 30, 2020, CCH. The claimant’s appeal also states that the claimant’s attorney sent a copy of the claimant’s email via facsimile transmission (fax) to the Division on January 4, 2021, and includes a fax confirmation sheet confirming that this fax containing a copy of the claimant’s email was sent to a correct Division fax number on that same date.

In Appeals Panel Decision (APD) 042634, decided November 29, 2004, the Appeals Panel noted that the purpose of the 10-day letter process is to give the nonappearing party the opportunity to meaningfully participate in the dispute resolution process.  In APD 020273, decided March 29, 2002, the claimant made a number of factual allegations in her appeal regarding good cause for failing to attend the CCH and her attempts to respond to the 10-day letter, and the Appeals Panel stated that it was not in a position to evaluate the credibility of the claimant in regard to those matters and for such reason, remanded the case to the ALJ.  

28 TEX. ADMIN. CODE § 142.11 (Rule 142.11) regarding the failure to attend a CCH was amended to be effective January 7, 2019.  Rule 142.11(c) provides, in part, that if the ALJ determines that good cause exists for the failure to attend, the hearing will be rescheduled.  

In this case the claimant presented evidence that he did in fact respond timely to the 10-day letter regarding his absence from the December 30, 2020, CCH. Therefore, we remand this case to the ALJ to consider whether the claimant had good cause for failing to attend the December 30, 2020, CCH. If good cause is found, the ALJ is to permit the parties to present evidence on the merits of the claim at the CCH on remand.  

Accordingly, we reverse the ALJ’s determinations that the compensable injury of (date of injury), does not extend to a lumbar disc bulge at L4-5 or L5-S1 or lumbar radiculopathy; the claimant reached MMI on June 28, 2018; and the claimant’s IR is zero percent. We remand this case to the ALJ to take evidence concerning the claimant’s nonappearance at the December 30, 2020, CCH and, if good cause is found, to allow for the presentation of evidence on the merits of the claim. The ALJ is then to make determinations on the disputed issues of whether the compensable injury of (date of injury), extends to a lumbar disc bulge at L4-5 and/or L5-S1, MMI, and IR.

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 ZURICH AMERICAN 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

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 December 29, 2020, 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 closed concussive mild traumatic brain injury (TBI), post-concussion syndrome, vestibular disorder, headache, or visual changes; (2) the appellant (claimant) reached maximum medical improvement (MMI) on January 10, 2019, with a 13% impairment rating (IR); and (3) the eighth day of disability is May 7, 2018.

The claimant appealed the ALJ’s extent of injury, MMI, and IR determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s extent of injury, MMI, and IR determinations. The ALJ’s determination that the eighth day of disability is May 7, 2018, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; claimant’s Exhibits 1 through 6, and carrier’s Exhibits A through R. The carrier’s exhibit list states that Exhibit B contains 1 page and contains the carrier information form; however, the case file sent for review does not contain a carrier Exhibit B. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibit. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

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 Texas Department of Insurance, Division of Workers’ Compensation, 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.    

According to the ALJ’s decision, 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

RICHARD J. GERGASKO, PRESIDENT
2200 ALDRICH ST.
AUSTIN, TEXAS 78723.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 December 8, 2020, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the respondent (claimant) had disability as a result of the compensable injury of (date of injury), from September 5, 2019, through February 7, 2020.

The appellant (carrier) appealed the ALJ’s disability determination. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Reversed and remanded for reconstruction of the record.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; claimant’s Exhibits 1 through 6, and carrier’s Exhibits A through H. The carrier’s exhibit list states that Exhibit G contains 1 page; however, the case file sent for review does not contain a carrier Exhibit G. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibit. See Appeals Panel Decision (APD) 030543, decided April 18, 2003. Additionally, we note that Stipulation 1.A. and Conclusion of Law No. 2 state that venue is proper is the (city) Office, instead of the (city) Field Office.

