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 16, 2022, with the record closing on January 3, 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) reached maximum medical improvement (MMI) on March 10, 2022; (2) the claimant’s impairment rating (IR) is zero percent; and (3) the claimant did not have disability from March 11, 2022, through the date of the CCH. The claimant appealed, disputing the ALJ’s determinations. The respondent (self-insured) responded, urging affirmance of the ALJ’s determinations.

On February 16, 2023, the claimant filed a supplemental appeal containing additional medical documentation. However, the supplemental appeal was not filed within 15 days of the claimant’s receipt of the ALJ’s decision and order, pursuant to Section 410.202; therefore, the claimant’s supplemental appeal was not considered.

DECISION

Affirmed in part and reversed by striking in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to at least COVID-19 infection, bilateral pneumonia, hypoxia, acute respiratory failure, fatigue, dyspnea, asthma, and cough variant asthma; and (Dr. B) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) on the issues of MMI, IR, and disability. The claimant, a correctional officer for the employer, contracted COVID-19 while working for the employer on (date of injury).

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).  

MMI/IR

The ALJ’s determinations that the claimant reached MMI on March 10, 2022, with a zero percent IR are supported by sufficient evidence and are affirmed.

DISABILITY

The parties agreed at the CCH to amend the disability issue to address a period from March 11, 2022, through August 3, 2022. The ALJ noted the parties agreed to amend this issue as such in Issue Statement No. 3 of the decision and order. However, the ALJ made a finding of fact, conclusion of law, and a decision that the claimant did not have disability from March 11, 2022, through the date of the CCH.

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 August 4, 2022, through the date of the CCH. That portion of the ALJ’s determination that the claimant did not have disability from March 11, 2022, through August 3, 2022, is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the ALJ’s determination that the claimant reached MMI on March 10, 2022.

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

We affirm that part of the ALJ’s determination that the claimant did not have disability from March 11, 2022, through August 3, 2022.

We strike that portion of the ALJ’s determination that the claimant did not have disability from August 4, 2022, through the date of the CCH as exceeding the scope of the disability issue before the ALJ.

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

For service in person the address is:

(NAME)
(ADDRESS)
(CITY), (STATE) (ZIP CODE).

For service by mail the address is:

(NAME)
(ADDRESS)
(CITY), (STATE) (ZIP CODE).

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). Contested case hearings (CCH) were held on August 22, 2022, and October 26, 2022, with the record closing on November 10, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). With regard to Docket No. (Docket No. 1) the ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to a concussion or post-traumatic stress disorder (PTSD); (2) the appellant (claimant) had disability resulting from an injury sustained on (date of injury), from May 20, 2021, through December 19, 2021; (3) the claimant’s post-injury earnings (PIE) from May 20, 2021, through December 19, 2021, were $0.00; (4) the claimant is not entitled to income benefits from June 1, 2021, through November 30, 2021, under Section 405.044(d)(6) due to the compensable injury of (date of injury); and (5) the claimant is entitled to income benefits from May 20, 2021, through May 31, 2021, and from December 1, 2021, through December 19, 2021, under Section 405.044(d)(6), due to the compensable injury of (date of injury). With regard to Docket No. (Docket No. 2) the ALJ resolved the disputed issues by deciding that: (1) (Dr. K) was not properly appointed as designated doctor in accordance with 28 Tex. Admin. Code § 127.140(a)(6) (Rule 127.140(a)(6)); (2) the claimant reached maximum medical improvement (MMI) on October 1, 2021; and (3) the claimant’s impairment rating (IR) is zero percent.

We note the ALJ added the issue of whether the claimant is entitled to temporary income benefits (TIBs) from May 20, 2021, through December 19, 2021, under Section 405.044(d)(6) due to the compensable injury of (date of injury), because that issue was litigated by the parties at the CCH. The actual issue litigated was whether the claimant is entitled to income benefits from May 20, 2021, through December 19, 2021, under Section 501.044, which is the applicable law regarding that issue. We reform all references of Section 405.044 to read Section 501.044.

The ALJ’s determinations in Docket No. 1 that the claimant had disability resulting from an injury sustained on (date of injury), from May 20, 2021, through December 19, 2021, the claimant’s PIE from May 20, 2021, through December 19, 2021, was $0.00, and the claimant is entitled to income benefits from May 20, 2021, through May 31, 2021, and from December 1, 2021, through December 19, 2021, under Section 501.044 due to the compensable injury of (date of injury), were not appealed and have become final pursuant to Section 410.169. The ALJ’s determination in Docket No. 2 that Dr. K was not properly appointed as designated doctor in accordance with Rule 127.140(a)(6) was not appealed and has become final pursuant to Section 410.169.

DECISION

Reformed in part, 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), in the form of a facial bone fracture, and the claimant’s average weekly wage is $1,362.86. The claimant was injured on (date of injury), when he was assaulted by a juvenile inmate.

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).  

ENTITLEMENT TO INCOME BENEFITS

As previously noted, the ALJ’s determination that the claimant is entitled to income benefits from May 20, 2021, through May 31, 2021, and from December 1, 2021, through December 19, 2021, was not appealed and has become final pursuant to Section 410.169. The ALJ’s determination that the claimant is not entitled to income benefits from June 1, 2021, through November 30, 2021, is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a concussion or PTSD 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 Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.  

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  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 found the preponderance of the other medical evidence is contrary to the certification of the designated doctor, (Dr. C), that the claimant reached MMI on March 3, 2022, with a zero percent IR, and determined the claimant reached MMI on October 1, 2021, with a zero percent IR as certified by (Dr. O), the post-designated doctor required medical examination doctor. The ALJ stated in the discussion portion of the decision that “[Dr. C’s] certification was unpersuasive to establish that the compensable injury improved beyond October 1, 2021.”

In Appeals Panel Decision (APD) 012284, decided November 1, 2001, the Appeals Panel stated that a focus on and requirement of material recovery or lasting improvement in determining MMI is misplaced, and the question regarding whether an injured employee has reached MMI is not whether the injured employee actually recovered or improved but whether, based upon reasonable medical probability, material recovery or lasting improvement could reasonably be anticipated. In the case on appeal the ALJ rejected Dr. C’s certification because she found it did not establish the claimant’s compensable injury actually improved after an earlier date of MMI. The ALJ based her MMI determination on whether the claimant’s condition had improved since October 1, 2021, rather than on the definition of MMI set out in Section 401.011(30)(A). See APD 012284, supra; see also APD 120071, decided March 9, 2012. Accordingly, we reverse the ALJ’s determination that the claimant reached MMI on October 1, 2021, and we remand the issue of MMI to the ALJ for further action consistent with this decision.

Because we have reversed and remanded the ALJ’s MMI determination, we also reverse the ALJ’s determination that the claimant’s IR is zero percent, and we remand the IR issue to the ALJ for further action consistent with this decision.

SUMMARY

We reform all references to Section 405.044 to read Section 501.044.

We affirm the ALJ’s determination that the claimant is not entitled to income benefits from June 1, 2021, through November 30, 2021.

We affirm the ALJ’s determination the compensable injury of (date of injury), does not extend to a concussion or PTSD.

We reverse the ALJ’s determination that the claimant reached MMI on October 1, 2021, and we remand the MMI issue to the ALJ for further action consistent with this decision.

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

REMAND INSTRUCTIONS

On remand the ALJ is to apply the proper legal standard in determining whether the claimant has reached MMI, and if so on what date, and to determine the claimant’s IR that is supported by the evidence.

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

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

For service in person the address is:

(NAME)
(ADDRESS)
(CITY), (STATE) (ZIP CODE).

For service by mail the address is:

(NAME)
(ADDRESS)
(CITY) (STATE) (ZIP CODE).

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). Contested case hearings (CCH) were held on June 27, 2022, August 18, 2022, and November 7, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the compensable injury of (date of injury), extends to a rib contusion; (2) the compensable injury of (date of injury), does not extend to a right ankle strain, thoracic strain, right wrist partial tear of the triangular fibrocartilage with radial subluxation, left wrist partial tear of the triangular fibrocartilage, lumbar L2-3 left paramedian foraminal 1-2 mm disc herniation with annular fissure encroaching on the left exiting nerve root, lumbar L2-3 bilateral neural foraminal stenosis with encroachment of the exiting nerve root, lumbar annular bulge at L3-4 measuring 1-1.5 mm with nerve root impingement with cauda equina syndrome, lumbar L4-5 annular bulge measuring 1-2 mm posteriorly with neural foraminal stenosis with nerve root impingement, or lumbar L5-S1 annular bulge measuring 1-2 mm with annular fissure with nerve root impingement; (3) the appellant (claimant) reached maximum medical improvement (MMI) on October 5, 2021; (4) the claimant’s impairment rating (IR) is zero percent; and (5) the claimant had disability resulting from the compensable injury beginning April 23, 2021, through October 5, 2021, but did not have disability beginning October 6, 2021, through the date of the CCH.

The claimant appealed the ALJ’s extent of injury and disability determinations that were adverse to her, as well as the ALJ’s MMI and IR determinations. The respondent (carrier) responded, urging affirmance of the appealed determinations. The ALJ’s determination that the compensable injury of (date of injury), extends to a rib contusion, and that portion of the ALJ’s determination that the claimant had disability resulting from the compensable injury beginning April 23, 2021, through October 5, 2021, were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed as clarified.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury in the form of at least a right hip contusion, right knee sprain, lumbar strain, and bilateral wrist sprains/strains; the initial Texas Department of Insurance, Division of Workers’ Compensation (Division) designated doctor was (Dr. F); and the subsequent Division-selected designated doctor was (Dr. B). The claimant was injured on (date of injury), when she tripped over rubber on the floor and fell. The claimant testified she fell onto her left side and struck the pedal of a tricycle and ultimately fell to the ground.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a right ankle strain, thoracic strain, right wrist partial tear of the triangular fibrocartilage with radial subluxation, left wrist partial tear of the triangular fibrocartilage, lumbar L2-3 left paramedian foraminal 1-2 mm disc herniation with annular fissure encroaching on the left exiting nerve root, lumbar L2-3 bilateral neural foraminal stenosis with encroachment of the exiting nerve root, lumbar annular bulge at L3-4 measuring 1-1.5 mm with nerve root impingement with cauda equina syndrome, lumbar L4-5 annular bulge measuring 1-2 mm posteriorly with neural foraminal stenosis with nerve root impingement, or lumbar L5-S1 annular bulge measuring 1-2 mm with annular fissure with nerve root impingement is supported by sufficient evidence and is affirmed.

DISABILITY

That portion of the ALJ’s determination that the claimant did not have disability beginning October 6, 2021, through the date of the CCH 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.  

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 found that Dr. B certified the claimant reached MMI on October 5, 2021, and assigned a zero percent IR for the compensable injury. The ALJ also found that the preponderance of the other medical evidence is not contrary to Dr. B’s certification, and therefore determined the claimant reached MMI on October 5, 2021, with a zero percent IR. The ALJ’s determinations that the claimant reached MMI on October 5, 2021, with a zero percent IR as certified by Dr. B are supported by the evidence. However, a written decision is being issued to clarify an inconsistency between the discussion portion of the ALJ’s decision and his determinations.

In his discussion the ALJ noted there is only one certification in the record that considers all components of the compensable injury, which is from Dr. B, “who examined the [c]laimant on June 15, 2022, pursuant to a [Presiding Officer’s Directive (POD)], and responded to a [Letter of Clarification (LOC)].” The ALJ further noted that “[Dr. B] certified that [the] [c]laimant reached MMI on October 5, 2021, and assessed a [one percent] IR.” The ALJ noted that the one percent IR was assigned for the claimant’s right wrist sprain/strain based on range of motion (ROM) deficits. The ALJ concluded his remarks regarding MMI and IR by stating that “the preponderance of the other medical evidence is not contrary to [Dr. B’s] certification that [the] [c]laimant reached MMI on October 5, 2021, with a [one percent] IR.”

Dr. B examined the claimant on June 15, 2022, and issued three certifications based on varying conditions. In the certification that considers the compensable injury in this case, which is a right hip contusion, right knee sprain, lumbar strain, bilateral wrist sprains/strains, and a rib contusion, Dr. B certified the claimant reached MMI on October 5, 2021. 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 ROM values Dr. B assigned zero percent impairment for the right hip contusion, right knee sprain, lumbar strain, left wrist sprain/strain, and rib contusion, and a one percent whole person impairment for the right wrist sprain/strain.

However, the ALJ sent Dr. B an LOC dated June 28, 2022, with a copy of a Report of Medical Evaluation (DWC-69) and accompanying report from Dr. F, the previous designated doctor, because Dr. B indicated he had not received them. Dr. B responded on June 28, 2022, noting that he reviewed Dr. F’s report. Dr. B stated that his opinion the claimant reached MMI on October 5, 2021, for the compensable injury would remain the same, but “the [IRs] would change in my [June 15, 2022] narrative report, and I would use the [ROM] values from [Dr. F’s] report on [December 9, 2021],” because those were from a valid or reliable exam closest in time to the date of MMI.

Using Dr. F’s ROM measurements, Dr. B changed his one percent IR for the compensable injury to a zero percent IR. We note Dr. B stated in his report that Dr. F assessed zero percent impairment for 30° of right wrist radial deviation; however, Dr. F’s narrative report reflects she found 20° of right wrist radial deviation. Both 30° and 20° of radial deviation result in zero percent upper extremity impairment as provided by Figure 29 on page 3/38 of the AMA Guides. Dr. B’s zero percent IR is in compliance with the AMA Guides and is supported by the evidence.

Although the ALJ’s discussion mistakenly discusses Dr. B’s initial certification that the claimant’s IR is one percent, the ALJ correctly determined the claimant’s IR is zero percent as assigned by Dr. B in his response to the ALJ’s LOC. Accordingly, we affirm the ALJ’s determinations that the claimant reached MMI on October 5, 2021, with a zero percent IR.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right ankle strain, thoracic strain, right wrist partial tear of the triangular fibrocartilage with radial subluxation, left wrist partial tear of the triangular fibrocartilage, lumbar L2-3 left paramedian foraminal 1-2 mm disc herniation with annular fissure encroaching on the left exiting nerve root, lumbar L2-3 bilateral neural foraminal stenosis with encroachment of the exiting nerve root, lumbar annular bulge at L3-4 measuring 1-1.5 mm with nerve root impingement with cauda equina syndrome, lumbar L4-5 annular bulge measuring 1-2 mm posteriorly with neural foraminal stenosis with nerve root impingement, or lumbar L5-S1 annular bulge measuring 1-2 mm with annular fissure with nerve root impingement.

We affirm that portion of the ALJ’s determination that the claimant did not have disability beginning October 6, 2021, through the date of the CCH.

We affirm the ALJ’s determination that the claimant reached MMI on October 5, 2021.

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

The true corporate name of the insurance carrier is LIBERTY INSURANCE CORPORATION 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.

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 October 31, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to L3-4 fluid in the facet joints and a left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the L3 nerve root; L4-5 fluid in the facet joints and a left foraminal disc protrusion/herniation measuring 2.5 mm; L5-S1 fluid in the facet joints with a circumferential disc bulge measuring 6 mm and a superimposed central disc protrusion/herniation measuring 8 mm producing moderate central canal stenosis; severe stenosis of the bilateral lateral recesses impinging the bilateral L5 nerve roots; somatic dysfunction of the sacroiliac joint; sacroccygeal disorder; peripheral radiculopathy; or facet arthropathy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on March 26, 2021; (3) the claimant’s impairment rating (IR) is five percent; and (4) the claimant had disability beginning on March 27, 2021, and continuing through April 29, 2021, but not thereafter through the date of the CCH.

The claimant appealed the ALJ’s disability determination that was adverse to him, as well as the ALJ’s extent of injury, MMI, and IR determinations. The respondent (carrier) responded, urging affirmance of the appealed determinations. The ALJ’s determination that the claimant had disability beginning on March 27, 2021, and continuing through April 29, 2021, was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part, affirmed as reformed in part, reversed by striking in part, and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and that the carrier has accepted a back contusion, left hip contusion, and a grade I cervical sprain/strain as the compensable injury. The claimant was injured on (date of injury), when he slipped and fell on ice while working outdoors in below freezing weather.

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

That portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to L3-4 fluid in the facet joints; L4-5 fluid in the facet joints and a left foraminal disc protrusion/herniation measuring 2.5 mm; L5-S1 fluid in the facet joints with a circumferential disc bulge measuring 6 mm and a superimposed central disc protrusion/herniation measuring 8 mm producing moderate central canal stenosis; somatic dysfunction of the sacroiliac joint; peripheral radiculopathy; or facet arthropathy is supported by sufficient evidence and is affirmed. We note that the decision and order mistakenly cites sacrococcygeal disorder as sacroccygeal disorder. We reform all references of sacroccygeal disorder to read sacrococcygeal disorder. The ALJ’s determination that the compensable injury of (date of injury), does not extend to sacrococcygeal disorder, as reformed, is supported by sufficient evidence and is affirmed.

At the CCH the parties agreed to amend the extent-of-injury issue to determine the following conditions:  L3-4 fluid in the facet joints and a left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the left L3 nerve root; L4-5 fluid in the facet joints and a left foraminal disc protrusion/herniation measuring 2.5 mm; L5-S1 fluid in the facet joints with a circumferential disc bulge measuring 6 mm and a superimposed central disc protrusion/herniation measuring 8 mm producing moderate central canal stenosis, severe stenosis of the bilateral lateral recesses impinging the bilateral S1 nerve roots and severe bilateral neural foramen stenosis impinging the bilateral L5 nerve roots; somatic dysfunction of the sacroiliac joint; sacrococcygeal disorder; peripheral radiculopathy; and facet arthropathy.

The ALJ determined the compensable injury does not extend to severe stenosis of the bilateral lateral recesses impinging the bilateral L5 nerve roots rather than bilateral S1 nerve roots. The ALJ also determined the compensable injury does not extend to an L3-4 left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the L3 nerve root, rather than the left L3 nerve root. These determinations exceed the scope of the extent-of-injury determination before the ALJ. Accordingly, we reverse the ALJ’s determinations that the compensable injury of (date of injury), does not extend to severe stenosis of the bilateral lateral recesses impinging the bilateral L5 nerve roots or an L3-4 left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the L3 nerve root, and we strike those determinations as exceeding the scope of the extent-of-injury issue before the ALJ.

The ALJ failed to make findings of fact, conclusions of law, and a determination whether the compensable injury extends to L5-S1 severe stenosis of the bilateral lateral recesses impinging the bilateral S1 nerve roots, L5-S1 severe bilateral neural foramen stenosis impinging the bilateral L5 nerve roots, and an L3-4 left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the left L3 nerve root, which were issues properly before the ALJ to determine. We therefore reverse the ALJ’s extent-of-injury determination as being incomplete. We remand the issue of whether the compensable injury of (date of injury), extends to L5-S1 severe stenosis of the bilateral lateral recesses impinging the bilateral S1 nerve roots, L5-S1 severe bilateral neural foramen stenosis impinging the bilateral L5 nerve roots, and an L3-4 left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the left L3 nerve root to the ALJ for further action consistent with this decision.

MMI/IR/DISABILITY

Because we have remanded a portion of the extent-of-injury determination, we also reverse the ALJ’s determinations that the claimant reached MMI on March 26, 2021, that the claimant’s IR is five percent, and that the claimant did not have disability from April 30, 2021, through the date of the CCH. We remand these issues to the ALJ for further action consistent with this decision.   

SUMMARY

We affirm that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to L3-4 fluid in the facet joints; L4-5 fluid in the facet joints and a left foraminal disc protrusion/herniation measuring 2.5 mm; L5-S1 fluid in the facet joints with a circumferential disc bulge measuring 6 mm and a superimposed central disc protrusion/herniation measuring 8 mm producing moderate central canal stenosis; somatic dysfunction of the sacroiliac joint; peripheral radiculopathy; or facet arthropathy.

We affirm as reformed the ALJ’s determination that the compensable injury of (date of injury), does not extend to sacrococcygeal disorder.

We reverse that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to severe stenosis of the bilateral lateral recesses impinging the bilateral L5 nerve roots or an L3-4 left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the L3 nerve root, and we strike those determinations as exceeding the scope of the extent-of-injury issue before the ALJ.

We reverse the ALJ’s extent-of-injury determination as being incomplete, and we remand the issue of whether the compensable injury of (date of injury), extends to L5-S1 severe stenosis of the bilateral lateral recesses impinging the bilateral S1 nerve roots, L5-S1 severe bilateral neural foramen stenosis impinging the bilateral L5 nerve roots, and an L3-4 left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the left L3 nerve root to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant reached MMI on March 26, 2021, and we remand the MMI issue to the ALJ for further action consistent with this decision.

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

We reverse the ALJ’s determination that the claimant did not have disability from April 30, 2021, through the date of the CCH, and we remand the disability issue for that period to the ALJ for further action consistent with this decision.   

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a determination whether the compensable injury of (date of injury), extends to L5-S1 severe stenosis of the bilateral lateral recesses impinging the bilateral S1 nerve roots, L5-S1 severe bilateral neural foramen stenosis impinging the bilateral L5 nerve roots, and an L3-4 left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the left L3 nerve root, the claimant’s date of MMI, the claimant’s IR, and whether the claimant had disability from April 30, 2021, through the date of the CCH.

(Dr. H) is the most recently appointed designated doctor in this case. If a new certification is necessary in this case, the ALJ is to determine whether Dr. H is still qualified and available to be the designated doctor.  If Dr. H is no longer qualified or available to serve as the designated doctor, and if necessary, another designated doctor is to be appointed pursuant to the Texas Department of Insurance, Division of Workers’ Compensation (Division) rules to opine on the issues of MMI and IR.  The ALJ is to inform the designated doctor what conditions are included in the compensable injury.  The ALJ is to request that the designated doctor give an opinion on the claimant’s date of MMI and rate the entire compensable injury in accordance with 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) considering the medical record and the certifying examination.  

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

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA 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 August 18, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to left carpal tunnel syndrome (CTS) or left cubital tunnel syndrome (CuTS); (2) the appellant (claimant) reached maximum medical improvement (MMI) on May 18, 2021; (3) the claimant’s impairment rating (IR) is 4%; (4) the claimant had disability resulting from the compensable injury of (date of injury), beginning on August 21, 2020, and continuing through October 16, 2020; and (5) the claimant did not have disability resulting from the compensable injury of (date of injury), beginning on October 17, 2020, and continuing through August 18, 2022. The claimant appealed that portion of the ALJ’s disability determination that was against him, as well as the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded to the claimant’s appeal, urging affirmance of the ALJ’s determinations.  

The ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), beginning on August 21, 2020, and continuing through October 16, 2020, 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: (1) on (date of injury), the claimant sustained a compensable injury in the form of at least a left hand strain, left hand sprain, left wrist strain, and left wrist sprain; and (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. C) as the designated doctor to determine the issues of extent of injury, MMI, IR, disability, and return to work. The claimant testified that he was injured on (date of injury), while transferring a patient for surgery. He stated that as he was pushing the patient in a hospital bed, the wheels on the bed locked and it would not turn. When he forced the bed to turn, he felt pain in his left palm. The claimant further testified that later the same day, he moved an oxygen tube on another patient’s bed and felt more pain.

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 left CTS or left CuTS is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability resulting from the compensable injury of (date of injury), beginning on October 17, 2020, and continuing through August 18, 2022, is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on May 18, 2021, 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 that the claimant reached MMI on May 18, 2021, with a 4% IR in accordance with the July 28, 2022, certification of Dr. C, the designated doctor. Dr. C initially examined the claimant on May 31, 2022. Following a Presiding Officer’s Directive to Order Designated Doctor Exam, Dr. C re-examined the claimant on July 27, 2022, and issued three alternative certifications. The first certification rated the compensable conditions of a left hand strain, left hand sprain, left wrist strain, and left wrist sprain and assigned the 4% 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 assessed a 19% digit impairment for the left thumb based on range of motion (ROM) measurements which he converted to an 8% hand impairment and then to a 7% upper extremity (UE) impairment. Dr. C also assigned a 0% UE impairment for the claimant’s left elbow, left wrist, and the remaining four fingers of the left hand due to significant voluntary restriction in the ROM for these body parts. Dr. C then combined the 7% impairment for the left thumb with 0% impairment for the left elbow and 0% impairment for the left wrist for a total 7% UE impairment which converted to a whole person impairment (WPI) of 4%.

There was a mistake in Dr. C’s left thumb impairment calculation. In calculating the left thumb impairment, Dr. C used the following ROM measurements as indicated on the worksheet attached to his July 27, 2022, report: 40° of interphalangeal (IP) joint flexion (3%); 30° of IP joint extension (0%); 40° of metacarpophalangeal (MP) joint flexion (2%); 0° of MP joint extension (0%); 40° of carpometacarpal (CMC) joint radial abduction (1%); 2 cm of CMC adduction (8%); and 5 cm of CMC opposition (5%). Dr. C then added the joint impairments which resulted in a 19% digit impairment and converted that to an 8% hand impairment and 7% UE impairment. Dr. C stated that 2 cm of adduction resulted in 8% impairment, but Table 5 on page 3/28 of the AMA Guides indicates that 2 cm of adduction for the thumb results in 1% impairment. Adding the 1% impairment for adduction to the other left thumb joint impairments results in a 12% thumb impairment which converts to a 5% hand impairment and a 5% UE impairment, not a 7% UE impairment as determined by Dr. C. Combining 5% UE impairment for the left thumb and 0% UE impairment for the left elbow and wrist results in a 5% total UE impairment which converts to a WPI of 3%, not a 4% WPI as determined by Dr. C.

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; APD 101949, decided February 22, 2011; and APD 221440, decided October 6, 2022.

The ALJ found that the preponderance of the other medical evidence is not contrary to the certification of IR by Dr. C. After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 4%, and we render a new decision that the claimant’s IR is 3% as mathematically corrected.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to left CTS or left CuTS.

We affirm the ALJ’s determination that the claimant did not have disability resulting from the compensable injury of (date of injury), beginning on October 17, 2020, and continuing through August 18, 2022.

We affirm the ALJ’s determination that the claimant reached MMI on May 18, 2021.

We reverse the ALJ’s determination that the claimant’s IR is 4%, and we render a new decision that the claimant’s IR is 3% as mathematically corrected.

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 18, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to intraosseous ganglion in the third metacarpal head or triggering right ring finger; (2) the appellant (claimant) did not have disability from March 18, 2022, through the present from an injury sustained on (date of injury); (3) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. G) on March 31, 2020, became final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (4) the claimant reached MMI on February 10, 2020; and (5) the claimant’s IR is zero percent. The claimant appealed the ALJ’s determinations of extent of injury, disability, finality, MMI, and IR. The respondent (carrier) responded to the claimant’s appeal, urging affirmance of the ALJ’s determinations.  

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 in the form of at least a grade 1 sprain of ulnar collateral ligament MCP joint right middle finger and grade 1-2 sprain of radial collateral ligament MCP joint. The claimant testified that she was injured on (date of injury), while working as a supervisor and cleaning buildings for the employer. The claimant further testified that she was taking out the trash when her right hand got jammed by the door between her right middle and ring fingers.  

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 intraosseous ganglion in the third metacarpal head or triggering right ring finger is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from March 18, 2022, through the present from an 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, including IRs related to extent-of-injury disputes.  The notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c).      

In Appeals Panel Decision (APD) 042163-s, decided October 21, 2004, the Appeals Panel discussed whether the deemed receipt provision of Rule 102.4 was applicable and what is meant by “verifiable means.”  APD 041985-s, decided September 28, 2004, and APD 042163-s, supra, both reference the preamble to Rule 130.12.  The preamble provides that the 90-day period “begins when that party receives verifiable written notice of the MMI/IR certification.”    

The preamble goes on to state:    

Written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party.  This may include acknowledged receipt by the injured employee or insurance carrier, a statement of personal delivery, confirmed delivery by e-mail, confirmed delivery by facsimile, or some other confirmed delivery to the home or business address.  The goal of this requirement is not to regulate how a system participant makes delivery of a report or other information to another system participant, but to ensure that the system participant filing the report or providing the information has verifiable proof that it was delivered.  29 Tex. Reg. 2331, March 5, 2004.    

The ALJ found that the March 31, 2020, certification by Dr. G, a doctor selected by the treating doctor to act in his place, was the first valid certification of MMI and assigned IR for the purposes of Section 408.123 and Rule 130.12. This finding is supported by sufficient evidence. The ALJ further found that Dr. G’s certification was delivered to the claimant by verifiable means on August 24, 2021. In the ALJ’s decision, the ALJ explains that in evidence is a Dispute Resolution Information System (DRIS) note that indicates the claimant contacted the Texas Department of Insurance, Division of Workers’ Compensation (Division) to dispute Dr. G’s certification on August 24, 2021. While a review of the record reflects conflicting evidence concerning the date the claimant may have received Dr. G’s certification, the ALJ relied on DRIS notes to find that Dr. G’s certification was delivered to the claimant by verifiable means on or before August 24, 2021.

In APD 152374, decided February 3, 2016, the ALJ similarly relied on a DRIS note that indicated the claimant called the Division regarding the dispute of a certification to find that the claimant was provided with written notice by verifiable means. In that case, the Appeals Panel disagreed that the DRIS note in question was sufficient to establish delivery by verifiable means and noted “[t]he DRIS note, which indicates only that the claimant’s attorney and doctor are disputing [the] report, does not constitute reasonable confirmation of delivery of written notice to the claimant on that date.” Likewise in the present case, the DRIS note dated August 24, 2021, is insufficient to establish that Dr. G’s report was delivered to the claimant by verifiable means. Therefore, we reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12.

A review of the record indicates that there were several other dates put forth by the carrier as dates the claimant may have received Dr. G’s certification. The ALJ did not make further findings regarding the alternate dates. Therefore, we remand the issue of finality to the ALJ for further action consistent with this decision.

MMI AND IR

As we have reversed and remanded the issue of whether the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12, we also reverse the ALJ’s determinations that the claimant reached MMI on February 10, 2020, with a zero percent IR and 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 intraosseous ganglion in the third metacarpal head or triggering right ring finger.

We affirm the ALJ’s determination that the claimant did not have disability from March 18, 2022, through the present from an injury sustained on (date of injury).

We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12, and we remand the issue of finality to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determinations that the claimant reached MMI on February 10, 2020, with a zero percent IR and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to make findings of fact regarding whether the claimant received Dr. G’s certification by verifiable means and, if so, on what date.  The ALJ is to make a determination of whether the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12 that is consistent with the evidence and this decision. If the ALJ determines that Dr. G’s March 31, 2020, certification did not become final, he is to request a designated doctor on the issues of MMI and IR.

The ALJ is then to make a determination of MMI and IR that is consistent with the evidence and 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 ACCIDENT FUND INSURANCE COMPANY OF AMERICA 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.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 31, 2022, with the record closing on May 26, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to bibasilar atelectasis; (2) the compensable injury of (date of injury), does not extend to C5-6 disc herniation, post cervical decompressive discectomy at C5-6, post cervical arthrodesis at C5-6 with allograft, cervical myelopathy, cervical stenosis, herniated nucleus pulposus at C5-6, gait, neck muscle spasms, C6-7 disc protrusion, L4-5 disc bulge, or an L5-S1 annular tear; (3) the appellant (claimant) reached maximum medical improvement (MMI) on December 4, 2018; (4) the claimant’s impairment rating (IR) is zero percent; (5) the claimant had disability from October 24, 2018, through December 15, 2018, as a result of the compensable injury of (date of injury); and (6) the claimant did not have disability from December 16, 2018, through the date of the hearing, as a result of the compensable injury of (date of injury).

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

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

DECISION

Affirmed in part and reversed and rendered in part.

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

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

EXTENT OF INJURY

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

MMI

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

IR

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

DISABILITY

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

AWW

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

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

SUMMARY

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

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

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

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

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

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

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 11, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to a right side hemothorax; (2) the compensable injury of (date of injury), does not extend to post-concussion syndrome, panic attack, anxiety, periodontal disease, temporomandibular joint dysfunction, pulpitis, L5-S1 disc protrusion/herniation, retrolisthesis of L5-S1, aggravation of degenerative disc disease at L5-S1, lumbar radiculitis, or lumbar radiculopathy; (3) the appellant (claimant) reached maximum medical improvement (MMI) on October 28, 2020; (4) the claimant’s impairment rating (IR) is 10%; (5) the claimant had disability beginning on October 29, 2020, and continuing through March 26, 2021; and (6) the claimant did not have disability beginning on March 27, 2021, and continuing through the date of the CCH.

The claimant appealed the ALJ’s determinations of MMI and IR and that portion of the ALJ’s disability and extent-of-injury determinations that were adverse to him. The respondent (carrier) responded, urging affirmance. Those portions of the ALJ’s determinations that the compensable injury of (date of injury), extends to a right side hemothorax and that the claimant had disability beginning on October 29, 2020, and continuing through March 26, 2021, were not appealed and have become final pursuant to Section 410.169.

DECISION

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

The claimant testified that he was injured when the ladder he was climbing malfunctioned, causing him to fall. The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the carrier has accepted a small right-side pneumothorax, multiple right rib fractures at the 8th through 11th ribs, and an L2-3 fracture; and that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. B) as designated doctor for the purposes of MMI, IR, and extent of the claimant’s compensable injury. We note that a review of the record reflects that the parties stipulated that the L2-3 fracture was specifically an L2-3 transverse process fracture.

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 post-concussion syndrome, panic attack, anxiety, periodontal disease, temporomandibular joint dysfunction, pulpitis, L5-S1 disc protrusion/herniation, retrolisthesis of L5-S1, aggravation of degenerative disc disease at L5-S1, lumbar radiculitis, or lumbar radiculopathy is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ determined that the claimant did not have disability beginning on March 27, 2021, and continuing through the date of the CCH resulting from the compensable injury sustained on (date of injury). In her discussion of the evidence the ALJ stated the claimant did not receive any medical treatment for several months after March 26, 2021, because he was living in Louisiana and was unable to find a doctor to treat him. The ALJ further stated that the claimant eventually began treating with (Dr. H) on November 23, 2021. However, in evidence is a medical record dated November 9, 2021, that reflects the claimant saw Dr. H for medical care on that date. Additionally, the medical record dated November 23, 2021, states the claimant “presents in office today for a 2 week follow up on work injury that occurred….” The ALJ’s statements that the claimant eventually began treating with Dr. H on November 23, 2021, is a misstatement of the evidence. While the ALJ can accept or reject in whole or in part the evidence presented, the ALJ’s decision in this case is based, in part, on a misstatement of the medical evidence in the record. Accordingly, we reverse the ALJ’s determination that the claimant did not have disability beginning on March 27, 2021, and continuing through the date of the CCH resulting from the compensable injury of (date of injury), and remand that issue to the ALJ for further action consistent with this decision.

MMI

The ALJ determined that the claimant reached MMI on October 28, 2020, as certified by Dr. B. As discussed below Dr. B did not rate the entire compensable injury and rated conditions that were not yet considered to be part of the compensable injury.

The ALJ found the preponderance of the other medical evidence is not contrary to Dr. B’s certification of MMI on October 28, 2020, and assignment of a 10% IR. That finding is reversed. In evidence is a certification from (Dr. M), the post-designated doctor required medical examination (RME) doctor, certifying that the claimant reached MMI on October 28, 2020. The narrative report from Dr. M reflects that Dr. M considered a small right-side pneumothorax, multiple rib fractures on the right side, hemothorax of the right side, and an L2-3 fracture, which is the compensable injury in this case. Dr. M’s certification that the claimant reached MMI on October 28, 2020, is based on the compensable injury and is supported by sufficient evidence. Therefore, we affirm as reformed the ALJ’s determination that the claimant reached MMI on October 28, 2020, as certified by Dr. M.

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 found that the preponderance of the other medical evidence is not contrary to Dr. B’s certification of MMI on October 28, 2020, and assignment of 10% IR. Dr. B examined the claimant on September 17, 2021. Dr. B provided three alternate certifications. In the first scenario, Dr. B considered and rated the following conditions which he understood were compensable: L2-3 transverse process fractures; temporomandibular joint subluxation, multiple rib fractures on the right side, and a small right pneumothorax. Dr. B certified that the claimant reached MMI on October 28, 2020, and assigned a 10% IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. B rated the right rib fractures, temporomandibular joint subluxation, and small right pneumothorax 0% impairment. Dr. B placed the claimant in Diagnosis-Related Estimate (DRE) Lumbosacral Category III: Radiculopathy based on atrophy and assigned 10% IR. Dr. B assessed a 10% IR for lumbar radiculopathy, a condition the ALJ determined not to be part of the compensable injury. See Appeals Panel Decision (APD) 132028, decided October 14, 2013; and APD 211764, decided December 9, 2021. We note that the AMA Guides provide that DRE Lumbosacral Category III:

Radiculopathy provides that structural inclusions would meet the criteria: (1) 25% to 50% compression of one vertebral body; (2) posterior element fracture, but not [emphasis in the original] fracture of transverse or spinous process, with [emphasis in the original] displacement disrupting the spinal canal, healed without loss of structural integrity.

As previously noted, the claimant’s fracture at L2-3 was a transverse process fracture. Additionally, in this scenario, Dr. B considered and rated a condition that has not yet been determined to be part of the compensable injury (a temporomandibular joint subluxation) and did not consider a right side hemothorax which has been determined to be part of the compensable injury. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 10%.

In both of the other certifications, Dr. B certified that the claimant had not yet reached MMI. However, both certifications considered conditions that have been determined not to be part of the compensable injury, including: L5-S1 disc protrusion, panic attack, post-concussion syndrome, and pulpitis. Additionally, as noted above we have affirmed as reformed the ALJ’s determination that the claimant reached MMI on October 28, 2020. Accordingly, these certifications cannot be adopted.

The only other certifications in evidence are from the carrier selected RME doctor, Dr. M. Dr. M examined the claimant on February 25, 2022, and provided four alternate certifications. In the second and fourth scenarios, Dr. M certified that the claimant had not reached MMI. These certifications consider conditions that have been determined not to be part of the compensable injury. Additionally, as noted above we have affirmed as reformed the ALJ’s determination that the claimant reached MMI on October 28, 2020. Accordingly, these certifications cannot be adopted.

In the first scenario Dr. M certified that the claimant reached MMI on October 28, 2020, with a 5% IR. Dr. M considered and rated the following conditions: L2-3 fracture; temporomandibular joint subluxation, multiple rib fractures on the right side, and a small right pneumothorax. This certification cannot be adopted because it rates and considers temporomandibular joint subluxation which has not yet been determined to be part of the compensable injury and fails to rate a right side hemothorax which has been determined to be part of the compensable injury.

In the third scenario, Dr. M considers and rates the following conditions: L2-3 fracture, multiple rib fractures on the right side, hemothorax of the right side, and small right pneumothorax. Dr. M certified that the claimant reached MMI on October 28, 2020, noting that his fractures had completely healed, the lumbar spine had plateaued, and there were no lung complications following the hemo/pneumothorax. Dr. M assessed 5% impairment, placing the claimant in DRE Lumbosacral Category II: Minor Impairment for the spinous transverse process fractures and assessed 0% for the rib fractures and hemo/pneumothorax because they healed uneventfully with no loss of function. Dr. M’s narrative report reflects he considered and rated the entire compensable injury and his assigned IR complies with the AMA Guides. We therefore render a new decision that the claimant’s IR is 5% as certified by Dr. M.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to post-concussion syndrome, panic attack, anxiety, periodontal disease, temporomandibular joint dysfunction, pulpitis, L5-S1 disc protrusion/herniation, retrolisthesis of L5-S1, aggravation of degenerative disc disease at L5-S1, lumbar radiculitis, or lumbar radiculopathy.

We affirm as reformed the ALJ’s determination that the claimant reached MMI on October 28, 2020, as certified by Dr. M.

We reverse the ALJ’s determination that the claimant’s IR is 10%, and render a new decision that the claimant’s IR is 5%.

We reverse the ALJ’s determination that the claimant did not have disability beginning on March 27, 2021, and continuing through the date of the CCH resulting from the compensable injury of (date of injury), and remand that issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to correct the misstatement regarding the claimant’s medical records. The ALJ shall consider all of the evidence and make a determination whether the claimant had disability from March 27, 2021, through May 11, 2022. Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 9, 2022, with the record closing on March 11, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to a lumbar sprain; (2) the compensable injury of (date of injury), does not extend to lumbar radiculopathy or lumbar disc herniation at L4-5; (3) the appellant (claimant) had disability from March 27, 2020, through October 14, 2021, resulting from an injury sustained on (date of injury); (4) the claimant reached maximum medical improvement (MMI) on March 26, 2020; and (5) the claimant’s impairment rating (IR) is zero percent.

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

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. F) as designated doctor to address MMI and IR and that the carrier has accepted liability for a lumbar strain. The claimant testified he was injured on (date of injury), while he and a co-worker were pulling a hose along with another co-worker.

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

That portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to lumbar radiculopathy or a lumbar disc herniation at L4-5 is supported by sufficient evidence and is affirmed.

The extent-of-injury issue contained in the Benefit Review Conference Report lists the following condition at issue: lumbar sprain. Both parties agreed at the CCH that a lumbar sprain was a part of the extent-of-injury issue to be resolved.

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.     

The ALJ states in Conclusion of Law No. 3, the summary on page one, and the Decision portion of the decision and order that the compensable injury of (date of injury), extends to a lumbar sprain.  However, the ALJ made no findings of fact whether the compensable injury extends to a lumbar sprain.  Because the ALJ’s decision contains no findings of fact regarding whether the compensable injury of (date of injury), extends to a lumbar sprain, which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16.  We reverse the ALJ’s determination that the compensable injury of (date of injury), extends to a lumbar sprain as being incomplete, and we remand the issue of whether the compensable injury of (date of injury), extends to a lumbar sprain. See Appeals Panel Decision (APD) 132339, decided December 12, 2013.  

DISABILITY

Because we have reversed and remanded a portion of the extent-of-injury determination, we also reverse the ALJ’s determination that the claimant had disability as a result of the compensable injury sustained on (date of injury), from March 27, 2020, through October 14, 2021, and remand the disability issue to the ALJ for further action consistent with this decision.    

MMI/IR

Given that we have reversed a portion of the ALJ’s extent-of-injury determination and remanded that issue to the ALJ to make a determination consistent with this decision, we reverse the ALJ’s determination that the claimant reached MMI on March 26, 2020, and that the claimant’s IR is zero percent, and we remand the issues of MMI and IR to the ALJ to make a determination consistent with this decision.    

SUMMARY

We affirm that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to lumbar radiculopathy or a lumbar disc herniation at L4-5.

We reverse that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), extends to a lumbar sprain and we remand the issue of whether the compensable injury of (date of injury), extends to a lumbar sprain for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant had disability as a result of the compensable injury sustained on (date of injury), from March 27, 2020, through October 14, 2021, and remand the disability issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant reached MMI on March 26, 2020, and remand the MMI issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant’s IR is zero percent and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to consider all of the evidence, make findings of fact, and render conclusions of law and a decision regarding the issues of whether the compensable injury of (date of injury), extends to a lumbar sprain; the claimant’s date of MMI, and the claimant’s IR; and whether the claimant had disability from March 27, 2020, through October 14, 2021, 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 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 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.

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 March 7, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that:  (1) the compensable injury of (date of injury), does not extend to lesion of the saphenous and medial plantar cutaneous nerve, swelling of the left foot, ankle, or calf, or altered gait; (2) the date of maximum medical improvement (MMI) is December 19, 2019; (3) the appellant’s (claimant) impairment rating (IR) is zero percent; and (4) the claimant did not have disability from December 19, 2019, through the date of the CCH resulting from an injury sustained on (date of injury). The claimant appealed, disputing the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

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

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the carrier has accepted a left foot puncture wound with foreign body as the compensable injury; and the statutory date of MMI is July 14, 2021. The claimant was injured on (date of injury), when a metal rod went through his left foot while working on a scaffold.

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

That portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to lesion of the saphenous and medial plantar cutaneous nerve, swelling of the left foot and ankle, or altered gait is supported by sufficient evidence and is affirmed.

At the CCH the ALJ stated the extent-of-injury issue as follows: does the compensable injury of (date of injury), extend to a lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, lesion of the saphenous nerve and medial plantar cutaneous nerve, swelling of the left foot/ankle, altered gait, and pain in the left foot? The parties agreed at the CCH that this was the correct extent-of-injury issue to be litigated. However, the ALJ made findings of fact, conclusions of law, and a decision regarding only lesion of the saphenous and medial plantar cutaneous nerve, swelling of the left foot and ankle, and altered gait. The ALJ did not make findings of fact, conclusions of law, or a decision regarding lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, and pain in the left foot.  

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 a 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 ALJ failed to make findings of fact, conclusions of law, and a decision regarding the disputed conditions of lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, or pain in the left foot in this case and as required by Section 410.168 and Rule 142.16. See Appeals Panel Decision (APD) 132339, decided December 12, 2013; APD 150510, decided April 21, 2015; APD 162262, decided January 10, 2017; APD 181349, decided August 15, 2018; and APD 210332, decided May 3, 2021.  Accordingly, we reverse the ALJ’s decision as being incomplete and we remand the issue of whether the compensable injury extends to those conditions.

Additionally, we note the ALJ determined that the compensable injury does not extend to swelling of the left calf, which was not one of the disputed conditions agreed to by the parties at the CCH. We therefore reverse the ALJ’s decision by striking her determination that the compensable injury does not extend to swelling of the left calf as exceeding the scope of the extent-of-injury issue.

MMI/IR AND DISABILITY

We have reversed and remanded and reversed by striking portions of the ALJ’s extent-of-injury determination.  We therefore reverse the ALJ’s determinations that the claimant reached MMI on December 19, 2019, with a zero percent IR and that the claimant did not have disability from December 19, 2019, through the date of the CCH resulting from an injury sustained on (date of injury). We remand the issues of MMI, IR, and whether the claimant had disability from December 19, 2019, through the date of the CCH resulting from an injury sustained on (date of injury), to the ALJ for further action consistent with this decision.  

SUMMARY

We affirm that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to lesion of the saphenous and medial plantar cutaneous nerve, swelling of the left foot and ankle, or altered gait.

We reverse the ALJ’s extent-of-injury determination as incomplete, and remand the issue of whether the (date of injury), compensable injury extends to lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, and pain in the left foot for further action consistent with this decision.

We reverse and strike that portion of the ALJ’s determination that the compensable injury does not extend to swelling of the left calf as exceeding the scope of the extent-of-injury issue.

We reverse the ALJ’s determination that the claimant reached MMI on December 19, 2019, and we remand the issue of MMI to the ALJ for further action consistent with this decision.

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

We reverse the ALJ’s determination that the claimant did not have disability from December 19, 2019, through the date of the CCH resulting from an injury sustained on (date of injury), and we remand this issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

The ALJ is to make findings of fact, conclusions of law, and a determination whether the compensable injury of (date of injury), extends to a lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, and pain in the left foot that is consistent and supported by the evidence.

The ALJ is then to determine when the claimant reached MMI and the claimant’s IR. The ALJ is also to determine whether the claimant had disability from December 19, 2019, through 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 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 INDEMNITY INSURANCE COMPANY OF NORTH AMERICA 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge