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 15, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the (date of injury), compensable injury extends to L4-5 disc degeneration and L5-S1 disc degeneration; (2) the respondent (claimant) has not reached maximum medical improvement (MMI) and therefore, no impairment rating (IR) is assigned; (3) the claimant is not entitled to change treating doctors to ^[1] (Dr. R) pursuant to Section 408.022; and (4) the claimant had disability beginning on November 23, 2016, and continuing through the date of the hearing.

The appellant (self-insured) appeals the hearing officer’s determinations regarding the issues of extent of injury, MMI, IR and disability as being contrary to the evidence and further complains that the hearing officer made findings on the wrong issue and conditions. The appeal file does not contain a response from the claimant.

The hearing officer’s determination that the claimant is not entitled to change treating doctors to Dr. R pursuant to Section 408.022 was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), at least in the form of a contusion to the buttocks.

The claimant testified that she was injured when she turned quickly and fell backward landing on a cement floor.

EXTENT OF INJURY

The record reveals that the extent-of-injury issue certified for resolution at the CCH was as follows:

1. 1.Does the compensable injury of (date of injury), extend to and include L4-5 spondylosis, L5-S1 spondylosis, L5-S1 disc degeneration, L4-5 disc degeneration, L4-5 disc protrusion, and bilateral ovarian cysts?

After going on the record at the CCH, the parties agreed to revise the extent-of-injury issue as follows:

1. 1.Does the compensable injury of (date of injury), extend to and include L4-5 disc degeneration and L4-5 disc protrusion?

That portion of the hearing officer’s determination that the compensable injury of (date of injury), extends to L4-5 disc degeneration is supported by sufficient evidence and is affirmed.

The hearing officer’s decision correctly states the issue as revised by agreement of the parties; however, her Finding of Fact Nos. 3 and 4, her Conclusion of Law No. 3 and the Decision and first paragraph of her Decision and Order address L5-S1 disc degeneration, a condition that had been resolved by a Benefit Dispute Agreement (DWC-24) in evidence signed by the parties on January 25, 2017, and which condition was not part of the dispute before her. We note further that the hearing officer’s decision fails to determine whether the compensable injury extends to a disc protrusion at L4-5, a disputed condition that was made a part of the extent-of-injury issue by agreement of the parties.

Because the hearing officer failed to make a determination on each of the conditions made a part of the extent-of-injury issue before her, and because she exceeded the scope of her authority by making a determination on a condition that was not before her, we reverse that portion of the hearing officer’s determination that the (date of injury), compensable injury extends to L5-S1 disc degeneration and we remand the extent-of-injury issue to the hearing officer to make a determination consistent with this decision.

MMI/IR  

Given that we have reversed a portion of the hearing officer’s extent-of-injury determination and remanded that issue to the hearing officer to make a determination consistent with this decision, we reverse the hearing officer’s determination that the claimant has not reached MMI and therefore, no IR is assigned, and we remand the issues of MMI and IR to the hearing officer to make a determination consistent with this decision.

DISABILITY

Given that we have reversed a portion of the hearing officer’s extent-of-injury determination and remanded that issue to the hearing officer to make a determination consistent with this decision, we reverse the hearing officer’s determination that the claimant had disability beginning on November 23, 2016, and continuing through the date of the hearing, and we remand the issue of disability to the hearing officer to make a determination consistent with this decision.

SUMMARY

We affirm that portion of the hearing officer’s determination that the compensable injury of (date of injury), extends to L4-5 disc degeneration.

We reverse that portion of the hearing officer’s determination that the (date of injury), compensable injury extends to L5-S1 disc degeneration and we remand the extent-of-injury issue to the hearing officer to make a determination consistent with this decision.

We reverse the hearing officer’s determinations that the claimant has not reached MMI and therefore, no IR is assigned, and we remand the issues of MMI/IR to the hearing officer to make a determination consistent with this decision.

We reverse the hearing officer’s determination that the claimant had disability beginning on November 23, 2016, and continuing through the date of the hearing, and we remand the issue of disability to the hearing officer to make a determination consistent with this decision.

REMAND INSTRUCTIONS  

On remand the hearing officer is to consider all of the evidence, make findings of fact, and render conclusions of law regarding the issues of whether the compensable injury of (date of injury), extends to L4-5 disc protrusion; whether the claimant has attained MMI, and if so the IR; and whether the claimant had disability from November 23, 2016, to the date of the CCH resulting from an injury sustained on (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 hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is FEDEX GROUND PACKAGE SYSTEM, INC. (a certified self-insured) 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.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that both the hearing officer in her Decision and Order and the Benefit Review Conference Report mistakenly refer to Dr. R as Dr. R.

   ↑

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 24, 2014, in Fort Worth, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [Date of Injury], does not extend to lumbar disc herniations, lumbar radiculitis, lumbar chronic pain syndrome, lumbar facet syndrome, and lumbar facet arthropathy; (2) the appellant/cross-respondent (claimant) did not have disability resulting from the [Date of Injury], compensable injury beginning on October 12, 2013, and continuing through March 12, 2014, and from May 2, 2014, and continuing through the date of the September 24, 2014, CCH; (3) the claimant reached maximum medical improvement (MMI) on February 15, 2014; (4) the claimant’s impairment rating (IR) is zero percent; and (5) the claimant is entitled to change treating doctors to (Dr. W) pursuant to Section 408.022.

The claimant appealed the hearing officer’s determinations that the compensable injury does not extend to lumbar disc herniations, lumbar radiculitis, lumbar chronic pain syndrome, lumbar facet syndrome, and lumbar facet arthropathy alleging that Dr. W provided sufficient causation to establish that the compensable injury extended to the disputed conditions at issue. The claimant additionally disputes the hearing officer’s determinations of MMI, IR, and disability. The respondent/cross-appellant (carrier) responded, urging affirmance of the hearing officer’s determinations of the extent of the compensable injury, disability, and IR. The carrier also filed a cross-appeal, arguing that the hearing officer’s determination that the claimant reached MMI on February 15, 2014, is incorrect. The carrier contends that the only certification in evidence that rates the conditions accepted by the carrier certified the claimant reached MMI on December 14, 2013. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.

The hearing officer’s determination that the claimant is entitled to change treating doctors to Dr. W pursuant to Section 408.022 was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the claimant sustained a compensable injury on [Date of Injury], that includes at least a lumbar sprain/strain, a thoracic sprain/strain, and a right shoulder sprain/strain. Additionally, we note that the hearing officer incorrectly recited stipulation 1.E. in his decision and order. The decision notes in stipulation 1.E. that on February 15, 2014, the Texas Department of Insurance, Division of Workers’ Compensation (Division)-appointed designated doctor, (Dr. K) certified that the claimant reached MMI on February 15, 2013, with an IR of zero percent. However, a review of the record reflects that the parties actually stipulated that on February 15, 2014, Dr. K certified that the claimant reached clinical MMI on December 14, 2013, with an IR of zero percent for the accepted conditions of lumbar sprain/strain, thoracic sprain/strain, and a right shoulder sprain/strain. We reform the hearing officer’s decision to correct stipulation 1.E. to the parties’ actual stipulation at the CCH. The claimant testified that he was injured when he fell off a loading dock when a truck unexpectedly drove off. The claimant testified that he landed on his back and that his supervisor fell on top of him. A DVD of the claimant’s fall was admitted into evidence.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury of [Date of Injury], does not extend to lumbar disc herniations, lumbar radiculitis, lumbar chronic pain syndrome, lumbar facet syndrome, and lumbar facet arthropathy is supported by sufficient evidence and is affirmed.

DISABILITY

The hearing officer’s determination that the claimant did not have disability resulting from the [Date of Injury], compensable injury beginning on October 12, 2013, and continuing through March 12, 2014, and from May 2, 2014, and continuing through the date of the September 24, 2014, CCH is supported by sufficient evidence and is affirmed.

IR

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

MMI

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.”  Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Division shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.

Dr. K, the designated doctor, examined the claimant on February 15, 2014, for the purpose of certifying MMI/IR. Dr. K provided four certifications of MMI/IR considering different conditions. The certifications from Dr. K were the only certifications of MMI/IR in evidence. The certifications from Dr. K were the only certifications of MMI/IR in evidence. We note that all four of Dr. K’s certifications assigned a zero percent IR.

The first certification considered only a thoracic sprain/strain and certified that the claimant reached MMI on August 2, 2013. The second certification considered both a thoracic sprain/strain and a lumbar sprain/strain and certified that the claimant reached MMI on December 14, 2013. The third certification considered a thoracic sprain/strain, a lumbar sprain/strain, and a right shoulder sprain/strain, the specific conditions the parties stipulated that are included in the compensable injury. The third certification certified that the claimant reached MMI on December 14, 2013.

A fourth certification considered a thoracic sprain/strain, a lumbar sprain/strain, a right shoulder sprain/strain, and lumbar facet syndrome and certified that the claimant reached MMI on February 15, 2014. The hearing officer’s determination that the compensable injury does not extend to lumbar facet syndrome has been affirmed. Therefore, Dr. K’s fourth certification considers and rates a condition that has been determined not to be part of the compensable injury.

The hearing officer mistakenly determined that the claimant reached MMI on February 15, 2014, the date of the examination for the conditions determined to be compensable rather than the date Dr. K actually certified that the claimant reached MMI (December 14, 2013) when considering the conditions included in the compensable injury by stipulation of the parties. Consequently, we reverse the hearing officer’s determination that the claimant reached MMI on February 15, 2014, and render a new decision that the claimant reached MMI on December 14, 2013, to conform to the evidence.

SUMMARY

We reform stipulation 1.E. to read as follows: On February 15, 2014, Dr. K certified that the claimant reached clinical MMI on December 14, 2013, with an IR of zero percent for the accepted conditions of lumbar sprain/strain, thoracic sprain/strain, and a right shoulder sprain/strain.

We affirm the hearing officer’s determination that the compensable injury of [Date of Injury], does not extend to lumbar disc herniations, lumbar radiculitis, lumbar chronic pain syndrome, lumbar facet syndrome, and lumbar facet arthropathy.

We affirm the hearing officer’s determination that the claimant did not have disability resulting from the [Date of Injury], compensable injury beginning on October 12, 2013, and continuing through March 12, 2014, and from May 2, 2014, and continuing through the date of the September 24, 2014.

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

We reverse the hearing officer’s determination that the claimant reached MMI on February 15, 2014, and render a new decision that the claimant reached MMI on December 14, 2013, to conform to the evidence.

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

DAVID SARGENT

901 MAIN STREET, SUITE 5200

DALLAS, TEXAS 75202-3705.

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 was held on October 23, 2013, and January 14, 2014, in [City], Texas, with [hearing officer] presiding as the hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) had disability, resulting from an injury sustained on [date of injury], from October 25, 2012, through March 20, 2013, but not otherwise after April 16, 2012; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from [Dr. O] on September 20, 2012, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (3) Dr. O is the claimant’s initial choice of treating doctor. The appellant (carrier) appeals the hearing officer’s determinations regarding disability and finality of the first certification from Dr. O, contending that the evidence did not show that any exception to finality had been met and that the claimant did not provide sufficient medical documentation to support a finding of disability during the period at issue. The claimant responded, urging affirmance of the hearing officer’s determinations. The claimant argued that Dr. O’s narrative report is fundamentally flawed and that there is sufficient evidence to support the hearing officer’s disability determination.