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 Texas Department of Insurance, Division of Workers’ Compensation, 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

RICHARD J. GERGASKO, PRESIDENT
2200 ALDRICH ST.
AUSTIN, TEXAS 78723.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 September 28, 2020, and December 7, 2020, 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 abdominal wall contusion, right knee grade I-II anterior cruciate ligament (ACL) strain, right hand sprain, right wrist sprain, left hand sprain, left wrist sprain, and right knee grade 2 ACL sprain; (2) the compensable injury of (date of injury), does not extend to headaches, left knee sprain/strain, chondromalacia in patella of right knee, stage II chondromalacia in remainder of right knee, right knee meniscal tear of the posterior horn, right knee ACL tear apart from right knee ACL sprain/strain, right knee joint effusion, right hand/wrist tenosynovitis, right metacarpal phalangeal (MCP) joint effusion, bone edema within distal phalanges of 4th and 5th digits of the right hand, bone edema within the distal phalanges of the 2nd and 5th digits of the left hand, or left hand flexor tenosynovitis; (3) the employer did not tender a bona fide offer of employment (BFOE) to the appellant (claimant); (4) the claimant had disability as a result of the compensable injury sustained on (date of injury), from July 22, 2019, through November 12, 2019, but not otherwise through the date of the hearing on December 7, 2020; and (5) the claimant’s average weekly wage (AWW) is $502.56.

The claimant appealed, disputing the ALJ’s determinations regarding extent of injury and disability. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations. The ALJ’s determinations that the employer did not tender a BFOE to the claimant and the claimant’s (AWW) is $502.56 were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed, in part, and reversed and remanded, in part.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The parties stipulated that the claimant sustained a compensable injury on (date of injury), and that the compensable injury extends to bilateral knee contusions, right knee sprain/strain, bilateral hand contusions, left hand grade 1 sprain of the ulnar collateral ligament at the 5th MCP joint, and right knee grade 2 ACL sprain, and that (Dr. A) was appointed as designated doctor by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine extent of injury, maximum medical improvement, impairment rating, and disability. The claimant, a production worker, was injured on (date of injury), when she slipped and fell forward onto her hands, knees, and abdomen.

EXTENT OF INJURY

That portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), extends to abdominal wall contusion, right knee grade I-II ACL strain, right hand sprain, right wrist sprain, left hand sprain, left wrist sprain, and right knee grade 2 ACL sprain, but does not extend to headaches, left knee sprain/strain, chondromalacia in patella of right knee, stage II chondromalacia in remainder of right knee, right knee ACL tear apart from right knee ACL sprain/strain, right knee joint effusion, right hand/wrist tenosynovitis, right MCP joint effusion, bone edema within distal phalanges of 4th and 5th digits of the right hand, bone edema within the distal phalanges of the 2nd and 5th digits of the left hand, or left hand flexor tenosynovitis is supported by sufficient evidence and is affirmed.

The extent-of-injury issue contained in the Benefit Review Conference Report lists the following condition at issue: right knee meniscal tear of the posterior horn. At the CCH dated September 28, 2020, the ALJ suggested amending that condition to read, “right knee lateral meniscal tear of the posterior horn.” Both parties agreed to the suggested amendment. In the CCH dated December 7, 2020, the ALJ again read the condition at issue on the record as amended.

In the ALJ’s decision and order, the ALJ failed to note the condition as amended in the extent-of-injury issue. Additionally, in Finding of Fact No. 4, Conclusion of Law No. 4, the Decision section, and the Decision and Order section, the ALJ notes the condition as “right knee meniscal tear of the posterior horn” instead of “right knee lateral meniscal tear of the posterior horn” as amended by the parties. As the ALJ failed to make a determination regarding the condition as amended, the ALJ’s determination is incomplete. We therefore reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right knee meniscal tear of the posterior horn, and remand the issue of whether the compensable of (date of injury), extends to a right knee lateral meniscal tear of the posterior horn to the ALJ for further action consistent with this decision.

DISABILITY

Because we have reversed and remanded a portion of the extent-of-injury determination, we also reverse the ALJ’s determination that the claimant had disability as a result of the compensable injury sustained on (date of injury), from July 22, 2019, through November 12, 2019, but not otherwise through the date of the hearing on December 7, 2020, and remand the disability issue to the ALJ for further action consistent with this decision.    

SUMMARY

We affirm that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), extends to abdominal wall contusion, right knee grade I-II ACL strain, right hand sprain, right wrist sprain, left hand sprain, left wrist sprain, and right knee grade 2 ACL sprain, but does not extend to headaches, left knee sprain/strain, chondromalacia in patella of right knee, stage II chondromalacia in remainder of right knee, right knee ACL tear apart from right knee ACL sprain/strain, right knee joint effusion, right hand/wrist tenosynovitis, right MCP joint effusion, bone edema within distal phalanges of 4th and 5th digits of the right hand, bone edema within the distal phalanges of the 2nd and 5th digits of the left hand, or left hand flexor tenosynovitis.

We reverse that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to a right knee meniscal tear of the posterior horn, and we remand the issue of whether the compensable injury of (date of injury), extends to a right knee lateral meniscal tear of the posterior horn for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant had disability as a result of the compensable injury sustained on (date of injury), from July 22, 2019, through November 12, 2019, but not otherwise through the date of the hearing on December 7, 2020, and remand the disability issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to amend the extent-of-injury condition as agreed to by the parties and make a determination regarding whether the compensable injury of (date of injury), extends to a right knee lateral meniscal tear of the posterior horn. The ALJ is then to make a determination regarding whether the claimant had disability from July 22, 2019, through the CCH on December 7, 2020, as a result of the compensable injury of (date of injury).

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 Appeals Panel Decision 060721, decided June 12, 2006.  

The true corporate name of the insurance carrier is ZURICH AMERICAN 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.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 January 21, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the compensable injury of (date of injury), does not extend to lumbar disc herniations at L4-5 and L5-S1 and lumbar radiculopathy.

The appellant (claimant) appealed, disputing the ALJ’s determination of extent of injury. The respondent (carrier) responded, urging affirmance of the extent-of-injury determination.  

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and the carrier has accepted the conditions of a lumbar strain, thoracic strain, left knee strain, left knee medial meniscus tear, and left knee lateral complex meniscus tear as compensable. The claimant, a commercial installer, testified that he was injured on (date of injury), when a header beam that weighed between 500 to 800 lbs. fell on him as he was moving into position in a manlift in order to weld the beam.

A review of the record indicates that at the beginning of the CCH, the ALJ stated that the carrier had withdrawn its Exhibit CR-L, and therefore, only admitted Carrier Exhibits CR-A through CR-K and CR-M. Carrier Exhibit CR-L is a peer review report from (Dr. C). Although Dr. C’s peer review report was not admitted into evidence, the ALJ discussed the report in detail in her decision and order. Additionally, the ALJ stated, “[t]he preponderance of the medical evidence supports the opinions of [Dr. K] and [Dr. C], and were persuasive to show that lumbar disc herniations at L4-5 and L5-S1 and lumbar radiculopathy were not caused, enhanced, accelerated, or worsened by the (date of injury), work injury event.” Because the ALJ based her opinion, in part, on a report from a medical expert that is not in evidence, we reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to lumbar disc herniations at L4-5 and L5-S1 and lumbar radiculopathy and remand the extent-of-injury issue back to the ALJ for further action consistent with this decision. See Appeals Panel Decision (APD) 181947, decided October 4, 2018.

REMAND INSTRUCTIONS

On remand the ALJ is to decide the disputed extent-of-injury issue based on the documentary evidence and testimony admitted at the CCH.  

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 Texas Department of Insurance, Division of Workers’ Compensation, 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

MR. RICHARD GERGASKO, PRESIDENT
2200 ALDRICH ST.
AUSTIN, TEXAS 78723.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 September 1, 2020, with the record closing on December 16, 2020, 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 a right elbow contusion, right shoulder contusion, right forearm strain, and lumbar strain; (2) the compensable injury of (date of injury), does not extend to right shoulder sprain, right shoulder rotator cuff tear, right shoulder joint derangement, left shoulder sprain, right knee sprain, left knee sprain, lumbar sprain, cervical sprain, cervical strain, sacroiliac joint sprain, sacrococcygeal disorder, subacromial bursitis, or subdeltoid bursitis; (3) the appellant (claimant) reached maximum medical improvement (MMI) on July 19, 2018; (4) the claimant’s impairment rating (IR) is zero percent; and (5) the claimant had disability from July 23, 2018, through January 26, 2019, resulting from the compensable injury.

The claimant appealed the ALJ’s extent-of-injury determination that was adverse to her as well as the ALJ’s MMI and IR determinations. The appeal file does not contain a response from the respondent (self-insured) to the claimant’s appeal. The ALJ’s determinations that the compensable injury of (date of injury), extends to a right elbow contusion, right shoulder contusion, right forearm strain, and lumbar strain and that the claimant had disability from July 23, 2018, through January 26, 2019, were not appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to a right elbow contusion and right shoulder contusion. We note that the stipulation contained in Finding of Fact No. 1.E. states the parties also stipulated that the compensable injury extends to a right forearm strain and a lower back strain; however, the parties did not make any stipulations at the CCH regarding those two conditions. The parties also stipulated that the compensable injury does not extend to a left shoulder sprain, right knee sprain, left knee sprain, or sacrococcygeal disorder. The claimant testified she was injured on (date of injury), when she was struck by a vehicle while walking from her car in the employer’s parking lot.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibits 1 and 2; claimant’s Exhibits 1 through 9, and self-insured’s Exhibits A through Z. The claimant’s exhibit list states that claimant’s Exhibit 2 contains 84 pages; however, the case file forwarded to us for review contains only pages 1 through 61 for claimant’s Exhibit 2. Additionally, the self-insured’s exhibit list states that Exhibit W contains 25 pages; however, the file contains only pages 1 through 24 for Exhibit W. Further, the file does not contain a self-insured Exhibit Z as stated on the decision and order, and it is unclear from the record whether or not Exhibit Z was offered and admitted into evidence. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibits. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

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 Texas Department of Insurance, Division of Workers’ Compensation, 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 SPRING INDEPENDENT SCHOOL DISTRICT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

DR. RODNEY E. WATSON
SUPERINTENDENT OF SCHOOLS
16717 ELLA BOULEVARD
HOUSTON, TEXAS 77009.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

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 September 15, 2020, and December 10, 2020, 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 claimed injury was caused by the appellant’s (claimant) attempt to unlawfully injure another person, thereby relieving the respondent (self-insured) of liability for compensation; and (2) the self-insured’s contest of compensability was based on newly discovered evidence that could not reasonably have been discovered at an earlier date, thus allowing the self-insured to reopen the issue of compensability.

The claimant appealed the ALJ’s decision, contending that he was unable to attend the December 10, 2020, CCH because “he had been receiving medical care and heart surgery and was unaware [of] the proceeding and given no opportunity to explain his absence. . . .” The self-insured responded, urging affirmance of the ALJ’s decision.

DECISION

Reversed and remanded.

A CCH was called to order on September 15, 2020, to hear the disputed issues. The self-insured was present; however, the claimant did not appear for the CCH. Due to the claimant’s nonattendance at the CCH, the ALJ issued a 10-day letter dated September 17, 2020, to the claimant. The claimant responded, and the ALJ issued an Order Regarding Failure to Attend Hearing (Order) on October 21, 2020, in which she determined there was good cause for the claimant’s failure to attend the September 15, 2020, CCH, and stated that the case be rescheduled for December 10, 2020. We note that although the style on the Order reflects the correct docket number it does not contain the claimant’s correct name; instead, the Order lists the name of a completely unrelated person.

