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This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (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

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 11, 2022, in (city), Texas[1], with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) has not reached maximum medical improvement (MMI); (2) the claimant’s impairment rating (IR) cannot be assigned at this time; and (3) the claimant had disability resulting from the compensable injury from (date of injury), through the date of the CCH. The appellant (carrier) appealed the ALJ’s determinations. The carrier asserts on appeal that the ALJ’s discussion contained an error regarding the certification issued by (Dr. J), the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division). The appeal file does not contain a response from the claimant.

DECISION

Affirmed.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to bilateral knee contusions and bilateral ankle sprains. The claimant was injured on (date of injury), while welding a pipe on a roof. The claimant testified that he slipped and a security harness he was wearing did not hold and he fell 15 feet 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).  

The ALJ determined the claimant has not reached MMI and the claimant’s IR cannot be assigned at this time based on the certification from (Dr. N), a doctor selected by the treating doctor to act in the treating doctor’s place. The ALJ also determined the claimant had disability resulting from the compensable injury from (date of injury), through the date of the CCH. The ALJ’s determinations are supported by sufficient evidence and are affirmed. However, a decision is being written to clarify statements made by the ALJ in her discussion.

Dr. J was appointed by the Division to determine MMI and IR. Dr. J examined the claimant on April 23, 2021. The ALJ stated that Dr. J certified “that [the claimant] had not reached [MMI] as of the date of his evaluation.” The ALJ also stated in the same paragraph that Dr. J “placed [the claimant] at [MMI] and assigned a [zero percent IR].” The evidence reflects Dr. J did examine the claimant on April 23, 2021, and placed the claimant at MMI on that same date. There is no certification in evidence from Dr. J certifying the claimant had not reached MMI.  The ALJ specifically found that the preponderance of the other medical evidence is contrary to Dr. J’s certification that the claimant reached MMI on April 23, 2021, with an IR of zero percent, and determined the claimant had not reached MMI and an IR cannot be assigned at this time based on the certification from Dr. N. Under the circumstances of this case, we view the ALJ’s statement in her discussion that Dr. J certified the claimant had not reached MMI as of the date of his evaluation as a typographical error that does not affect the outcome of the case. Accordingly, we affirm the ALJ’s determinations that the claimant has not reached MMI, the claimant’s IR cannot be assigned at this time, and the claimant had disability resulting from the compensable injury from (date of injury), through the date of the CCH.

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
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note the CCH was held in (city), Texas, rather than (city), Texas, due to facility issues.

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on June 2, 2021, and December 7, 2021, with the record closing on December 17, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury sustained on (date of injury), extends to severe chronic pain syndrome; (2) the compensable injury sustained on (date of injury), does not extend to the following right upper extremity conditions: motor/sensory median neuropathy, a hematoma within the proximal extensor digitorum muscle posterior to the proximal radius and supinator muscle, an aggravation of carpal tunnel syndrome, or complex regional pain syndrome/reflex sympathetic dystrophy (CRPS/RSD); (3) the appellant (claimant) did have disability from July 3, 2020, and continuing through the date of the CCH as a result of the compensable injury sustained on (date of injury); (4) the claimant reached maximum medical improvement (MMI) on March 2, 2021; and (5) the claimant’s impairment rating (IR) is zero percent.

The claimant appealed the ALJ’s extent-of-injury determination that was adverse to him, as well as the ALJ’s MMI and IR determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations. The ALJ’s determinations that the compensable injury sustained on (date of injury), extends to severe chronic pain syndrome and the claimant had disability from July 3, 2020, and continuing through the date of the CCH as a result of the compensable injury sustained on (date of injury), were not appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), at least in the form of a right forearm contusion. The claimant was injured on (date of injury), while inserting a fan unit on the back of a bulldozer.

The ALJ’s decision and order states the following exhibits were admitted into evidence: ALJ’s exhibits 1 through 3; claimant’s exhibits 1 through 26; and carrier’s exhibits A through N. The carrier’s exhibit list states that carrier’s exhibit J contains 12 pages; however, the case file provided to use for review contains exhibit J pages 1 through 11. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibit. See Appeals Panel Decision (APD) 030543, decided April 18, 2003; and APD 210136, decided March 26, 2021.

Additionally, we note that Finding of Fact No. 3 contains a clerical error that requires correction on remand. The extent-of-injury issue before the ALJ as agreed to by the parties at the CCH was whether the compensable injury extended to conditions of the right upper extremity. The extent-of-injury issue is correctly stated in the issue statement, conclusions of law, decision, and decision and order sections of the decision. However, Finding of Fact No. 3 refers to the right shoulder, not the right upper extremity. On remand this finding should be corrected to reflect the extent-of-injury conditions that were to be determined by the ALJ.

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 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 22, 2021, with the record closing on November 17, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not have disability resulting from the compensable injury of (date of injury), beginning on January 17, 2021, and continuing through the date of the CCH; (2) the claimant reached maximum medical improvement (MMI) on August 19, 2020; (3) the claimant’s impairment rating (IR) is zero percent; (4) the first certification of MMI and assigned IR from (Dr. K) on January 21, 2021, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); and (5) the compensable injury of (date of injury), does not extend to lumbar facet arthropathy.

The claimant appealed the ALJ’s disability, MMI, IR, and extent-of-injury determinations. The appeal file contains no response from the respondent (carrier). The ALJ’s determination that the first certification of MMI and assigned IR from Dr. K on January 21, 2021, did not become final under Section 408.123 and Rule 130.12 was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record at the CCH. There is no audio recording or transcript in the appeal file of the CCH in this case. Consequently, we reverse and remand this case to the ALJ who presided over the September 22, 2021, CCH, if possible, for reconstruction of the record. See Appeals Panel Decision (APD) 201653, decided December 8, 2020.

Additionally, there are discrepancies between the claimant’s exhibit list and the claimant’s exhibits provided for review. The claimant’s exhibit list states claimant’s exhibit 3 contains 10 pages; however, page 1 of exhibit 3 is blank. The claimant’s exhibit list also states that claimant’s exhibit 4 contains 5 pages, but page 1 of exhibit 4 is blank. The claimant’s exhibit list states claimant’s exhibit 2 contains 10 pages, and we note that page 1 of that exhibit is not blank. It is unclear whether the record is complete; therefore, this case is also remanded for the ALJ to determine whether the record is complete. See APD 030543, decided April 18, 2003; and APD 210136, decided March 26, 2021.

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 THE TRAVELERS INDEMNITY COMPANY and the name and address of its registered agent for service of process is

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

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 November 18, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to a right shoulder injury (grade 1 sprain/strain); (2) the compensable injury of (date of injury), does not extend to a cervical protrusion/herniation at C3-4, a cervical annular tear/protrusion/herniation at C4-5, a cervical protrusion/herniation at C5-6, or abnormal straightening lumbar curvature suggesting muscle spasms; (3) the appellant (claimant) reached maximum medical improvement (MMI) on July 6, 2021; (4) the claimant’s impairment rating (IR) is zero percent; (5) the claimant had disability as a result of the compensable injury beginning April 23, 2021, and continuing through July 6, 2021; and (6) the claimant did not have disability as a result of the compensable injury beginning July 7, 2021, and continuing through the date of the CCH. The claimant appealed, disputing the ALJ’s determinations of extent of injury that were not favorable to him, MMI, IR, and that portion of the disability determination that was not favorable to him. The respondent (carrier) responded, urging affirmance of the disputed extent of injury, MMI, IR, and disability determinations. The ALJ’s determinations that the compensable injury extends to a right shoulder injury (grade 1 sprain/strain) and that the claimant had disability as a result of the compensable injury beginning April 23, 2021, and continuing through July 6, 2021, 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) the claimant sustained a compensable injury in the form of at least a lumbar sprain, thoracic sprain, and cervical sprain; and (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) selected (Dr. F) as designated doctor to opine on the issues of MMI, IR, and extent of injury. The claimant testified that he was injured on (date of injury), when cleaning out a pool.

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 cervical protrusion/herniation at C3-4, cervical annular tear/protrusion/ herniation at C4-5, a cervical protrusion/herniation at C5-6, or abnormal straightening lumbar curvature suggesting muscle spasms is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability as a result of the compensable injury beginning July 7, 2021, and continuing through the date of the CCH is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on July 6, 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.

On July 6, 2021, Dr. F examined the claimant and provided two alternative certifications. Neither of the certifications rated the entire compensable injury. A letter of clarification was sent to Dr. F on October 20, 2021, attaching additional medical records. As a result of his review of the additional records, Dr. F opined that the compensable injury of (date of injury), extended to a right shoulder injury (grade 1 sprain/strain). Dr. F then provided a third certification that considered and rated the entire compensable injury. The third certification from Dr. F considered and rated a cervical sprain, thoracic sprain, lumbar sprain, and right shoulder injury (grade 1 sprain/strain) using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). In the narrative report, Dr. F assigned zero percent impairment for a lumbar sprain, placing the claimant in Lumbosacral Diagnosis-Related Estimate (DRE) Category I: Complaints or Symptoms. Dr. F assigned zero percent for the thoracic sprain, placing the claimant in Thoracolumbar DRE Category I: Complaints or Symptoms. Dr. F assigned zero percent impairment for a cervical sprain, placing the claimant in Cervicothoracic DRE Category I: Complaints or Symptoms.

Dr. F documented the following range of motion (ROM) measurements for the claimant’s right shoulder, noting how he rounded the actual measurements taken: flexion 172° (170°); extension 57° (60°); abduction 186° (190°); adduction 45° (50°); internal rotation 87° (90°); and external rotation 89° (90°). Dr. F then assigned zero percent impairment for the claimant’s right shoulder. However, Dr. F mistakenly assigned zero percent impairment for the loss of ROM for the measurement of flexion. The AMA Guides provide in Figure 38 on page 3/43 that 170° of flexion results in one percent upper extremity (UE) impairment. Table 3 on page 3/20 of the AMA Guides provides that one percent UE impairment converts to one percent whole person impairment. 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; APD 211185, decided September 27, 2021; and APD 211141, decided September 13, 2021.

The ALJ found that the preponderance of the other medical evidence is not contrary to the certification from Dr. F that the claimant reached MMI on July 6, 2021, with an IR of zero percent for a lumbar sprain, thoracic sprain, cervical sprain, and right shoulder injury (grade 1 sprain/strain). After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is zero percent and render a new decision that the claimant’s IR is one percent as mathematically corrected.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a cervical protrusion/herniation at C3-4, cervical annular tear/protrusion/ herniation at C4-5, a cervical protrusion/herniation at C5-6, or abnormal straightening lumbar curvature suggesting muscle spasms.

We affirm the ALJ’s determination that the claimant did not have disability as a result of the compensable injury beginning July 7, 2021, and continuing through the date of the CCH.

We affirm the ALJ’s determination that the claimant reached MMI on July 6, 2021.

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

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
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 November 4, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) reached maximum medical improvement (MMI) on November 16, 2020; (2) the claimant’s impairment rating (IR) is zero percent; and (3) the claimant did not have disability resulting from the compensable injury sustained on (date of injury), from November 20, 2020, through the date of the CCH. The claimant appealed the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to a cervical strain, lumbar strain, and right elbow contusion. The evidence reflects the claimant was injured on (date of injury), when he fell after the ladder he was using broke.

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

DISABILITY

The ALJ’s determination that the claimant did not have disability resulting from the compensable injury sustained on (date of injury), from November 20, 2020, 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 Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.  

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, 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 only certification in evidence is from (Dr. D), the Division-appointed designated doctor. Dr. D examined the claimant on December 22, 2020, and in a certification dated December 30, 2020, certified the claimant reached MMI on November 16, 2020, with a zero percent IR considering a cervical strain, lumbar strain, and a right elbow contusion.

In her discussion of the evidence the ALJ initially stated “[it] is found that the certification by [Dr. D] is contrary to the preponderance of the other medical evidence and cannot be adopted.” However, the ALJ also stated in her discussion that “[t]he certification by the designated doctor is not contrary to the preponderance of the other medical evidence and is adopted.” The ALJ found in Finding of Fact No. 3 that Dr. D, the designated doctor, certified the claimant reached MMI on November 16, 2020, with a zero percent IR, and the preponderance of the other medical evidence is not contrary to this certification. The ALJ determined in Conclusion of Law Nos. 3 and 4, the decision and order, and the decision portion that the claimant reached MMI on November 16, 2020, with a zero percent IR. The ALJ’s discussion of the evidence is inconsistent with her determinations of MMI and IR. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on November 16, 2020, with a zero percent IR, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision. See Appeals Panel Decision (APD) 210422, decided May 26, 2021; APD 180080, decided March 8, 2018; APD 160494, decided May 2, 2016.

SUMMARY

We affirm the ALJ’s determination that the claimant did not have disability resulting from the compensable injury sustained on (date of injury), from November 20, 2020, through the date of the CCH.

We reverse the ALJ’s determinations that the claimant reached MMI on November 16, 2020, with a zero percent IR, and we 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 a determination of MMI and IR that is supported by the evidence and to clarify the inconsistency between her findings and determinations and the discussion of 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 ZURICH AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is

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

Carisa Space-Beam
Appeals Judge

CONCUR:

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 5, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury sustained on (date of injury), does not extend to reflex sympathetic dystrophy syndrome (RSD), complex regional pain syndrome (CRPS), peripheral polyneuropathy, or nerve injury; (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 4, 2021; (3) the claimant’s impairment rating (IR) is zero percent; (4) the claimant had disability as a result of the compensable injury beginning June 30, 2020, and continuing through August 10, 2020; and (5) the claimant did not have disability as a result of the compensable injury beginning August 11, 2020, and continuing through the date of the CCH.  

The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, IR, and that portion of the disability determination that was not favorable to him.  The respondent (carrier) responded, urging affirmance of the disputed determinations. The ALJ’s determination that the claimant had disability as a result of the compensable injury beginning June 30, 2020, and continuing through August 10, 2020, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of at least right lower leg lacerations, right lower leg abrasions, and right lower leg contusions and (Dr. L) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor to address the issues of MMI and IR. The claimant testified that he was injured on (date of injury), when he was loading a rack full of trays, and the rack tilted towards him, causing trays to fall out and hit him. The claimant then fell backwards striking his right leg on a metal bar.

The ALJ’s decision states that claimant’s exhibits 1 through 10 were admitted into evidence. The decision and order notes that claimant’s exhibit 3, page 3 was intended to be blank. However, a further error in the claimant’s exhibits was found after review. The claimant’s exhibit list states that exhibit 8 contains 15 pages; however, the file forwarded to us only contains 14 pages, with page 14 missing. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibits. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

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 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.

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 October 11, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to lumbar radiculopathy, aggravation of disc bulges at L3-4 and L4-5, or disc protrusion at L3-4; (2) the appellant (claimant) reached maximum medical improvement (MMI) on April 17, 2021; (3) the claimant’s impairment rating (IR) is 10%; and (4) the claimant had disability beginning April 18, 2021, and continuing through the date of the CCH, resulting from the compensable injury of (date of injury).

The claimant appealed the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) urged affirmance of the appealed determinations. The ALJ’s determination that the claimant had disability beginning April 18, 2021, and continuing through the date of the CCH, resulting from the compensable injury of (date of injury), was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a lumbar sprain/strain and right elbow strain/sprain, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) selected (Dr. D) as the designated doctor to determine MMI and IR. The claimant testified that on (date of injury), he injured his low back while working as an installation technician. The claimant testified that he was pulling three bags of salt up three steps using a dolly and felt pain in his back while going up the third step.

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 lumbar radiculopathy, aggravation of disc bulges at L3-4 and L4-5, or disc protrusion at L3-4 is supported by sufficient evidence and is affirmed.

MMI

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

Dr. D examined the claimant on April 17, 2021, and certified that the claimant reached MMI on that same date. In his narrative report, Dr. D explained that the claimant had reached MMI on the date of his exam because the claimant completed appropriate Official Disability Guidelines treatment for his accepted compensable injuries and appeared to have reached a static condition at that time. The ALJ’s determination that the claimant reached MMI on April 17, 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 10% IR certified by Dr. D was not contrary to the preponderance of the other medical evidence. Based on his examination on April 17, 2021, Dr. D certified that the claimant reached MMI on that date, and certified that the claimant’s IR is 10%, for the compensable lumbar sprain/strain and right elbow sprain/strain 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. D assigned 0% impairment for the right elbow based on range of motion. Dr. D then placed the claimant in Diagnosis-Related Estimate (DRE) Lumbosacral Category III: Radiculopathy. In his narrative report, Dr. D noted that the claimant qualified for a DRE Lumbosacral Category III impairment due to exam findings. The AMA Guides provide that to be placed in DRE Lumbosacral Category III: Radiculopathy the patient has significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of greater than 2 cm above or below the knee, compared to measurements on the contralateral side at the same location. The Appeals Panel has held that, to receive a rating for radiculopathy under DRE Lumbosacral Category III: Radiculopathy, the claimant must have significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of 2 cm or more above or below the knee, compared to measurements on the contralateral side at the same location.  See Appeals Panel Decision (APD) 072220-s, decided February 5, 2008. Dr. D’s narrative report notes left calf atrophy and states that the claimant’s calf measurements measured 38.6 cm on the left and 41.6 cm on the right.

However, as noted above, we have affirmed the ALJ’s determination that the compensable injury does not extend to lumbar radiculopathy. Under the facts of this case, the IR includes a condition that has specifically been determined to not be part of the compensable injury. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 10%. See APD 200691, decided July 6, 2020.

There is one other certification in evidence. (Dr. H), a doctor selected by the treating doctor to act in his place, examined the claimant on July 16, 2021, and determined that the claimant had not reached MMI. However, we have affirmed the ALJ’s determination that the claimant reached MMI on April 17, 2021; therefore, this certification cannot be adopted.

There are no other certifications in evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 10% and remand the IR issue 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 lumbar radiculopathy, aggravation of disc bulges at L3-4 and L4-5, or disc protrusion at L3-4.

We affirm the ALJ’s determination that the claimant reached MMI on April 17, 2021.

We reverse the ALJ’s determination that the claimant’s IR is 10% and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

On remand the ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a lumbar sprain/strain and right elbow strain/sprain but does not include lumbar radiculopathy, aggravation of disc bulges at L3-4 and L4-5, or disc protrusion at L3-4. The ALJ is then to request that the designated doctor assign an IR for the compensable injury based on the injured employee’s condition as of the MMI date of April 17, 2021, considering the medical record and the certifying examination.  

The parties are to be provided with the ALJ’s letter to the designated doctor, the designated doctor’s response, and are to be allowed an opportunity to respond. If another designated doctor is appointed, the parties are to be provided with the Presiding Officer’s Directive to Order Designated Doctor Examination, the designated doctor’s report, and are to be allowed an opportunity to respond. The ALJ is to make determinations which are supported by the evidence on the IR issue consistent with this decision.

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

The true corporate name of the insurance carrier is BRIDGEFIELD CASUALTY 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 75201-3140.

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 August 12, 2021, with the record closing on August 17, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to right shoulder rotator cuff impingement syndrome; (2) the appellant (claimant) reached maximum medical improvement (MMI) on May 5, 2020; (3) the claimant’s impairment rating (IR) is four percent; and (4) the claimant did not have disability for the period of May 6, 2020, through January 28, 2021. The claimant appealed, disputing the ALJ’s extent-of-injury determination, as well as the ALJ’s determinations of MMI/IR and disability. The respondent (carrier) responded, urging affirmance of the disputed determinations.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and the carrier has accepted a right shoulder strain and a right shoulder rotator cuff tear as the compensable injury of (date of injury). The claimant testified that he was injured while pulling a hose from a vehicle. The evidence reflects that (Dr. B) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) for the purposes of MMI, IR, and extent 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).

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to right shoulder rotator cuff impingement syndrome is supported by sufficient evidence and is affirmed.

MMI/IR

The ALJ’s determinations that the claimant reached MMI on May 5, 2020, with a four percent IR are supported by sufficient evidence and are affirmed.

DISABILITY

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. Under 28 Tex. Admin. Code § 142.16 (Rule 142.16), 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.

In the ALJ’s decision, the ALJ indicated in Conclusion of Law No. 6 and in the Decision section that the claimant did not have disability for the period of May 6, 2020, through January 28, 2021. However, the ALJ did not make a specific finding of fact regarding the issue of disability as was certified 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 211064, decided September 1, 2021.  

Accordingly, we reverse the ALJ’s determination that the claimant did not have disability for the period of May 6, 2020, through January 28, 2021, as being incomplete, and we remand the issue of whether the claimant had disability for the period of May 6, 2020, through January 28, 2021, as a result of the compensable injury of (date of injury), back 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 right shoulder rotator cuff impingement syndrome.

We affirm the ALJ’s determinations that the claimant reached MMI on May 5, 2020, with a four percent IR.

We reverse the ALJ’s determination that the claimant did not have disability for the period of May 6, 2020, through January 28, 2021, as being incomplete, and we remand the issue of whether the claimant had disability for the period of May 6, 2020, through January 28, 2021, as a result of the compensable injury of (date of injury), to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make a finding of fact, conclusion of law, and a decision as to whether the claimant had disability for the period of May 6, 2020, through January 28, 2021, as a result of the compensable injury of (date of injury).

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

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

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