The hearing officer’s determination that Dr. O is the claimant’s initial choice of treating doctor was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that: (1) on [date of injury], the claimant sustained a compensable injury; (2) in a report dated September 20, 2012, Dr. O certified that the claimant reached MMI on September 20, 2012, with a three percent IR; (3) Dr. O’s certification is the first certification of MMI and assigned IR in this claim; and (4) Dr. O’s certification was not disputed within 90 days after the claimant received it. In Finding of Fact No. 4, which was not appealed by the parties, the hearing officer found that Dr. O’s certification is valid for the purposes of Rule 130.12(c). The claimant testified that on the date of injury he was playing hockey, the weight was on his right knee, the right knee went over and twisted at the same time, and he instantly felt a pop.

DISABILITY

The hearing officer’s determination that the claimant had disability, resulting from an injury sustained on [date of injury], from October 25, 2012, through March 20, 2013, but not otherwise after April 16, 2012, is supported by sufficient evidence and is affirmed.

SECTION 408.123 AND RULE 130.12 FINALITY

The hearing officer also determined that the first certification of MMI and assigned IR from Dr. O on September 20, 2012, did not become final under Section 408.123 and Rule 130.12.  The hearing officer cited to Appeals Panel Decision (APD) 132117, decided November 4, 2013, and stated in Finding of Fact No. 6 and similarly in the Discussion portion of his decision, that there is compelling medical evidence of a significant error in Dr. O’s certification pursuant to Section 408.123(f)(1)(A) because:

[Dr. O] did not explain in the narrative report how she derived the assigned [IR] from Table 64 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)] and did not include examination findings to support the [IR].

However, the evidence reflects that Dr. O included examination findings in her reports that are dated September 20, 2012, the date of the certifying examination. Dr. O described an examination of the right knee, and the examination findings included a notation that the claimant had full active and passive flexion and extension. Dr. O also identified the specific Table in the AMA Guides that she used to assign the claimant a seven percent lower extremity IR, which converts to the three percent whole person IR that is also reflected on the Report of Medical Evaluation (DWC-69).

Section 408.123(e) provides that “[e]xcept as otherwise provided by this section, an employee’s first valid certification of [MMI] and first valid assignment of an [IR] is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means.” Section 408.123(f) provides in pertinent part that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described by Subsection (e) if compelling medical evidence exists of a significant error by the certifying doctor in applying the AMA Guides or in calculating the IR.

As mentioned earlier, the hearing officer cited to APD 132117, supra. The parties argued over the meaning of two sentences in APD 132117:

To determine whether or not a certifying doctor has made a significant error in applying the AMA Guides an examination must be made of the certifying doctor’s DWC-69, narrative report, and the AMA Guides. To properly assess an IR the certifying doctor must explain in the narrative report how he or she derived the assigned IR, including any range of motion measurements or other values required by the AMA Guides.

APD 132117 was not outlining a set of criteria to determine when a certification falls under the exception provided in Section 408.123(f)(1)(A). It was illustrating that a case-by-case analysis is required when determining whether Section 408.123(f)(1)(A) applies. The holding of the case was that the mere inclusion of a condition in an assignment of IR, by itself, is not an exception to finality under Section 408.123 or Rule 130.12.

In the current case, the hearing officer based his determination merely on what he found to be absent from the narrative report. The specific exception found by the hearing officer requires compelling medical evidence of a significant error by the certifying doctor in applying the AMA Guides or in calculating the IR. The hearing officer does not identify how the AMA Guides have been misapplied, nor does he identify a miscalculation of the IR. A determination of whether compelling medical evidence exists of a significant error by the certifying doctor in applying the AMA Guides or in calculating the IR must be based on a totality of the evidence.

In this case, there is no compelling medical evidence of a significant error by the certifying doctor in applying the AMA Guides or in calculating the IR. Accordingly, we reverse the hearing officer’s determination that the first certification of MMI and assigned IR from Dr. O on September 20, 2012, did not become final under Section 408.123 and Rule 130.12, and render a new determination that the first certification of MMI and assigned IR from Dr. O on September 20, 2012, did become final under Section 408.123 and Rule 130.12.

SUMMARY

We affirm the hearing officer’s determination that the claimant had disability, resulting from an injury sustained on [date of injury], from October 25, 2012, through March 20, 2013, but not otherwise after April 16, 2012.

We reverse the hearing officer’s determination that the first certification of MMI and assigned IR from Dr. O on September 20, 2012, did not become final under Section 408.123 and Rule 130.12, and render a new decision that the first certification of MMI and assigned IR from Dr. O on September 20, 2012, did become final under Section 408.123 and Rule 130.12.

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Tracey T. Guerra
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 January 29, 2014, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from [Dr. D] on April 1, 2010, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (2) Dr. D was not the respondent’s (claimant) initial choice of treating doctor.

The appellant (carrier) appealed the hearing officer’s determinations. The carrier contends that the hearing officer’s decision is wrong as a matter of law as the evidence is legally insufficient to support the decision. The carrier argues that Dr. D’s MMI/IR certification became final because, although the claimant submitted a Request for Designated Doctor Examination (DWC-32) within the 90-day period after receiving Dr. D’s MMI/IR certification by verifiable means, the claimant’s timely DWC-32 was denied by the Texas Department of Insurance, Division of Workers’ Compensation and therefore does not constitute a valid dispute of Dr. D’s MMI/IR certification. The carrier also argues that Dr. D is the claimant’s treating doctor because this is a network claim and Dr. D is a network doctor. The carrier alleges that [Dr. B], the doctor with whom the claimant first treated, is not in the carrier’s network, and as such he cannot be the claimant’s treating doctor. The claimant responded, urging affirmance of the hearing officer’s determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified that she injured her lower back while emptying water from a bucket. It was undisputed that the employer had contracted with the carrier for the provision of health care services through a network as of the date of injury in this case. It was also undisputed that the claimant initially saw Dr. B on the day after the injury, and that the employer told the claimant approximately two days later that she had to see another doctor because Dr. B was not on the list of network treating doctors. It was undisputed that the claimant then started treating with Dr. D, who was a treating doctor on the network list, and that the claimant did not return to Dr. B for treatment.

CHOICE OF TREATING DOCTOR

Insurance Code Section 1305.005(b) provides that if an employer elects to contract with an insurance company for the provision of health care services through a network, the employer’s employees who live within the network’s service area are required to obtain medical treatment for a compensable injury within the network, except as provided by Sections 1305.006(1) and (3).

Insurance Code Section 1305.006 provides in part that an insurance carrier that establishes or contracts with a network is liable for the following out-of-network health care that is provided to an injured employee: (1) emergency care; and (3) health care provided by an out-of-network provider pursuant to a referral from the injured employee’s treating doctor that has been approved by the network pursuant to Section 1305.103.

Insurance Code Section 1305.103 provides in part that for each injury, an injured employee shall select a treating doctor from the list of all treating doctors under contract with the network in that service area. Insurance Code Section 1305.104 provides in part that an injured employee is entitled to the employee’s initial choice of a treating doctor from the list provided by the network of all treating doctors under contract with the network who provide services within the service area in which the injured employee lives.

As mentioned above, it was undisputed that: (1) the employer had contracted with the carrier for the provision of health care services through a network as of the date of injury in this case; (2) Dr. B was not on the network treating doctor list; and (3) Dr. D was on the network treating doctor list. Insurance Code Section 1305.005 provides that an injured employee living within the network’s service area is required to obtain medical treatment for a compensable injury within the network, and Insurance Code Section 1305.103 provides that an injured employee shall select a treating doctor from the list of all treating doctors under contract with the network in that service area. The parties did not specifically litigate whether the initial treatment with Dr. B was for emergency care. As previously mentioned, the claimant started treating with Dr. D, who was a treating doctor on the network list, after the employer told her that she had to see another doctor because Dr. B was not on the list of network treating doctors, and that the claimant did not subsequently return to Dr. B for treatment. Under the facts of this case and pursuant to Insurance Code Sections 1305.005, 1305.103, and for purposes of the 1989 Act, Dr. D was the claimant’s initial treating doctor. Accordingly, we reverse the hearing officer’s determination that Dr. D was not the claimant’s initial choice of treating doctor, and we render a new decision that Dr. D is the claimant’s initial treating doctor for purposes of the 1989 Act.

FINALITY

The hearing officer’s determination that the first MMI/IR certification from Dr. D on April 1, 2010, did not become final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the hearing officer’s determination that the first MMI/IR certification from Dr. D on April 1, 2010, did not become final under Section 408.123 and Rule 130.12.

We reverse the hearing officer’s determination that Dr. D was not the claimant’s initial choice of treating doctor, and we render a new decision that Dr. D is the claimant’s initial treating doctor for purposes of the 1989 Act.

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

RICHARD GERGASKO, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Tracey T. Guerra
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 November 2, 2012, and continued on December 7, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant/cross-respondent (claimant) should be allowed to change treating doctors from [Dr. D] to [Dr. P]; (2) the claimant did sustain disability from the injury sustained on [date of injury], from August 24 through December 14, 2010, but not from December 15, 2010, through June 29, 2011; the claimant did sustain disability from June 30, 2011, through the date of the CCH; and (3) the compensable injury extends to the split tear of the peroneus brevis tendon with a peroneal split syndrome.

The claimant appealed a portion of the hearing officer’s disability determination because the parties agreed at the CCH to modify the disability issue so that the only period in dispute was July 19, 2012, through the CCH. The appeal file does not contain a response from the respondent/cross-appellant (carrier) to the claimant’s appeal. However, the carrier cross-appealed, disputing the hearing officer’s determinations regarding the extent of the compensable injury, disability, and change of treating doctors. The claimant responded, urging affirmance of the hearing officer’s extent of injury and change of treating doctor determinations and reasserting his position regarding the disability issue.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the claimant sustained a compensable injury on [date of injury]. The claimant testified that he fell off of a loading dock, falling approximately 4 to 5 feet.

CHANGE OF TREATING DOCTORS

The hearing officer’s determination that the claimant should be allowed to change treating doctors from Dr. D to Dr. P is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury extends to the split tear of the peroneus brevis tendon with a peroneal split syndrome is supported by sufficient evidence and is affirmed.

DISABILITY

The disability issue initially reported out of the benefit review conference was as follows: Did the claimant have disability resulting from an injury sustained on [date of injury], and if so, for what period? At the CCH, the parties stipulated that the time period of [date of injury], through July 18, 2012, had already been addressed by a prior decision and order or by agreement of the parties and therefore was not in dispute. Given the stipulation of the parties the only time period in dispute was July 19, 2012, through the date of the CCH. Because the hearing officer failed to include this stipulation in his decision and order he mistakenly determined periods of disability that were not at issue before him and exceeded the scope of the disputed disability issue. Accordingly, we reverse the hearing officer’s decision by striking the following: the claimant sustained disability from the injury sustained on [date of injury], from August 24 through December 14, 2010, but not from December 15, 2010, through June 29, 2011. We also reverse the hearing officer’s decision by striking that portion of the hearing officer’s decision that the claimant did sustain disability from June 30, 2011, through July 18, 2012. The hearing officer found that during the period from June 30, 2011, through the date of the CCH, the claimant was unable to obtain and retain employment at wages equivalent to his pre-injury wage as a result of the compensable injury. That period found by the hearing officer (June 30, 2011, through the date of the CCH) includes the entire period of the disability issue before him as modified (July 19, 2012, through the CCH) and is supported by sufficient evidence. Accordingly, we render a new decision that the claimant had disability from July 19, 2012, through the date of the CCH.

SUMMARY

We affirm the hearing officer’s determination that the claimant should be allowed to change treating doctors from Dr. D to Dr. P.

We affirm the hearing officer’s determination that the compensable injury extends to the split tear of the peroneus brevis tendon with a peroneal split syndrome.

We reverse the hearing officer’s determination that the claimant sustained disability from the injury sustained on [date of injury], from August 24 through December 14, 2010, but not from December 15, 2010, through June 29, 2011, and that portion of the hearing officer’s determination that the claimant sustained disability from June 30, 2011, through July 18, 2012, and render a new decision that the claimant had disability from July 19, 2012, through the date of the CCH.

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Thomas A. Knapp
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 was held on January 11, 2007. The hearing officer determined that: 1) the respondent (carrier) did not waive the right to contest compensability of the claimed diagnosis of sciatica by not timely contesting the injury pursuant to Section 409.021; 2) the appellant’s (claimant) injury of ____________, does not extend to and include sciatica, reflex sympathetic dystrophy (RSD) of the left lower extremity and an injury to the lumbar spine; 3) the first certification of maximum medical improvement (MMI) and assigned impairment rating from Dr. S on September 30, 2005, did not become final under Section 408.123; and 4) the claimant is not entitled to change treating doctors (TD) to Dr. B pursuant to Section 408.022.

The claimant appealed the carrier waiver, extent of injury and change of TD issues, principally on a sufficiency of the evidence basis. The carrier responded, generally urging affirmance. There was no appeal of the hearing officer’s decision regarding lack of finality under Section 408.123 and that determination has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified how a steel gate on a track ran over his left foot causing him to fall forward on ____________. The parties stipulated that the claimant sustained a compensable injury to his left ankle in the form of a sprain/strain, torn ligaments of his left ankle, and a contusion to the left lower extremity on ____________. The injury occurred at about 11:30 p.m. and the claimant testified that the employer took him to C Clinic for medical attention the morning of September 20, 2005.

CARRIER WAIVER

The hearing officer, in an unappealed finding, determined that the carrier received written notice of the claimed injury on or about September 20, 2005. A C Clinic note of a visit on September 20, 2005, discusses the claimant’s injury and has a diagnosis of ankle sprain and sciatica. A Work Status Report (DWC-73) dated September 20, 2005, also has a work injury diagnosis of ankle sprain and sciatica and releases the claimant back to work with restrictions. Other DWC-73’s dated September 23, September 30, October 3, and October 15, 2005, from C Clinic all include a work injury diagnosis of sciatica as does an activity status report dated September 30, 2005. The claimant changed treating doctors to Dr. H on October 17, 2005. Dr. H diagnosed and treated a ligamentous tear of the left ankle. The first indication that the carrier was disputing the sciatica was in a Notice of Disputed Issues and Refusal to Pay Benefits (PLN-11) dated September 6, 2006.

Section 409.021(a), effective for a compensable injury that occurred on or after September 1, 2003, provides that no later than the 15th day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall begin the payment of benefits as required or notify the Texas Department of Insurance, Division of Workers’ Compensation and the claimant in writing of its refusal to pay benefits. Section 409.021(a-1) further provides that if an insurance carrier fails to comply with the 15th day requirement, the carrier does not waive its right to contest compensability but rather commits an administrative violation. Section 409.021(c) defines the waiver period. It provides that if an insurance carrier does not contest compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability. It is undisputed that the carrier did not contest compensability of the injury within the 60-day waiver period.

In Appeals Panel Decision 041738-s, decided September 8, 2004, the Appeals Panel established that when a carrier does not timely dispute the compensability of an injury, the compensable injury is defined by the information that could have been reasonably discovered by the carrier’s investigation prior to the expiration of the waiver period. In this case the hearing officer clearly believes that there must be an injury to the lumbar spine for there to be a diagnosis of sciatica. The hearing officer comments in the Background Information:

The evidence was insufficient to put the carrier on notice that the diagnosis of sciatica was part of the compensable injury. There was no way of knowing that ‘sciatica’ was part of the compensable injury given the fact that no injury to the lower back was mentioned, treated, or examined. It should also be noted that the claimant’s incident report, filled out by the claimant, failed to note an injury to the lumbar spine.

The hearing officer, in Finding of Fact No. 5, then found that the evidence was insufficient and failed to establish the carrier could reasonably discover the diagnosis of sciatica was related to the compensable injury when no history of an injury to the lumbar spine was documented and no treatment to the lumbar spine was given to the claimant within 60 days from receiving notice of the claimed injury.

Both parties submitted the following definition of sciatica.

Sciatica: Pain resulting from irritation of the sciatic nerve, typically felt from the low back to behind the thigh and radiating down below the knee. While sciatica can result from a herniated disc directly pressing on the nerve, any cause of irritation or inflammation of this nerve can produce the painful symptoms of sciatica.

As the definition states, sciatica can result from a herniated disc but it can also be the result of any cause of irritation or inflammation of the sciatic nerve. Clearly medical notes and DWC-73’s beginning on September 20, 2005, diagnose sciatica and the carrier could have reasonably discovered that diagnosis prior to the end of the waiver period. The hearing officer’s determination that the carrier has not waived the right to contest compensability of the claimed sciatica is reversed as being against the great weight and preponderance of the evidence. We render a new decision that the carrier has waived the right to contest compensability of the claimed diagnosis of sciatica by not timely contesting the injury in accordance with Section 409.021.

Because we are reversing the hearing officer’s determination that the carrier has not waived the right to contest compensability of the diagnosis of sciatica, the sciatica has become compensable as a matter of law. Therefore we also reverse the hearing officer’s determination that the claimant’s injury of ____________, does not extend to and include sciatica. We render a new decision that the compensable injury does extend to and include sciatica.

EXTENT OF INJURY

The hearing officer also found that the claimant’s injury sustained on ____________, does not extend to and include RSD of the left lower extremity and an injury to the lumbar spine. That determination is supported by the evidence and is affirmed.

CHANGE OF TREATING DOCTOR

The hearing officer, in her Background Information, commented that the evidence established that the claimant’s requested change of treating physicians was in order to secure a new date of MMI and not because of any inappropriate treatment by Dr. H or that the doctor/patient relationship was compromised. The hearing officer’s determination that the claimant is not entitled to change treating doctors to Dr. B pursuant to Section 408.022 is supported by the evidence and is affirmed.

SUMMARY

The hearing officer’s determinations that: 1) the compensable injury does not extend to and include RSD to the left lower extremity and an injury to the lumbar spine; and 2) the claimant is not entitled to change treating doctors to Dr. B are affirmed. The hearing officer’s determination that the carrier has not waived the right to contest compensability of the sciatica is reversed and we render a new decision that the carrier waived the right to contest compensability of the sciatica by not timely contesting the injury in accordance with Section 409.021. Because we have reversed the hearing officer’s determination on the carrier waiver of the diagnosis of sciatica, the sciatica has become compensable as a matter of law. Therefore we also reverse the hearing officer’s decision that the compensable injury of ____________, does not extend to and include sciatica and render a new decision that the compensable injury does extend to and include sciatica.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

701 BRAZOS, SUITE 1050

AUSTIN, TEXAS 78701.

Thomas A. Knapp

CONCUR:

Veronica L. Ruberto
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 October 18, 2006. The hearing officer determined that the compensable injury includes the right carpal tunnel syndrome, right cubital tunnel syndrome, cervical spine and lumbar spine but does not include the left arm and bilateral shoulders; that the appellant (claimant) was entitled to change treating doctors; that the employer did not make a bona fide offer of employment to the claimant and thus the respondent (carrier) was not entitled to adjust the post-injury weekly earnings; and that the claimant “has had disability from March 6, 2006, through July 18, 2006, but not thereafter through the date of this hearing.” The extent-of-injury issues, change of treating doctor issue and bona fide offer of employment issue have not been appealed and have therefore become final. Section 410.169.

The claimant appeals the disability determination as being “outside the scope of the issue by deciding that [the claimant] did not have disability from July 19, 2006, through the date of the CCH.” The carrier responded, asserting that while the carrier “does not waive its right to dispute the period of July 19, 2006, through the date of the [CCH], however, the only period to be addressed was March 6, 2006, through July 18, 2006.”

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that on ______, the claimant sustained a compensable injury. The evidence was that the claimant fell from a scaffold and sustained multiple injuries. The disability issue reported out of the benefit review conference was; “[d]id the Claimant have disability resulting from an injury sustained on ______, and if so, for what period(s)?” At the CCH, at the request of the parties that issue was amended to state; “[d]id the Claimant have disability resulting from an injury sustained on November 21st, 2005 for the period from March 6th, 2006 through July 18th, 2006?” The parties agreed to the amended issue on the record.

Some evidence was presented regarding the claimant’s condition for the period after July 18, 2006, including that the claimant had surgery for the compensable injury on July 19, 2006, and that the carrier had paid temporary income benefits beginning July 19, 2006, due to the claimant’s surgery for the compensable injury. However, no evidence was presented that the claimant did not have disability after July 18, 2006.

We hold that the hearing officer erred by finding that the claimant did not have disability after July 18, 2006, through the date of the CCH as being both outside of the scope of the issue specifically agreed upon by the parties at the CCH and as not being supported by the evidence. We affirm the hearing officer’s determinations that the claimant had disability from March 6, 2006, through July 18, 2006, as being supported by the evidence. We reverse only that portion of Finding of Fact No. 22, Conclusion of Law No. 6, and the Decision portion of the hearing officer’s decision and order that states the claimant did not have disability after July 18, 2006, “through the date of this hearing” by striking the words “but not thereafter, through the date of this hearing” from the cited determinations and render a new decision omitting that phrase from Finding of Fact No. 22, Conclusion of Law No. 6 and the Decision portion of the hearing officer’s decision and order. Accordingly, the new decision is that the claimant has had disability from March 6, 2006, through July 18, 2006.

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

PRENTICE-HALL CORPORATE SYSTEMS, INC.
800 BRAZOS
AUSTIN, TEXAS 78701.

Thomas A. Knapp
Appeals Judge

CONCUR:

Cynthia A. Brown
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). This case is back before us after our remand in Appeals Panel Decision (APD) 050926, decided June 9, 2005. We had remanded that case to reconstruct the record because the record of the original contested case hearing (CCH) was incomplete. A CCH was held on July 12, 2005, to reconstruct the testimony missing from the original CCH record. The hearing officer resolved the disputed issues after the CCH on remand, by deciding that the appellant/cross-respondent (claimant) is not entitled to change treating doctors to (Dr. B) pursuant to Section 408.022 and that the claimant only had disability beginning on May 10 and continuing through November 17, 2004, and at no other times. The claimant appealed, disputing her entitlement to change treating doctors to Dr. B and arguing that disability continued after November 17, 2004. The respondent/cross-appellant (carrier) responded, urging affirmance of the determinations disputed by the claimant. The carrier appealed, arguing that the claimant failed to serve them with a copy of her request for review after the original CCH. The carrier contends that since the claimant failed to follow the service requirements outlined in Section 410.202 and 28 TEX. ADMIN. CODE § 143.3 (Rule 143.3), her appeal should be deemed untimely and the hearing officer’s decision and order dated March 24, 2005, should be the final decision of the Texas Department of Insurance, Division of Workers’ Compensation (Division). The claimant responded, denying failure to serve the carrier with her request, and contends that the failure of service is not jurisdictional.

DECISION

Affirmed in part and reversed and rendered in part.

We first address the carrier’s cross-appeal. The carrier contends that the claimant failed to serve it with her request for review after the CCH held on March 17, 2005, and that therefore the claimant’s appeal was untimely and should not have been considered. The failure of a party to serve an appeal on the other party may have the effect of extending the time that the other party has to file a response, but it does not deprive the Appeals Panel of jurisdiction over the appeal.  APD 041161, decided July 5, 2004.

CHANGE OF TREATING DOCTOR

The claimant contends that the hearing officer applied an incorrect standard of review in determining the change of treating doctor issue. The claimant contends that the hearing officer specifically found that the Division abused its discretion in approving the change of treating doctor request. However, the specific finding was that the claimant changed treating doctors from (Dr. H) to Dr. B in order to secure a new medical report and concluded that the claimant is not entitled to change treating doctors to Dr. B pursuant to Section 408.022. The hearing officer did note in his discussion that the [Division] abused its discretion in approving the second request to change treating doctors. The Appeals Panel addressed the standard to be used in reviewing a change of treating doctor in APD 020022, decided February 14, 2002, and APD 022245, decided October 22, 2002.  In APD 020022, supra, the Appeals Panel stated that while the Division has previously considered changes of treating doctor in language encompassing “abuse of discretion,” Advisory 2001-01, dated January 15, 2001, reflected a concern of the Division that inconsistency was to be avoided in approving such changes and that the issue was “expressly broader than merely an abuse of discretion in approval of the [Texas Workers’ Compensation Commission-53].”  In APD 022245, supra, the issue was framed, as it was in this case, as whether the claimant was “entitled to change treating doctors.”  The Appeals Panel cited APD 020022 and held that the issue is “broader than whether a particular [Division] employee who approved the change abused his or her discretion.”  The hearing officer was to evaluate whether a change should be allowed in accordance with the standards set forth in Section 408.022 and Rule 126.9 and the hearing officer is not limited to considering a change of treating doctor issue only in terms of whether the Division abused its discretion.  APD 020414, decided April 3, 2002.  Our review of the record indicates that, while the hearing officer mentioned abuse of discretion, he properly applied Section 408.022 and Rule 126.9.

DISABILITY

It was undisputed that the claimant sustained a compensable injury to her right knee on _________. The hearing officer found that the claimant had disability beginning on May 10 and continuing through November 17, 2004, and at no other times. The claimant appealed this determination contending that she had disability beyond November 17, 2004. The claimant contends that the hearing officer used the wrong standard to end disability and that his determination that disability ended on November 17, 2004, was against the overwhelming weight of the evidence. Disability is defined in Section 401.011(16) as the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. In a Work Status Report (TWCC-73), Dr. H released the claimant to work with restrictions on November 2, 2004. The restrictions were listed as desk work only, if on Celebrex. It was undisputed that the claimant’s regular duty was as a patrol officer and that no doctor had released the claimant to return to work full duty. There was evidence that the employer had offered a light duty position to the claimant and that on November 17, 2004, the claimant attempted to return to work but stayed only one hour. The claimant testified that she was in too much pain to work at a desk job. The hearing officer noted that light duty work was offered by the employer on November 17, 2004, and that the “claimant failed to take proper advantage of such an opportunity to earn her preinjury wage on her own accord.” We note that whether or not the employer tendered a bona fide offer of employment was not an issue before the hearing officer.

The parties stipulated that the claimant last worked on _________, and was not working through the date of the initial CCH, March 17, 2005. The claimant correctly notes that the Appeals Panel has previously stated that a claimant under a light-duty release does not have an obligation to look for work or show that work was not available within his restrictions. APD 022908, decided January 8, 2003. Further, no evidence was presented regarding the claimant’s preinjury wage or the number of hours the claimant worked prior to her compensable injury. Additionally, no evidence was presented regarding the wages being offered to the claimant for performance of light duty position offered or the specific number of hours the claimant would be expected to work at light duty. Therefore, the hearing officer’s determination that the claimant’s disability ended on November 17, 2004, is against the great weight and preponderance of the evidence and was error. It is impossible to determine from the evidence presented that if the claimant had accepted the light duty offer she would have been able to obtain and retain employment at her preinjury wage.

We affirm the hearing officer’s determination that the claimant is not entitled to change treating doctors to Dr. B pursuant to Section 408.022. We reverse the hearing officer’s finding that the claimant only had disability beginning on May 10 and continuing through November 17, 2004, and at no other times, and render a new determination that the claimant had disability beginning on May 10 and continuing through March 17, 2004, the date of the CCH (before remand).

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

NAME

ADDRESS

CITY, TEXAS ZIP CODE.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
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 March 17, 2005. The hearing officer resolved the two disputed issues by deciding that the appellant (claimant) is not entitled to change treating doctors to (Dr. B) pursuant to Section 408.022, and that the claimant had disability from May 10, 2004, and continuing through November 17, 2004, and at no other times. The claimant appeals the hearing officer’s determinations on both disputed issues. No response was received from the respondent (self-insured).

DECISION

We reverse the hearing officer’s decision and remand for reconstruction of the CCH record.

Section 410.203(a)(1) provides that the Appeals Panel shall consider the record developed at the CCH. The CCH record in this case consists of two compact discs (CD) and exhibits. CD 1 contains much static, but the testimony can be heard with effort. CD 1 contains testimony from the nurse/case manager, the adjustor, and the claimant. The claimant was the third witness. CD 2 contains testimony from (ET). The problem with the record is that just after cross-examination of the claimant began on CD 1, the hearing officer stated that he was going off the record for a second and the recording of the testimony stopped. CD 2 begins at the very end of the direct examination of ET. The CCH record does not contain the full cross-examination of the claimant. If any redirect or recross examination of the claimant was done, that also is not in the CCH record. Most of the direct examination of ET is missing from the CCH record. The hearing officer noted in his decision that (Dr. T) testified telephonically, but his testimony is not recorded on the CD’s. We do not know if any other witness’ testimony is missing between where the claimant’s testimony stops on CD 1 and ET’s testimony begins on CD 2. Consequently, due to the incomplete CCH record, we must remand for reconstruction of the CCH record. In addition, on remand the hearing officer should confirm with the self-insured that its registered agent for service of process is the entity named in Hearing Officer’s Exhibit No. 2 and Finding of Fact No. 2 because it does not look right.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s Division of Hearings, pursuant to Section 410.202, as amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of time in which a request for appeal or a response must be filed.

According to information provided by the self-insured, the true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Robert W. Potts

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 1, 2004. The hearing officer resolved the disputed issues by deciding that the appellant/cross-respondent’s (claimant) compensable injury of ____________, extends to an injury to the cervical spine, which includes, but is not necessarily limited to, an aggravation of the claimant’s preexisting degenerative disc disease at C4-5 and C5-6; that the compensable injury of ____________, does not include a partial thickness tear of the right rotator cuff; and that the claimant is entitled to change treating doctors to (Dr. E) pursuant to Section 408.022. The claimant appeals the hearing officer’s determination that the compensable injury does not include a partial thickness tear of the right rotator cuff. The respondent/cross-appellant (self-insured) appeals the hearing officer’s determination that the compensable injury extends to an aggravation of the claimant’s preexisting degenerative disc disease at C4-5 and C5-6, and also requests correction of a clerical error. Each party filed a response. There is no appeal of the hearing officer’s determination in favor of the claimant on the issue of change of treating doctor, which determination was based on a stipulation of the parties.

DECISION

Affirmed as reformed herein.

EXTENT ISSUES

It is undisputed that the claimant sustained a compensable injury on ____________, when she was knocked over by a dog. The disputed issue from the benefit review conference on the extent of the compensable injury was whether the compensable injury includes the cervical spine and right shoulder. The self-insured said that it accepted a cervical strain/sprain, but was disputing that the compensable injury extends to any alleged disc problems, defects, or anomalies in the cervical spine and any injury to the right shoulder. Diagnostic testing revealed disc protrusions at C4-5 and C5-6 and a partial thickness tear of the rotator cuff of the right shoulder. The hearing officer considered the conflicting evidence and determined that the compensable injury extends to include an aggravation of the claimant’s preexisting degenerative disc disease at C4-5 and C5-6. That determination is supported by the reports of three doctors who have treated or examined the claimant. Several other doctors opined that the cervical injury was limited to a sprain/strain. With regard to the right shoulder, there was evidence that the rotator cuff tear may have been sustained about a month before the compensable injury of ____________, and the hearing officer was not persuaded that the fall the claimant had on ____________, would cause a rotator cuff tear. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. Although there is conflicting evidence in this case, we conclude that the hearing officer’s determinations on the issues regarding the extent of the claimant’s compensable injury are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986). The hearing officer’s determinations on the extent issues are affirmed. We note that the hearing officer did make a finding that the claimant did sustain a bruise on the upper portion of her right arm on ____________, and that finding was not appealed by the self-insured.

REFORM MATTER

Section 410.164(c) provides that at each CCH, as applicable, the insurance carrier shall file with the hearing officer and shall deliver to the claimant a single document stating the true corporate name of the insurance carrier and the name and address of the insurance carrier’s registered agent for service of process. Section 410.204(d) provides that each final decision of the Appeals Panel shall conclude with a separate paragraph stating the true corporate name of the insurance carrier and the name and address of its registered agent for service of process. Section 401.011(27)(D) provides that an insurance carrier includes a governmental entity that self-insures either individually or collectively. Hearing Officer Exhibit No. 2 is the insurance carrier information document and it reflects the information set forth in the concluding paragraph of this decision. The self-insured states in its appeal that the hearing officer made a clerical error in the caption of the case by listing the insurance carrier as TML (Texas Municipal League) Intergovernmental Risk Pool. The self-insured states that it is a self-insured governmental entity, as is reflected in Hearing Officer’s Exhibit No. 2, and that TML Intergovernmental Risk Pool is merely a risk pool through which the self-insured’s workers’ compensation insurance is adjusted and is not the actual entity that provides the insurance coverage for the claimant’s injury. The self-insured requests that we amend the caption of the hearing officer’s decision to correctly identify the self-insured as the self-insured entity that provides workers’ compensation coverage in this matter. In accordance with the self-insured’s request and in light of the information provided in Hearing Officer Exhibit No. 2 we agree with the carrier’s request and hereby reform the hearing officer’s decision to reflect in the caption of the decision that the self-insured is the carrier. We also reform Finding of Fact No. 2 to conform to the information provided in Hearing Officer Exhibit No. 2, and as is listed below.

As reformed herein, we affirm the hearing officer’s decision and order.

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

(NAME)

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Robert W. Potts

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge