Disabilty/Existence-Duration Archives

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 22, 2023, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to right carpal tunnel syndrome (CTS), tenosynovitis of the right hand, or tenosynovitis of the right shoulder; (2) the appellant (claimant) reached maximum medical improvement (MMI) on January 12, 2023; (3) the claimant’s impairment rating (IR) is zero percent; and (4) the claimant had disability from September 14, 2022, through January 11, 2023, and for no other dates through the date of the CCH. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, IR, and that portion of the disability period that was adverse to her. The respondent (carrier) responded, urging affirmance of the disputed determinations. That portion of the ALJ’s determination that the claimant had disability from September 14, 2022, through January 11, 2023, was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to at least a Grade 1 right wrist sprain; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. P) as designated doctor to address MMI, IR, and return to work; and the terms sprain, strain, and sprain/strain are used interchangeably in the claim to assess MMI and IR. The claimant, an inventory control specialist for the employer, testified her right wrist was injured while using an approximately three-pound scan gun to scan cars.

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 right CTS, tenosynovitis of the right hand, or tenosynovitis of the right shoulder is supported by sufficient evidence and is affirmed.

DISABILITY

That portion of the ALJ’s determination that the claimant did not have disability from January 12, 2023, through the date of the CCH is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on January 12, 2023, is supported by sufficient evidence and is affirmed.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, in part, 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 the claimant reached MMI on January 12, 2023, with a zero percent IR as determined by Dr. P, the designated doctor. Dr. P examined the claimant on February 18, 2023, and certified the claimant reached MMI on January 12, 2023, with a zero percent IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. P’s narrative report reflects he considered a right wrist Grade 1 strain. Regarding the claimant’s IR, Dr. P noted in his narrative report that “[t]here were no [range of motion (ROM)] values taken on the date of clinical MMI; therefore, the values to determine the [IR] will be used on the date of this examination.” Dr. P listed the following right wrist ROM measurements and impairments from Figure 26 on page 3/36 and Figure 29 on page 3/38 of the AMA Guides: 55° of flexion for zero percent impairment; 55° of extension for zero percent impairment; 30° of ulnar deviation for zero percent impairment; and 15° of radial deviation for zero percent impairment. However, earlier in his narrative report under the examination portion Dr. P noted different right wrist flexion and extension ROM measurements; specifically, 50° of flexion and 30° of extension. Dr. P’s narrative contains conflicting ROM measurements for right wrist flexion and extension. Figure 26 on page 3/36 of the AMA Guides provides that 50° of flexion results in two percent upper extremity (UE) impairment, and 30° of extension results in five percent UE impairment. Given the discrepancy in the ROM measurements and resulting impairments in Dr. P’s narrative, the zero percent IR assigned cannot be adopted.

There are other certifications in evidence, which are from (Dr. Pr), a doctor acting in place of the treating doctor. Dr. Pr examined the claimant on March 2, 2023, and issued alternate certifications. However, only one certified an MMI date of January 12, 2023, which is the date of MMI in this case, and considered a Grade 1 right wrist strain. We note the parties stipulated the compensable injury extends to at least a Grade 1 right wrist sprain, and that the terms sprain, strain, and sprain/strain are used interchangeably in the claim to assess MMI and IR. Dr. Pr’s narrative report reflects the claimant’s examination resulted in full ROM of the right wrist; therefore, Dr. Pr assigned a zero percent IR. Dr. Pr’s certification considered and rated the compensable injury and was made in accordance with the AMA Guides. Because a zero percent is supported by the evidence based on the report of Dr. Pr rather than the report of Dr. P, the ALJ’s determination that the claimant’s IR is zero percent is affirmed but reformed to reflect that the claimant’s IR is zero percent per the report of Dr. Pr.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to right CTS, tenosynovitis of the right hand, or tenosynovitis of the right shoulder.

We affirm that portion of the ALJ’s determination that the claimant did not have disability from January 12, 2023, through the date of the CCH.

We affirm the ALJ’s determination that the claimant reached MMI on January 12, 2023.

We affirm the ALJ’s determination that the claimant’s IR is zero percent based on the report of Dr. Pr rather than Dr. P.

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
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 was held on July 12, 2023, with the record closing on July 14, 2023, 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 sustained on (date of injury), did not extend to visual disturbance or lumbar spine sprain; (2) the appellant (claimant) reached maximum medical improvement (MMI) on August 4, 2020; (3) the claimant’s impairment rating (IR) is zero percent; and (4) the claimant had disability resulting from an injury sustained on (date of injury), from June 16, 2020, through February 3, 2021, but not from February 4, 2021, through June 20, 2022. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, IR, and disability. The respondent (carrier) responded, urging affirmance. That portion of the ALJ’s disability determination that the claimant had disability resulting from the injury sustained on (date of injury), from June 16, 2020, through February 3, 2021, 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 on (date of injury), the claimant sustained a compensable injury that extends to at least a scalp laceration/contusion, concussion without loss of consciousness, cervical spine sprain/strain, and post-traumatic headaches; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. S) as the initial designated doctor to address the issues of MMI, IR, extent of injury, disability, and return to work; the Division appointed (Dr. B) as the most recent designated doctor to address the issues of MMI, IR, and return to work; the date of statutory MMI is June 20, 2022; and the claimant had disability resulting from the injury sustained on (date of injury), from June 16, 2020, through August 3, 2020. The claimant testified that he was injured on (date of injury), when a co-worker who was working about five feet above him dropped a metal object that hit the claimant on the back of his head.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to visual disturbance or lumbar spine sprain is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability resulting from an injury sustained on (date of injury), from February 4, 2021, through June 20, 2022, is supported by sufficient evidence and is affirmed.

MMI/IR

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

28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, in part, that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination. Rule 130.1(d)(1) states, in part, that a certification of MMI and assignment of an IR for the compensable injury “requires completion, signing, and submission of the Report of Medical Evaluation [DWC-69] and a narrative report.”

Dr. B examined the claimant on April 7, 2023, and certified that the claimant reached MMI on October 7, 2021, with a two percent IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). In his discussion of the MMI date, Dr. B noted the average recovery time for post-concussion syndrome, a condition that has not yet been determined to be part of the compensable injury. The ALJ found that the preponderance of the evidence was contrary to the certification from Dr. B. That finding is supported by sufficient evidence.

(Dr. Br), a carrier-selected required medical examination doctor, examined the claimant on June 30, 2022, and provided three alternate certifications. The ALJ found that the preponderance of the evidence supports the certification from Dr. Br that considered and rated the compensable injury and certified the claimant reached MMI on August 4, 2020, and assigned a zero percent IR. However, Dr. Br did not sign the DWC-69. As noted above, Rule 130.1(d)(1) provides that a certification of MMI and assignment of an IR for the compensable injury requires the “completion, signing, and submission of the [DWC-69] and a narrative report.” See Appeals Panel Decision (APD) 100510, decided June 24, 2010; APD 101734, decided January 27, 2011; and APD 230349, decided April 14, 2023. Because the DWC-69 was not signed by Dr. Br, it was error for the ALJ to adopt his certification. Consequently, we reverse the ALJ’s determinations that the claimant’s MMI date is August 4, 2020, and that the claimant’s IR is zero percent.

Dr. Br provided two other alternate certifications. We note that neither of the other certifications were signed and cannot be adopted. Additionally, the certification from Dr. Br identified as scenario 1 did not rate a cervical sprain or post-traumatic headaches which are conditions that are part of the compensable injury. The certification from Dr. Br identified as scenario 2 considered and rated a visual disturbance and lumbar sprain which have been determined not to be part of the compensable injury. See APD 140505, decided May 19, 2014.

Dr. S, the initial designated doctor, examined the claimant on October 15, 2020, and in three alternate scenarios certified that the claimant had not yet reached MMI. As noted above, the parties stipulated that the date of statutory MMI is June 20, 2022. The Appeals Panel has previously held that it is legal error to determine a claimant has not reached MMI in a Decision and Order dated after the date of statutory MMI. See APD 131554, decided September 3, 2013; and APD 172017, decided October 3, 2017; see also APD 200978, decided August 25, 2020.

As there is no MMI/IR certification in evidence that can be adopted, 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 compensable injury of (date of injury), does not extend to visual disturbance or lumbar spine sprain.

We affirm the ALJ’s determination that the claimant did not have disability resulting from an injury sustained on (date of injury), from February 4, 2021, through June 20, 2022.

We reverse the ALJ’s determinations that the claimant’s MMI date is August 4, 2020, and that the claimant’s IR is zero percent, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. B is the designated doctor in this case. The ALJ is to determine whether Dr. B is still qualified and available to be the designated doctor. If Dr. B is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s MMI and IR.

The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a scalp laceration/contusion, concussion without loss of consciousness, cervical spine sprain/strain, and post-traumatic headaches but does not extend to visual disturbance or lumbar spine sprain. The ALJ is to request the designated doctor to give an opinion on the claimant’s MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination. The ALJ should inform the designated doctor that the date of MMI cannot be later than the statutory date of June 20, 2022.

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 AMERISURE MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

ROBIN MILLER
5221 NORTH O’CONNOR BOULEVARD, SUITE 400
IRVING, TEXAS 75039-3711.

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 June 1, 2023, with the record closing on July 25, 2023, 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 post-concussion headaches, post-concussion vertigo, cervical sprain, thoracic sprain, or lumbar sprain; (2) the respondent (claimant) reached maximum medical improvement (MMI) on February 27, 2022; (3) the claimant’s impairment rating (IR) is 13%; and (4) the claimant had disability from June 14, 2020, through January 11, 2022, resulting from the compensable injury of (date of injury). The appellant (carrier) appeals the ALJ’s determination of disability, MMI, and IR. The appeal file does not contain a response from the claimant.

The ALJ’s determination that the compensable injury does not extend to post-concussion headaches, post-concussion vertigo, cervical sprain, thoracic sprain, or lumbar sprain was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The carrier confirmed at the CCH that it accepted a right middle finger fracture, distal interphalangeal (DIP) dislocations of the right third and fourth digits, left wrist fracture, right wrist fracture, sprain of the right shoulder, lower lip laceration, and chipping of tooth number 8 as the compensable injury and that the date of statutory MMI is February 27, 2022. The medical records reflect that the claimant was injured on (date of injury), when he fell from a ladder while painting. We note that the carrier information sheet provided to the claimant with the 10-day letter that was sent because he failed to attend the CCH contained an incorrect name of the registered agent. The correct name of the registered agent is included in the decision and order.

DISABILITY

The ALJ’s determination that the claimant had disability from June 14, 2020, through January 11, 2022, resulting from the compensable injury of (date of injury), is supported by sufficient evidence and is affirmed.

The carrier argues on appeal that the ALJ erroneously admitted a report from (Dr. C), the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) on the issues of disability and return to work. However, a review of the record reflects that the ALJ stated on the record of the CCH that she would obtain a report from Dr. C and admit the report as an ALJ exhibit. The ALJ asked whether the carrier had any objection and the carrier’s attorney responded that he had no objection.

MMI/IR

The record indicates that the designated doctor appointed on the issues of MMI, IR, and extent of injury, (Dr. Co), examined the claimant on March 19, 2022, and in three scenarios certified that the claimant had not yet reached MMI. A Presiding Officer’s Directive to Order Designated Doctor Exam (POD) was sent to Dr. Co to request that he re-examine the claimant because the parties agreed that the date of statutory MMI is February 27, 2022. Dr. Co examined the claimant again on July 23, 2022. Dr. Co provided two certifications of MMI/IR. In the first certification, Dr. Co certified that the claimant reached MMI on February 27, 2022, and assessed a 19% IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. Co considered and rated the following conditions: right middle finger fracture, left wrist fracture, right wrist fracture, chipping of tooth number 8, post-concussion headaches, post-concussion vertigo, thoracic sprain, lumbar sprain, and right shoulder sprain. This certification cannot be adopted because it considers and rates conditions that have been determined not to be part of the compensable injury and fails to consider DIP dislocations of the right third and fourth digits, and a lower lip laceration, which have been determined to be part of the compensable injury.

In the second scenario, Dr. Co certified that the claimant reached MMI on February 27, 2022, and assessed a 10% IR using the AMA Guides. Dr. Co considered and rated the following conditions: right middle finger fracture, left wrist fracture, right wrist fracture, and chipping of tooth number 8. This certification cannot be adopted because it fails to consider a right shoulder sprain, DIP dislocations of the right third and fourth digits, and a lower lip laceration, which have been determined to be part of the compensable injury.

On July 6, 2023, a letter of clarification (LOC) was sent to Dr. Co to inform him that it has been administratively determined that the claimant’s compensable injury of (date of injury), consists of: right middle finger fracture, DIP dislocations of the right third and fourth digits, left wrist fracture, right wrist fracture, sprain of the right shoulder, lower lip laceration, and chipping of tooth number 8. The LOC requested that Dr. Co determine when the claimant reached MMI for the named conditions and calculate his IR. Dr. Co responded in correspondence dated July 15, 2023, and certified that the claimant reached MMI on February 27, 2022, and assessed a 13% IR using the AMA Guides. Dr. Co considered and rated the following conditions: right middle finger fracture, DIP dislocation of the right third and fourth digits, left wrist fracture, right wrist fracture, right shoulder sprain, and chipping of tooth number 8. However, in the amended certification, Dr. Co failed to consider and rate a lower lip laceration which is part of the compensable injury. Additionally, we note that in assessing impairment for the claimant’s right wrist range of motion (ROM) deficits, Dr. Co failed to round the radial deviation measurements to the nearest 10° as required by the AMA Guides. See Appeals Panel Decision (APD) 022504-s, decided November 12, 2002; and APD 111384, decided November 23, 2011. Page 3/37 of the AMA Guides instructs that in measuring radial and ulnar deviation readings “[r]ound the figures to the nearest 10°.” Radial deviation of 15° should either be rounded up to 20° for 0% upper extremity (UE) impairment, or down to 10° for 2% UE impairment. Accordingly, the amended certification from Dr. Co cannot be adopted. We reverse the ALJ’s determinations that the claimant reached MMI on February 27, 2022, and that the claimant’s IR is 13%.

The only other certifications in evidence are from the carrier-selected required medical examination doctor, (Dr. M). Dr. M examined the claimant on September 22, 2022. Dr. M provided three scenarios. In the first scenario, Dr. M certified that the claimant reached MMI on February 27, 2022, and assessed 0% impairment. In that scenario, Dr. M considered and rated the following conditions: right middle finger fracture, left wrist fracture, right wrist fracture, and chipping of tooth number 8. This certification could not be adopted because it does not consider the entire compensable injury.

In the second scenario, Dr. M certified that the claimant reached statutory MMI on February 27, 2022, and certified a 12% IR. Dr. M considered and rated the following conditions: right middle finger fracture, left wrist fracture, right wrist fracture, chipping of tooth number 8, post-concussion headaches, post-concussion vertigo, thoracic sprain, lumbar sprain, and right shoulder sprain. This certification cannot be adopted because Dr. M fails to rate and consider the entire compensable injury and rates conditions that have been determined not to be part of the compensable injury.

In the third scenario, Dr. M certified that the claimant reached MMI on February 27, 2022, and assessed a 2% IR. Dr. M considered and rated a right middle finger fracture, DIP dislocations of the right third and fourth digits, a left wrist fracture, a right wrist fracture, a right shoulder sprain, lower lip laceration, and chipping of tooth number 8. Dr. M notes that the claimant recovered full ROM of both wrists and hands. Dr. M further stated that the claimant’s lip laceration had healed well and did not qualify for impairment and that there was no applicable impairment for his dental injury since it did not lead to any difficulty with speech or dietary limitations. Dr. M assessed 4% UE impairment for loss of ROM of the right shoulder, which converts to 2% whole person impairment. Dr. M provided ROM measurements of the claimant’s right shoulder; however, Dr. M did not use those measurements in assigning impairment for the claimant’s right shoulder. Dr. M stated in his narrative that he used ROM findings from the examination on March 14, 2022, and supplemented as needed by the designated doctor exam on July 23, 2022. Dr. M did not provide the claimant’s ROM measurements used to calculate the claimant’s IR in his narrative report. The ROM measurements that Dr. M used came, in part, from an examination report that was not in evidence. As such, we cannot determine what the correct ROM measurements are regarding the right shoulder and this certification cannot be adopted.

As there is no other certification in evidence that can be adopted, 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 had disability from June 14, 2020, through January 11, 2022, resulting from the compensable injury of (date of injury).

We reverse the ALJ’s determinations that the claimant reached MMI on February 27, 2022, and that the claimant’s IR is 13%, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. Co is the designated doctor in this case. On remand, the ALJ is to determine whether Dr. Co is still qualified and available to be the designated doctor. If Dr. Co is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to opine on the issues of MMI and IR for the (date of injury), compensable injury.

On remand the ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to right middle finger fracture, DIP dislocations of the right third and fourth digits, left wrist fracture, right wrist fracture, right shoulder sprain, lower lip laceration, and chipping of tooth number 8. The ALJ is to inform the designated doctor that the compensable injury does not extend to post-concussion headaches, post-concussion vertigo, cervical sprain, thoracic sprain, or lumbar sprain. The ALJ is to inform the designated doctor that the date of MMI can be no later than the statutory date of February 27, 2022. The ALJ is then to request that the designated doctor certify an MMI date and assign an IR for the compensable injury based on the injured employee's condition as of the MMI date, considering the medical record and the certifying examination. The ALJ is to advise the designated doctor to round ROM figures as required by the AMA Guides and instruct the designated doctor to provide all measurements that were used to calculate the IR per Rule 130.1(c)(3). The parties are to be provided with the ALJ's letter to the designated doctor, the designated doctor's response, and are to be allowed an opportunity to respond. If another designated doctor is appointed, the parties are to be provided with the POD, the designated doctor's report, and are to be allowed an opportunity to respond. The ALJ is to make a determination on MMI and IR which is supported by the evidence and consistent with this decision.

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

JEANETTE WARD, PRESIDENT & CEO
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 June 29, 2023, 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 sustained on (date of injury), does not extend to right shoulder supraspinatus and infraspinatus tendinosis with partial tearing, right shoulder longhead bicep tendinosis, right shoulder superior labrum contusion with mild tearing, or right shoulder adhesive capsulitis; (2) the claimant did not have disability from August 9, 2022, through the date of the CCH resulting from the compensable injury sustained on (date of injury); (3) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. C) dated September 28, 2022, became final pursuant to Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (4) the appellant (claimant) reached MMI on June 27, 2022; and (5) the claimant’s IR is 2%. The claimant appealed, disputing the ALJ’s determinations of extent of injury, finality, disability, MMI, and IR. The respondent (carrier) responded, urging affirmance of the disputed extent of injury, finality, disability, MMI, and IR determinations.

DECISION

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), in the form of at least the insurance carrier-accepted condition of right shoulder acromioclavicular joint sprain; the first valid certification of MMI and assigned IR was by Dr. C on September 28, 2022; Dr. C was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) on the issues of MMI and IR; and the claimant first disputed the certification of MMI and assigned IR of Dr. C on February 21, 2023, when she filed a request for a benefit review conference on those issues. The claimant testified that she was injured on (date of injury), when she was pulling a lever on an extrusion machine.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to right shoulder supraspinatus and infraspinatus tendinosis with partial tearing, right shoulder longhead bicep tendinosis, right shoulder superior labrum contusion with mild tearing, or right shoulder adhesive capsulitis is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from August 9, 2022, through the date of the CCH resulting from the compensable injury sustained on (date of injury), is supported by sufficient evidence and is affirmed.

FINALITY

Section 408.123(e) provides that except as otherwise provided by Section 408.123, an employee’s first valid certification of MMI and first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means; that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both. Section 408.123(f) provides, in part, that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described in Subsection (e) if: (1) compelling medical evidence exists of: (A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the IR.

The ALJ found that none of the exceptions to the 90-day rule were applicable. On September 28, 2022, Dr. C examined the claimant and certified the claimant reached MMI on June 27, 2022, and assigned a 2% IR, using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. C considered and rated a right shoulder acromioclavicular joint sprain.

Dr. C noted in her narrative the range of motion (ROM) measurements used to assess impairment and the upper extremity (UE) impairment assigned. Dr. C’s narrative listed the following: flexion 170° (1%); extension 43° (when rounded to 40°) (1%); abduction 175° (0%); adduction 40° (1%); internal rotation 80° (0%); and external rotation 95° (0%); using Figures 38, 41, and 44, on pages 3/43, 3/44, and 3/45, respectively, of the AMA Guides. The ROM values used by Dr. C to assess impairment included the measurements recorded in the physical therapy notes on June 27, 2022, for flexion, abduction, internal rotation, and external rotation. However, Dr. C noted that those measurements were incomplete. Dr. C used the ROM values obtained in her examination for adduction and extension. The impairments Dr. C assigned for ROM measurements for right shoulder flexion, extension, abduction, internal rotation, and external rotation were all correctly calculated in accordance with the AMA Guides. However, Dr. C assigned 1% UE impairment for 40° of adduction. Figure 41 on page 3/44 of the AMA Guides does not provide that 40° of adduction results in 1% UE impairment but rather results in 0% UE impairment. Dr. C incorrectly assigned 1% UE impairment for loss of ROM for adduction of the right shoulder.

Dr. C’s miscalculation of the impairment for ROM loss of the right shoulder constitutes compelling medical evidence of a significant error by Dr. C in calculating the claimant’s IR, and therefore, the exception in Section 408.123(f)(1)(A) applies. Accordingly, we reverse the ALJ’s determination that the first MMI/IR certification from Dr. C on September 28, 2022, became final under Section 408.123 and Rule 130.12, and we render a new decision that the first MMI/IR certification from Dr. C on September 28, 2022, did not become final under Section 408.123 and Rule 130.12.

MMI

The ALJ’s determination that the claimant reached MMI on June 27, 2022, is supported by sufficient evidence and is affirmed.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. Rule 130.1(c)(3) provides, in part, 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.

As previously noted, there is compelling medical evidence of a significant error by Dr. C in calculating the claimant’s IR. Therefore, Dr. C’s assessment of IR cannot be adopted. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 2%.

There is one other certification in evidence. (Dr. H), a doctor selected by the treating doctor to act in the treating doctor’s place, examined the claimant on January 6, 2023. Dr. H certified that the claimant reached MMI on June 27, 2022, with a 3% IR. Dr. H considered and rated a right shoulder acromioclavicular joint sprain using the AMA Guides based on loss of ROM. Dr. H noted that the measured ROM values by the physical therapist taken on June 27, 2022, were incomplete. Dr. H stated he compared his values for loss of ROM of the claimant’s right shoulder with the ROM measurements taken by Dr. C during the examination performed by her on September 28, 2022, and he considered her measurements to be accurate. Those ROM measurements and the UE IR assigned were as follows: flexion 137° (rounded to 140°) (3%); extension 43° (rounded to 40°) (1%); abduction 151° (rounded to 150°) (1%); adduction 40° (0%); internal rotation 80° (0%); and external rotation 65° (whether rounded up to 70° or rounded down to 60°) (0%). Dr. H correctly assigned 5% UE impairment for loss of ROM of the claimant’s right shoulder which converted to 3% whole person impairment. We render a new decision that the claimant’s IR is 3%.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to right shoulder supraspinatus and infraspinatus tendinosis with partial tearing, right shoulder longhead bicep tendinosis, right shoulder superior labrum contusion with mild tearing, or right shoulder adhesive capsulitis.

We affirm the ALJ’s determination that the claimant did not have disability from August 9, 2022, through the date of the CCH resulting from the compensable injury sustained on (date of injury).

We reverse the ALJ’s determination that the first MMI/IR certification from Dr. C on September 28, 2022, became final under Section 408.123 and Rule 130.12, and we render a new decision that the first MMI/IR certification from Dr. C on September 28, 2022, did not become final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that the claimant reached MMI on June 27, 2022.

We reverse the ALJ’s determination that the claimant’s IR is 2% and render a new decision that the claimant’s IR is 3%.

The true corporate name of the insurance carrier is FEDERAL 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 75201-4284.

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 25, 2023, with the record closing on May 2, 2023, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) respondent 1 (claimant) sustained a compensable injury on (date of injury); (2) the claimant had disability from December 16, 2022, through the date of the CCH, but not from (date of injury), through December 15, 2022; and (3) appellant (carrier 1) is liable for the payment of accrued benefits pursuant to 28 Tex. Admin. Code § 124.3 (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 ALJ also determined that carrier 1 has waived the right to contest compensability for the claimed injury by not timely contesting the injury in accordance with Section 409.021. The ALJ added the carrier waiver issue after the CCH because she found it was actually litigated.

Carrier 1 appealed, disputing the ALJ’s determinations in favor of the claimant. Carrier 1 contends that the ALJ abused her discretion in adding the issue of carrier waiver under Section 409.021 because that issue was not actually litigated by the parties. The appeal file does not contain a response from the claimant or respondent 2 (carrier 2). The ALJ’s determination that the claimant did not have disability from (date of injury), through December 15, 2022, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The parties stipulated, in part, that on (date of injury), the employer provided workers’ compensation insurance with carrier 1 and carrier 2. The claimant testified he was injured on (date of injury), while unloading cases of water bottles from a truck. The claimant testified each case was a 24-pack of 16-to-20-ounce water bottles, and that he had lifted 25 boxes in total. As the claimant was lifting one of the boxes, he felt pain and a burning sensation in his groin area.

ISSUE ADDED BY ALJ

The ALJ added the issue of whether carrier 1 waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021 because she found that issue was actually litigated by the parties. Carrier 1 contends on appeal that this issue was not actually litigated and the ALJ abused her discretion in adding the issue. Under the facts of this case the ALJ did not abuse her discretion in adding this issue. See Appeals Panel Decision (APD) 081665-s, decided January 29, 2009.

CARRIER 1 LIABILITY FOR PAYMENT OF BENEFITS AND CARRIER WAIVER

Section 409.021(a) provides, in part, 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: (1) begin the payment of benefits as required by the 1989 Act; or (2) notify the Texas Department of Insurance, Division of Workers’ Compensation (Division) and the employee in writing of its refusal to pay. Section 409.021(c) provides, in part, that if an insurance carrier does not contest the 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.

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 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.

Rule 124.3 further provides:

(b) Except as provided by subsection (c), the carrier waives the right to contest compensability of or liability for the injury, if it does not contest compensability on or before the 60th day after the date on which the insurance carrier receives written notice of the injury.

(c) If the carrier wants to deny compensability of or liability for the injury after the 60th day after it received written notice of the injury:

(1) the carrier must establish that it is basing its denial on evidence that could not have reasonably been discovered earlier; and

(2) the carrier is liable for and shall pay all benefits that were payable prior to and after filing the notice of denial until the [Division] has made a finding that the evidence could not have been reasonably discovered earlier.

The Appeals Panel has held that where timeliness or sufficiency of a carrier’s Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) is in issue, the ALJ should take official notice of that form and the date it was filed, if necessary, to ensure full development of the facts in accordance with Section 410.163(b). APD 100203, decided April 16, 2010; see also APD 012101-s, decided October 22, 2001; and APD 941171, decided October 17, 1994.

Although the ALJ in the case on appeal found the PLN-1 filed by carrier 1 showed carrier 1 received notice of the injury on December 3, 2022, and that carrier 1 filed its PLN-1 on February 2, 2023, the PLN-1 in evidence does not show when or if carrier 1 filed a PLN-1. Because the timeliness of carrier 1’s PLN-1 is in issue, we reverse the ALJ’s determination that carrier 1 is liable for the 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 also reverse the ALJ’s determination that carrier 1 has waived the right to contest compensability for the claimed injury by not timely contesting the injury in accordance with Section 409.021. We remand this case for the ALJ to take official notice of the date carrier 1’s PLN-1 was filed with the Division.

COMPENSABILITY AND DISABILITY

The ALJ noted in the discussion portion of her decision that while the evidence supported symptoms of an injury began while the claimant was at work, the injury was not caused by the claimant’s workplace activities. However, the ALJ determined the claimant sustained a compensable injury on (date of injury), based on her determination that carrier 1 waived the right to contest compensability for the claimed injury by not timely contesting the injury in accordance with Section 409.021. Given that we have remanded this case for the ALJ to take official notice of when carrier 1 filed its PLN-1, we reverse the ALJ’s determinations that the claimant sustained a compensable injury on (date of injury), and that the claimant had disability from December 16, 2022, through the date of the CCH. We remand the issues of compensability and disability from December 16, 2022, through the date of the CCH to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that carrier 1 is liable for the 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, and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that carrier 1 has waived the right to contest compensability for the claimed injury by not timely contesting the injury in accordance with Section 409.021, and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant had disability from December 16, 2022, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to take official notice of when carrier 1 filed its PLN-1 disputing the (date of injury), injury with the Division, and make the PLN-1 that is officially noticed an ALJ exhibit. The parties are to be allowed an opportunity to review and respond to the officially noticed PLN-1. The ALJ is to make findings of fact, conclusions of law, and a decision on the disputed issues of whether carrier 1 is liable for the 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; whether carrier 1 has waived the right to contest compensability for the claimed injury by not timely contesting the injury in accordance with Section 409.021; whether the claimant sustained a compensable injury on (date of injury); and whether the claimant had disability from December 16, 2022, through the date of the CCH.

The true corporate name of carrier 1 is MITSUI SUMITOMO INSURANCE COMPANY OF AMERICA 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.

The true corporate name of carrier 2 is WELLFLEET 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 75201-4284.

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 May 8, 2023, 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 an aggravation of left shoulder osteoarthritis; (2) the respondent (claimant) reached maximum medical improvement (MMI) on July 27, 2022; (3) the claimant’s impairment rating (IR) is 20%; and (4) the claimant had disability resulting from an injury sustained on (date of injury), from January 6, 2021, through July 27, 2022, but not from January 1, 2021, through January 5, 2021. The appellant (carrier) appeals the ALJ’s determinations of extent of injury, MMI, and IR. The carrier additionally appeals that portion of the ALJ’s determination that the claimant had disability from January 6, 2021, through July 27, 2022. The appeal file does not contain a response from the claimant. That portion of the ALJ’s determination that the claimant did not have disability from January 1, 2021, through January 5, 2021, 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, in part, that the claimant sustained a compensable injury on (date of injury), that extends to at least a left shoulder contusion, left shoulder sprain, and left biceps strain. The claimant testified he was injured when he was shoveling gravel out of the back of a pickup truck and lost his balance, fell out of the pickup truck and hit his left shoulder and arm on a concrete pad. The evidence reflects that the claimant had a left shoulder hemiarthroplasty on January 6, 2021. (Dr. M), a carrier-selected required medical examination (RME) doctor, testified at the CCH that a hemiarthroplasty occurs when one side of the joint of the shoulder is replaced. Dr. M further testified that a total shoulder implant arthroplasty is when both joints of the shoulder are replaced. The claimant testified that a second surgery has been recommended.

EXTENT OF INJURY

The ALJ’s determination that the (date of injury), compensable injury extends to an aggravation of left shoulder osteoarthritis is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant had disability resulting from an injury sustained on (date of injury), from January 6, 2021, through July 27, 2022, is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on July 27, 2022, is supported by sufficient evidence and is affirmed.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Texas Department of Insurance, Division of Workers’ Compensation (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 found that the July 27, 2022, date of MMI and 20% IR certified by (Dr. B), the most recent designated doctor, is not contrary to the preponderance of the other medical evidence. Dr. B examined the claimant on December 20, 2022, and certified that the claimant reached MMI on July 27, 2022, and assessed a 20% IR. Dr. B assessed 9% upper extremity (UE) impairment based on loss of range of motion (ROM) of the left UE using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. B subtracted 3% UE impairment for the uninjured right UE from the 9% impairment based on loss of ROM of the left shoulder resulting in 6% UE impairment. Dr. B assessed 30% UE impairment for the claimant’s left shoulder utilizing Table 27, page 3/61 of the AMA Guides for a total shoulder implant arthroplasty. Dr. B combined the 6% UE impairment with the 30% UE impairment for a total of 36% left UE impairment. We note that according to the AMA Guides 30% UE impairment combined with 6% UE impairment results in 34% UE impairment. Dr. B then converted the 36% UE impairment to 20% whole person impairment using Table 3, on page 3/20 of the AMA Guides. We note that 34% UE impairment converts to 20% whole person impairment. As previously noted, the claimant had a hemiarthroplasty on January 6, 2021. The operative report in evidence did not reflect that the claimant had a total shoulder arthroplasty. Because Dr. B rated a procedure that the claimant did not undergo, his 20% IR cannot be adopted. See Appeals Panel Decision 120071, decided March 9, 2012. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 20%.

Dr. B provided an alternate certification in which he certified that the claimant reached MMI on October 29, 2020, with a 10% IR. This certification only considered and rated a left shoulder contusion, left shoulder sprain, and left bicep strain. This certification did not consider and rate aggravation of left shoulder osteoarthritis which has been determined to be part of the compensable injury. Further, the ALJ’s determination that the claimant reached MMI on July 27, 2022, has been affirmed. Accordingly, this certification cannot be adopted.

(Dr. L), the initial designated doctor, examined the claimant on March 25, 2022, and certified that the claimant reached MMI on March 25, 2022, with a 26% IR. We have affirmed the ALJ’s determination that the claimant reached MMI on July 27, 2022. Dr. L assessed 20% UE impairment for loss of ROM of the claimant’s left shoulder which he combined with 30% UE impairment under Table 27, page 3/61 of the AMA Guides for a total shoulder implant arthroplasty. The medical records reflect that the claimant had an implant hemiarthroplasty rather than a total shoulder implant arthroplasty. Because Dr. L assessed impairment for a procedure the claimant did not undergo, this certification cannot be adopted.

(Dr. E), a carrier-selected RME doctor, examined the claimant on October 24, 2022, and certified that the claimant reached MMI on March 25, 2022, and assessed an 18% IR. We have affirmed the ALJ’s determination that the claimant reached MMI on July 27, 2022. Dr. E’s IR includes 30% UE impairment under Table 27, page 3/61 of the AMA Guides for a total shoulder implant arthroplasty. The medical records reflect that the claimant did not have a total shoulder implant arthroplasty but rather had a hemiarthroplasty. Therefore, this certification cannot be adopted.

(Dr. P), a treating doctor referral, examined the claimant on January 5, 2023, and provided alternate certifications. In the first certification, Dr. P certified that the claimant reached MMI on October 29, 2020, and assessed a 10% IR for loss of ROM of the claimant’s left shoulder. This certification did not consider and rate aggravation of left shoulder osteoarthritis. Additionally, we have affirmed the ALJ’s determination that the claimant reached MMI on July 27, 2022. Accordingly, this certification cannot be adopted.

In his alternate certification, Dr. P certified that the claimant reached MMI on July 27, 2022, and assessed a 21% IR. Dr. P assessed 6% UE impairment for loss of ROM of the left shoulder. Dr. P combined the 6% UE impairment with 30% UE impairment under Table 27, page 3/61 of the AMA Guides for a total shoulder implant arthroplasty. We note that 6% UE impairment combined with 30% UE impairment results in 34% UE impairment which converts to 20% whole person impairment. As previously noted, the claimant did not have a total shoulder implant arthroplasty. Accordingly, this certification cannot be adopted.

Dr. M examined the claimant on April 14, 2023, and provided alternate certifications. In the first certification, Dr. M certified that the claimant reached MMI on April 8, 2021, and assessed a 10% IR. This certification did not consider and rate aggravation of left shoulder osteoarthritis which has been determined to be part of the compensable injury. Additionally, we have affirmed the ALJ’s determination that the claimant reached MMI on July 27, 2022. Accordingly, this certification cannot be adopted.

Dr. M in his alternate certification, considered and rated a left shoulder contusion, left shoulder sprain, left biceps strain, and aggravation of left shoulder osteoarthritis. Dr. M certified that the claimant reached MMI on July 27, 2022, and assessed a 7% IR based on loss of ROM of the claimant’s left shoulder. Dr. M’s assigned 7% IR is based on the compensable injury in this case, is in compliance with the AMA Guides, and is supported by the evidence. Therefore, we render a new decision that the claimant’s IR is 7%, as assigned by Dr. M.

SUMMARY

We affirm the ALJ’s determination that the (date of injury), compensable injury extends to an aggravation of left shoulder osteoarthritis.

We affirm the ALJ’s determination that the claimant had disability resulting from an injury sustained on (date of injury), from January 6, 2021, through July 27, 2022.

We affirm the ALJ’s determination that the claimant reached MMI on July 27, 2022.

We reverse the ALJ’s determination that the claimant’s IR is 20% and render a new decision that the claimant’s IR is 7%.

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

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
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 20, 2023, 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 (claimant) sustained a compensable injury on (date of injury); and (2) the claimant had disability resulting from the compensable injury from February 10, 2023, through the date of the CCH. The claimant appealed, arguing that the ALJ failed to address the entire period of disability in dispute at the CCH. The respondent (carrier) responded, urging affirmance of the ALJ’s disability determination. The ALJ’s determination that the claimant sustained a compensable injury on (date of injury), was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The claimant testified that he worked for the employer as an electrical apprentice. He further testified that he was injured on (date of injury), when he was pulling wire and heard a loud pop in his right shoulder.

DISABILITY

The Benefit Review Conference Report in evidence shows that the disputed disability issue was as follows: Did the claimant have disability resulting from the claimed injury from November 16, 2022, through January 22, 2023? The decision and order notes that the parties agreed to amend the disability issue. A review of the record reflects the parties agreed to the disability issue as follows: Did the claimant have disability resulting from the claimed injury from November 16, 2022, through the date of the CCH? However, in the decision and order the ALJ mistakenly stated the disability issue was: Did the claimant have disability resulting from the claimed injury from February 10, 2023, through the date of the CCH?

The ALJ made findings of fact, conclusions of law, and a decision regarding the disability issue only on the dates from February 10, 2023, through the date of the CCH. The ALJ’s determination that the claimant had disability resulting from the compensable injury from February 10, 2023, through the date of the CCH is supported by sufficient evidence and is affirmed.

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. However, the ALJ failed to make a finding of fact, conclusion of law, or decision of whether the claimant had disability from November 16, 2022, through February 9, 2023. Because the ALJ failed to make a determination on the entire disability period as properly before him to determine, the ALJ’s decision is reversed as being incomplete. See Appeals Panel Decision (APD) 171088, decided June 21, 2017. Accordingly, we reverse the ALJ’s decision as being incomplete and remand a portion of the disability issue to the ALJ to determine whether the claimant had disability from November 16, 2022, through February 9, 2023.

We note the claimant testified that he normally worked 40 hours per week prior to the injury and that he returned to work for the employer after the injury for a two-week period. In evidence are pay records which indicate the claimant worked 14.5 hours during the pay period of January 19, 2023, through January 25, 2023; and that the claimant worked 21 hours during the pay period of February 2, 2023, through February 8, 2023.

SUMMARY

We affirm that portion of the ALJ’s determination that claimant had disability resulting from the compensable injury from February 10, 2023, through the date of the CCH.

We reverse the ALJ’s decision as being incomplete and remand a portion of the disability issue to the ALJ to determine whether the claimant had disability from November 16, 2022, through February 9, 2023.

REMAND INSTRUCTIONS

On remand, the ALJ is to make findings of fact, conclusions of law, and a determination as to whether the claimant had disability from November 16, 2022, through February 9, 2023.

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

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

JEANETTE WARD, PRESIDENT AND CEO
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 12, 2023, with the record closing on April 25, 2023, 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/cross-appellant (claimant) reached maximum medical improvement (MMI) on November 16, 2020; (2) the claimant’s impairment rating (IR) is nine percent; (3) the first certification of MMI and assigned IR from (Dr. X) on April 3, 2020, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); and (4) the claimant had disability from July 11, 2020, through November 30, 2020, resulting from an injury sustained on (date of Injury), but the claimant did not have disability from December 1, 2020, through December 18, 2020, resulting from the compensable injury.

The appellant/cross-respondent (self-insured) appealed that portion of the ALJ’s disability determination that was in favor of the claimant, as well as the ALJ’s MMI, IR, and finality determinations. The claimant responded, urging affirmance of the appealed determinations. The claimant cross-appealed, disputing that portion of the ALJ’s disability determination that was against her. The self-insured responded, urging affirmance of that portion of the determination.

DECISION

Reversed and remanded.

The parties stipulated, in part, that: (1) on (date of Injury), the claimant sustained a compensable injury that consists of a right hand contusion, lumbar strain, right scapholunate ligament tear, L3-4 disc herniation, and lumbar radiculopathy; (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. J) and (Dr. T) as designated doctors to determine extent of injury, MMI, and IR; and (3) the date of statutory MMI is December 18, 2020.

The claimant, a lead teacher, was injured on (date of Injury), when she fell while sitting back down into a chair and it slipped out from under her.

FINALITY

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.

The certified finality issue before the ALJ in this case was: Did the first certification of MMI and assigned IR from Dr. X on April 3, 2020, become final under Section 408.123 and Rule 130.12? Dr. X, the post-designated doctor insurance carrier-selected required medical examination doctor, certified that the claimant reached MMI on March 13, 2019, with a five percent IR. The ALJ states in Conclusion of Law No. 5 and the Decision section that the first certification of MMI and assigned IR from Dr. X on April 3, 2020, did not become final under Section 408.123 and Rule 130.12. Although the ALJ made a conclusion of law, decision, and addressed the issue in her discussion of the evidence, the ALJ failed to make a finding of fact regarding whether the first certification of MMI and assigned IR from Dr. X on April 3, 2020, became final under Section 408.123 and Rule 130.12. Additionally, the ALJ states in Finding of Fact No. 5 that Dr. T’s certification of MMI and assigned IR was the first valid certification and was provided to the claimant by verifiable means on April 13, 2020. However, as it was undisputed that Dr. X’s certification was the first certification in this case, and not Dr. T’s certification, this finding is against the great weight of the evidence. Because the ALJ’s decision contains no findings of fact regarding whether the first certification of MMI and assigned IR from Dr. X on April 3, 2020, became final under Section 408.123 and Rule 130.12, which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16. We therefore reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. X on April 3, 2020, did not become final under Section 408.123 and Rule 130.12 as being incomplete, and we remand the finality issue to the ALJ for further action consistent with this decision. See Appeals Panel Decision (APD) 132339, decided December 12, 2013; APD 180839, decided June 4, 2018; and APD 181357, decided July 30, 2018.

MMI AND IR

As we have remanded the issue of whether the first certification of MMI and assigned IR from Dr. X on April 3, 2020, became final under Section 408.123 and Rule 130.12, we must also reverse the ALJ’s determinations that the claimant reached MMI on November 16, 2020, and the claimant’s IR is nine percent and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

The ALJ found that the certification of (Dr. Q), the treating doctor referral, that the claimant reached MMI on November 16, 2020, with a nine percent IR was supported by the preponderance of the evidence. However, we note that none of the four alternate certifications from Dr. Q dated March 25, 2021, in evidence rate the compensable injury as stipulated by the parties in this case. We further note that in calculating the claimant’s right wrist range of motion deficits, Dr. Q failed to round the radial deviation and ulnar deviation measurements to the nearest 10°, as required by 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). See APD 022504-s, decided November 12, 2002; and APD 111384, decided November 23, 2011. See also APD 131541, decided August 29, 2013.

There is an additional Report of Medical Evaluation (DWC-69) dated August 30, 2022, from Dr. Q that certified the claimant’s MMI on November 16, 2020, with a nine percent IR, but it is unclear what it rates as there is no corresponding narrative.

DISABILITY

As previously noted, 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.

The certified disability issue before the ALJ in this case was: Did the claimant have disability from July 11, 2020, to December 18, 2020, resulting from an injury sustained on (date of Injury)? The ALJ states in Conclusion of Law No. 6 and the Decision section that the claimant had disability from July 11, 2020, through November 30, 2020, resulting from an injury sustained on (date of Injury), but the claimant did not have disability from December 1, 2020, through December 18, 2020, resulting from the compensable injury. Although the ALJ made a conclusion of law, decision, and addressed the issue in her discussion of the evidence, the ALJ failed to make a finding of fact regarding whether the claimant had disability from July 11, 2020, to December 18, 2020, resulting from an injury sustained on (date of Injury). Because the ALJ’s decision contains no findings of fact regarding whether the claimant had disability from July 11, 2020, to December 18, 2020, resulting from an injury sustained on (date of Injury), which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16. We therefore reverse the ALJ’s determination that the claimant had disability from July 11, 2020, through November 30, 2020, resulting from an injury sustained on (date of Injury), but the claimant did not have disability from December 1, 2020, through December 18, 2020, resulting from the compensable injury as being incomplete, and we remand the disability issue to the ALJ for further action consistent with this decision. See APD 132339, supra; APD 180839, supra; and APD 181357, supra.

We note that although the ALJ in this case ended the claimant’s disability due to the claimant returning to work, there is evidence in the record that the claimant returned to work in a different position and earned less than her preinjury wage.

We additionally note that the claimant’s attorney contends in his cross-appeal that the ALJ failed to consider the claimant’s timely supplemental closing argument in response to Dr. T’s new report that was sent to the parties after the CCH. The claimant’s attorney attached a fax confirmation sheet to his cross-appeal proving his response was sent to and received by the Division before 5:00 p.m. on the deadline date of April 24, 2023. The ALJ states in her decision that the self-insured’s response to Dr. T’s report was admitted into evidence, but does not mention or admit the claimant’s timely submitted response.

We have previously held that it is reversible error to solicit a response from a designated doctor and write an opinion based thereon without having afforded the parties the opportunity to comment on the additional evidence. APD 011128, decided June 25, 2001. See also APD 93323, decided June 9, 1993; APD 010902, decided June 6, 2001; and APD 100201, decided April 23, 2010. Although this case differs somewhat from APD 011128 in that the ALJ did send the parties the designated doctor’s new report and left the record open to afford them the opportunity to respond, the ALJ did not consider the claimant’s response that was sent in compliance with the deadline for submitting a response to the designated doctor’s new report.

SUMMARY

We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. X on April 3, 2020, did not become final under Section 408.123 and Rule 130.12 as being incomplete, and we remand the finality issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determinations that the claimant reached MMI on November 16, 2020, and the claimant’s IR is nine percent and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant had disability from July 11, 2020, through November 30, 2020, resulting from an injury sustained on (date of Injury), but the claimant did not have disability from December 1, 2020, through December 18, 2020, resulting from the compensable injury as being incomplete, and we 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, conclusion of law, and a decision regarding whether the first certification of MMI and assigned IR from Dr. X on April 3, 2020, became final under Section 408.123 and Rule 130.12 that is supported by the evidence and consistent with this decision. The ALJ is then to make a finding of fact, conclusion of law, and a decision regarding the issues of MMI and IR that is supported by the evidence and consistent with this decision. Finally, the ALJ is to make a finding of fact, conclusion of law, and a decision regarding whether the claimant had disability from July 11, 2020, to December 18, 2020, resulting from an injury sustained on (date of Injury), that is supported by the evidence and consistent with this decision.

The ALJ is to admit into evidence and consider the claimant’s timely supplemental closing argument.

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).

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 May 9, 2023, 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 right wrist triangular fibrocartilage tear, right median nerve neuropathy, carpal tunnel syndrome (CTS) right hand, delamination of the foveal and styloid attachments of the peripheral triangular fibrocartilage complex from the ulnar styloid, full-thickness perforation of the scapholunate ligament, or tendinosis of the carpi ulnaris tendon; (2) the appellant (claimant) reached maximum medical improvement (MMI) on August 29, 2022; (3) the claimant’s impairment rating (IR) is one percent; (4) the claimant had disability resulting from the injury sustained on (date of injury), from April 27, 2022, through June 22, 2022; and (5) the claimant did not have disability resulting from the injury sustained on (date of injury), from June 23, 2022, through the date of the CCH.

The claimant appealed, disputing the ALJ’s determinations of extent of injury, the disability period not in his favor, MMI, and IR. The respondent (carrier) responded, urging affirmance of the appealed determinations. The ALJ’s determination that the claimant had disability resulting from the injury sustained on (date of injury), from April 27, 2022, through June 22, 2022, 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, in part, that the claimant sustained a compensable injury on (date of injury), that extends to at least a right wrist sprain, and that (Dr. W) was selected by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine MMI, IR, and extent of injury. The claimant was injured on (date of injury), while moving a heavy bin to load onto a trailer. The claimant testified that as he was maneuvering it, the momentum of the bin caused him to hyperextend his right wrist.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a right wrist triangular fibrocartilage tear, right median nerve neuropathy, CTS right hand, delamination of the foveal and styloid attachments of the peripheral triangular fibrocartilage complex from the ulnar styloid, full-thickness perforation of the scapholunate ligament, or tendinosis of the carpi ulnaris tendon is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability resulting from the injury sustained on (date of injury), from June 23, 2022, through the date of the CCH is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on August 29, 2022, is supported by sufficient evidence and is affirmed.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides in part 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 the claimant’s IR is one percent as certified by Dr. W, the designated doctor. Dr. W examined the claimant on October 14, 2022, and issued alternate certifications. In the first certification Dr. W opined the claimant had not reached MMI based on the disputed extent-of-injury conditions. This certification is unadoptable because we have affirmed the ALJ’s determination that the claimant reached MMI on August 29, 2022, and because it is based on noncompensable conditions.

Dr. W’s alternate certification considered and rated the compensable right wrist sprain. However, his certification contained typographical errors regarding the date of MMI between the Report of Medical Evaluation (DWC-69) and his narrative report, which resulted in two different letters of clarification. After clarifying the MMI date in his responses, Dr. W submitted a corrected DWC-69 certifying the claimant reached MMI on August 29, 2022, with a one percent IR. Using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides) and range of motion measurements for the right wrist from his exam, Dr. W assessed the following upper extremity (UE) impairments: zero percent UE impairment for 50° of ulnar deviation, zero percent UE impairment for 30° of radial deviation, zero percent UE impairment for 60° of extension, and two percent UE impairment for 40° of flexion. Dr. W added the zero percent UE impairments for ulnar deviation, radial deviation, and extension to the two percent UE impairment for a total UE impairment of two percent. Using Table 3 on page 3/20 of the AMA Guides, Dr. W converted the two percent UE impairment to one percent whole person impairment (WPI).

Although Dr. W’s zero percent UE impairments for ulnar deviation, radial deviation, and extension were correct, his two percent UE impairment for 40° of flexion was not. Figure 26 on page 3/36 of the AMA Guides provides that 40° of flexion results in three percent UE impairment. Table 3 on page 3/20 of the AMA Guides provides that three percent UE impairment converts to two percent WPI, not one percent WPI as certified by Dr. W.

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See Appeals Panel Decision (APD) 171766, decided September 7, 2017; APD 172488, decided December 18, 2017; APD 152464, decided February 17, 2016; APD 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011.

The ALJ found that the preponderance of the other medical evidence is not contrary to Dr. W’s certification that the claimant reached MMI on August 29, 2022, with a one percent IR. After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is one percent and render a new decision that the claimant’s IR is two percent, as mathematically corrected.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right wrist triangular fibrocartilage tear, right median nerve neuropathy, CTS right hand, delamination of the foveal and styloid attachments of the peripheral triangular fibrocartilage complex from the ulnar styloid, full-thickness perforation of the scapholunate ligament, or tendinosis of the carpi ulnaris tendon.

We affirm the ALJ’s determination that the claimant did not have disability resulting from the injury sustained on (date of injury), from June 23, 2022, through the date of the CCH.

We affirm the ALJ’s determination that the claimant reached MMI on August 29, 2022.

We reverse the ALJ’s determination that the claimant’s IR is one percent, and we render a new decision that the claimant’s IR is two percent, as mathematically corrected.

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

MICHAEL METZGER
624 SIX FLAGS DRIVE, SUITE 240
ARLINGTON, TEXAS 76011.

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 April 6, 2023, 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 (claimant) did not sustain a compensable injury on (date of injury); (2) the respondent (carrier) is not relieved from liability under Section 409.002 because of a failure by the claimant to timely notify his employer pursuant to Section 409.001; and (3) because the claimant did not sustain a compensable injury, he did not have disability beginning August 26, 2022, and continuing through January 25, 2023. The claimant appealed, disputing the ALJ’s compensability and disability determinations. The carrier responded, urging affirmance of the appealed determinations.

The ALJ’s determination that the carrier is not relieved from liability under Section 409.002 because of a failure by the claimant to timely notify his employer pursuant to Section 409.001 was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed by striking in part.

The claimant, a truck driver, claimed that he was injured on (date of injury), while driving. He testified that he was gripping the steering wheel with both hands on that date when he felt clicking and popping in his left thumb.

COMPENSABILITY

The ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), is supported by sufficient evidence and is affirmed.

DISABILITY

In evidence is a Benefit Review Conference (BRC) Report dated February 7, 2023. The BRC report states that the third disputed issue is: Did the claimant have disability resulting from the claimed injury? At the CCH on April 6, 2023, the parties agreed to amend the disability issue to read: Did the claimant have disability resulting from the claimed injury from August 26, 2022, through January 22, 2023? However, the ALJ then made a finding of fact, conclusion of law, and a decision that the claimant did not have disability from August 26, 2022, through January 25, 2023.

The ALJ’s disability determination exceeded the scope of the disability issue before him to decide. Accordingly, we strike that portion of the ALJ’s determination that the claimant did not have disability from January 23, 2023, through January 25, 2023. That portion of the ALJ’s determination that the claimant did not have disability from August 26, 2022, through January 22, 2023, is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury).

We affirm that part of the ALJ’s determination that the claimant did not have disability from August 26, 2022, through January 22, 2023.

We strike that portion of the ALJ’s determination that the claimant did not have disability from January 23, 2023, through January 25, 2023, as exceeding the scope of the disability issue before the ALJ.

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

MICHAEL METZGER
624 SIX FLAGS DRIVE, SUITE 240
ARLINGTON, TEXAS 76011.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge