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 15, 2022, with the record closing on January 18, 2023, in (city), Texas, with (administrative law judge). presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the respondent/cross-appellant (claimant) had disability from August 14, 2021, through April 4, 2022, resulting from the compensable injury of (date of injury); (2) the claimant’s average weekly wage (AWW) is $908.46; and (3) the appellant/cross-respondent (carrier) is liable for the payment of accrued benefits through December 27, 2021, pursuant to 28 Tex. Admin. Code § 124.3 (Rule 124.3) resulting from its failure to dispute or initiate payment of benefits within 15 days of the date it received written notice of the injury.

The carrier appealed, disputing the ALJ’s determinations of disability and carrier liability pursuant to Rule 124.3. The claimant responded, urging affirmance of those determinations. The claimant cross-appealed, disputing the ALJ’s AWW determination. The carrier responded, urging affirmance of that determination.

DECISION

Reformed in part, affirmed in part, and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to at least a disc herniation at L4-5. We note the stipulation addressed in Finding of Fact No. 1.D. incorrectly identifies a disc herniation at C4-5 rather than L4-5. We reform Finding of Fact No. 1.D. to state the claimant sustained a compensable injury on (date of injury), that extends to at least a disc herniation at L4-5 to correctly reflect the stipulation made by the parties at the CCH. The claimant, a player for the (employer), was injured on (date of injury), in a preseason game.

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).  

DISABILITY

The ALJ’s determination that the claimant had disability from August 14, 2021, through April 4, 2022, is supported by sufficient evidence and is affirmed.

AWW

The ALJ’s determination that the claimant’s AWW is $908.46 is supported by sufficient evidence and is affirmed.

CARRIER LIABILITY PURSUANT TO RULE 124.3

Rule 124.3(a)(1) provides in pertinent part that if the carrier does not file a Notice of Denial by the 15th day after receipt of the written notice of the injury, the carrier is liable for any benefits that accrue and shall initiate benefits in accordance with this section.  Rule 124.3(a)(2) provides that if the carrier files a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) after the 15th day but on or before the 60th day after receipt of written notice of the injury:  (A) the carrier is liable for and shall pay all income benefits that had accrued and were payable prior to the date the carrier filed the Notice of Denial and only then is it permitted to suspend payment of benefits; and (B) the carrier is liable for and shall pay for all medical services, in accordance with the 1989 Act and Texas Department of Insurance, Division of Workers’ Compensation (Division) Rules, provided prior to the filing of the Notice of Denial.  Rule 124.3(a)(3) provides that the carrier shall not file notice with the Division that benefits will be paid as and when they accrue with the Division.  Rule 124.3(a)(4) provides in pertinent part that a carrier’s failure to file a Notice of Denial by the 15th day after it receives written notice of an injury constitutes the carrier’s acceptance of the claim as a compensable injury, subject to the carrier’s ability to contest compensability on or before the 60th day after receipt of written notice of the injury, and that a carrier’s failure to do so results in the carrier being liable for all accrued income and medical benefits.  Finally, Rule 124.3(a)(5) provides in pertinent part that a carrier commits an administrative violation if, not later than the 15th day after it receives written notice of the injury, it does not begin to pay benefits as required or file a Notice of Denial of the compensability of a claim.      

The ALJ noted in his discussion that the carrier received written notice of the claimed injury on August 17, 2021, and that the carrier filed a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) with the Division on December 27, 2021. The ALJ found the carrier’s PLN-11 disputing disability on December 27, 2021, was not timely under Rule 124.3, and therefore determined the carrier is liable for payment of accrued benefits through December 27, 2021, pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.  

The carrier contends on appeal that it has never disputed the compensability of the claimant’s (date of injury), injury, and had in fact accepted compensability of that injury. In evidence is the PLN-11 dated December 21, 2021, with a Division date stamp reflecting receipt on December 27, 2021, in which the carrier stated it did not agree the “[claimant’s] work-related injury [of (date of injury),] stops [him] from getting or keeping a job that pays what [he] earned before [his] injury (existence, duration, or extent of disability).”  The carrier did not state in the PLN-11 that it was disputing compensability or liability of the (date of injury), injury, and the evidence does not contain a PLN-1 from the carrier denying compensability or liability of the (date of injury), injury.  In Appeals Panel Decision (APD) 072002-s, decided December 20, 2007, the Appeals Panel noted that the “preamble to Rule 124.3 states a dispute of benefit entitlement, i.e.[,] disability and entitlement to [temporary income benefits], is not a dispute of compensability/liability. . . .”  The carrier’s PLN-11 filed on December 27, 2021, was a dispute of benefit entitlement, not a dispute of compensability or liability of the (date of injury), injury.  The evidence did not establish that the carrier has filed a dispute of compensability or liability of that injury, and as noted above, the parties stipulated at the CCH that the claimant sustained a compensable injury on (date of injury). We reverse the ALJ’s determination that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3, resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.  We render a new decision that the carrier is liable for the payment of accrued benefits in accordance with this decision.  See APD 210517, decided June 3, 2021; and APD 101679, decided December 30, 2010.  

SUMMARY

We affirm the ALJ’s determination that the claimant had disability from August 14, 2021, through April 4, 2022, resulting from the compensable injury of (date of injury).

We affirm the ALJ’s determination that the claimant’s AWW is $908.46.

We reform Finding of Fact No. 1.D. to state the claimant sustained a compensable injury on (date of injury), that extends to at least a disc herniation at L4-5 to correctly reflect the stipulation made by the parties at the CCH.

We reverse the ALJ’s determination that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3, resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.  We render a new decision that the carrier is liable for the payment of accrued benefits in accordance with this decision.

The true corporate name of the insurance carrier is TRI-STATE INSURANCE COMPANY OF MINNESOTA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

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 January 31, 2022, with the record closing on May 26, 2022, 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 bibasilar atelectasis; (2) the compensable injury of (date of injury), does not extend to C5-6 disc herniation, post cervical decompressive discectomy at C5-6, post cervical arthrodesis at C5-6 with allograft, cervical myelopathy, cervical stenosis, herniated nucleus pulposus at C5-6, gait, neck muscle spasms, C6-7 disc protrusion, L4-5 disc bulge, or an L5-S1 annular tear; (3) the appellant (claimant) reached maximum medical improvement (MMI) on December 4, 2018; (4) the claimant’s impairment rating (IR) is zero percent; (5) the claimant had disability from October 24, 2018, through December 15, 2018, as a result of the compensable injury of (date of injury); and (6) the claimant did not have disability from December 16, 2018, through the date of the hearing, as a result of the compensable injury of (date of injury).

The claimant appealed the ALJ’s determinations of MMI, IR, average weekly wage (AWW), that portion of the disability determination against him, and that portion of the extent-of-injury determination against him. The claimant also pointed out in his appeal that the ALJ failed to list the issue of AWW or make a conclusion of law on that issue. The respondent (carrier) responded to the claimant’s appeal, urging affirmance of the ALJ’s determinations.  

The ALJ’s determinations that the compensable injury of (date of injury), extends to bibasilar atelectasis and the claimant had disability from October 24, 2018, through December 15, 2018, as a result of the compensable injury of (date of injury), were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury in the form of a nondisplaced left rib fracture and pulmonary contusion; and (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) selected (Dr. R) as designated doctor to address the date of MMI, IR, and extent of injury. The claimant testified that he was injured on (date of injury), while working as a cell tower technician. He further testified that he had climbed a 180-foot tower wearing a harness when he fell through a manhole. He stated that he fell about five feet, landing on an iron bar and hitting his head on the way down.

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).

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to C5-6 disc herniation, post cervical decompressive discectomy at C5-6, post cervical arthrodesis at C5-6 with allograft, cervical myelopathy, cervical stenosis, herniated nucleus pulposus at C5-6, gait, neck muscle spasms, C6-7 disc protrusion, L4-5 disc bulge, or an L5-S1 annular tear is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on December 4, 2018, is supported by sufficient evidence and is affirmed.

IR

The ALJ’s determination that the claimant’s IR is zero percent is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from December 16, 2018, through the date of the hearing, as a result of the compensable injury of (date of injury), is supported by sufficient evidence and is affirmed.

AWW

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due.  28 Tex. Admin. Code § 142.16 (Rule 142.16) provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due, and if so, an award of benefits due.

A review of the record indicates that the issue of AWW was a certified issue before the ALJ. However, the issue was not included in the decision of the ALJ. Although we note that the ALJ did include an AWW determination in the summary paragraph at the beginning of her decision, the claimant correctly noted in his appeal that the ALJ failed to make a conclusion of law or a decision on the AWW issue. As that portion of the ALJ’s decision is incomplete, we reverse the issue of AWW. The ALJ did make findings of fact that the claimant was a full-time employee for more than 13 consecutive weeks preceding the injury and that the parties did not present the claimant’s payroll records for the 13 weeks preceding the injury. The ALJ further found that the wages of a similar employee were not presented by the parties. A review of the record indicates that the claimant submitted bank records to establish the AWW. Finally, the ALJ found that a fair, just, and reasonable method of calculating the claimant’s AWW is to divide the total amount of the claimant’s wages during his 12 weeks prior to the injury by twelve which resulted in $1,018.75. These findings are supported by sufficient evidence. Accordingly, we render a new decision to conform to the evidence and the ALJ’s findings of fact that the claimant’s AWW is $1,018.75.  See Appeals Panel Decision 171072, decided July 31, 2017.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to C5-6 disc herniation, post cervical decompressive discectomy at C5-6, post cervical arthrodesis at C5-6 with allograft, cervical myelopathy, cervical stenosis, herniated nucleus pulposus at C5-6, gait, neck muscle spasms, C6-7 disc protrusion, L4-5 disc bulge, or an L5-S1 annular tear.

We affirm the ALJ’s determination that the claimant reached MMI on December 4, 2018.

We affirm the ALJ’s determination that the claimant’s IR is zero percent.

We affirm the ALJ’s determination that the claimant did not have disability from December 16, 2018, through the date of the hearing, as a result of the compensable injury of (date of injury).

We reverse the issue of AWW as incomplete and render a new decision that the claimant’s AWW is $1,018.75.

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 STREET
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 February 1, 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 respondent (claimant) had disability resulting from the compensable injury from September 25, 2020, through the date of the CCH; and (2) the claimant’s average weekly wage (AWW) is $4,920.43. The appellant (carrier) appealed, disputing the ALJ’s determination of the AWW and disability. The claimant responded, urging affirmance.

DECISION

Reversed and remanded.

The claimant testified that he was injured in a motor vehicle accident while working as a private investigator. The ALJ asked the parties if they could stipulate that the claimant sustained a compensable injury on (date of injury). A decision and order from a prior CCH is in evidence that determined the claimant sustained a compensable injury on (date of injury). The carrier appealed that decision to the Appeals Panel. A written decision by the Appeals Panel on the carrier’s appeal was not issued by the 45th day after the response was due or filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division); therefore, the ALJ’s decision in that case became final and is the final decision of the Appeals Panel pursuant to Section 410.204(c) and 28 TEX. ADMIN. CODE § 143.5(b) (Rule 143.5(b)). The carrier stated that it was unwilling to stipulate that the claimant sustained a compensable injury because the compensability issue was currently in dispute at the district court level. The ALJ stated at the CCH she would make a finding of fact regarding whether the claimant sustained an injury on (date of injury). However, the ALJ included stipulation 1.D. that the parties agreed that the claimant sustained a compensable injury on (date of injury). A review of the record reflects that the carrier did not agree to stipulate that the claimant sustained a compensable injury on (date of injury). Accordingly, we strike Finding of Fact No. 1.D. We note that Section 410.205(b) provides that the decision of the Appeals Panel regarding benefits is binding during the pendency of an appeal under Subchapter F or G (relating to Judicial Review). In Lopez v. Texas Workers’ Comp. Ins. Fund, 11 S.W.3d 490 (Tex. App.–Austin 2000, pet. denied), the court held that Section 410.205(b) clearly provides that the ultimate administrative ruling—whether granting or denying benefits—remains in effect until overturned by a final and enforceable judicial decision.

AWW

Section 408.041(a) provides that a full-time employee’s AWW shall be determined by dividing the wages from the 13 weeks preceding the compensable injury by 13. See also Rule 128.3(d). Rule 128.1(c) provides, in part, that an employee’s wage, for the purpose of calculating the AWW shall not include payments made by an employer to reimburse the employee for the use of the employee’s equipment, for paying helpers, for reimbursing actual expenses related to employment such as travel related expenses (e.g., meals, lodging, transportation, parking, tolls, and porters), or reimbursing mileage up to the state rate for mileage. Rule 128.1(d) provides that the AWW shall be calculated using gross wages.

The claimant testified that he was his own employer. He testified that at times he had others working for him but that he put all of his earnings into one account and paid his “bills” out of the same account. The claimant testified that he did not know what his business expenses were during the 13-week period prior to his injury. The claimant did not testify specifically as to the times others worked for him or whether any of the income reported as earnings was earned by others. In arriving at the claimant’s AWW in her decision, the ALJ considered the claimant’s business income during the 13-week period preceding the injury and divided that amount by 13. She did not consider expenses incurred by the claimant in relation to his business as part of that determination.

In Appeals Panel Decision (APD) 970578, decided May 15, 1997, the claimant was a truck driver who was paid 22 cents per mile, 7 cents of which was identified as a per diem for travel expenses. The claimant did not have to keep receipts for expenses and he was paid by the mile, no matter how far he had to drive and irrespective of whether the trip required an overnight stay. The Appeals Panel concluded that the ALJ erred in including the 7 cents per mile per diem in the claimant's AWW, reversed the determination of the ALJ that the 7 cents be included in the AWW, and stated:

In this instance, the claimant undeniably incurred travel expenses in the course of performing his duties as a long haul truck driver and the per diem was primarily a payment to defray those costs rather than a payment to provide a financial or economic gain to the claimant for the performance of personal services. Therefore, it is not properly characterized as a form of remuneration under the 1989 Act and the [Division] rules.

In the instant case, the claimant’s AWW should be based on his net profits. To disregard his business expenses in calculating his AWW would lead to an unjustifiably inflated AWW figure, a figure far higher than the economic advantage he gained by working. It was error for the ALJ to determine the claimant’s AWW without consideration of any business expenses incurred by the claimant during the 13 weeks used to calculate his AWW. Accordingly, we reverse the ALJ’s determination that the claimant’s AWW is $4,920.43 and remand the AWW issue to the ALJ for further action consistent with this decision.

DISABILITY

Section 401.011(16) defines "disability" as "the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage." The claimant had the burden of proving disability for any period claimed. See APD 94248, decided April 12, 1994. In APD 000783, decided May 22, 2000, we identified that the claimant has the burden of proof concerning income from a business and stressed the need for the claimant to be forthcoming and accurate with information about self-employment income.

As noted above the AWW issue was reversed and remanded to the ALJ to further consider and develop the evidence to determine the claimant’s AWW. The claimant testified that he made some earnings from his business during the disability period in dispute but did not know the amount and could not give an estimate. Accordingly, we reverse the ALJ’s determination that the claimant had disability resulting from the compensable injury, from September 25, 2020, through the date of the CCH. We remand the disability issue for further consideration and for such further findings of fact and conclusions of law as may be appropriate.

SUMMARY

We strike Finding of Fact No. 1.D.

We reverse the ALJ’s determination that the claimant’s AWW is $4,920.43 and remand the AWW issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant had disability resulting from the compensable injury, from September 25, 2020, through the date of the CCH, and remand the disability issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make a finding of fact regarding whether the claimant sustained a compensable injury on (date of injury).

On remand the ALJ is to further develop the record and make specific findings regarding the expenses of the claimant’s business during the 13-week period immediately prior to the compensable injury. Additionally, the ALJ is to further develop the record and make findings regarding the earnings the claimant had during the disability period in dispute. The ALJ is to then make a determination of the claimant’s AWW and whether the claimant had disability from September 25, 2020, through the date of the CCH supported by the evidence.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RICHARD J. GERGASKO, PRESIDENT
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:
Cristina Beceiro
Appeals Judge

Carisa Space-Beam
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 September 23, 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 employer did not make a bona fide offer of employment (BFOE) to the appellant/cross-respondent (claimant), and therefore, the respondent/cross-appellant (carrier) is not entitled to adjust the post-injury earnings; (2) the average weekly wage (AWW) from September 16 through December 1, 2019, is $1,168.17; (3) the AWW from December 2, 2019, through the date of the CCH is $1,216.38; (4) the claimant has disability as a result of the compensable injury from May 22, 2020, through the date of the CCH.

The claimant appealed the ALJ’s determination of AWW, contending that the ALJ erred in failing to include nonpecuniary wages in the form of housing and utilities in the AWW calculation. The carrier responded, urging affirmance. The carrier cross-appealed the ALJ’s determinations regarding BFOE and disability. The claimant responded, urging affirmance of the ALJ’s BFOE and disability determinations.

DECISION

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

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and that as of December 2, 2019, the adjustment for health insurance premiums for the AWW is $48.21 per week. The evidence indicated that the claimant was injured when he tripped and fell while walking back to his truck while working.

BFOE

The ALJ’s determination that the employer did not make a BFOE to the claimant, and therefore, the carrier is not entitled to adjust the post-injury earnings is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant has disability as a result of the compensable injury from May 22, 2020, through the date of the CCH, is supported by sufficient evidence and is affirmed.

AWW

Section 408.041(a) provides that a full-time employee’s AWW shall be determined by dividing the wages from the 13 weeks preceding the compensable injury by 13.  See also 28 TEX. ADMIN. CODE § 128.3(d) (Rule 128.3(d)).  

Section 401.011(43) provides that “wages” includes all forms of remuneration payable for a given period to an employee for personal services, and that the term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration.  Rule 126.1(2) states, in part, that nonpecuniary wages are wages paid to an employee in a form other than money. Examples of nonpecuniary wages include rent. Rule 128.1(b) provides, in part, that an employee’s wage, for the purpose of calculating the AWW, shall include: (1) all pecuniary wages paid by the employer to the employee; and (2) all nonpecuniary wages paid by the employer to the employee prior to the compensable injury but not continued by the employer after the injury.

The claimant began working for the employer in May 2019, and worked throughout the 13-week period prior to the (date of injury), compensable injury. Therefore, the ALJ calculated the claimant’s AWW by dividing the wages from the 13 weeks preceding the compensable injury by 13 as provided for in Section 408.041(a). The ALJ also added the cost of discontinued health care premiums in the amount of $48.21 per week for the period of December 2, 2019, through the date of the CCH, as stipulated by the parties. The claimant argued that in addition to the health insurance premiums, the nonpecuniary wages of his housing and utilities should be included in the calculation of the AWW.

The claimant leased an apartment in (city), Texas, beginning on August 1, 2018. The employer acquired the apartment building where he was living in January of 2019, before the claimant was hired. When the claimant was hired in May of 2019, the employer allowed the claimant to continue living in his apartment rent-free. The employer additionally took over all the claimant’s utility payments. However, at the end of July of 2019, the associate counsel for the employer’s holding company informed the claimant that his family members could not continue to live in the apartment with him as it was strictly for employees. At that time, the claimant elected to move due to the fact that he had custody of his minor child. The ALJ stated in her discussion that since the employer stopped paying the claimant’s rent and utilities before the date of the (date of injury), compensable injury and the claimant chose to move out, the AWW does not include the cost of rent and utilities. We disagree. The evidence indicates that the claimant lived rent-free during at least a portion of the 13-week period that was used to calculate his AWW and provided evidence that the value of the apartment was $825.00 per month. The Appeals Panel has previously held that the market value of an apartment may be included in calculating the AWW.  See Appeals Panel Decision (APD) 042364-s, decided November 17, 2004, and APD 130022, decided March 18, 2013.

In addition to receiving the value of the apartment, the employer paid the claimant’s utilities in full during a portion of the 13-week period used to calculate the claimant’s AWW. As stated above, Section 401.011(43) provides that “wages” includes all forms of remuneration payable for a given period to an employee for personal services, and that the term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration. We hold that the ALJ erred in failing to consider the value of the apartment and utilities that the claimant received during a portion of the 13-week period in calculating the claimant’s AWW. Therefore, the ALJ’s determinations that the AWW from September 16 through December 1, 2019, is $1,168.17 and the AWW from December 2, 2019, through the date of the CCH is $1,216.38 are reversed. As the ALJ did not make a finding regarding the value and amount of nonpecuniary wages that the claimant received during the 13-week period and the amount is in dispute, we remand the issue of AWW back to the ALJ to determine the claimant’s AWW from September 16 through December 1, 2019, and from December 2, 2019, through the date of the CCH in accordance with this decision.

SUMMARY

We affirm the ALJ’s determination that the employer did not make a BFOE to the claimant, and therefore, the carrier is not entitled to adjust the post-injury earnings.

We affirm the ALJ’s determination that the claimant has disability as a result of the compensable injury from May 22, 2020, through the date of the CCH.

We reverse the ALJ’s determinations that the AWW from September 16 through December 1, 2019, is $1,168.17 and the AWW from December 2, 2019, through the date of the CCH is $1,216.38, and we remand the issue of AWW back to the ALJ to determine the claimant’s AWW from September 16 through December 1, 2019, and from December 2, 2019, through the date of the CCH in accordance with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ should consider the evidence regarding any rent and utilities that the claimant received during any part of the 13-week period used to calculate the AWW. The ALJ is to make specific findings on the value of the nonpecuniary wages that the claimant received and on which weeks during the 13-week period he received them that are supported by the evidence and consistent with this decision. The ALJ should then make a determination regarding the claimant’s complete AWW for the periods of September 16 through December 1, 2019, and from December 2, 2019, through the date of the CCH that is supported by the evidence and consistent with this decision.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 NEW HAMPSHIRE 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.

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 May 11, 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’s (claimant) average weekly wage (AWW) is $1,210.00. The appellant (carrier) appeals the ALJ’s determination of the AWW. The claimant responded, urging affirmance.

DECISION

Reversed and remanded.

It was undisputed that the claimant sustained a compensable injury on (date of injury). The claimant testified that she was hired to work as an equine ranch manager for employer on March 11, 2019. The sole issue before the ALJ was the claimant’s AWW. The claimant testified that she was paid $450.00 per week salary and the employer provided housing and utilities and allowed her to board her horses at the ranch. The claimant testified that she left the employer-supplied housing on January 7, 2020, and moved her horses off the property about a week later. There was conflicting evidence about how many of her horses were allowed to board on the property without cost to the claimant as part of her employment compensation package. Additionally, the evidence indicated that the number of horses boarding on the property changed over the term of the claimant’s employment.

Section 408.041(a) provides that a full-time employee’s AWW shall be determined by dividing the wages from the 13 weeks preceding the compensable injury by 13. See also 28 TEX. ADMIN. CODE § 128.3(d) (Rule 128.3(d)). If a full-time employee did not work for the employer for the 13 weeks preceding the compensable injury, the AWW is calculated using “the usual wage that the employer pays a similar employee for similar services” or “if a similar employee does not exist, the usual wage paid in that vicinity for the same or similar services provided for remuneration.” Sections 408.041(b)(1) and 408.041(b)(2); Rule 128.3(e). If neither of the foregoing methods can “reasonably be applied,” because the employee has lost time from work during the 13-week period immediately preceding the injury because of illness, weather, or another cause beyond the control of the employee, the AWW is determined “by any method” that the Texas Department of Insurance, Division of Workers’ Compensation (Division) considers “fair, just, and reasonable to all parties and consistent with the methods established under [the 1989 Act].” Section 408.041(c); Rule 128.3(g).

Section 401.011(43) provides that “wages” includes all forms of remuneration payable for a given period to an employee for personal services, and that the term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration. Section 408.045 provides that the Division may not include nonpecuniary wages in computing an employee’s AWW during a period in which the employer continues to provide the nonpecuniary wages. Rule 128.1(c)(2) provides, in part, that an employee’s wage, for the purpose of calculating the AWW, shall not include any nonpecuniary wages continued by the employer after the compensable injury. However, except as provided by Rule 128.7 of this title and Section 408.042(e), if the employer discontinues providing nonpecuniary wages, the AWW shall be recalculated and these discontinued nonpecuniary wages shall be included.

The ALJ stated in her discussion of the evidence that under the facts of this case the AWW should be determined using a fair, just, and reasonable method. The carrier contends that it was error for the ALJ to base her determination of the value of the housing and boarding of horses provided on the fair market value. The Appeals Panel has previously held that the market value of an apartment may be included in calculating the AWW. See Appeals Panel Decision (APD) 042364-s, decided November 17, 2004, and APD 130022, decided March 18, 2013. In this case, the ALJ did not err in using a fair, just, and reasonable method to calculate the AWW.

The ALJ calculated the AWW as follows: wages of $450.00 per week, $435.00 per week in housing, and $325.00 in boarding, for a total of $1,210.00. The ALJ based her calculations for housing and boarding of the horses by arriving at a monthly amount and dividing by 4. We note that to calculate a weekly amount using this method is not entirely accurate as not every month has exactly 4 weeks.

As stated above, the claimant continued living in the employer-provided housing and using the employer-provided boarding until January 2020. The ALJ failed to take into consideration the specific time periods after the date of injury that the claimant was still receiving the nonpecuniary benefits from the employer of housing and boarding of the claimant’s horses. Accordingly, we reverse the ALJ’s determination that the claimant’s AWW is $1,210.00 and remand the AWW issue to the ALJ for a determination that is supported by the evidence. The AWW needs to be recalculated to exclude the nonpecuniary benefits for the time periods the benefits of housing and boarding of the claimant’s horses were continuing to be paid to the claimant. The ALJ should make specific findings regarding the number of horses that were boarded as part of her compensation package and the specific time periods such horses were actually being boarded on the employer’s property and recalculate the AWW as supported by the evidence.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

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

Margaret L. Turner
Appeals Judge

CONCUR:
Cristina Beceiro
Appeals Judge

Carisa Space-Beam
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 29, 2020, with the record closing February 13, 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 appellant’s (claimant) average weekly wage (AWW) is $575.95; (2) benefits began to accrue on May 17, 2016; (3) the claimant had disability from February 8, 2016, through July 20, 2017, but did not have disability from July 21 through December 4, 2017, or from December 5, 2017, through February 20, 2018; (4) the claimant was not a seasonal employee; and (5) the claimant’s injury protection payments under his Collective Bargaining Agreement for the 2016-2017 NFL season do not constitute post-injury earnings.

The claimant appealed the ALJ’s determinations on AWW, benefits accrual date, and the periods of disability that were not favorable to him. The respondent (carrier) responded, urging affirmance. The ALJ’s determinations that the claimant was not a seasonal employee and that the claimant’s injury protection payments under his Collective Bargaining Agreement for the 2016-2017 NFL season do not constitute post-injury earnings were resolved by stipulation of the parties at the CCH, were not appealed, and have become final pursuant to Section 410.169.

DECISION

Affirmed in part, reversed by striking in part, and reversed and rendered in part.

The parties stipulated, in part, that on (date of injury), the claimant was the employee of (employee), and that the claimant sustained a compensable injury on that date. The claimant testified he injured his left knee during training camp.

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).

AWW

The ALJ’s determination that the claimant’s AWW is $575.95 is supported by sufficient evidence and is affirmed.

DISABILITY

It was undisputed that prior CCHs in this case with a different ALJ were held on December 4, 2017, and January 30, 2018, with the record closing on February 13, 2018, over the issue of disability, among other issues. The ALJ issued a decision signed on February 20, 2018, in which she determined, in pertinent part, that the claimant did not have disability from (date of injury), through the date of the CCH. The claimant timely appealed the ALJ’s decision to the Appeals Panel. A written decision by the Appeals Panel on the claimant’s appeal was not issued by the 45th day after the response was due or filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division); therefore, the ALJ’s decision that the claimant did not have disability from (date of injury), through the date of the CCH became final and is the final decision of the Appeals Panel pursuant to Section 410.204(c) and 28 TEX. ADMIN. CODE § 143.5(b) (Rule 143.5(b)).

The Appeals Panel decision was then appealed to district court. In evidence is a district court final judgment filed December 5, 2019, in which it was ordered, adjudged, and decreed by the court, in pertinent part, that the claimant had disability from February 8, 2016, through July 20, 2017. The record reflects the carrier has appealed the district court judgment.

Section 410.205(b) provides that the decision of the Appeals Panel regarding benefits is binding during the pendency of an appeal under Subchapter F or G (relating to Judicial Review). In Lopez v. Texas Workers’ Comp. Ins. Fund, 11 S.W.3d 490 (Tex. App.–Austin 2000, pet. denied), the court held that Section 410.205(b) clearly provides that the ultimate administrative ruling, whether granting or denying benefits, remains in effect until overturned by a final and enforceable judicial decision. The claimant in Lopez argued that the decision of the Appeals Panel denying benefits remains in effect only until the district court renders a decision, but that the trial court’s decision awarding benefits then becomes effective without regard to further appellate review. The court disagreed, noting that the text of the Labor Code did not support the claimant’s interpretation. The court noted that the claimant would have the district court’s decision enforced even though it is not yet final and still on appeal, and that “[n]owhere does the statute expressly provide for such an outcome.” The court in Lopez stated “[w]e believe the statute as written reflects the State’s policy that benefits should be payable or not in accordance with the [A]ppeals [P]anel’s decision until a final judicial decision rules otherwise.”

The Appeals Panel’s prior decision that the claimant did not have disability from (date of injury), through the date of the CCH is binding until there is a final, non-appealable judgment in this case. See Appeals Panel Decision 142336, decided December 5, 2014.

In the case on appeal the carrier contended at the CCH that the Appeals Panel’s decision that the claimant did not have disability from (date of injury), through the date of the prior CCH is binding on the ALJ. The carrier is correct. Pursuant to Section 410.205(b), the decision that the claimant did not have disability from (date of injury), through the date of the CCH is binding, and the Division does not have jurisdiction to reconsider the issue of disability from (date of injury), through February 13, 2018, the date the record closed in the prior CCH. Given that the Division does not have jurisdiction to make a new determination on disability from (date of injury), through February 13, 2018, the ALJ erred in making some of his disability determinations.

The ALJ found that pursuant to the judgment in this case, the claimant had disability from February 8, 2016, through July 20, 2017, and therefore determined that the claimant had disability for that period. Because the Division does not have jurisdiction to reconsider this period of disability, we reverse the ALJ’s decision by striking the determination that the claimant had disability from February 8, 2016, through July 20, 2017.

The ALJ also determined that the claimant did not have disability from July 21 through December 4, 2017. Because the Division does not have jurisdiction to reconsider this period of disability, we reverse the ALJ’s decision by striking the determination that the claimant did not have disability from July 21 through December 4, 2017.

The ALJ also determined that the claimant did not have disability from December 5, 2017, through February 20, 2018. The Division does not have jurisdiction to reconsider disability from (date of injury), through February 13, 2018. We therefore reverse the ALJ’s decision by striking that portion of the determination that the claimant did not have disability from December 5, 2017, through February 13, 2018.

Section 410.207 provides that during judicial review of an Appeals Panel decision on any disputed issue relating to a workers’ compensation claim, the Division retains jurisdiction of all other issues related to the claim. The issue of disability from February 14 through February 20, 2018, has not been litigated or determined by the Division prior to this CCH. Therefore, the Division does have jurisdiction to determine disability for that period. That portion of the ALJ’s determination that the claimant did not have disability from February 14 through February 20, 2018, is supported by sufficient evidence and is affirmed.

ACCRUAL DATE

The ALJ found that the claimant’s first day of disability was May 9, 2016, which was the day after his termination, and that the eighth day of disability was May 17, 2016. The ALJ therefore determined that benefits began to accrue on May 17, 2016. We note the evidence reflects the claimant was terminated on May 9, 2016, not May 8, 2016, as indicated by the ALJ in his finding of fact.

Section 408.082(a) provides that income benefits may not be paid for an injury that does not result in disability for at least one week. Rule 124.7(a) provides in part that “accrual date” means the day an injured worker’s income benefits begin to accrue, and that “day of disability” means a day when the worker is unable to obtain and retain employment at wages equivalent to the pre-injury wage because of a compensable injury. Rule 124.7(b) provides that an injured worker’s accrual date is the worker’s eighth day of disability.

The Appeals Panel’s decision that the claimant did not have disability from (date of injury), through February 13, 2018, is binding pursuant to Section 410.205(b), and we have affirmed that portion of the ALJ’s determination that the claimant did not have disability from February 14 through February 20, 2018. The claimant has not sustained disability for at least one week. Pursuant to Section 408.082(a), the claimant is not entitled to be paid temporary income benefits (TIBs) for the compensable injury; therefore, there is no accrual date for TIBs in this case. Accordingly, we reverse the ALJ’s determination that benefits began to accrue on May 17, 2016, and we render a new decision that there is no accrual date for TIBs in this case.

SUMMARY

We affirm the ALJ’s determination that the claimant’s AWW is $575.95.

We reverse the ALJ’s decision by striking the determination that the claimant had disability from February 8, 2016, through July 20, 2017.

We reverse the ALJ’s decision by striking the determination that the claimant did not have disability from July 21 through December 4, 2017.

We reverse the ALJ’s decision by striking that portion of the determination that the claimant did not have disability from December 5, 2017, through February 13, 2018.

We affirm that portion of the ALJ’s determination that the claimant did not have disability from February 14 through February 20, 2018.

We reverse the ALJ’s determination that benefits began to accrue on May 17, 2016, and we render a new decision that there is no accrual date for TIBs in this case.

The true corporate name of the insurance carrier is GREAT DIVIDE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

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 August 29, 2019, and November 13, 2019, with the record closing on January 21, 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 first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. W), on September 26, 2009, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (2) the appellant/cross-respondent (claimant) reached MMI on December 19, 2010; (3) the claimant’s IR is five percent; and (4) the claimant had disability resulting from the compensable injury of (date of injury), from June 23, 2009, through December 19, 2010.

The claimant appealed the ALJ’s decision, arguing that the ALJ failed to make any findings of fact or conclusions of law regarding the average weekly wage (AWW) issue. The respondent/cross-appellant (carrier) responded. The carrier cross-appealed, disputing both the issues of AWW and disability.

The ALJ’s determinations that: the first certification of MMI and assigned IR from Dr. W on September 26, 2009, did not become final under Section 408.123 and Rule 130.12; the claimant reached MMI on December 19, 2010; and that the claimant’s IR is five percent were not appealed and became final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury, which consists of a herniated nucleus pulposus of the lower back, L4-L5 and L5-S1 with radiating pain in the left leg; from June 23, 2009, through January 23, 2010, the claimant earned $150.00 a week salvaging metal; and from January 24, 2010, through December 19, 2010, the claimant worked 30 hours a week cleaning offices for $8.50 per hour. The claimant testified that he was injured when moving a sheet of heavy metal. Although not initially reported as a disputed issue in the Benefit Review Conference Report, the parties agreed to add the issue of AWW at the CCH. Additionally, the parties agreed to modify the dates of disability in dispute.

AWW

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and, if so, an award of benefits due. Although in the opening paragraph of the Decision and Order the ALJ determined the AWW is $618.00, the ALJ failed to make any findings of fact or conclusions of law on the AWW issue. Further, the ALJ failed to make a determination of AWW in the decision section of the decision and order. Because the ALJ failed to make a determination on the AWW issue that was before her, the ALJ’s decision is reversed as being incomplete. See Appeals Panel Decision (APD) 171088, decided June 21, 2017, and APD 182482, decided December 19, 2018. We remand the AWW issue to the ALJ for further action consistent with this decision.

DISABILITY

Section 401.011(16) defines disability as the inability because of a compensable injury to obtain and retain employment at wages equivalent to the pre-injury wage. As noted above, the ALJ failed to make findings of fact and conclusions of law regarding the AWW. Accordingly, we reverse the ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), from June 23, 2009, through December 19, 2010, and remand the disability issue to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s decision as being incomplete and remand the AWW issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s decision that the claimant had disability resulting from the compensable injury of (date of injury), from June 23, 2009, through December 19, 2010, and remand the disability issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a decision regarding the AWW.

After making a determination of the AWW, the ALJ is to make a determination regarding whether the claimant had disability resulting from the compensable injury of (date of injury), from June 23, 2009 through December 19, 2010.

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 FARMINGTON CASUALTY COMPANY, A SUBSIDIARY OF THE TRAVELERS INDEMNITY COMPANIES and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY
d/b/a CSC-LAWYERS INCORPORATING SERVICE CO.
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:
Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

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 April 12, 2018, and continued with the record closing on June 13, 2018, 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 herniation at L5-S1; (2) the appellant/cross-respondent (claimant) had no disability resulting from the compensable injury, from June 4, 2017, through the June 13, 2018, date of CCH; and (3) the claimant’s average weekly wage (AWW) is $743.44 based on multiple employment. Also, the ALJ resolved the issue of “[w]hat is the amount of [the] [c]laimant’s post-injury earnings (PIE) after January 24, 2017?” by determining the PIE amount for that period in dispute.^[1]

The claimant appealed, disputing the ALJ’s extent of injury and disability determinations. Additionally, the claimant appealed a portion of the ALJ’s PIE determinations that were not favorable to him and attached documentation that had been admitted into evidence. The respondent/cross-appellant (self-insured) responded, urging affirmance but it also filed a request to correct clerical errors and, in the alternative, a contingent appeal regarding the ALJ’s PIE determinations. The self-insured asserts the ALJ “appears to have inadvertently copied the dates for two-week time periods but copied the monetary amounts for one week time periods in her [f]indings and [c]onclusions regarding [PIE]” for the period after January 24, 2017, through August 12, 2017. Also, the self-insured requests a clerical correction or reversal be issued to the ALJ’s findings and conclusions to change the amount of PIE, after August 14, 2017, from $0 to $619.51. The claimant did not respond to the self-insured’s cross-appeal.

The ALJ’s determination that the claimant’s AWW is $743.44 based on multiple employment has not been appealed and has become final pursuant to Section 410.169.

DECISION

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

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that consisted of a lumbar disc protrusion at L4-5. It is undisputed that the claimant had multiple employment on the date of his injury, (date of injury). The claimant’s employer, (Employer), is the claim employer, and (Non-Claim Employer) is the non-claim employer. The claimant sustained a compensable injury while working for the claim employer on (date of injury). The claimant’s last day of employment with the claim employer was (date of injury).

The claimant continued to work for the non-claim employer as an “employee” until August 14, 2017. The claimant moved from Texas to (state) in August 2017; however, he continued to work for the non-claim employer as an “independent contractor” after August 14, 2017.

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).

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a lumbar disc herniation at L5-S1 is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant had no disability resulting from the compensable injury, from June 4, 2017, through the June 13, 2018, date of CCH is supported by sufficient evidence and is affirmed.

PIE

The issue before the ALJ as reflected on the Benefit Review Conference (BRC) Report was “[w]hat is the amount of [the] [c]laimant’s [PIE] after January 24, 2017?” 28 TEX. ADMIN. CODE § 129.2(b) (Rule 129.2(b)) provides that lost wages are the difference between the employee’s gross AWW and the employee’s gross PIE. If the employee’s PIE equals or exceeds the employee’s AWW, the employee has no lost wages. Rule 129.2(c) provides a non-exhaustive list of what PIE shall include. Rule 129.2(d) provides what PIE shall not include.

The self-insured states special rules apply for the calculation of PIE for an employee with more than one employer. The self-insured states that the calculation of PIE is determined by whether the change in earnings was caused by the compensable injury and references Rule 122.5.

Rule 122.5(f) states:

(f) Employees who file Multiple Employment Wage Statements are required to report all changes in employment status and/or earnings at the Non-Claim Employer to the carrier until the employee reaches maximum medical improvement (MMI).

(1) The employee shall report all changes in employment status at the Non-Claim Employer including termination or resignation within 7 days of the date the change takes place.

(2) The employee shall report within 7 days of the end of the pay period in which a change in earnings at the Non-Claim Employer related to the compensable injury took place. This would include both reductions and increases in wages as compared to the prior week as long as the difference was caused by the compensable injury such as because the employee's ability to work changed or the employer was more or less able to provide work that met the employee's work restrictions.

The preamble to Rule 122.5 states that House Bill 2600, 77th Texas Legislature made additions to Section 408.042, AWW for Part-Time Employee or Employee with Multiple Employment,^[2] to address employees with multiple employment. The preamble to Rule 122.5 states, in part, that:

Based on these changes, employees can now report wages from other jobs they held at the time of the injury to influence the [AWW]. The [Texas Department of Insurance, Division of Workers’ Compensation (Division)] is required to specify by rule how this other wage information is to be collected and distributed. To avoid any undue confusion and to improve the clarity of the rules, the [Division] adopts new [Rule] 122.5 to address the inclusion of wages from multiple employers. This rule provides for the reporting of wages from the Non-Claim Employers. The new rule clearly states expectations so that all system participants will understand the requirements that the Act and rules place on them with the purpose of improved benefit delivery, reduced disputes and violations and ease in holding participants accountable for their actions and inactions.

Furthermore, the preamble states that:

Based on public comment, subsection (f) was added to place the requirement on injured employees to notify their carrier of all changes in employment status and/or earnings at the non-claim employer until the injured employee reaches [MMI], which could potentially be up to 104 weeks. The subsection essentially requires employees to report the same sorts of changes that a Claim Employer is required by [Rule] 120.3 (relating to Employer's Supplemental Report of Injury) to report to the carrier on the Supplemental Report of Injury. However, timeframes are slightly different in an attempt to better line up reporting duties with carrier payment duties. The reason that this is important is that changes in earnings at the non-claim employer during the [temporary income benefits] and [supplemental income benefits] periods can have a big impact on the employee's entitlement to benefits.

Rule 122.5(f) defines the time period, up to the date the claimant reaches MMI, for which any change in employment status or wages at the non-claim employer must be reported to the carrier as it applies to calculating AWW. In Appeals Panel Decision (APD) 151496-s, decided September 30, 2015, the Appeals Panel clarified that Rule 122.5 does not establish a deadline for filing an Employee’s Multiple Employment Wage Statement (DWC-3ME).

The ALJ determined the claimant’s PIE for each week from January 24, 2017, through August 12, 2017. The ALJ determined the claimant’s PIE for August 13, 2017, was $0. The ALJ determined that the claimant’s PIE from August 14, 2017, to the date of the June 13, 2018, CCH was also $0.

PIE from January 24, 2017, through August 12, 2017

For the week of January 24, 2017, through January 28, 2017, the ALJ’s Finding of Fact No. 17 states that the earnings are based on a computer list of wages earned and not the pay statements.

For the weeks for the period from January 29, 2017, to August 12, 2017, the ALJ states in her discussion that she determined the amount of PIE for each week based on the non-claim employer’s pay statements. In evidence are the claimant’s pay statements from the non-claim employer, which are broken down into two-week periods. The ALJ notes in her discussion that she “[d]ivided by 2 for weekly PIE” to calculate the amount of PIE from the non-claim employer for each week.

The self-insured states that the ALJ correctly listed the PIE using two-week time periods and using earnings for a two-week period in the discussion portion of the decision; however, the self-insured contends, as mentioned earlier, that the ALJ “appears to have inadvertently copied the dates for two-week time periods but copied the monetary amounts for one week time periods in her [f]indings and [c]onclusions regarding [PIE].”

Finding of Fact No. 16 states, in part, that “[f]or the each of the week of the following periods, the PIE rate is. . .” (emphasis added).

Conclusion of Law No. 6, the decision and order section on the first page and the decision section on the last page state, in part, that “[f]or the each of the two weeks of the following periods, the PIE rate is. . .” (emphasis added).

The self-insured requests that a clerical correction be issued to clarify the ALJ’s determinations regarding the amount of PIE for each week. We agree the ALJ’s language referencing “each of the week of the following periods” and “each of the two weeks of the following periods” is inconsistent as to what the amount of PIE is for each week. However, the ALJ’s discussion explains that she determined the amount of PIE for each week based on the evidence presented at the CCHs. Given the ALJ’s discussion and the evidence presented in support of the ALJ’s PIE determination, we affirm, as reformed, the ALJ’s decision to clarify the amount of PIE for each week by stating:

For each week of the following periods, the PIE amount from the non-claim employer is:

	From January 24, 2017, to August 12, 2017	PIE Amount
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29	01/24/2017 - 01/28/2017 01/29/2017 - 02/04/2017 02/05/2017 - 02/11/2017 02/12/2017 - 02/18/2017 02/19/2017 - 02/25/2017 02/26/2017 - 03/04/2017 03/05/2017 - 03/11/2017 03/12/2017 - 03/18/2017 03/19/2017 - 03/25/2017 03/26/2017 - 04/01/2017 04/02/2017 - 04/08/2017 04/09/2017 - 04/15/2017 04/16/2017 - 04/22/2017 04/23/2017 - 04/29/2017 04/30/2017 - 05/06/2017 05/07/2017 - 05/13/2017 05/14/2017 - 05/20/2017 05/21/2017 - 05/27/2017 05/28/2017 - 06/03/2017 06/04/2017 - 06/10/2017 06/11/2017 - 06/17/2017 06/18/2017 - 06/24/2017 06/25/2017 - 07/01/2017 07/02/2017 - 07/08/2017 07/09/2017 - 07/15/2017 07/16/2017 - 07/22/2017 07/23/2017 - 07/29/2017 07/30/2017 - 08/05/2017 08/06/2017 - 08/12/2017	$417.75 $607.28 $607.28 $641.25 $641.25 $659.07 $659.07 $685.84 $685.84 $741.42 $741.42 $630.42 $630.42 $673.69 $673.69 $669.75 $669.75 $623.44 $623.44 $540.98 $540.98 $497.10 $497.10 $585.75 $585.75 $585.57 $585.57 $531.60 $531.60

PIE from August 13, 2017, to June 13, 2018, date of CCH

The ALJ’s Finding of Fact No. 18 states that “[t]here is no evidence of money earned for 08/13/2017” and Finding of Fact No. 19 states that “[t]here was no evidence of the amount of money [the] [c]laimant earned after August 14, 2017.”

The claimant asserts on appeal that he continued to work for the non-claim employer as an independent contractor. In evidence are copies of pay statements dated after August 14, 2017 from the non-claim employer; an email from the claimant stating that on December 13, 2017, he received a check from the non-claim employer; and an email from the non-claim employer stating that “after the August 14 termination date, he only worked approx. 15 hours a week (at the most) during September, and less than 10 in the first couple of weeks in October.” Given the documentation in evidence, the ALJ’s findings of “no evidence” are material misstatements of fact. Accordingly, we reverse that portion of the ALJ’s determination that for August 13, 2017, the PIE rate is $0 and from August 14, 2017, through the June 13, 2018, date of CCH, the claimant’s weekly PIE rate is $0, and we remand to the ALJ to determine the amount of PIE from August 13, 2017, through the June 13, 2018, date of CCH.

Furthermore, we note that Section 410.203(c) precludes a remand more than once. Given that we are remanding for the ALJ to determine the amount of PIE from August 13, 2017, through the June 13, 2018, date of CCH, we note that the self-insured specifically requests a clerical correction to the ALJ’s findings and conclusions to change the amount of PIE, after August 14, 2017, from $0 to $619.51. The self-insured states that the claimant’s PIE “from January 24, 2017, through August 12, 2017, was $17,346.26 for 28 weeks, or an average of $619.51 per week.” However, Rule 129.2(c) provides what PIE shall include. Although Rule 129.2(c) does not provide an exhaustive list of what PIE shall include, it does provide that PIE is a documented weekly amount. Furthermore, Rule 129.2 does not provide that PIE must be calculated as an average by dividing the amount of earnings from the non-claim employer by the weeks worked by the injured employee.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a lumbar disc herniation at L5-S1.

We affirm the ALJ’s determination that the claimant had no disability resulting from the compensable injury, from June 4, 2017, through the June 13, 2018, date of CCH.

We affirm, as reformed, that portion of the ALJ’s determination for each week of the following period, from January 24, 2017, to August 12, 2017, the PIE amount as stated in the table above.

We reverse that portion of the ALJ’s determination that for August 13, 2017, the PIE rate is $0 and we reverse that portion of the ALJ’s determination that from August 14, 2017, through the June 13, 2018, date of CCH, the claimant’s weekly PIE rate is $0, and we remand to the ALJ to make a determination on the issue of the amount of PIE from August 13, 2017, through the June 13, 2018, date of CCH, consistent with this decision.

REMAND INSTRUCTIONS  

On remand the ALJ is to correct her misstatement of the evidence regarding the documentation in evidence.  The ALJ shall consider all of the evidence and make a determination as to the amount of PIE for each week for the period from August 13, 2017, through the June 13, 2018, date of 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 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 STARBUCKS CORPORATION (a certified self-insured) 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.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that the parties actually litigated the PIE issue from January 24, 2017, rather than after January 24, 2017.

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2. Section 408.042(e) provides that for an employee with multiple employment, only the employee’s wages that are reportable for federal income tax purposes may be considered.  Section 408.042(e) further provides that the employee shall document and verify wage payments subject to this section.

   ↑

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 19, 2017, and September 19, 2017, 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 (date of injury), compensable injury extends to reactive airway disease; (2) the respondent (claimant) reached maximum medical improvement (MMI) on May 13, 2016; (3) the claimant’s impairment rating (IR) is 67%; and (4) the claimant’s average weekly wage (AWW) is $775.90.

The appellant (carrier) appealed the ALJ’s determinations. The carrier contends that the evidence does not support the ALJ’s determinations. The claimant responded, urging affirmance of the ALJ’s determinations.

DECISION

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

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and that the carrier has accepted an (date of injury), compensable injury in the form of upper airways irritation. The evidence established that the claimant worked as a truck driver and was injured when he was exposed to smoke and chemicals while attempting to extinguish a fire in his truck.

AWW

The ALJ’s determination that the claimant’s AWW is $775.90 is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

Exposure to toxic chemicals through inhalation, and the resultant effect on the body, are matters beyond common experience, and medical evidence should be submitted which establishes the connection as a matter of reasonable medical probability as opposed to a possibility, speculation, or guess.  See Appeals Panel Decision (APD) 170329, decided April 19, 2017; APD 110404, decided May 31, 2011; and APD 080787, decided August 12, 2008. The fact that the proof of causation may be difficult does not relieve the claimant of the burden of proof.  APD 93665, decided September 15, 1993, citing Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199, 205 (Tex. 1980), and Parker v. Mutual Liability Insurance Company, 440 S.W.2d 43, 46 (Tex. 1969).  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 ALJ found the claimant’s evidence persuasive to establish that the compensable injury extends to reactive airway disease. In evidence are records showing that the claimant sought treatment with Care Now on October 29, 2015, for complaints of shortness of breath and dizziness. The claimant returned to Care Now in November 2015, and December 2015, with increased complaints. The claimant was referred to (Dr. B), who examined the claimant on January 21, 2016. Dr. B diagnosed the claimant with reactive airway disease post exposure to smoke and chemicals when his truck caught on fire on (date of injury). Also in evidence is a medical report from (Dr. D), dated December 20, 2016, in which Dr. D noted that the claimant had inhaled smoke while extinguishing the fire on (date of injury).

Although the medical records in evidence contain a diagnosis of reactive airway disease and show the claimant inhaled smoke and chemicals, there was no evidence establishing the chemicals to which the claimant inhaled, nor was there an explanation as to how the inhalation of the chemicals and smoke from the truck fire caused reactive airway disease. Without an explanation of causation these records are merely conclusory in nature and insufficient to establish that reactive airway disease was caused by the (date of injury), compensable injury. The ALJ’s determination that the (date of injury), compensable injury extends to reactive airway disease is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, we reverse the ALJ’s determination that the (date of injury), compensable injury extends to reactive airway disease and we render a new decision that the (date of injury), compensable injury does not extend to reactive airway disease.

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 Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.  Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 28 TEX. ADMIN. CODE § 130.1(c)(3) (Rule 130.1(c)(3)) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

The ALJ determined that the claimant reached MMI on May 13, 2016, with a 67% IR as certified by (Dr. K), the designated doctor. Dr. K examined the claimant on November 11, 2016, and on January 9, 2017, certified that the claimant reached MMI on May 13, 2016, with a 67% IR. Dr. K noted in his attached narrative report that based on a pulmonary function test dated May 13, 2016, the claimant qualifies for a Class 4 Respiratory Impairment based on the criteria in Table 8 on page 5/162 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). Dr. K stated that the claimant had previously been assigned a 67% IR and saw no reason to alter that IR based on the results of the pulmonary function test. We note that in a medical record dated May 13, 2016, the same date as the pulmonary function test referenced and relied upon by Dr. K, Dr. B stated the claimant had an oxygen level of 98% during his examination on that date.

The carrier argued Dr. K did not comply with the AMA Guides in assessing the claimant’s IR and presented evidence that the claimant’s pulmonary function test was inaccurate, there were not three consecutive measurements as defined in the AMA Guides, and the results of the two best forced vital capacity (FVC) efforts were not within 5% of each other as required. We note that the test itself shows that further examinations of the claimant were recommended and that the maneuvers were not reproducible and should be interpreted with care.

It is clear from Dr. K’s report that he considered and rated reactive airway disease. Given that we have reversed the ALJ’s determination that the (date of injury), compensable injury extends to reactive airway disease and have rendered a new determination that the (date of injury), compensable injury does not extend to reactive airway disease, Dr. K’s MMI/IR certification cannot be adopted. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on May 13, 2016, with a 67% IR.

There are two other MMI/IR certifications in evidence. The first is from (Dr. Z), the previously-appointed designated doctor. Dr. Z examined the claimant on April 19, 2016, and certified that the claimant reached MMI on February 20, 2016, with a 67% IR. However, Dr. Z also considered and rated reactive airway disease, and therefore his MMI/IR certification cannot be adopted.

The other MMI/IR certification in evidence is from (Dr. E), the post-designated doctor required medical examination doctor. Dr. E examined the claimant on March 31, 2017, and certified on May 16, 2017, that the claimant reached MMI on October 29, 2015, with a 0% IR. However, Dr. E also considered and rated reactive airway disease, and therefore his MMI/IR certification cannot be adopted.

There is no MMI/IR certification in evidence that can be adopted. Accordingly, we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the claimant’s AWW is $775.90.

We reverse the ALJ’s determination that the (date of injury), compensable injury extends to reactive airway disease and we render a new decision that the (date of injury), compensable injury does not extend to reactive airway disease.

We reverse the ALJ’s determination that the claimant reached MMI on May 13, 2016, and we remand the issue of the claimant’s date of MMI to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant’s IR is 67% and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to request the parties to stipulate to the date of statutory MMI.  If the parties are unable to stipulate, the ALJ is to make a finding of fact of that date.

Dr. K is the most recent designated doctor in this case. On remand the ALJ is to determine whether Dr. K is still qualified and available to be the designated doctor.

If Dr. K is still qualified and available to be the designated doctor the ALJ is to request Dr. K to determine the claimant’s date of MMI for the (date of injury), compensable injury, which cannot be after the statutory date of MMI, and to rate the claimant’s IR in accordance with the AMA Guides. The required methodology for rating pulmonary function as stated on pages 5/159-163 of the AMA Guides includes, in part, measurements made from at least three acceptable spirometric tracings of forced expiration:  FVC, forced expiratory volume in the first second (FEV1), and the ratio of these measurements (FEV1/FVC), a predicted normal single-breath Dco Value for a man according to age, and utilization of Table 8 (page 5/162) for estimating the extent of permanent impairment. The AMA Guides also provide on page 5/159 that “a forced expiratory maneuver must be performed during the examination and evaluation of each patient for permanent pulmonary impairment.”

The ALJ is to notify Dr. K that the compensable injury is an upper airways irritation, and that the compensable injury does not extend to reactive airway disease. The ALJ is to request Dr. K explain his assessment of the claimant’s IR and how it complies with the AMA Guides. As previously noted, in a medical record dated May 13, 2016, the same date as the pulmonary function test referenced and relied upon by Dr. K in his IR assessment, Dr. B stated that the claimant had an oxygen level of 98% during his examination on that date. The ALJ is to request Dr. K to explain the basis for pulmonary function impairment given the claimant’s 98% oxygen level on the date of the pulmonary test.

If Dr. K 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 date of MMI, which cannot be after the statutory date of MMI, and the claimant’s IR for the (date of injury), compensable injury. The ALJ is to notify the designated doctor that the (date of injury), compensable injury is an upper airways irritation, but does not extend to reactive airway disease.

The parties are to be provided with the designated doctor’s new MMI/IR certification and are to be allowed an opportunity to respond.  The ALJ is then to make a determination on MMI and IR consistent with this decision.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is 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:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge