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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 July 1, 2013, and August 20, 2014, in Fort Worth, Texas, with [hearing officer] presiding as hearing officer. With regard to the issues before him, the hearing officer determined that: (1) the [Date of Injury], compensable injury extends to C4-5 disc bulge, C5-6 disc bulge with annular tear, C6-7 disc bulge, and a pain disorder associated with psychological factors and a general medical condition; (2) (Dr. S) was not disqualified to serve as designated doctor at the time the Texas Department of Insurance, Division of Workers’ Compensation (Division)-selected (Dr. Se) as the successor designated doctor on the basis of the hearing officer’s determination that Dr. S was non-cooperative in evaluating the impairment; (3) the Division properly selected Dr. Se as a successor designated doctor to Dr. S to address the issues of maximum medical improvement (MMI) and impairment rating (IR); (4) Injury 1 did have a disqualifying association under 28 TEX. ADMIN. CODE § 127.140 (Rule 127.140) when it was selected by Dr. Se to arrange to have a neuropsychological evaluation of the appellant/cross-respondent (claimant); however, (Dr. G), who performed that evaluation, did not have a disqualifying association; (5) the claimant reached MMI on June 12, 2007; and (6) the claimant’s IR is 5%.

The claimant appealed the hearing officer’s determinations that Dr. S was not disqualified, that Dr. Se was properly appointed, that Dr. G did not have a disqualifying association, and the hearing officer’s determinations on MMI and IR based on a sufficiency of the evidence point of error. The respondent/cross-appellant (carrier) appealed the determination that the extent-of-injury conditions in dispute are compensable. The carrier responded to the claimant’s appeal, urging affirmance of the disputed issues by the claimant. The claimant responded to the carrier’s cross-appeal, urging affirmance of the disputed issue by the carrier.

DECISION

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

The claimant testified that he was injured when he fell from a tractor trailer while securing a load of hay. It was undisputed that the carrier accepted injuries in the form of a concussion, cervical sprain/strain, lumbar sprain/strain, left 2nd rib fracture, traumatic brain injury with cognitive dysfunction, traumatic vestibular injury, anxiety, and mood disorder/depression. The parties stipulated that the date of statutory MMI in this case is December 8, 2008.

EXTENT OF INJURY, DISQUALIFICATION OF DR. S, AND PROPER APPOINTMENT OF DR. SE

The hearing officer’s determinations that: (1) the [Date of Injury], compensable injury extends to C4-5 disc bulge, C5-6 disc bulge with annular tear, C6-7 disc bulge, and a pain disorder associated with psychological factors and a general medical condition; (2) Dr. S was not disqualified to serve as designated doctor at the time the Division selected Dr. Se as the successor designated doctor on the basis of the hearing officer’s determination that Dr. S was non-cooperative in evaluating the impairment; and (3) the Division properly selected Dr. Se as a successor designated doctor to Dr. S to address the issues of MMI and IR are supported by sufficient evidence and are affirmed.

DISQUALIFYING ASSOCIATION

Rule 127.140(a) and (b) provide in part:

(a) A disqualifying association is any association that may reasonably be perceived as having potential to influence the conduct or decision of a designated doctor. Disqualifying associations may include:

(1) receipt of income, compensation, or payment of any kind not related to health care provided by the doctor;

(4) contracts or agreements for space or equipment rentals, personnel services, management contracts, referral services, billing services agents, documentation management or storage services or warranties, or any other services related to the management or operation of the doctor's practice;

(6) a contract with the same workers' compensation health care network certified under Chapter 1305, Insurance Code or a contract with the same political subdivision or political subdivision health plan under Labor Code §504.053(b)(2) that is responsible for the provision of medical benefits to the injured employee

(b) For examinations performed after January 1, 2013, a designated doctor shall also have a disqualifying association relevant to an examination or claim if an agent of the designated doctor has an association relevant to the claim that would constitute a disqualifying association under subsection (a) of this section.

It is undisputed that Injury 1 has a disqualifying association under Rule 127.140(a)(6) since it is part of the same healthcare network that provides medical benefits to the claimant. That portion of the hearing officer’s determination that Injury 1 did have a disqualifying association under Rule 127.140 is supported by sufficient evidence and is affirmed.

The claimant argues that Dr. G is part of Injury 1 or was referred by Injury 1 to evaluate the claimant, and therefore, Dr. G also has a disqualifying association under Rule 127.140. Dr. Se examined the claimant on January 29, 2014. In a letter of clarification (LOC) dated April 9, 2014, the hearing officer informed Dr. Se that she failed to provide separate ratings for each compensable condition, and that she could refer the claimant for a neuropsychological evaluation to assist in her rating. In a response dated April 14, 2014, Dr. Se stated that she had referred the claimant to Injury 1 for a neuropsychological evaluation in order to determine the impairment for the traumatic brain injury. The claimant testified that he received a phone call from Injury 1 notifying him of the appointment for an evaluation with Dr. G, and was also transported to the appointment by Injury 1 employees in a van with Injury 1 lettering. Furthermore, the claimant submitted as evidence a document dated February 11, 2013, that identifies Dr. G as a team member for Injury 1. In an LOC response dated September 12, 2014, Dr. Se writes to the hearing officer that she, “referred [the claimant] to CI Med Group who then sent [the claimant] to Injury 1 of Dallas/Fort Worth without a request for a certain evaluator (i.e. [Dr. G]). CI Med Group-Injury 1 contacted [the claimant] to schedule this evaluation. . . .I received the report from CI Med Group, not [Dr. G’s] office, on May 26, 2014.”

Rule 127.140(a) defines a disqualifying association as any association that may reasonably be perceived as having potential to influence the conduct or decision of a designated doctor. In this case, it is undisputed that Injury 1 has a disqualifying association. The evidence, including Dr. Se’s LOC responses that she referred the claimant to Injury 1, the document identifying Dr. G as a team member of Injury 1, and the claimant’s testimony that Injury 1 scheduled and transported him to the appointment with Dr. G, was sufficient to establish a reasonable perception of a disqualifying association on the part of Dr. G through his association with Injury 1. Accordingly, we hold that the portion of the hearing officer’s determination that Dr. G did not have a disqualifying association is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We reverse that portion of the hearing officer’s determination that Dr. G did not have a disqualifying association, and we render a new decision that Dr. G did have a disqualifying association under Rule 127.140.

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. 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 hearing officer determined that the claimant reached MMI on June 12, 2007, with a 5% IR in accordance with Dr. Se’s amended certification. Dr. Se explained in her attached LOC response dated May 28, 2014, that her certification was based on Dr. G’s May 26, 2014, evaluation which found that there is no permanent impairment for traumatic brain injury. As discussed above, we have reversed the hearing officer’s determination that Dr. G did not have a disqualifying association and rendered a new decision that Dr. G had a disqualifying association under Rule 127.140. As Dr. Se’s amended certification was based in part on Dr. G’s evaluation report, we reverse the hearing officer’s determination that the claimant reached MMI on June 12, 2007, with a 5% IR.

There is another certification by Dr. Se in evidence in which she certified that the claimant reached MMI on June 12, 2007, with a 10% IR. Dr. Se examined the claimant on January 29, 2014, and placed the claimant in Diagnosis-Related Estimate (DRE) Cervicothoracic Category II for a 5% impairment, DRE Lumbosacral Category I for a 0% impairment, and assigned an additional 5% impairment for a traumatic brain injury with disequilibrium based on Table 2, page 142, of 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). She further noted that the claimant showed no diagnosis related impairment for the rib fractures, concussion, pain disorder, anxiety, or mood disorder/depression. As discussed above, it was undisputed that the carrier accepted traumatic vestibular injury. Since Dr. Se failed to provide a separate rating for the traumatic vestibular injury, this certification cannot be adopted.

There are six other certifications in evidence. (Dr. L), the first designated doctor, examined the claimant on January 5, 2009, and certified that the claimant reached MMI on December 6, 2008, with a 10% IR. In a narrative report dated January 5, 2009, Dr. L listed diagnoses of traumatic brain injury with cognitive dysfunction, traumatic vestibular dysfunction, cervical syndrome, and lumbar syndrome. As Dr. L failed to rate or consider the entire compensable injury, including concussion, left 2nd rib fracture, anxiety, and mood disorder/depression, C4-5 disc bulge, C5-6 disc bulge with annular tear, C6-7 disc bulge, and a pain disorder associated with psychological factors and a general medical condition, this certification cannot be adopted.

In response to an August 9, 2013, LOC from the hearing officer, Dr. L issued an addendum dated August 12, 2013, in which he considered and provided ratings for the left 2nd rib fracture, traumatic brain injury, vestibular dysfunction, lumbar syndrome, cervical syndrome including C5-6 disc bulge with annular tear, C6-7 disc bulge, anxiety, and mood disorder/depression. Dr. L certified that the claimant reached MMI on December 8, 2008, with a 19% IR. As Dr. L failed to consider the compensable condition of pain disorder associated with psychological factors and a general medical condition, this certification cannot be adopted.

(Dr. D), a doctor selected by the treating doctor to act in his place, examined the claimant on October 17, 2011, and certified that the claimant reached MMI on December 8, 2008, with a 15% IR. Dr. D considered and rated the cervical spine, including an annular tear and C6-7 disc bulge, left rib fractures, lumbar syndrome, anxiety, depression, traumatic brain injury, and traumatic vestibular injury. As Dr. D failed to consider and rate the compensable condition of pain disorder associated with psychological factors and a general medical condition, this certification cannot be adopted.

(Dr. B), a doctor selected by the treating doctor to act in his place, examined the claimant on January 17, 2013, and issued two alternate certifications. The first certification places the claimant at MMI on December 8, 2008, with a 10% IR. Dr. B considered and rated the cervical spine, including the disc bulges and annular tear, the lumbar spine, and traumatic vestibular injury. However, Dr. B’s certification does not rate left 2nd rib fracture, traumatic brain injury, anxiety, mood disorder/depression, and pain disorder associated with psychological factors and a general medical condition; therefore, this certification cannot be adopted. He alternatively certifies that the claimant reached MMI on December 8, 2008, with a 37% IR. This certification considered and rated cognitive disorder, brain injury, anxiety, mood disorder/depression, and pain disorder associated with psychological factors and a general medical condition, in addition to the cervical spine, including the disc bulges and annular tear, the lumbar spine, and traumatic vestibular injury. However, Dr. B’s alternative certification does not rate traumatic brain injury or a left 2nd rib fracture; therefore, it cannot be adopted. On June 18, 2013, Dr. B amended his certifications to include the diagnosis code for the rib, but failed to provide a rating for it.

Dr. S examined the claimant on October 21, 2013, and certified that the claimant reached MMI on June 12, 2007, with a 10% IR. Dr. S considered and rated a brain injury, the lumbar spine, a traumatic vestibular injury, the cervical spine, including the disc bulges and annular tear, and pain disorder associated with psychological factors and a general medical condition. However, Dr S failed to rate anxiety and depression because he did not believe that those conditions are compensable. As Dr. S failed to rate the entire compensable injury, his certification cannot be adopted.

Since there are no other MMI/IR certifications in evidence that can be adopted, we remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

SUMMARY  

We affirm the hearing officer’s determinations that: (1) the [Date of Injury], compensable injury extends to C4-5 disc bulge, C5-6 disc bulge with annular tear, C6-7 disc bulge, and a pain disorder associated with psychological factors and a general medical condition; (2) Dr. S was not disqualified to serve as designated doctor at the time the Division selected Dr. Se as the successor designated doctor on the basis of the hearing officer’s determination that Dr. S was non-cooperative in evaluating the impairment; and (3) the Division properly selected Dr. Se as a successor designated doctor to Dr. S to address the issues of MMI and IR.

We affirm that portion of the hearing officer’s determination that Injury 1 did have a disqualifying association under Rule 127.140.

We reverse that portion of the hearing officer’s determination that Dr. G did not have a disqualifying association, and we render a new decision that Dr. G did have a disqualifying association under Rule 127.140

We reverse the hearing officer’s determination that the claimant reached MMI on June 12, 2007, with a 5% IR and remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS  

Dr. Se is the designated doctor in this case. On remand, the hearing officer is to determine whether Dr. Se is still qualified and available to be the designated doctor.  If Dr. Se 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 for the [Date of Injury], compensable injury.

The hearing officer is to advise the designated doctor that the compensable injury of [Date of Injury], includes a concussion, cervical sprain/strain, lumbar sprain/strain, left 2nd rib fracture, traumatic brain injury with cognitive dysfunction, traumatic vestibular injury, anxiety, and mood disorder/depression, as accepted by the carrier. The hearing officer is also to advise the designated doctor that the [Date of Injury], compensable injury extends to C4-5 disc bulge, C5-6 disc bulge with annular tear, C6-7 disc bulge, and a pain disorder associated with psychological factors and a general medical condition, as administratively determined. The hearing officer is to inform the designated doctor that Injury 1 and Dr. G have disqualifying associations and cannot be used to provide a neuropsychological evaluation to assist in determining MMI and IR. The hearing officer is to request the designated doctor to give an opinion on the claimant’s date of MMI, which cannot be after the December 8, 2008, date of statutory MMI, and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination.

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 hearing officer 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 hearing officer, 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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

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). An expedited contested case hearing (CCH) was held on March 25, 2014, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the Texas Department of Insurance, Division of Workers’ Compensation (Division) is not required to contact the designated doctor, [Dr. P], to resolve the extent-of-injury issue regarding the designated doctor’s report dated July 15, 2013, pursuant to 28 TEX. ADMIN. CODE § 127.5 (Rule 127.5).[1]

The appellant (claimant) appealed the hearing officer’s determination that the Division is not required to contact the designated doctor, Dr. P, to resolve the extent-of-injury issue pursuant to Rule 127.5. The claimant argues that the Division is required to contact Dr. P to resolve the extent-of-injury issue pursuant to Rule 127.10(c). The claimant also argues that the language in Rule 127.10(c) is mandatory and that the designated doctor was required to request additional testing and make referrals to other doctors to opine on the disputed right shoulder conditions. The respondent (carrier) responded, urging affirmance. Further, the carrier contends that the language in Rule 127.10(c) is directory, and not mandatory.

DECISION

Reversed and rendered.

Section 410.024(b) provides that the commissioner by rule shall adopt guidelines relating to claims that do not require a benefit review conference (BRC) and may proceed directly to a CCH or arbitration. Rule 140.3 provides in part that the Division may provide an expedited BRC and CCH for resolution of disputes involving compensability, liability for essential medical treatment, or any type of issue as defined by Division policy for which the executive director or delegate determines an expedited proceeding will serve the best interests of the workers’ compensation system or its participants.

As previously mentioned, an expedited CCH was held on March 25, 2014. At the CCH the claimant informed the hearing officer that he requested an expedited CCH on the issue in dispute. The claimant and the claimant’s attorney appeared telephonically. The claimant did not offer any exhibits at the CCH. The hearing officer admitted Hearing Officer’s Exhibit Nos. 1-2 and Carrier’s Exhibit’s A-G.[2] Although the parties agreed that the issue in dispute was whether the Division should contact the designated doctor, Dr. P, to resolve the extent-of-injury issue regarding the designated doctor’s report dated July 15, 2013, pursuant to Rule 127.5,[3] the parties subsequently agreed that the actual issue in dispute was whether an LOC should be sent to the designated doctor, Dr. P. The parties actually litigated and limited their dispute to whether the designated doctor, Dr. P, was required to refer the claimant for testing pursuant to Rule 127.10(c) in order to opine on the disputed extent-of-injury conditions of the right shoulder based on his report dated July 15, 2013, and addendum dated August 21, 2013.

Rule 127.10(c) provides in part that the designated doctor shall perform additional testing when necessary to resolve the issue in question. The designated doctor shall also refer an injured employee to other health care providers when the referral is necessary to resolve the issue in question and the designated doctor is not qualified to fully resolve the issue in question. The preamble to Rule 127.10(c) discusses in part the Division’s response to concerns regarding the necessity or reasonableness of designated doctor referrals for testing and notes that “referrals for additional testing are often absolutely necessary for and thus essentially part of the designated doctor’s examination of an injured employee.” See 35 Tex. Reg. 11325, December 17, 2010. Also, the preamble discusses that the amendments to Section 408.0041 demonstrate a “clear mandate for the Division to take a greater role in monitoring and evaluating requests for designated doctor examinations” and anticipates an “increase [to] the efficiency of the Division’s dispute resolution process.” See 35 Tex. Reg. 11325. In this case, both the carrier and the claimant requested LOCs in part for the reason that the designated doctor, Dr. P, had failed to refer the claimant for testing pursuant to Rule 127.10(c) to resolve the extent-of-injury at issue.

In this case, it is undisputed that the claimant sustained a compensable cervical spine injury on [date of injury], and that the claimant had cervical spine surgery on August 23, 2012. Division records show that on June 11, 2013, Dr. P was appointed as the designated doctor for the purpose of addressing the issues of maximum medical improvement, impairment rating, extent of injury and return to work. In evidence is Dr. P’s narrative report dated July 15, 2013,[4] which states he examined the claimant on July 15, 2013. With regard to the disputed extent-of-injury conditions of the right shoulder, Dr. P specifically notes that he is to opine on whether the accident or incident giving rise to the compensable injury was a substantial factor in bringing about the disputed extent-of-injury conditions of right shoulder pain, right shoulder strain/sprain and right shoulder impingement. In his report Dr. P examined the claimant’s right shoulder and noted neurological and range of motion (ROM) measurements of the right shoulder. Throughout his report Dr. P states that the claimant has significant pain and limitation in ROM to his right shoulder. Dr. P recommends that the claimant undergo an orthopedic evaluation, MRI and EMG/NCS to his right shoulder. Furthermore, Dr. P states that “[i]t is impossible at this time to determine if the right shoulder strain and impingement was a result of the accident on [date of injury], or a complication of the surgery on [August 23, 2012]. My reasoning behind this statement is that we do not have a firm diagnosis on the cause of the right shoulder pain. . . .”

Subsequently, on August 8, 2013, the carrier requested an LOC stating in part that the designated doctor failed to: answer the extent-of-injury issue; answer whether the claimant’s right shoulder was injured as result of the medical treatment received for the cervical injury; and refer the claimant for testing which he believes would answer the questions posed to him. On August 14, 2013, the Division sent Dr. P an LOC based on the carrier’s request. On August 21, 2013, Dr. P responded with an addendum to his prior narrative report stating in part that the “extent of his injury right now stands with a working diagnosis of right shoulder strain/sprain and right shoulder impingement. As far as referring for testing, I did not know that I was the one responsible to refer him for the testing as opposed to referring to an orthopedist to work up the etiology of his right shoulder pain.” Further, Dr. P stated that that the claimant is unable to use his right arm and that he is unclear if the shoulder pain was due to a complication of surgery. Dr. P opined that he would have “expected a shoulder strain to have resolved by now and not produce this amount of weakness, limitation in [ROM] [and] weak grip strength.”

On January 9, 2014, the claimant requested an LOC stating in part that Dr. P had failed a second time to answer the question regarding extent of injury to the right shoulder. The claimant’s request specifically states that Dr. P failed to order a referral and diagnostic testing necessary pursuant to Rule 127.10(c). The appeal file contains a Commissioner Order dated January 17, 2014, denying the claimant’s request for an LOC stating the reason as: “[t]he designated doctor examined the [claimant] and has provided an opinion.”

The hearing officer in her Discussion states that “a letter requesting further clarification had been undertaken on August 14, 2013. [Dr. P] provided a response on August 21, 2013, and opted not to refer [the] [c]laimant out to an orthopedic doctor even though he noted that he was aware that he could do so. [Dr. P] is afforded discretion on whether or not to refer [the] [c]laimant to an orthopedic doctor and his decision to not do so does not require a request for further clarification.” We disagree. Dr. P clearly states he did not know that he was the one responsible to refer the claimant for the testing as opposed to referring to an orthopedic doctor to test the claimant’s right shoulder. Dr. P does not state that he chose or that he opted not to refer the claimant for additional testing but rather was not aware it was his responsibility to do so. In his report dated July 15, 2013, and addendum report dated August 21, 2013, Dr. P states that he does not have a firm diagnosis on the cause of the right shoulder pain, notes that the claimant has significant symptoms to his right shoulder, and specifically states that he cannot address the issue of whether the right shoulder conditions are due to the compensable injury or complications of surgery.

In this case, Dr. P clearly states that he has concerns regarding the disputed right shoulder conditions and recommended further diagnostic testing of the claimant’s right shoulder. Dr. P’s specific concerns regarding the claimant’s right shoulder conditions, as stated in his report and addendum, establish a necessity to refer the claimant for additional testing pursuant to Rule 127.10(c) in order to address the issue before him of whether the compensable injury extends to the right shoulder conditions. We note that the claimant and the carrier agree that Dr. P states that additional testing of the right shoulder is needed to determine the extent-of-injury issue in dispute; however no additional testing for the right shoulder was ordered. As previously mentioned, the preamble to Rule 127.10(c) notes that “referrals for additional testing are often absolutely necessary for and thus essentially part of the designated doctor’s examination of an injured employee.”

In this case, the parties at the CCH and on appeal disagree on whether the language to Rule 127.10(c) is mandatory or directory. The Appeals Panel has discussed in prior decisions whether a rule is to be construed to be mandatory or directory by considering the statutory provisions that implemented the rule in question. In Appeals Panel Decision (APD) 93099, decided March 25, 1993, the Appeals Panel noted that there is no absolute test by which it may be determined whether an administrative rule or regulation is mandatory or directory.  The prime object is to ascertain and give effect to the intent of the rule or regulation.  In determining whether the administrative agency intended the provision to be mandatory or directory, consideration should be given to the entire rule, its nature, objects, and the consequences that would result from construing it each way.

In discussing designated doctor examination rules, APD 132258, decided November 20, 2013, cites to Rule 127.10(b).[5] In that case, the designated doctor did not have any of the claimant’s medical records before making a determination on extent of injury, the issue the designated doctor was appointed to determine. The Appeals Panel reversed the hearing officer’s extent-of-injury determination because the designated doctor did not have all the medical records as required by Rule 127.10(b) to make a determination on extent of injury. Likewise, in this case, the issue in question for the designated doctor to determine was extent of injury and based on his examination, review of the medical records, and report and addendum, he stated that it was necessary to obtain a firm diagnosis to adequately determine the extent of the claimant’s compensable injury. The plain language of Rule 127.10(c) provides that when additional testing is necessary to resolve the issue in question, the designated doctor shall perform additional testing or if he is not qualified to do so, refer the injured employee to other health care providers to conduct such testing. Dr. P has clearly stated that the claimant needs an orthopedic evaluation and diagnostic studies because he is not able to determine based on his examination alone whether the disputed extent-of-injury conditions of the right shoulder are due to the compensable injury or complications of surgery.

In this case, the hearing officer misread Dr. P’s report dated July 15, 2013, and addendum dated August 21, 2013. The hearing officer’s finding that Dr. P is not required or compelled to request additional testing and make referrals to other doctors against his decision not to do so is against the great weight and preponderance of the evidence. Furthermore, the hearing officer’s determination that the Division is not required to contact the designated doctor, Dr. P, to resolve the extent-of-injury issue regarding the designated doctor’s report dated July 15, 2013, pursuant to Rule 127.5 is legally incorrect because Rule 127.5 was not actually litigated at the CCH, Rule 127.10(c) was actually litigated. Accordingly, we reverse the hearing officer’s determination that the Division is not required to contact the designated doctor, Dr. P, to resolve the extent-of-injury issue regarding the designated doctor’s report dated July 15, 2013, pursuant to Rule 127.5, and we render a new decision that the Division should send an LOC to the designated doctor, Dr. P, because he was required to refer the claimant for testing pursuant to Rule 127.10(c) in order to opine on the disputed extent-of-injury conditions of the right shoulder based on his report dated July 15, 2013, and addendum dated August 21, 2013.

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 78701-3232.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that Dr. P is an out-of-state doctor serving as the designated doctor in this case. See Rule 127.120(a), Exception to Certification as a Designated Doctor for Out-of-State Doctors, which provides that when necessary because the injured employee is temporarily located or is residing out-of-state, the Division may waive any of the requirements as specified in this chapter for an out-of-state doctor to serve as a designated doctor to facilitate a timely resolution of the dispute or perform a particular examination.

  2. We note that Carrier’s Exhibit G, described as “Commission Order, Denial of [Letter of Clarification (LOC)]” is dated August 14, 2012, which is a date prior to the designated doctor’s, Dr. P, initial examination date of July 15, 2013. Also, Carrier’s Exhibit G contains two date stamps from the carrier: August 16, 2012, and August 20, 2012.

  3. We note that Rule 127.5 relates to scheduling designated doctor appointments.

  4. We note that Dr. P’s narrative report is dated July 16, 2013, rather than July 15, 2013.

  5. Rule 127.10(b) provides that before examining an injured employee, the designated doctor shall review the injured employee’s medical records, including any analysis of the injured employee’s medical condition, functional abilities and return to work opportunities provided by the insurance carrier and treating doctor in accordance with subsection (a) of this section, and any materials submitted to the doctor by the Division.  Rule 127.10(b) further provides that the designated doctor shall also review the injured employee's medical condition and history as provided by the injured employee, any medical records provided by the injured employee, and shall perform a complete physical examination of the injured employee. The designated doctor shall give the medical records reviewed the weight the designated doctor determines to be appropriate.

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 November 2, 2011, with the record closing on February 21, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [date of injury], extends to an injury to the left shoulder consisting of a superior labrum from anterior to posterior (SLAP) tear; (2) the respondent (claimant) reached maximum medical improvement (MMI) on December 15, 2011; (3) the claimant’s impairment rating (IR) is 11%; and (4) the Texas Department of Insurance, Division of Workers’ Compensation (Division) should contact the designated doctor, [Dr. O] to resolve the MMI and IR issues regarding the designated doctor’s report dated March 18, 2010, pursuant to 28 TEX. ADMIN. CODE § 127.20 (Rule 127.20).

The appellant (self-insured) appeals the hearing officer’s determinations on extent of injury, MMI, IR, and Division contact with Dr. O regarding MMI/IR issues, contending that the hearing officer erred by: (1) not adopting the opinion of [Dr. K], the designated doctor appointed by the Division on extent of injury; and (2) abusing her discretion in the letter of clarification (LOC) sent to Dr. O, the designated doctor appointed by the Division for MMI/IR, by seeking more than a clarification from Dr. O outside the provisions of Rule 127.20. The appeal file does not contain a response from the claimant.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated that: (1) the claimant sustained a compensable injury on [date of injury]; (2) the Division-appointed designated doctor for the purpose of extent of injury is Dr. K; and (3) the Division-appointed designated doctor for the purpose of determining MMI and IR is Dr. O.

EXTENT OF INJURY

The hearing officer’s decision that the compensable injury of [date of injury], extends to an injury to the left shoulder consisting of a SLAP tear is supported by sufficient evidence and is affirmed.

LOC AND MMI/IR

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.

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. Rule 130.6(b)(5) provides:

When the extent of the injury may not be agreed upon by the parties (based upon documentation provided by the treating doctor and/or insurance carrier or the comments of the employee regarding his/her injury), the designated doctor shall provide multiple certifications of MMI and [IRs] that take into account the various interpretations of the extent of the injury so that when the Division resolves the dispute, there is already an applicable certification of MMI and [IR] from which to pay benefits as required by the Act.

Rule 127.20(c) provides that the Division, at its discretion, may also request clarification from the designated doctor on issues the Division deems appropriate.

The record indicates that the disputed issues before the hearing officer at the CCH held on November 2, 2011, included extent of injury, MMI and IR. The only certification of MMI/IR in evidence at that setting was the initial certification of Dr. O, who examined the claimant on March 18, 2010, and certified that the claimant reached MMI on March 18, 2010, with 2% IR based on range of motion (ROM) deficits of the left shoulder. In his narrative report dated that same day, Dr. O assessed a partial rotator cuff tear of the left shoulder. Dr. O stated that the claimant was at MMI on that date unless the claimant undergoes left shoulder surgery. In his opinion under extent of the compensable injury, Dr. O stated that the claimant will probably need left shoulder surgery in the future to address the compensable injury.

The record establishes that the claimant underwent left shoulder surgery on March 25, 2011. The operative notes in evidence indicate that during the surgical procedure, a SLAP tear was identified and debrided with a shaver and that the rotator cuff was intact and there was a distal clavicle resection performed.

The record was re-opened in order for the hearing officer to contact the designated doctor, Dr. O, in order to resolve the issues of MMI/IR because there was a disputed issue regarding extent of injury and because the claimant had undergone surgery since the initial designated doctor’s examination. The hearing officer in Finding of Fact No. 6 stated that it was necessary to contact the designated doctor to resolve the issues of MMI and IR. This finding is supported by sufficient evidence. We affirm the hearing officer’s determination that the Division should contact the designated doctor, Dr. O, to resolve MMI and IR issues regarding Dr. O’s report dated March 18, 2010, pursuant to Rule 127.20.

However, the self-insured contends that the hearing officer abused her discretion in the wording of the LOC. The LOC is not in evidence as a hearing officer exhibit. We cannot address the self-insured’s point of error that the hearing officer “overstepped what is contemplated by Rule 127.20” without this exhibit.

Further, the hearing officer indicates that Dr. O re-examined the claimant on December 15, 2011, in response to the LOC sent to him. Dr. O certified that the claimant reached MMI on December 15, 2011, with 11% IR, based on ROM deficits of the left shoulder (Figures 38, 41, and 44, pages 3/43 through 3/45 of 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) as well as an impairment for the distal clavicle resection under Table 27, page 3/61 of the AMA Guides. The CCH file contains a copy of Dr. O’s amended certification of MMI/IR; however, it is not marked as a hearing officer’s exhibit. The hearing officer’s decision lists only the Benefit Review Conference Report and the Insurance Carrier Information Form as Hearing Officer’s Exhibits Nos.1 and 2. The hearing officer has adopted this amended certification from Dr. O; however, there is no indication that it was admitted into evidence. It is clear from the self-insured’s appeal that it received the LOC sent to Dr. O as well as Dr. O’s amended certification of MMI/IR. Furthermore, the hearing officer indicates in the Background Information section of her decision, that Dr. O’s amended certification of MMI/IR was distributed to the parties and they were given an opportunity to respond prior to the record closing on February 21, 2012, but there is no statement in the hearing officer’s decision and order as to whether the parties responded or offered any evidence in response to Dr. O’s amended certification of MMI/IR.

We reverse the hearing officer’s decision because the LOC and Dr. O’s amended certification of MMI/IR are not in evidence and remand the issues of MMI and IR. As previously noted, the Appeals Panel cannot address the self-insured’s contention that the hearing officer “overstepped what is contemplated by Rule 127.20” without the LOC admitted into evidence.

REMAND INSTRUCTIONS

On remand, the hearing officer is to admit as Hearing Officer’s Exhibits the following: (1) the LOC sent to Dr. O to resolve the issues of MMI and IR regarding his report dated March 18, 2010; (2) the amended certification of MMI/IR by Dr. O in response to the LOC; (3) the correspondence to the parties forwarding the LOC and Dr. O’s amended certification of MMI/IR; and (4) the response, if any, of the parties. The hearing officer is then to make a determination on the issues of MMI and IR consistent with this decision.

SUMMARY

We affirm the hearing officer’s decision that the compensable injury of [date of injury], extends to an injury to the left shoulder consisting of a SLAP tear.

We affirm the hearing officer’s decision that the Division should contact the designated doctor, Dr. O, to resolve the MMI and IR issues regarding Dr. O’s report dated March 18, 2010, pursuant to Rule 127.20.

We reverse the hearing officer’s decision that the claimant reached MMI on December 15, 2011, with 11% IR and remand the issues of MMI and IR to the hearing officer for further action 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 hearing officer, 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 (a self-insured governmental entity) and the name and address of its registered agent for service of process is

[SB]

[ADDRESS]

[CITY], TEXAS [ZIP CODE].

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
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 July 18, 2011, with the record closing on August 17, 2011. With regard to the issues before her, the hearing officer determined that: (1) the respondent/cross-appellant’s (claimant) compensable (date of injury), injury extends to a disc herniation at L4-5, neural compression at L4-5, an annular tear at L4-5 and L5 lumbar radiculopathy but does not extend to stenosis at L4-5; (2) the first certification of maximum medical improvement (MMI) and impairment rating (IR) assigned by (Dr. C) on November 5, 2010, did not become final under Section 408.123; (3) the claimant reached MMI on November 5, 2010, with a five percent IR per the report of Dr. C; (4) it was appropriate under 28 TEX. ADMIN. CODE § 127.20(a) (Rule 127.20(a)) for the Texas Department of Insurance, Division of Workers’ Compensation (Division) to contact the designated doctor, Dr. C, to resolve the MMI and IR issues regarding Dr. C’s November 5, 2010, report; and (5) the claimant had disability due to the compensable injury from November 6, 2010, through August 17, 2011, the date the record of the CCH was closed.

The appellant/cross-respondent (carrier) appealed the hearing officer’s determinations regarding: (1) the extent-of-injury conditions adverse to the carrier; (2) disability; and (3) finality. The claimant responded, urging affirmance on those determinations appealed by the carrier. The claimant cross-appealed the determinations regarding: (1) the extent-of-injury conditions adverse to the claimant; (2) MMI; and (3) IR. The carrier responded to the claimant’s cross-appeal urging affirmance on those determinations appealed by the claimant. The hearing officer’s determination that it was appropriate under Rule 127.20(a) for the Division to contact the designated doctor, Dr. C, to resolve the MMI and IR issues regarding Dr. C’s November 5, 2010, report was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated in part that: (1) on (date of injury), the claimant sustained a compensable lumbar sprain/strain injury while in the course and scope of her employment; (2) Dr. C is the designated doctor on the issues of MMI, IR, and return to work; (3) the first certification of MMI and IR was issued by Dr. C on November 5, 2010; (4) the only period in dispute relative to the disability issue is from November 6, 2010, through the present; and (5) the claimant disputed the first certification of MMI and IR on March 30, 2011.

It was undisputed that the carrier accepted a lumbar and a thoracic sprain/strain as established by the documentary evidence: (1) Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) dated December 3, 2009; (2) the carrier’s “statement of position” addressed to the designated doctor, Dr. C, dated January 15, 2010; and (3) Hearing Officer’s Exhibit No. 1, the Benefit Review Conference Report dated May 24, 2011, stating under the disputed issue of extent of injury that the carrier’s position is “[t]he compensable injury is limited to a thoracic and lumbar sprain/strain.” We note that the carrier never disputed or litigated at the CCH that the thoracic spine was not part of the compensable injury of (date of injury).

EXTENT OF THE COMPENSABLE INJURY, FINALITY, AND DISABILITY

The following hearing officer’s determinations are supported by sufficient evidence and are affirmed: (1) the compensable (date of injury), injury extends to a disc herniation at L4-5, neural compression at L4-5, an annular tear at L4-5 and L5 lumbar radiculopathy but does not extend to stenosis at L4-5; (2) the first certification of MMI and IR assigned by Dr. C on November 5, 2010, did not become final under Section 408.123; and (3) the claimant had disability due to the compensable injury from November 6, 2010, through August 17, 2011, the date the record of the CCH was closed.

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.  Rule 130.1(c)(3) provides in pertinent part that the assignment of an IR shall be based on the injured worker’s condition as of the MMI date considering the medical record and the certifying examination and the doctor assigning the IR shall:

A.identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;

B.document specific laboratory or clinical findings of an impairment;

C.analyze specific clinical and laboratory findings of an impairment;

D.compare the results of the analysis with the impairment criteria and provide the following:

[a] description and explanation of specific clinical findings related to each impairment, including zero percent . . . [IRs]; and

[a] description of how the findings relate to and compare with the criteria described in the applicable chapter of 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)].  The doctor’s inability to obtain required measurements must be explained.

See Appeals Panel Decision (APD) 110219, decided April 26, 2011.

Dr. C was appointed by the Division to address the issues of MMI, IR, and return to work. Dr. C first examined the claimant on January 19, 2010, and certified that the claimant had not yet reached MMI. Dr. C subsequently re-examined the claimant on July 1, 2010, and certified that the claimant had not yet reached MMI. In his narrative report dated July 1, 2010, Dr. C stated:

It is my opinion that the [claimant] has not reached MMI at this time, but is expected to around [October 1, 2010]. [The claimant] has symptoms of radiculopathy which are supported by her MRI. She has not improved with conservative treatment thus far. She has been evaluated by a board certified spine surgeon and surgery is recommended. She will be at MMI if she does not wish to proceed . . . with surgery.

Dr. C examined the claimant a third time on November 5, 2010, certifying that she reached clinical MMI on that date with a five percent IR. As previously discussed, in his narrative report dated November 5, 2010, Dr. C identified the injured areas of the body as the lumbosacral and thoracic spine. He further stated that:

It is my opinion that the [claimant] has reached MMI and did so effective on [November 5, 2010]. The [claimant] has received treatment that has met or exceeded those recommended by the [Official Disability Guidelines (ODG)] for the condition. [The claimant] does not wish to undergo surgery at this time and has received conservative treatment as recommended by the ODG Guidelines.

The clinical condition is not likely to improve with further active medical treatment. Medical maintenance care only is warranted. Employability is not likely to improve with further active medical treatment. The degree of improvement is not likely to change by more than [three percent] in either direction.

[omission]

The [claimant’s] [IR] is calculated after a full physical exam including [range of motion] measurements. The [claimant] has a whole person [IR] of [five percent], corresponding to [Diagnosis-Related Estimates] Category II.

In a July 25, 2011, letter of clarification (LOC) to Dr. C, the hearing officer informed the designated doctor that she had held a CCH on the disputed issues of MMI, IR, and extent of injury. The hearing officer requested that Dr. C provide alternative certifications of MMI and IR relative to the disputed conditions if necessary. The hearing officer stated:

I say ‘if necessary’ because it appears that you were aware of at least some of these conditions when you evaluated the claimant on [November 5, 2010], and opined that she reached MMI on that date with a [five percent] IR. According to its analysis letter to you, the carrier has accepted a lumbar and thoracic sprain/strain only. The other conditions, for which the Division needs alternative certifications, are: 1) disc herniation at L4-5; 2) neural compression at L4-5; 3) stenosis at L4-5 with an annular tear; and 4) lumbar radiculopathy.

Dr. C responded to the LOC in a letter dated July 26, 2011, stating:

I was aware of the dispute regarding the areas accepted by the insurance carrier. The [IR] remains [five percent] if I only include lumbar strain/sprain. [The claimant] has muscle spasm/guarding on exam and therefore [five percent] is an appropriate rating for her condition. To clarify, her [IR] is [five percent] if one includes disc herniation at L4-5, neural (sic) compression at L4-5, stenosis at L4-5 with an annular tear, and/or L5 lumbar radiculopathy. [The claimant] has symptoms of radiculopathy but no objective evidence of atrophy of loss or reflex. Therefore, [five percent] is an appropriate rating for her condition.

In her cross-appeal, the claimant contended that the preponderance of the evidence is contrary to the designated doctor’s opinion and it cannot be adopted. The claimant contends that the designated doctor did not have all her medical records (including diagnostic testing, treatment, and surgical recommendations concerning the disputed extent-of-injury conditions) subsequent to the date of Dr. C’s certifying examination on November 5, 2010. The claimant further contends that the medical evidence establishes that based on reasonable medical probability, further material recovery from or lasting improvement to the compensable injury could be reasonably anticipated after November 5, 2010, and that her medical condition had not stabilized at the time of Dr. C’s certifying exam, thus Dr. C prematurely placed the claimant at clinical MMI with an IR. The claimant also contends that Dr. C’s IR did not rate the entire compensable injury.

In reviewing a “great weight” challenge, we must examine the entire record to determine if:  (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence.  See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

Dr. C’s Report of Medical Evaluation (DWC-69) and narrative report dated November 5, 2010, reflect that in certifying clinical MMI, Dr. C only considered the lumbar spine, and in assigning an IR, Dr. C only rated the claimant’s lumbar spine, thus failing to include any impairment (which could have included a zero percent) for the thoracic spine. The hearing officer found that the November 5, 2010, date of MMI and five percent IR certified by Dr. C is not contrary to the preponderance of the evidence. That finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.  Accordingly, we reverse the hearing officer’s determination that the claimant reached MMI on November 5, 2010, with a five percent IR. Because there is no other certification of MMI/IR, we remand the issues of MMI/IR to the hearing officer for actions consistent with this decision.

REMAND INSTRUCTIONS

Dr. C is the designated doctor.  On remand the hearing officer 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 or refuses to rate the compensable injury in accordance with the AMA Guides criteria, then another designated doctor is to be appointed pursuant to Rule 127.5(c) to determine MMI, which cannot be later than the statutory date of MMI (See Section 401.011(30)) and IR. The hearing officer is to determine the date of statutory MMI whether by stipulation or by a finding of fact.

The hearing officer is to ensure that the designated doctor has all the pertinent medical records, including those of (Dr. E) and (Dr. L) as well as the lumbar MRI report dated March 22, 2011. The hearing officer is to inform the designated doctor that: (1) the claimant’s compensable (date of injury), injury includes a lumbar and a thoracic sprain/strain; (2) it has been administratively determined that the compensable injury extends to a disc herniation at L4-5, neural compression at L4-5, an annular tear at L4-5 and L5 lumbar radiculopathy; and (3) the date of statutory MMI.

The hearing officer is to request that the designated doctor: (1) determine MMI, which cannot be later than the statutory date of MMI and (2) determine the IR by rating the entire compensable injury in accordance with the AMA Guides based on the claimant’s condition as of the MMI date, considering the medical records, the certifying examination and the rating criteria in the AMA Guides.

The hearing officer is to provide the designated doctor’s report to the parties, allow the parties an opportunity to respond and to present further evidence, and then determine whether the claimant has reached MMI, and if so, the date of MMI, and the claimant’s IR consistent with this decision.

SUMMARY

We affirm the hearing officer’s determination that the compensable (date of injury), injury extends to a disc herniation at L4-5, neural compression at L4-5, an annular tear at L4-5 and L5 lumbar radiculopathy but does not extend to stenosis at L4-5.

We affirm the hearing officer’s determination that the first certification of MMI/IR assigned by Dr. C on November 5, 2010, did not become final under Section 408.123.

We affirm the hearing officer’s determination that the claimant had disability due to the compensable injury from November 6, 2010, through August 17, 2011, the date the record of the CCH was closed.

We reverse the hearing officer’s determination that the claimant reached MMI on November 5, 2010, with a five percent IR and remand the issues of MMI/IR to the hearing officer for actions 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 hearing officer, 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 AMERICAN ZURICH 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.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
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 April 4, 2011, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that the respondent’s (claimant) impairment rating (IR) is 12% and that the Texas Department of Insurance, Division of Workers’ Compensation (Division) should not contact the designated doctor, Dr. L, to resolve the maximum medical improvement (MMI) and IR issues regarding the designated doctor’s report dated September 30, 2010, pursuant to 28 TEX. ADMIN. CODE § 127.20(a) and (c) (Rule 127.20(a) and (c)).

The appellant (carrier) appealed, disputing both the determination that the claimant’s IR is 12% and that the Division should not contact the designated doctor to resolve the MMI and IR issues regarding the designated doctor’s report dated September 30, 2010, pursuant to Rule 127.20(a) and (c). The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Reversed and remanded.

The parties stipulated that: (1) the claimant sustained a compensable injury on ____________; (2) the claimant reached MMI on the statutory MMI date of August 23, 2010; (3) the Division selected designated doctor, Dr. L, certified that the claimant reached MMI on August 23, 2010, and assigned a 5% IR; and (4) the referral doctor acting in place of the treating doctor, Dr. H, certified that the claimant reached MMI on August 23, 2010, and assigned a 12% IR. The evidence reflects that both Dr. H and Dr. L considered reflex sympathetic dystrophy (RSD) in assessing the claimant’s impairment.

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.

Rule 130.1(c)(3) provides in pertinent part that the assignment of an IR shall be based on the injured worker’s condition as of the MMI date considering the medical record and the certifying examination and the doctor assigning the IR shall:

 

  1. A.identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;  

 

  1. A.document specific laboratory or clinical findings of an impairment;  

 

  1. A.analyze specific clinical and laboratory findings of an impairment;  

 

  1. A.compare the results of the analysis with the impairment criteria and provide the following:  

 

  1. (i)A description and explanation of specific clinical findings related to each impairment, including [0%] [IRs]; and  

     

  2. (ii)A description of how the findings relate to and compare with the criteria described in the applicable chapter of 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)].  The doctor’s inability to obtain required measurements must be explained.  

The hearing officer found that the preponderance of the evidence is contrary to Dr. L’s assignment of a 5% IR and the 12% IR certified by Dr. H is supported by a preponderance of the evidence. Dr. H examined the claimant on February 3, 2011. Dr. H assessed a 12% IR using the AMA Guides. Dr. H assessed 11% lower extremity impairment for loss of range of motion (ROM) of the claimant’s right ankle and 21% lower extremity impairment for the peripheral nerve system (14% impairment for sensory and 8% impairment for motor). Although Dr. H included his ROM measurements in his narrative to establish how he arrived at his assessment for loss of ROM, he did not include any information in his narrative report to describe in detail his assessment of impairment for the claimant’s peripheral nerve system.

The AMA Guides on page 3/89 provide that when RSD occurs in the lower extremity it should be evaluated as for the upper extremity as described in Section 3.1k on page 3/56 of the AMA Guides.

The last part of Section 3.1k, which is on page 56, is entitled “Causalgia and [RSD]” and provides as follows:

 

Causalgia and [RSD]

Causalgia is a term that describes the constant and intense burning pain usually seen with [RSD] when the causative lesion involves injury to a nerve.

The term “major causalgia” designates an extremely serious form of RSD produced by an injury to a major mixed nerve, usually in the proximal portion of the extremity.  The term “minor causalgia” designates a more common form of RSD produced by an injury to the distal part of the extremity involving a purely sensory branch of a nerve.

Other forms of RSD not associated with injury of a peripheral nerve include minor traumatic dystrophy, shoulder-hand syndrome, and major traumatic dystrophy.

The four cardinal signs and symptoms of RSD are pain, swelling, stiffness, and discoloration.  The diagnosis of RSD may be supported with a three-phase nucleotide flow study, cold stress testing, recurrence of pain after previously successful stellate ganglion blocks, in which case Horner’s syndrome must be present, or Bier blocks.

The impairment secondary to causalgia and RSD is derived as follows:

  1. 1.Rate the upper extremity impairment due to loss of motion of each joint involved (Sections 3.1f through 3.1j).  

  2. 2.Rate the sensory deficit or pain impairment according to instructions in this section and Table 11a (p. 48).  

  3. 3.Rate the motor deficit impairment of the injured peripheral nerve, if it applies (Table 12a, p. 49).  

  4. 4.The appropriate impairment percents for loss of motion, pain or sensory deficits, and motor deficits if present are combined using the Combined Values Chart (p. 322) to determine the upper extremity impairment.  Major causalgia may result in a complete loss of function and an impairment of the extremity as great as 100%.  

Although Dr. H appears to have used the correct components (ROM, motor, and sensory impairments) when assessing his IR, his narrative report failed to identify the specific peripheral nerve involved and failed to identify the severity or grade of sensory and motor deficit he relied on in assessing his impairment.  Therefore, his certification of IR cannot be adopted.  See Appeals Panel Decision (APD) 100394, decided June 3, 2010. The hearing officer’s determination that the claimant’s IR is 12% is reversed.

The only other certification in evidence is from the designated doctor, Dr. L. Dr. L examined the claimant on September 30, 2010, and certified that the claimant reached MMI on August 23, 2010, with a 5% IR. No worksheets were attached to Dr. L’s narrative. Dr. L noted that “[o]n exam today, there is some discoloration of the right ankle area. [Claimant] is reluctant to move her ankle and guards and resist[s] at any attempt at [ROM] of the ankle. There is no significant swelling about the ankle.” Further, Dr. L noted that the claimant had been diagnosed as having RSD. Dr. L did not explain how he applied the rating criteria in the AMA Guides in assigning a 5% IR and it is unclear from his narrative report the basis of the 5% IR. Therefore, the 5% IR is not supported by the evidence and cannot be adopted.

The hearing officer determined that the Division should not contact Dr. L to resolve the MMI and IR issues regarding his report dated September 30, 2010. However, since the hearing officer’s determination that the claimant’s IR is 12% has been reversed and there is no other IR in evidence that can be adopted, we remand the IR issue to the hearing officer and reverse the hearing officer’s determination that the Division should not contact Dr. L to resolve the MMI and IR issues regarding his report dated September 30, 2010. We render a new decision that the Division should contact Dr. L to resolve the MMI and IR issues regarding his report dated September 30, 2010.

The designated doctor in this case is Dr. L.  The hearing officer is to determine whether Dr. L is still qualified and available to be the designated doctor, and if so, request that Dr. L rate the compensable injury in accordance with the rating criteria in the AMA Guides based on the claimant’s condition as of the stipulated date of MMI of August 23, 2010.  The hearing officer should inform the designated doctor of the requirement that the 5% IR be explained in accordance with Rule 130.1(c)(3) and the AMA Guides or the designated doctor may assess a new IR based on the claimant’s condition as of the date of MMI, August 23, 2010, considering the medical record, the certifying examination, and the rating criteria in the AMA Guides and providing an explanation of the new rating in accordance with Rule 130.1(c)(3).  The hearing officer is to provide the designated doctor’s response to the parties and allow the parties an opportunity to respond and then make a determination regarding the IR.  If Dr. L is no longer qualified and available to serve as the designated doctor then another designated doctor is to be appointed to determine the claimant’s IR pursuant to Rule 127.5(c).

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 hearing officer, 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 COMMERCE & INDUSTRY 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

CONCUR:

Cynthia A. Brown
Appeals Judge

____________________ 

Thomas A. Knapp
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 February 28, 2011. The hearing officer resolved the disputed issues by deciding that the respondent’s (claimant) impairment rating (IR) is 15% and the Texas Department of Insurance, Division of Workers’ Compensation (Division) should not contact the designated doctor, (Dr. S), to resolve the IR issue regarding the designated doctor’s report, dated July 28, 2010, pursuant to 28 TEX. ADMIN. CODE § 126.7(u) (Rule 126.7(u)).[1] The appellant (carrier) appealed, disputing the hearing officer’s IR determination. The claimant responded, urging affirmance. The hearing officer’s decision that the Division should not contact the designated doctor, Dr. S, to resolve the IR issue regarding his report dated July 28, 2010, pursuant to Rule 126.7(u) was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The parties stipulated that the claimant sustained a compensable injury on __________, and reached maximum medical improvement (MMI) on August 20, 2009. Dr. S was appointed by the Division for the purpose of assessing an IR for the compensable injury. Dr. S initially examined the claimant on August 20, 2009, and certified that the claimant reached MMI on August 20, 2009, with a 10% 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). Dr. S placed the claimant in Diagnosis-Related Estimate (DRE) Lumbosacral Category III: Radiculopathy.

Dr. S examined the claimant a second time on February 24, 2010, and gave an opinion in a report dated February 24, 2010, regarding the extent of the claimant’s compensable injury. In evidence was a Benefit Dispute Agreement (DWC-24) dated July 10, 2009, which stated the parties agree that the compensable injury of __________, extends to the disc protrusion at L1-2, disc protrusion at L2-3, and disc protrusion at T11-12.

A letter of clarification was sent to Dr. S on June 28, 2010, noting the August 20, 2009, certification failed to include a rating for the disc protrusion at T11-12 and asked Dr. S to consider this condition in reconsidering the claimant’s IR. Dr. S re-examined the claimant on July 28, 2010, and certified that the claimant reached MMI on August 20, 2009, with a 15% IR. Dr. S placed the claimant in DRE Thoracolumbar Cagetory III: Radiculopathy for 15%. Dr. S stated that “[w]ith the advent of inclusion of the thoracic region, it is medically probable that [the claimant’s] impairment evaluation should include the thoracolumbar region. Normally, this would make no difference; however, in this specific case, there is a different impairment for use of the different DRE classification.” The hearing officer specifically found that the preponderance of the evidence is not contrary to the designated doctor’s determination that the claimant’s IR is best described by DRE Thoracolumbar Category III: Radiculopathy of the AMA Guides.

IR

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. The AMA Guides provide on page 3/95 that it is difficult to separate the cervical, thoracic, lumbar, and sacral spine regions functionally because the signs related to the different regions commonly overlap. Additionally, the AMA Guides provide on page 3/95 that for purposes of “this book” the cervical region may be considered to represent the cervicothoracic region, the thoracic region to represent the thoracolumbar region, and the lumbar region to represent the lumbosacral region.

In evidence is correspondence from a peer review doctor dated August 25, 2010. The peer reviewer stated that the claimant does not have a thoracic level radiculopathy, noting the designated doctor did not even document a specific spasm, guarding, or dysmetria relegated to the thoracic area so no permanent impairment rating should be assigned for the thoracic area of the claimant’s spine.

In reviewing a “great weight” challenge, we must examine the entire record to determine if:  (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence.  See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). 

The carrier argued at both the CCH and on appeal that the designated doctor failed to rate the entire compensable injury. We agree. The DWC-24 in evidence reflects the parties’ agreement that the claimant’s compensable injury extended to both the thoracic and lumbar levels of the claimant’s spine. The designated doctor, however, only gave the claimant an IR for the thoracic area of the claimant’s spine as described in the AMA Guides. The designated doctor did not assign a specific impairment for the claimant’s lumbar spine as described in the AMA Guides. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 15%.

The initial IR certified by the designated doctor cannot be adopted because as previously noted it only assessed impairment for the claimant’s lumbar spine injury and not his thoracic spine injury.

There is only one other certification of impairment in evidence with the stipulated date of MMI, August 20, 2009. The certification is from a carrier required medical evaluation doctor, (Dr. F). Dr. F examined the claimant on November 15, 2010. Dr. F certified that the claimant reached MMI on August 20, 2009, the same date stipulated by the parties, and assessed the claimant’s IR to be 10%, using the AMA Guides. Dr. F noted the claimant’s muscle atrophy in the lower extremity was 2.5 centimeters smaller than the same area on the right lower extremity, the claimant had a hypoactive knee jerk and the EMG showed evidence of radiculopathy. Dr. F placed the claimant in DRE Lumbosacral Category III:  Radiculopathy 10% and DRE Thoracolumbar I: Complaints of Symptoms 0%. Dr. F noted the claimant had a single level degenerative change with no clear-cut objective clinical findings in the thoracic spine. For reasons discussed above, we reverse the hearing officer’s determination that the claimant’s IR is 15% and render a new decision that the claimant’s IR is 10%.

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

RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner

CONCUR:

Cynthia A. Brown
Appeals Judge

Carisa Space-Beam
Appeals Judge

  1. We note that this provision is now found in Rule 127.20 of the new designated doctor rules.

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 14, 2010, with the record closing on September 22, 2010. With regard to the two issues before her, the hearing officer determined that the respondent (claimant) reached maximum medical improvement (MMI) on February 1, 2010, with a 17% impairment rating (IR). The appellant (carrier) appealed the hearing officer’s determinations on MMI and IR, contending that the hearing officer erred in not adopting the certification of MMI/IR of the Texas Department of Insurance, Division of Workers’ Compensation (Division)-appointed designated doctor, (Dr. B). In the alternative, the carrier contends that the case should be remanded to the hearing officer to send a letter of clarification (LOC) to Dr. B if there is a question concerning whether or not Dr. B rated the entire compensable injury. The appeal file does not contain a response from the claimant.

DECISION

Reversed and remanded.

The parties stipulated that the claimant sustained a compensable injury on _____________. It was undisputed that the claimant underwent surgery for carpal tunnel syndrome in both wrists.

In this case, the issues before the hearing officer are MMI and IR. There is no agreement between the parties as to the extent of the compensable injury nor is there a prior determination by the Division as to extent of injury. There are three certifications of MMI/IR in evidence, one from the designated doctor and two from referral doctors of the treating doctor.

Dr. B, the designated doctor, appointed to determine MMI and IR, examined the claimant on May 21, 2010, and certified that the claimant reached MMI on that date with a 0% IR. Dr. B diagnosed and rated a left elbow and bilateral wrists injury as the compensable injury.

(Dr. P), a referral doctor, examined the claimant on November 2, 2009, and determined that the claimant had not yet reached MMI as of that date but anticipated that the claimant would reach MMI on or about January 2, 2010. Dr. P diagnosed and considered a left elbow, bilateral wrists, and cervical spine injury as the compensable injury.

(Dr. T), a referral doctor, examined the claimant on March 19, 2010, and certified that the claimant reached MMI on February 1, 2010, with a 17% IR. Dr. T diagnosed and rated an injury to the bilateral wrists and to the cervical spine as the compensable injury.[1]

Prior to the CCH, the claimant had requested a LOC be sent to the designated doctor, attaching additional medical records concerning additional treatment to her hands, wrists, and cervical spine subsequent to the date of the designated doctor’s exam and asking whether the records would change Dr. B’s opinion on MMI or IR. That request for a LOC was denied by the Division.

The hearing officer rejected the certification of MMI and IR by the designated doctor because she stated in her discussion that the claimant sustained “a cervical spine and bilateral wrist injuries” on _____________, and the designated doctor did not consider the entire compensable injury in his assignment of MMI and IR. Although the hearing officer had held the record open to consider the claimant’s request for a LOC to the designated doctor, she closed the record, stating that “a review of the administrative record did not indicate that the matter required further correspondence with or examination by the designated doctor.” The hearing officer then adopted Dr. T’s certification of MMI/IR; however, Dr. T improperly rated the upper extremities based on Figure 29, page 3/38 of the AMA Guides. See footnote 1.

The Appeals Panel has held that an extent-of-injury issue is a threshold issue that must be resolved before issues of MMI and IR can be resolved and that the resolution of the MMI and IR issues will flow from the resolution of the extent issue. See APD 032171, decided September 23, 2003.

28 TEX. ADMIN. CODE § 130.6(b)(5) (Rule 130.6 (b)(5)) provides:

When the extent of the injury may not be agreed upon by the parties (based upon documentation provided by the treating doctor and/or insurance carrier or the comments of the employee regarding his/her injury), the designated doctor shall provide multiple certifications of MMI and [IRs] that take into account the various interpretations of the extent of the injury so that when the Division resolves the dispute, there is already an applicable certification of MMI and [IR] from which to pay benefits as required by the Act.

In APD 002675, decided December 21, 2000, the sole issue before the hearing officer was IR. There were multiple certifications of MMI/IR in which differing body parts were rated as the compensable injury. There was no prior Division determination of the extent of the compensable injury or agreement by the parties. In that case, the Appeals Panel held that while a designated doctor appointed to determine MMI and IR can state an opinion whether a certain condition is or is not part of the injury, the doctor’s opinion on extent of injury is not entitled to presumptive weight and ultimately it is the Division (the hearing officer) that determines what should and should not be rated. The Appeals Panel reversed the hearing officer’s decision on IR and remanded the case for the hearing officer to first determine the extent of injury and then for the designated doctor to be advised what the extent of the injury was and to be requested to rate only the compensable injury as determined by the hearing officer. The Appeals Panel further held that whenever the issue is an IR, by necessity the extent of injury is subsumed in that issue.

With the issues of MMI and IR before her and with the certifications of MMI/IR in evidence differing as to the extent of the compensable injury, we reverse the hearing officer’s determination that the claimant reached MMI on February 1, 2010, with a 17% IR. There was no stipulation by the parties as to the extent of the compensable injury. Although the hearing officer made statements in her Background Information section of her decision that the claimant sustained “a cervical spine and bilateral wrist injuries” on _____________, the hearing officer erred in failing to add the issue of the extent of the compensable injury and to make any finding of fact and conclusion of law regarding the extent of the compensable injury. As previously discussed, whenever the issue is an IR, by necessity the extent of injury is subsumed in that issue. Accordingly, we remand the case to the hearing officer for the hearing officer to first determine which body parts are in dispute as to the extent of the compensable injury. Then the hearing officer must advise the designated doctor which body parts are in dispute and request the designated doctor to provide multiple certifications of MMI/IR that take into account the various interpretations of the extent of the compensable injury, sending to the designated doctor those medical records in evidence of the additional treatment to the claimant’s hands, left elbow, bilateral wrists, and cervical spine subsequent to the date of the designated doctor’s exam.

REMAND INSTRUCTIONS

Dr. B is the designated doctor in this case.  On remand, the hearing officer is to determine whether Dr. B is still qualified and available to be the designated doctor. If Dr. B is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Rule 126.7(h) to determine the IR for the compensable injury. The hearing officer is then to advise the designated doctor which body parts are in dispute as to the compensable injury and request the designated doctor to give multiple certifications of MMI/IR. The parties are to be provided with the hearing officer’s letter to the designated doctor, the designated doctor’s response, and allowed an opportunity to respond. The hearing officer is to add the issue of extent of injury to the disputed issues before her and make determinations on extent of injury, MMI, and IR consistent with this decision.

We reverse the hearing officer’s decision that the claimant reached MMI on February 1, 2010, with an IR of 17% and remand this case to the hearing officer.

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 hearing officer, 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 INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that Dr. T’s assigned IR of 17% cannot be adopted because he failed to properly use 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) in arriving at his IR. In assessing an impairment for the claimant’s bilateral wrists, Dr. T improperly utilized Figure 29, on page 3/38 of the AMA Guides, by failing to round the measurements of radial deviation and ulnar deviation of the wrist to the nearest 10 degrees to determine the upper extremity impairment. See Appeals Panel Decision (APD) 022504-s, decided November 12, 2002.

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