The CCH was called to order on December 10, 2020. The self-insured was present but the claimant did not appear for this setting of the CCH. The claimant’s ombudsman announced on the record that she attempted to contact the claimant on November 20, 2020, for a prep appointment but his voicemail was full. The self-insured urged the ALJ to not send the claimant another 10-day letter and instead issue a decision and order because the case had been reset several times. The ALJ closed the record on December 10, 2020, and issued a decision and order that she signed on December 16, 2020, and was sent to the parties on December 30, 2020. The ALJ specifically found that the claimant was properly notified of the December 10, 2020, CCH, and that he failed to show good cause for failing to appear at that CCH. We disagree. Although the October 21, 2020, Order notifying the parties that the CCH was rescheduled for December 10, 2020, indicates it was sent to the claimant’s correct address, the Order lists a completely different person as the claimant to appear at the CCH. Given that the Order did not identify the actual claimant as the claimant to appear at the CCH, we do not believe the claimant received proper notice of the December 10, 2020, CCH setting. We remand this case to the ALJ to consider whether the claimant had good cause for failing to attend the CCH. If good cause is found, the ALJ is to permit the parties to present evidence on the merits of the claim at the CCH on remand.  

Accordingly, we reverse the ALJ’s determination that: (1) the claimed injury was caused by the claimant’s attempt to unlawfully injure another person, thereby relieving the self-insured of liability for compensation; and (2) the self-insured’s contest of compensability was based on newly discovered evidence that could not reasonably have been discovered at an earlier date, thus allowing the self-insured to reopen the issue of compensability. We remand this case to the ALJ to take evidence concerning the claimant’s nonappearance at the December 10, 2020, CCH and, if good cause is found, to allow for the presentation of evidence on the merits of the claim. The ALJ is then to make determinations on the disputed issues of whether the claimed injury was caused by his attempt to unlawfully injure another person thereby relieving the self-insured of liability for compensation, and whether the self-insured’s contest of compensability was based on newly discovered evidence that could not reasonably have been discovered at an earlier date, thus allowing the self-insured to reopen the issue of compensability.

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 Texas Department of Insurance, Division of Workers’ Compensation, 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 Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is CITY OF HOUSTON (a self-insured governmental entity) and the name and address of its registered agent for service of process is

PAT J. DANIEL, INTERIM – CITY SECRETARY
900 BAGBY
HOUSTON, TEXAS 77002.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

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 December 3, 2020, 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 right shoulder supraspinatus tendon full thickness tearing, infraspinatus tendon full thickness tear of the anterior insertional fibers, subscapularis tendon with moderate grade partial-thickness tearing, tendinosis along head of bicep, acromioclavicular joint effusion, degenerative type tear at the superior labrum, small glenohumeral joint effusion and a high riding humeral head, left total hip arthroplasty, or chronic appearing partial thickness tear of the gluteus medius or gluteus minimus tendon; (2) the appellant (claimant) reached maximum medical improvement (MMI) on January 15, 2020; and (3) the claimant’s impairment rating (IR) is four percent.

The claimant appealed, disputing the ALJ’s determinations regarding extent of injury, MMI, and IR. The respondent (self-insured) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed, in part, and reversed and remanded, in part.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The parties stipulated that the claimant sustained a compensable injury on (date of injury), in the form of at least a left hip strain and right shoulder/trapezius strain, and that (Dr. H) was appointed as designated doctor by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine extent of injury, MMI, and IR. The claimant, a bus operator, was injured when he stepped off a curb and fell onto the pavement while trying to find security to deal with an upset passenger.

EXTENT OF INJURY

That portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to right shoulder supraspinatus tendon full thickness tearing, infraspinatus tendon full thickness tear of the anterior insertional fibers, subscapularis tendon with moderate grade partial-thickness tearing, tendinosis along head of bicep, acromioclavicular joint effusion, degenerative type tear at the superior labrum, small glenohumeral joint effusion, and a high riding humeral head is supported by sufficient evidence and is affirmed.

Dr. H examined the claimant on September 22, 2020, for the purpose of determining extent of injury to the conditions in dispute, as well as MMI and IR. Regarding the right shoulder, Dr. H stated, “[a]s to the multitude of ‘findings’ referenced to the shoulder, I can state unequivocally that all of these findings are of long standing and pre-existing….In addition to this, this one single fall would not with 100% certainty be a substantial producing cause of this myriad of abnormal pathology.” Regarding the left hip, Dr H. stated that he requested a technetium bone scan of the left hip, and “[i]f this is negative, then there would be no more concerns referable to the left hip with regard to this injury.” Dr. H then stated that he would reserve the “final scenario” until after he receives the results of the technetium bone scan of the left hip.

In an addendum, Dr. H reiterated that he had requested the technetium bone scan, but that the study he received was a bone density study instead. He further stated that he could not wait any longer but that a properly performed technetium bone scan remains mandatory. He concluded the report by stating, “as in my preliminary report, the multitude of regurgitation of the MRI findings is not related to the effects naturally resulting from this one slip and fall event.”

Section 408.0041(a)(3) provides that at the request of an insurance carrier or an employee, or on the commissioner’s own order, the commissioner may order a medical examination to resolve any question about the extent of the employee’s compensable injury.  See also 28 TEX. ADMIN. CODE § 127.1(a)(3) (Rule 127.1(a)(3)). Rule 127.10(c) provides, in part, that the designated doctor shall perform additional testing when necessary to resolve the issue in question. Rule 127.220(a)(2) provides, in pertinent part, that designated doctor narrative reports must be filed in the form and manner required by the Division and at a minimum provide a clearly defined answer for each question to be addressed by the designated doctor examination.  

In the instant case, Dr. H was appointed by the Division to provide an opinion on the extent of the compensable injury, including a clearly defined answer as to whether the disputed conditions of left total hip arthroplasty and chronic appearing partial thickness tear of the gluteus medius and gluteus minimus tendon are part of the compensable injury. The ALJ in his decision and order stated that Dr. H “offered a pointed opinion regarding why the conditions were unrelated, noting in part the abnormal pathology and retraction and atrophy of the supraspinatus. Dr. [H]’s addendum report specifically noted that the MRI findings were not a result of the compensable injury.” However, it is clear from reading the entirety of Dr. H’s report that his opinion regarding the “multitude of regurgitation of the MRI findings” was in relation to the right shoulder disputed conditions. Dr. H failed to give an opinion regarding whether the left total hip arthroplasty and chronic appearing partial thickness tear of the gluteus medius and gluteus minimus tendon are part of the compensable injury, stating that a technetium bone scan is required before he could give an opinion regarding the left total hip arthroplasty.

Accordingly, we reverse that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to a left total hip arthroplasty and chronic appearing partial thickness tear of the gluteus medius and gluteus minimus tendon, and we remand the issue of whether the compensable injury of (date of injury), extends to a left total hip arthroplasty and chronic appearing partial thickness tear of the gluteus medius and gluteus minimus tendon to the ALJ for further action consistent with this decision.

MMI AND 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 401.011(24) defines IR as the percentage of permanent impairment of the whole body resulting from a compensable injury.  Rule 130.1(c)(1) states, in part, that an IR is the percentage of permanent impairment of the whole body resulting from the current compensable injury. Because we have reversed and remanded a portion of the extent-of-injury determination, we also reverse the ALJ’s determinations that the claimant reached MMI on January 15, 2020, with a four percent IR, and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.    

SUMMARY

We affirm that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to right shoulder supraspinatus tendon full thickness tearing, infraspinatus tendon full thickness tear of the anterior insertional fibers, subscapularis tendon with moderate grade partial-thickness tearing, tendinosis along head of bicep, acromioclavicular joint effusion, degenerative type tear at the superior labrum, small glenohumeral joint effusion, and a high riding humeral head.

We reverse that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to a left total hip arthroplasty and chronic appearing partial thickness tear of the gluteus medius and gluteus minimus tendon, and we remand the issue of whether the compensable injury of (date of injury), extends to a left total hip arthroplasty and chronic appearing partial thickness tear of the gluteus medius and gluteus minimus tendon to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determinations that the claimant reached MMI on January 15, 2020, with a four percent IR, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.    

REMAND INSTRUCTIONS

Dr. H is the designated doctor in this case.  On remand, the ALJ is to determine whether Dr. H is still qualified and available to be the designated doctor.  If Dr. H is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to give an opinion on the extent of the compensable injury and, if necessary, MMI and IR.  

If Dr. H is still qualified and available to serve as designated doctor, the ALJ is to send a letter of clarification (LOC) to the designated doctor to request that he give an opinion, along with an explanation, regarding whether the compensable injury sustained on (date of injury), extends to a left total hip arthroplasty and chronic appearing partial thickness tear of the gluteus medius and gluteus minimus tendon. The ALJ should instruct the designated doctor to order any tests that are necessary to aid in making his decision.  The parties are to be provided with the response from the designated doctor giving his opinion regarding the extent of the compensable injury and are to be allowed an opportunity to respond. The ALJ should then make a determination regarding whether the compensable injury sustained on (date of injury), extends to a left total hip arthroplasty and chronic appearing partial thickness tear of the gluteus medius and gluteus minimus tendon. The ALJ should then make a determination of MMI/IR considering the entire compensable injury.  If necessary, the ALJ should send a LOC to the designated doctor to obtain a certification of MMI/IR that rates the entire compensable injury.  

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 Appeals Panel Decision 060721, decided June 12, 2006.  

The true corporate name of the insurance carrier is VIA METROPOLITAN TRANSIT (a certified self-insured) and the name and address of its registered agent for service of process is

JEFF ARNDT, PRESIDENT AND CEO
VIA METROPOLITAN TRANSIT
800 WEST MYRTLE
SAN ANTONIO, TEXAS 78212.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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 December 7, 2020, 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 L4-5 disc bulge with annular tear; and (2) the first certification of maximum medical improvement and assigned impairment rating from (Dr. C) on February 9, 2015, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12). The appellant (self-insured) appeals the ALJ’s determinations of finality and extent of injury. The respondent (claimant) responded, urging affirmance.

DECISION

Reversed and remanded.

This case is remanded for the purpose of compliance with House Bill (H.B.) 2600 of the 77th Texas Legislature, Regular Session (R.S.) amending Section 410.164, effective June 17, 2001.  Section 410.164 was amended by the addition of subsection (c), which provides as follows:

(c) At each [CCH], as applicable, the insurance carrier shall file with the ALJ and shall deliver to the claimant a single document stating the true corporate name of the insurance carrier and the name and address of the insurance carrier’s registered agent for service of process.  The document is part of the record of the [CCH].[1]

In this case, the address provided on the carrier’s information form for the person identified as the registered agent is a post office box, where service of process cannot be effectuated.  Therefore, we remand so that a street address may be provided by the self-insured for its registered agent, in order to carry out the purpose of the legislation. See Appeals Panel Decision (APD) 011587, decided August 24, 2001; and APD 180107, decided February 20, 2018.  

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 Texas Department of Insurance, Division of Workers' Compensation, 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.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

  1. Section 410.164 was amended effective September 1, 2017, to change “hearing officer” to “administrative law judge.” Acts 2017, 85th Leg., R.S., Ch. 839 (H.B. 2111), Sec. 8, eff. September 1, 2017. ↑

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