Dispute of DD IR Archives

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 16, 2022, with the record closing on December 6, 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 left peripheral disorder but does not extend to left wrist chronic non-union of the scaphoid; (2) the appellant (claimant) reached maximum medical improvement (MMI) on May 4, 2021; and (3) the claimant’s impairment rating (IR) is 13%. The claimant appealed, disputing that portion of the ALJ’s extent-of-injury determination that was against her, as well as the ALJ’s determinations regarding MMI and IR. The respondent (carrier) responded, urging affirmance of the appealed extent of injury, MMI, and IR determinations.

The ALJ’s determination that the compensable injury of (date of injury), extends to left peripheral disorder was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury in the form of a left wrist sprain, left wrist rupture in the scapholunate ligament, post-traumatic osteoarthritis, right shoulder strain, contusion to the right knee, and a strain to the right ankle; the Texas Department of Insurance, Division of Workers’ Compensation (Division) initially appointed (Dr. D) as designated doctor to determine MMI and IR; the Division subsequently appointed (Dr. P) as designated doctor to determine MMI, IR, and extent of injury; and the date of statutory MMI was January 27, 2022. The claimant was injured while working as an infant teacher on (date of injury), when she slipped and fell backwards, landing on her left hand and then her right hand and knee.

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 [14thDist.] 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 sustained on (date of injury), does not extend to left wrist chronic non-union of the scaphoid 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 the amended certification from Dr. P, the subsequent designated doctor appointed by the Division, was not contrary to the preponderance of the other medical evidence. Dr. P examined the claimant on May 24, 2022, and in response to a letter of clarification from the ALJ, certified on November 21, 2022, that the claimant reached MMI on May 4, 2021 with 13% IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. P stated in his narrative report dated November 21, 2022, that the injuries and conditions determined to be compensable at the CCH on November 16, 2022, were a left wrist sprain, left wrist scapholunate ligament rupture, left wrist post-traumatic arthritis, right shoulder strain, right knee strain, right ankle strain, and peripheral nerve disorder. Dr. P assessed 5% upper extremity (UE) impairment based on range of motion (ROM) deficits in the left wrist, 12% UE impairment for a resection arthroplasty of the proximal row of carpal bones as indicated in Table 27 on page 3/61 of the AMA Guides, and a 6% UE impairment for mild post-traumatic arthritis as indicated in Table 26 on page 3/61 of the AMA Guides. Dr. P combined the left UE impairments, which resulted in a total 21% UE impairment, and converted that to a 13% whole person impairment. However, Dr. P rated post-traumatic arthritis, instead of post-traumatic osteoarthritis, as stipulated by the parties. Additionally, he rated a right knee strain, instead of a right knee contusion. A right knee strain has not yet been determined to be part of the compensable injury. Further, Dr. P did not rate a right knee contusion or post-traumatic osteoarthritis, which have been accepted as part of the compensable injury. Accordingly, the ALJ’s determination that the claimant reached MMI on May 4, 2021, with a 13% IR is reversed.

There are three other certifications in evidence. (Dr. H), a treating doctor referral, examined the claimant on July 26, 2021, and certified that the claimant reached MMI on May 4, 2021, with a 26% IR. Dr. H considered and rated a left wrist sprain, right shoulder strain, right knee contusion, right ankle strain, left wrist scapholunate ligament rupture, post-traumatic osteoarthritis of the left wrist, and left peripheral disorder. We note that although Dr. H did not list the peripheral disorder as a separate diagnosis, he did consider and rate it. In the Discussion section of her decision, the ALJ stated that the certification of Dr. H could not be adopted because his ROM measurements were not consistent with those of other providers, which was not in accordance with the AMA Guides. This is supported by sufficient evidence. Therefore, Dr. H’s certification cannot be adopted.

Dr. D, the initial designated doctor, examined the claimant on September 9, 2021, and certified that the claimant reached MMI on May 4, 2021, with a 13% IR. Dr. D considered and rated a left wrist sprain, right shoulder strain, right knee contusion, right ankle strain, left wrist scapholunate ligament rupture, and post-traumatic osteoarthritis of the left wrist. Dr. D did not rate left peripheral disorder, which was determined to be part of the compensable injury. Dr. D’s certification cannot be adopted.

In his initial certification dated June 10, 2022, Dr. P also certified that the claimant reached MMI on May 4, 2021, with a 13% IR. In this certification, Dr. P considered and rated a left wrist sprain, left wrist scapholunate ligament rupture, post-traumatic arthritis, right shoulder strain, right knee strain, right ankle strain, non-union of the scaphoid, and peripheral nerve disorder. Dr. P rated a right knee strain instead of a right knee contusion, as well as post-traumatic arthritis instead of post-traumatic osteoarthritis. Additionally, he rated non-union of the scaphoid, which we have affirmed is not part of the compensable injury. Therefore, Dr. P’s initial certification cannot be adopted.

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

SUMMARY

We affirm the ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to left wrist chronic non-union of the scaphoid.

We reverse the ALJ’s determination that the claimant reached MMI on May 4, 2021, 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 13% and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to request that the designated doctor give an opinion on the claimant’s date of MMI, which cannot be past the statutory MMI date of January 27, 2022, and rate the entire compensable injury, which is a left wrist sprain, left wrist rupture in the scapholunate ligament, post-traumatic osteoarthritis, right shoulder strain, contusion to the right knee, a strain to the right ankle, and left peripheral disorder in accordance with the AMA Guides considering the medical record and the certifying examination. The ALJ is to inform the designated doctor that the compensable injury of (date of injury), does not extend to left wrist chronic non-union of the scaphoid.

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

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

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 7, 2022, with the record closing on December 16, 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 sustained on (date of injury), does not extend to tachycardia, asthma, high blood pressure, sleep apnea, viral encephalitis, or COVID pneumonia; (2) the appellant (claimant) reached maximum medical improvement (MMI) on April 5, 2022; and (3) the claimant’s impairment rating (IR) is 0%. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (self-insured) responded, urging affirmance of the disputed extent of injury, MMI, and IR 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 COVID-19 and severe acute respiratory syndrome; and the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. R) as designated doctor to address the issues of MMI and IR. The claimant testified that she sustained a compensable injury on (date of injury), while in the course and scope of her employment as a fire suppression technician.

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 sustained on (date of injury), does not extend to tachycardia, asthma, high blood pressure, sleep apnea, viral encephalitis, or COVID pneumonia is supported by sufficient evidence and is affirmed.

MMI/IR

28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides in pertinent part that the assignment of an IR shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination and the doctor assigning the IR shall:

(A) identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;

(B) document specific laboratory or clinical findings of an impairment;

(C) analyze specific clinical and laboratory findings of an impairment;(D) compare the results of the analysis with the impairment criteria and provide the following:

(i) [a] description and explanation of specific clinical findings related to each impairment, including [0%] [IRs]; and

(ii) [a] description of how the findings relate to and compare with the criteria described in the applicable chapter of the [Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000 (AMA Guides)]. The doctor’s inability to obtain required measurements must be explained.

Dr. R, the initial designated doctor, examined the claimant on July 13, 2021, and certified that the claimant was not at MMI but was expected to reach MMI on October 11, 2021. Dr. R examined the claimant again on November 18, 2021, and certified that the claimant reached MMI on November 18, 2021, and assessed an IR of 0% using the AMA Guides. The ALJ noted that in reviewing the report, Dr. R assigned the IR under Chapter 9.3a, Table 5, pg. 231, instead of rating the compensable injury under Chapter 5 of the AMA Guides. Consequently, the ALJ issued a Presiding Officer’s Directive to Order Designated Doctor Exam. However, Dr. R was no longer available to perform the examination, and (Dr. K) was appointed designated doctor for the issues of MMI and IR.

Dr. K examined the claimant on August 31, 2022. Dr. K referred the claimant for a pulmonary function test. The test was scheduled for November 8, 2022, but there was not a technician available to perform the testing and no new appointment was available within 95 days. Dr. K relied on the pulmonary function test in the medical records dated April 15, 2021. Dr. K certified that the claimant reached MMI on April 5, 2022, with a 0% IR. The ALJ found that Dr. K’s certification is not contrary to the preponderance of the other medical evidence. The ALJ’s determination that the claimant reached MMI on April 5, 2022, is supported by sufficient evidence and is affirmed.

Dr. K assigned 0% IR, placing the claimant in Class 1 of Table 8, Classes of Respiratory Impairment, page 5/162, for 0% impairment for respiratory impairment. Dr. K noted the claimant had a forced vital capacity (FVC) value of 81% forced expiratory volume in the first second (FEV1) value of 89% of predicted, and the ratio of these measurements, an (FEV1/FVC) value of 111%. Dr. K did not note the results for diffusing capacity of carbon monoxide (Dco).

The AMA Guides provide on page 5/163 that Table 8 presents criteria for estimating the extent of permanent impairment and that spirometry and single breath Dco must be performed. The AMA Guides provide that for an assignment of 0% impairment under Class 1 of Table 8 on page 5/162 all of the listed criteria except for measured exercise capacity (VO2) max must be met. Dr. K did not provide a value for VO2 max. The required methodology includes, in part, measurements made from at least three acceptable spirometric tracings of forced expiration: FVC, FEV1, and the FEV1/FVC, a predicted normal single-breath Dco Value for an individual according to age, and utilization of Table 8 (page 5/162) for estimating the extent of permanent impairment. As noted above, Dr. K failed to state the value of Dco in assessing the claimant’s IR. Accordingly, Dr. K’s assessment of IR cannot be adopted. See Appeals Panel Decision (APD) 112026, decided April 5, 2012.

There are two other certifications in evidence. The ALJ found the preponderance of the other medical evidence was contrary to Dr. R’s certification and that finding is supported by the evidence. The certification from Dr. R cannot be adopted.

On January 10, 2022, (Dr. A), a treating doctor referral, examined the claimant and certified that the claimant reached MMI on December 18, 2021, and assigned a 0% IR. The ALJ’s determination that the claimant reached MMI on April 5, 2022, has been affirmed. Accordingly, 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 0% 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 sustained on (date of injury), does not extend to tachycardia, asthma, high blood pressure, sleep apnea, viral encephalitis, or COVID pneumonia.

We affirm the ALJ’s determination that the claimant reached MMI on April 5, 2022.

We reverse the ALJ’s determination that the claimant’s IR is 0% and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. K is the designated doctor in this case. On remand, the ALJ is to determine whether Dr. K is still qualified and available to be the designated doctor. If Dr. K is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Division rules to determine IR for the compensable injury. The ALJ is to advise the designated doctor that the compensable injury of (date of injury), extends to COVID-19 and severe acute respiratory syndrome. The designated doctor is then to be requested to assess impairment for the entire compensable injury in accordance with the AMA Guides based on the claimant’s condition as of April 5, 2022, the date of MMI, considering the medical record, the certifying examination, and the rating criteria in the AMA Guides.

The parties are to be provided with the ALJ’s letter to the designated doctor and the designated doctor’s response. The parties are to be allowed an opportunity to respond.

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on November 29, 2022, with the record closing on December 14, 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 appellant (claimant) reached maximum medical improvement (MMI) on September 9, 2022; and (2) the claimant’s impairment rating (IR) is 5%. The claimant appealed, disputing the ALJ’s determinations of MMI and IR. The respondent (self-insured) responded, urging affirmance of the disputed MMI and IR 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 tinnitus, dyspnea, and COVID-19; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. R) as designated doctor to address the issues of MMI and IR; the Division subsequently appointed (Dr. M) as designated doctor to address the issues of MMI and IR; and the date of statutory MMI in this case is September 9, 2022. The claimant testified that he sustained a compensable injury on (date of injury), while in the course and scope of his employment as a certified nurse anesthetist.

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).

28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, in pertinent part, that the assignment of an IR shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination, and the doctor assigning the IR shall:

(A) identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;

(B) document specific laboratory or clinical findings of an impairment;

(D) compare the results of the analysis with the impairment criteria and provide the following:

(i) [a] description and explanation of specific clinical findings related to each impairment, including [0%] [IRs]; and

Dr. R, the initial designated doctor, examined the claimant on September 2, 2021, and certified that the claimant reached MMI on September 2, 2021, and assessed an IR of 0% using the AMA Guides. Dr. R considered and rated tinnitus and dyspnea but did not consider and rate COVID-19, which the parties have stipulated is part of the compensable injury. The ALJ noted that a Presiding Officer’s Directive was sent to Dr. R because she “was missing a considerable amount of medical records and did not rate all of the compensable conditions.” Dr. R was no longer available to perform the examination, and Dr. M was appointed designated doctor for the issues of MMI and IR.

Dr. M examined the claimant on August 27, 2022. Dr. M sent the claimant for an audiologic evaluation report and a pulmonary function test. Dr. M reviewed both the audiologic report and pulmonary function test results and certified on November 17, 2022, that the claimant reached MMI on the statutory date of September 9, 2022, with a 5% IR. The ALJ found that Dr. M’s certification is not contrary to the preponderance of the other medical evidence. The ALJ’s determination that the claimant reached MMI on the statutory date of September 9, 2022, is supported by sufficient evidence and is affirmed.

Dr. M assigned a 5% IR for tinnitus based on 0% for hearing loss and assigned 5% specifically for tinnitus based on page 9/224 of the AMA Guides. Dr. M placed the claimant in class 1 of Table 8, Classes of Respiratory Impairment, page 5/162 of the AMA Guides, for 0% impairment for respiratory impairment for the COVID-19/dyspnea. Dr. M noted the claimant had a forced vital capacity (FVC) value of 96% forced expiratory volume in the first second (FEV1) value of 100% of predicted, and the ratio of these measurements, an (FEV1/FVC) of 110%. Dr. M did not note the results for diffusing capacity of carbon monoxide (Dco).

The AMA Guides provide on page 5/163 that, Table 8 presents criteria for estimating the extent of permanent impairment and that spirometry and single breath Dco must be performed. The AMA Guides provide that for an assignment of 0% impairment under Class 1 of Table 8 on page 5/162 of the AMA Guides, all of the listed criteria except for measured exercise capacity (VO2) max must be met. Dr. M did not provide a value for VO2 max. The required methodology includes, in part, measurements made from at least three acceptable spirometric tracings of forced expiration: FVC, FEV1, and the FEV1/FVC, a predicted normal single-breath Dco Value for an individual according to age, and utilization of Table 8 (page 5/162) for estimating the extent of permanent impairment. As noted above, Dr. M failed to state the value of Dco in assessing the claimant’s IR. Accordingly, Dr. M’s assessment of IR cannot be adopted. See Appeals Panel Decision (APD) 112026, decided April 5, 2012.

There are four other certifications in evidence. The previously mentioned certification from Dr. R, the initial designated doctor, cannot be adopted because she did not rate the entire compensable injury.

On January 6, 2022, (Dr. N), a treating doctor referral, examined the claimant and certified that the claimant reached MMI on September 2, 2021, with a 34% IR. Dr. N assessed 30% for dyspnea and 5% for tinnitus. This certification did not consider and rate COVID-19, which the parties have stipulated is part of the compensable injury. Accordingly, this certification cannot be adopted. Additionally, the ALJ’s determination that the claimant reached MMI on September 9, 2022, has been affirmed.

On May 16, 2022, Dr. N again examined the claimant for MMI and IR. We note that the Report of Medical Evaluation (DWC-69) notes the date of exam was June 16, 2022. Dr. N certified that the claimant reached MMI on September 2, 2021, and assessed a 37% IR, using the AMA Guides. Dr. N assessed 30% impairment for dyspnea, placing the claimant in Class 3 of Table 8 on page 5/162 of the AMA Guides. Dr. N assessed 1% for the claimant’s hearing loss, 5% for tinnitus, and 3% for COVID-19/headaches. As previously noted, the ALJ’s determination that the claimant reached MMI on September 9, 2022, has been affirmed. Accordingly, Dr. N’s certification of MMI/IR cannot be adopted.

(Dr. E), a post-designated doctor required medical examination doctor, examined the claimant on September 26, 2022, and certified that the claimant reached MMI on September 2, 2021, and assessed an IR of 0%. Dr. E noted in his narrative report that “[t]here is no documentation of the acute onset of hearing loss or tinnitus during the active infection period of this case.” Further, Dr. E stated that dyspnea has been accepted “…but cannot be rated as the evaluations to date revealed lung function abnormalities that are not explained by the COVID infection.” As previously noted, the ALJ’s determination that the claimant reached MMI on September 9, 2022, has been affirmed. Accordingly, Dr. E’s certification of MMI/IR cannot be adopted.

There are no other certifications in evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 5% and remand the IR issue to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the claimant reached MMI on the statutory date of September 9, 2022.

We reverse the ALJ’s determination that the claimant’s IR is 5% and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. M is the designated doctor in this case. On remand, the ALJ is to determine whether Dr. M is still qualified and available to be the designated doctor. If Dr. M is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Division rules to determine the IR for the compensable injury. The ALJ is to advise the designated doctor that the compensable injury of (date of injury), extends to tinnitus, dyspnea, and COVID-19. The designated doctor is then to be requested to assess impairment for the entire compensable injury in accordance with the AMA Guides based on the claimant’s conditions as of September 9, 2022, the date of MMI, considering the medical record, the certifying examination, and the rating criteria in the AMA Guides.

The parties are to be provided with the ALJ’s letter to the designated doctor and the designated doctor’s response. The parties are to be allowed an opportunity to respond.

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

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

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 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). A contested case hearing was held on October 12, 2022, and December 1, 2022, with the record closing on December 14, 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 cervical strain, thoracic strain, left shoulder upper arm strain, right upper arm strain, bilateral wrists sprains/strains, and bilateral hands and fingers sprains/strains; (2) the compensable injury of (date of injury), does not extend to a right shoulder rotator cuff tear or a left shoulder rotator cuff tear; (3) the appellant (claimant) reached maximum medical improvement (MMI) on July 8, 2020; and (4) the claimant’s impairment rating (IR) is 4%.

The claimant appealed the ALJ’s extent-of-injury determination that was adverse to her, as well as the ALJ’s MMI and IR determination. The respondent (self-insured) responded, urging affirmance of the appealed determinations. The ALJ’s determination that the compensable injury of (date of injury), extends to a cervical strain, thoracic strain, left shoulder upper arm strain, right upper arm strain, bilateral wrists sprains/strains, and bilateral hands and fingers sprains/strains 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), that extends to a right shoulder strain, but does not extend to a lumbar strain, cervical radiculopathy, bilateral ankle strains, bilateral feet strains, bilateral elbow injury, or bilateral glenohumeral joint injury; (Dr. B) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to address MMI, IR, and extent of injury; and the claimant’s date of statutory MMI is May 24, 2022. The claimant, a bus operator for the employer, was injured on (date of injury), while trying to control the steering wheel of a bus with faulty suspension.

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 shoulder rotator cuff tear or a left shoulder rotator cuff tear is supported by sufficient evidence and is affirmed.

MMI/IR

The ALJ determined the claimant reached MMI on July 8, 2020, with a 4% IR as certified by Dr. B, the designated doctor. Dr. B examined the claimant on July 21, 2021, and issued three certifications based on various conditions. In one certification Dr. B certified the claimant reached MMI on July 8, 2020, with a 5% IR considering only a right shoulder strain. In the second certification Dr. B certified the claimant reached MMI on July 8, 2021, with an 8% IR considering, among other conditions, a lumbar strain, cervical radiculopathy, bilateral ankle/foot strains, bilateral elbow injury, and bilateral glenohumeral joint injury. The compensable injury in this case is a right shoulder strain, cervical strain, thoracic strain, left shoulder upper arm strain, right upper arm strain, bilateral wrists sprains/strains, and bilateral hands and fingers sprains/strains. Neither of these two certifications considers and rates the compensable injury.

In his third certification Dr. B certified the claimant reached MMI on July 8, 2020, with an 8% IR. The ALJ sent a letter of clarification to Dr. B notifying him of an error in his IR calculation, and Dr. B responded on December 11, 2022, correcting his IR to 4%. Dr. B’s report reflects that this certification considers a cervical strain, thoracic strain, left and right shoulder strains, a strain of muscle/tendon/fascia at the upper right and left arms, and bilateral wrist and hands injury. The ALJ’s determination that the compensable injury extends to bilateral hands and fingers sprains/strains was not appealed has become final pursuant to Section 410.169. Dr. B did not consider and rate bilateral fingers sprain/strains. None of Dr. B’s certifications consider and rate the compensable injury in this case. Accordingly, we reverse the ALJ’s determination that the claimant reached MMI on July 8, 2020, with a 4% IR as certified by Dr. B.

There are numerous other certifications in evidence. (Dr. S), the post-designated doctor required medical examination doctor, examined the claimant on September 8, 2022, and issued several alternate certifications certifying a date of MMI of July 8, 2020, with a 0% IR, based on various conditions. Dr. S also issued an alternate certification that the claimant reached MMI on May 6, 2021, with a 6% IR. However, none of Dr. S’s certifications consider and rate bilateral fingers sprains/strains, which are part of the compensable injury. None of Dr. S’s certifications are adoptable.

(Dr. F), a doctor acting in place of the treating doctor, examined the claimant on June 9, 2022, and issued two certifications. In the first Dr. F certified the claimant reached MMI on May 24, 2022, with a 9% IR. However, this certification is based only on a right shoulder and upper arm strain. Dr. F’s alternate certification also certifies the claimant reached MMI on May 24, 2022, but assigns a 12% IR. Dr. F’s narrative report reflects this second certification considered, among other conditions, unspecified injuries to the right and left wrists, hands, and fingers, and a cervical sprain rather than a cervical strain. Dr. F’s certifications do not consider and rate the compensable injury and cannot be adopted.

Finally, (Dr. V), a doctor acting in place of the treating doctor, examined the claimant on February 3, 2021, and issued two certifications in which he opined the claimant had not reached MMI. The statutory date of MMI in this case is May 24, 2022; Dr. V’s certifications cannot be adopted.

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

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right shoulder rotator cuff tear or a left shoulder rotator cuff tear.

We reverse the ALJ’s determination that the claimant reached MMI on July 8, 2020, 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 4%, and we remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a right shoulder strain, cervical strain, thoracic strain, left shoulder upper arm strain, right upper arm strain, bilateral wrists sprains/strains, and bilateral hands and fingers sprains/strains, but does not extend to a right shoulder rotator cuff tear or a left shoulder rotator cuff tear. The ALJ is also to inform the designated doctor that the date of statutory MMI in this case is May 24, 2022.

The ALJ is to request the designated doctor give an opinion on the claimant’s date of MMI, which cannot be after May 24, 2022, the statutory date of MMI in this case, 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.

The parties are to be provided with the designated doctor’s new certification and allowed an opportunity to respond. The ALJ is then to make a determination on the claimant’s date of MMI and IR for the (date of injury), compensable injury.

The true corporate name of the insurance carrier is (a certified self-insured) and the name and address of its registered agent for service of process 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). A contested case hearing was held on December 14, 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 sustained on (date of injury), does not extend to left knee valgus deformity, right knee medial meniscus tear, right knee arthritis, or left rotator cuff partial thickness tear; (2) the appellant (claimant) reached maximum medical improvement (MMI) on April 19, 2022; and (3) the claimant’s impairment rating (IR) is zero percent. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (self-insured) responded, urging affirmance of the extent of injury, MMI, and IR determinations.

DECISION

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

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury at least in the form of a left knee contusion, right knee contusion, and a right thumb sprain; and the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. M) as designated doctor for purposes of MMI and IR. The claimant was injured while working as a registered nurse on (date of injury) when her foot got tangled in some wires and she fell onto her hands and knees. We note that the ALJ mistakenly wrote left “knee” rotator cuff partial thickness tear in Conclusion of Law No. 3 and the Decision sections of her decision. We reform those sections to state “left rotator cuff partial thickness tear” to conform to the issue.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to left knee valgus deformity, right knee medial meniscus tear, right knee arthritis, or left rotator cuff partial thickness tear is supported by sufficient evidence and is affirmed.

MMI/IR

The ALJ found that the certification from Dr. M, the designated doctor appointed by the Division, was not contrary to the preponderance of the other medical evidence. Dr. M examined the claimant on April 19, 2022, and certified that the claimant reached MMI on that date with a zero percent IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. M stated in his narrative report that “[u]pon review of all records received, exam and the fact that the compensable injury is accepted as left knee contusion, right knee contusion, and left thumb sprain, it is my professional opinion that [MMI] was reached on [April 19, 2022].” Dr. M assessed zero percent impairment for the left knee and zero percent impairment for the right knee. Dr. M then assessed a one percent thumb impairment for the left thumb which he converted to a zero percent hand impairment, zero percent upper extremity impairment, and then zero percent whole person impairment. Dr. M rated a left thumb sprain, instead of a right thumb sprain as stipulated by the parties. A left thumb sprain has not yet been determined to be part of the compensable injury. Further, Dr. M did not rate a right thumb sprain, which has been accepted as part of the compensable injury. Accordingly, the ALJ’s determination that the claimant reached MMI on April 19, 2022, with a zero percent IR is reversed.

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

SUMMARY

We reform Conclusion of Law No. 3 and the Decision sections to state “left rotator cuff partial thickness tear” instead of “left knee rotator cuff partial thickness tear.”

We affirm the ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to left knee valgus deformity, right knee medial meniscus tear, right knee arthritis, or left rotator cuff partial thickness tear.

We reverse the ALJ’s determination that the claimant reached MMI on April 19, 2022, 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

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

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, which includes a left knee contusion, right knee contusion, and a right thumb sprain in accordance with the AMA Guides considering the medical record and the certifying examination. The ALJ is to inform the designated doctor that the compensable injury of (date of injury), does not extend to left knee valgus deformity, right knee medial meniscus tear, right knee arthritis, or left rotator cuff partial thickness tear.

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

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 8, 2022, with the record closing on December 2, 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 sustained on (date of injury), does not extend to right knee tri-compartmental osteoarthritis; (2) the appellant (claimant) reached maximum medical improvement (MMI) on June 10, 2021; and (3) the claimant’s impairment rating (IR) is nine percent. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded, urging affirmance of the disputed extent-of-injury condition, MMI, and IR determinations.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that: (1) the claimant sustained a compensable injury on (date of injury), that extends to a head injury, right knee dislocation, right knee tibial plateau fracture/ligament damage, right PCL tear, right ACL tear, right meniscus tear, right knee post-traumatic arthritis/arthropathy, multiple rib fractures, right pulmonary contusion, sternal fracture with retrosternal contusion, lumbar strain, and L2 transverse process fracture; (2) (Dr. L) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor for MMI, IR, extent of injury, and return to work; and (3) the date of statutory MMI is June 14, 2022. The claimant testified that he was injured on (date of injury), when working in the course and scope of his employment on an oil rig.

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 knee tri-compartmental osteoarthritis is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on June 10, 2021, is supported by sufficient evidence and is affirmed.

IR

The designated doctor, Dr. L, examined the claimant on October 21, 2021. Dr. L provided two alternate certifications. In both certifications, Dr. L certified that the claimant reached MMI on June 10, 2021, and 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) assessed a nine percent IR. In the first certification, Dr. L stated that he considered and rated the carrier-accepted conditions. However, in listing the carrier-accepted conditions, Dr. L failed to rate and consider right knee post-traumatic arthritis/arthropathy. As noted above, the parties stipulated that the compensable injury of (date of injury), extends to right knee post-traumatic arthritis/arthropathy. In the alternate certification, Dr. L again failed to rate and consider right knee post-traumatic arthritis/arthropathy and included right knee tri-compartmental osteoarthritis. The ALJ’s determination that the compensable injury of (date of injury), does not extend to right knee tri-compartmental osteoarthritis has been affirmed.

Dr. L examined the claimant again on June 30, 2022. Dr. L again provided alternate certifications that were identical to his previous examination of October 21, 2021. After the CCH, the ALJ sent a letter of clarification (LOC) to Dr. L which identified post-traumatic arthritis/arthropathy as a condition that Dr. L failed to consider. Dr. L responded to the LOC in correspondence dated November 18, 2022. Dr. L provided an amended certification which rated and considered the conditions that the parties have stipulated are part of the compensable injury including right knee post-traumatic arthritis/arthropathy. Dr. L certified that the claimant reached MMI on June 10, 2021, and using the AMA Guides assessed an IR of nine percent. Dr. L rated the lumbar spine by placing the claimant in Lumbosacral Diagnosis-Related Estimate (DRE) Category II: Minor Impairment for five percent. Dr. L rated the head injury, the multiple rib fractures, pulmonary contusion, and sternal fracture with retrosternal contusion as zero percent. When he rated the right knee, Dr. L discussed what the rating would be for the range of motion (ROM) model of the AMA Guides as well as the diagnosis-based estimates model. When considering loss of ROM of the right knee, Dr. L stated the impairment assessed would be four percent based on Table 41, page 3/78 of the AMA Guides for loss of ROM of extension. Dr. L also analyzed what impairment would be assessed for the right lower extremity if it was based on the diagnosis-based estimates model, using Table 64, page 3/85 of the AMA Guides. Dr. L assessed one percent impairment for a partial medial meniscectomy, two percent impairment for an undisplaced tibial plateau fracture, and three percent impairment for mild cruciate ligament laxity. See Appeals Panel Decision (APD) 111720, decided January 13, 2012.

Dr. L stated in his narrative report that the largest impairment in the right lower extremity is four percent. He then combined five percent assessed for the lumbar spine with four percent assessed for the right lower extremity and zero percent for the remaining conditions for a total whole person impairment of nine percent. We note that using Table 64, page 3/85 of the AMA Guides, the impairment assessed for the right lower extremity would be six percent and would exceed the impairment assessed for the right lower extremity based on the ROM model of four percent. Dr. L stated in his narrative that he was using the largest impairment assessed for the right lower extremity but failed to do so. Given the inconsistency in Dr. L’s report the nine percent IR assessed by Dr. L cannot be adopted. We reverse the ALJ’s determination that the claimant’s IR is nine percent.

There is only one other certification in evidence. (Dr. M), a treating doctor referral doctor, examined the claimant on February 22, 2022. Dr. M certified that the claimant had not reached MMI. Dr. M failed to consider right knee post-traumatic arthritis/arthropathy. Additionally, the parties have stipulated that the statutory date of MMI is June 14, 2022. We have affirmed the ALJ’s determination that the claimant reached MMI on June 10, 2021. The certification from Dr. M cannot be adopted. There is no other certification in evidence. Accordingly, we remand the issue of 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 right knee tri-compartmental osteoarthritis.

We affirm the ALJ’s determination that the claimant reached MMI on June 10, 2021.

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

REMAND INSTRUCTIONS

Dr. L is the designated doctor in this case. On remand the ALJ is to determine whether Dr. L is still qualified and available to be the designated doctor. If Dr. L is still qualified and available, the ALJ is to ask Dr. L to clarify his inconsistent statements regarding his assessment of impairment for the right lower extremity and assess impairment for the (date of injury), compensable injury, as of the MMI date of June 10, 2021, in accordance with the AMA Guides.

If Dr. L is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s IR for the compensable injury of (date of injury). The ALJ is to advise the designated doctor that the compensable injury of (date of injury), includes a head injury, right knee dislocation, right knee tibial plateau fracture/ligament damage, right PCL tear, right ACL tear, right meniscus tear, right knee post-traumatic arthritis/arthropathy, multiple rib fractures, right pulmonary contusion, sternal fracture with retrosternal contusion, lumbar strain, and L2 transverse process fracture but does not include right knee tri-compartmental osteoarthritis. The assignment of an IR is required to be based on the claimant’s condition as of June 10, 2021, the date of MMI in this case, considering the medical records and the certifying examination and according to the rating criteria of the AMA Guides and the provisions of Rule 130.1(c)(3). The parties are to be allowed an opportunity to respond. The ALJ is to determine the issue of IR consistent with this decision.

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

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 was held on August 17, 2022, with the record closing on November 28, 2022, in (city), Texas, with the (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to a C2-3 disc bulge, C3-4 stenosis, C4-5 stenosis, C5-6 disc bulge, cervical radiculopathy, cervical cord compression, L5-S1 stenosis, L5-S1 herniated disc, lumbar radiculopathy, or severe canal stenosis at T4-5 due to disc protrusion and facet ligamentous hypertrophy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on September 9, 2019; and (3) the claimant’s impairment rating (IR) is 10%. The claimant appealed the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to a cervical sprain/strain and a lumbar sprain/strain. The claimant, a truck driver for the employer, was injured on (date of injury), when the truck he was driving was struck by a train.

EXTENT OF INJURY

The ALJ determined the compensable injury did not extend to the claimed conditions. The ALJ stated in the discussion portion of the decision that the claimant described the train as “slow-moving.”

However, a review of the record in this case indicates that the claimant did not testify that the train was “slow-moving.” The ALJ has misstated the claimant’s testimony in this case regarding the manner in which the compensable injury is alleged to have occurred. We view the ALJ’s misstatement of the evidence as a material misstatement of fact. While the ALJ can accept or reject in whole or in part the evidence regarding the claimed injury, his decision in this case is based upon an incorrect mechanism of injury and requires that we reverse his determination on the extent of the claimant’s compensable injury. See Appeals Panel Decision (APD) 172522, decided December 6, 2017, and APD 210449, decided May 24, 2021. We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to a C2-3 disc bulge, C3-4 stenosis, C4-5 stenosis, C5-6 disc bulge, cervical radiculopathy, cervical cord compression, L5-S1 stenosis, L5-S1 herniated disc, lumbar radiculopathy, or severe canal stenosis at T4-5 due to disc protrusion and facet ligamentous hypertrophy, and we remand the issue of whether the compensable injury of (date of injury), extends to a C2-3 disc bulge, C3-4 stenosis, C4-5 stenosis, C5-6 disc bulge, cervical radiculopathy, cervical cord compression, L5-S1 stenosis, L5-S1 herniated disc, lumbar radiculopathy, and severe canal stenosis at T4-5 due to disc protrusion and facet ligamentous hypertrophy for further action consistent with this decision.

MMI/IR

Because we have reversed and remanded the issue of whether the compensable injury of (date of injury), extends to a C2-3 disc bulge, C3-4 stenosis, C4-5 stenosis, C5-6 disc bulge, cervical radiculopathy, cervical cord compression, L5-S1 stenosis, L5-S1 herniated disc, lumbar radiculopathy, and severe canal stenosis at T4-5 due to disc protrusion and facet ligamentous hypertrophy, we also reverse the ALJ’s determinations that the claimant reached MMI on September 9, 2019, and that the claimant’s IR is 10%, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to a C2-3 disc bulge, C3-4 stenosis, C4-5 stenosis, C5-6 disc bulge, cervical radiculopathy, cervical cord compression, L5-S1 stenosis, L5-S1 herniated disc, lumbar radiculopathy, or severe canal stenosis at T4-5 due to disc protrusion and facet ligamentous hypertrophy, and we remand the issue of whether the compensable injury of (date of injury), extends to a C2-3 disc bulge, C3-4 stenosis, C4-5 stenosis, C5-6 disc bulge, cervical radiculopathy, cervical cord compression, L5-S1 stenosis, L5-S1 herniated disc, lumbar radiculopathy, and severe canal stenosis at T4-5 due to disc protrusion and facet ligamentous hypertrophy for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant reached MMI on September 9, 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 10%, and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to correct his misstatement of the evidence regarding the mechanism of the compensable injury. The ALJ shall consider all of the evidence and make findings of fact, conclusions of law, and a determination on whether compensable injury of (date of injury), extends to a C2-3 disc bulge, C3-4 stenosis, C4-5 stenosis, C5-6 disc bulge, cervical radiculopathy, cervical cord compression, L5-S1 stenosis, L5-S1 herniated disc, lumbar radiculopathy, and severe canal stenosis at T4-5 due to disc protrusion and facet ligamentous hypertrophy. The ALJ is then to make findings of fact, conclusions of law, and a determination on the claimant’s date of MMI and 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 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 EVEREST NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on October 6, 2022, with the record closing on November 30, 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 (date of injury), compensable injury does not extend to right-sided peroneal motor neuropathy, right-sided sural sensory, right-sided saphenous sensory neuropathy, right-sided tarsal tunnel syndrome, or right complex regional pain syndrome (CRPS); (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 8, 2021; and (3) the claimant’s impairment rating (IR) is five percent. 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 rendered in part.

The parties stipulated, in part, that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. D) as the designated doctor to address the issues of MMI, IR, and extent of injury; the date of statutory MMI is September 13, 2021; and the carrier has accepted a (date of injury), compensable injury in the nature of bilateral knee/ankle contusions, right ankle sprain/ligament tear, a right ankle avulsion fracture, and sensory deficits in the superficial peroneal nerve. The claimant testified she was injured on (date of injury), when she stepped on uneven concrete while walking to her car and rolled both of her ankles.

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 (date of injury), compensable injury does not extend to right-sided peroneal motor neuropathy, right-sided sural sensory, right-sided saphenous sensory neuropathy, right-sided tarsal tunnel syndrome, or right CRPS is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on February 8, 2021, is supported by sufficient evidence and is affirmed.

IR

The ALJ found that the February 8, 2021, date of MMI and five percent IR certified by Dr. D is not contrary to the preponderance of the other medical evidence, and therefore determined the claimant reached MMI on February 8, 2021, with a five percent IR. Dr. D examined the claimant on June 30, 2022, and issued alternate certifications based on various conditions. In his narrative report Dr. D noted that his third certification, which certified a February 8, 2021, date of MMI and five percent IR, considered bilateral knee/ankle contusions, a right ankle sprain/ligament tear, a right ankle avulsion fracture, and sensory deficits in the superficial peroneal nerve, which is the compensable injury in this case.

Dr. D explains in his narrative report that he used the findings from (Dr. T) on February 8, 2021, to calculate the IR, and Dr. D assessed the following impairments for the right ankle/foot: zero percent impairment for 25° of plantar flexion; one percent impairment for 7° of dorsiflexion; one percent impairment for 7° of eversion; and one percent impairment for 15°of inversion. Dr. D further assigned two percent impairment for sensory loss of the superficial peroneal nerve. Dr. D also assigned zero percent impairment for bilateral knee/ankle contusions. Dr. D combined these impairments for a total of five percent whole person impairment (WPI). However, there was a mistake in Dr. D’s impairment calculation. Table 42, Ankle Motion Impairments, on page 3/78 of the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides) provides that 7° of dorsiflexion results in three percent WPI, not one percent WPI as assigned by Dr. D. Combining zero percent impairment for plantar flexion, three percent impairment for dorsiflexion, one percent impairment for eversion, one percent impairment for inversion, two percent for sensory loss of the superficial peroneal nerve, and zero percent impairment for the bilateral knee/ankle contusions results in a seven percent WPI, not five percent WPI.

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 Dr. D. After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is five percent, and we render a new decision that the claimant’s IR is seven percent, as mathematically corrected.

SUMMARY

We affirm the ALJ’s determination that the (date of injury), compensable injury does not extend to right-sided peroneal motor neuropathy, right-sided sural sensory, right-sided saphenous sensory neuropathy, right-sided tarsal tunnel syndrome, or right CRPS.

We affirm the ALJ’s determination that the claimant reached MMI on February 8, 2021.

We reverse the ALJ’s determination that the claimant’s IR is five percent, and we render a new decision the claimant’s IR is seven percent, 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 75201-3136.

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 November 17, 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 sustained on (date of injury), does not extend to a left wrist triangular fibrocartilage complex (TFCC) tear; (2) the appellant (claimant) reached maximum medical improvement (MMI) on July 13, 2021; and (3) the claimant’s impairment rating (IR) is four percent. 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), in the form of at least left wrist tenosynovitis, and (Dr. Q) is the designated doctor selected by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine MMI and IR. The claimant testified he had experienced left wrist pain since 2020, but on (date of injury), while typing at work he noticed the pain in his left wrist became intense and radiated up his arm, causing him to become unable to type.

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

We note that Finding of Fact No. 3, Conclusion of Law No. 3, and the Decision section omit the word tear from the left wrist TFCC tear condition. We reform the ALJ’s decision to reflect the correct disputed condition as left wrist TFCC tear. The ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to a left wrist TFCC tear is supported by sufficient evidence and is affirmed.

MMI/IR

The ALJ found that the preponderance of the other medical evidence is not contrary to Dr. Q’s April 28, 2022, certification, and therefore determined the claimant reached MMI on July 13, 2021, with a four percent IR.

Dr. Q examined the claimant on March 27, 2022, and in a Report of Medical Evaluation (DWC-69) certified on April 28, 2022, that the claimant reached MMI on July 13, 2021, with a four percent IR considering tenosynovitis of the left wrist. However, in his attached narrative report Dr. Q stated “the claimant reached his [MMI] as of [July 13, 2022]. . . .” There is an internal inconsistency between the MMI date Dr. Q certified in his narrative report and the MMI date he certified on the DWC-69. Because the narrative report and DWC-69 list different dates regarding when the claimant reached MMI, we do not consider that internal inconsistency to be a clerical error that can be corrected. See Appeals Panel Decision (APD) 130739, dated May 7, 2013; APD 141281, decided August 7, 2014; and APD 162058, decided November 21, 2016. Accordingly, we reverse the ALJ’s determination that the claimant reached MMI on July 13, 2021.

With regard to the claimant’s IR, Rule 130.1(c)(3) provides that an assignment of IR shall be based on the claimant’s condition as of the MMI date. Given that we have reversed the ALJ’s MMI determination, we also reverse the ALJ’s determination that the claimant’s IR is four percent. Additionally, we note that Dr. Q’s four percent IR was not made 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).

Dr. Q noted in his narrative report that he found no sensory or motor deficits, and he assessed the following impairments based on range of motion (ROM) measurements of the claimant’s left wrist: zero percent upper extremity (UE) impairment for 60° of flexion, two percent UE impairment for 50° of extension; two percent UE impairment for 20° of ulnar deviation, and three percent UE impairment for 5° of radial deviation.

Figure 29 on page 3/38 of the AMA Guides uses increments of 5°, whereas the general directions on page 3/37 state to round the measurements of radial deviation to the nearest 10°. This conflict is resolved by looking to the general directions of interpolating, measuring, and rounding off which are found on page 2/9 of the AMA Guides and which provide as follows in relevant part:

In general, an impairment value that falls between those appearing in a table or figure of the [AMA Guides] may be adjusted or interpolated to be proportional to the interval of the table or figure involved, unless the book gives other directions.

Here the AMA Guides do give other directions than applying the values given in Figure 29 on page 3/38. Those directions are on page 3/37 and provide that the measurements be rounded to the nearest 10°. Using the language cited above from page 2/9 of the AMA Guides, these directions control over Figure 29 and should have been applied in calculating the claimant’s IR. See APD 022504-s, decided November 12, 2002; and APD 111384, decided November 23, 2011. See also APD 131541, decided August 29, 2013; and APD 220745, decided July 1, 2022. Dr. Q failed to round the measurements of radial deviation of the left wrist to the nearest 10° to determine the UE impairment.

There is only one other certification in evidence, which is from (Dr. N), a doctor acting in place of the treating doctor. Dr. N examined the claimant on June 21, 2022, and certified the claimant had not reached MMI but was expected to do so on or around September 5, 2022. Dr. N noted in his attached narrative report that the claimant was at that time pending additional sessions of a functional restoration program, which was anticipated to provide the claimant with further functional improvement. Dr. N also noted that he disagreed with Dr. Q’s MMI opinion because Dr. Q’s MMI date “was prior to the approved left wrist surgery, and the approved post-operative treatment including an (sic) injections and the functional restoration program.” In evidence is an operative report dated July 15, 2021, which reflects the claimant underwent a left wrist arthroscopy for a “TFCC tear debridement” on that date. As previously discussed, we have affirmed the ALJ’s determination that the compensable injury does not extend to a left wrist TFCC tear. Dr. N’s opinion that the claimant has not reached MMI as of his certification is based on treatment that is not for the compensable injury. Accordingly, his opinion that the claimant has not reached MMI cannot be adopted.

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

SUMMARY

We reform the ALJ’s decision to reflect the correct disputed condition as a left wrist TFCC tear.

We affirm the ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to a left wrist TFCC tear.

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

REMAND INSTRUCTIONS

Dr. Q is the designated doctor in this case. On remand, the ALJ is to determine whether Dr. Q is still qualified and available to be the designated doctor. If Dr. Q is no longer qualified or is not available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s MMI and IR for the (date of injury), compensable injury. The ALJ is to inform the designated doctor that the (date of injury), compensable injury extends to left wrist tenosynovitis but does not extend to a left wrist TFCC tear. The ALJ is to request the designated doctor to give an opinion on the claimant’s date of MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination.

If Dr. Q is still qualified and available to serve as the designated doctor, the ALJ is to advise Dr. Q of the inconsistency between his narrative report and his DWC-69 and request that Dr. Q clarify the date he certified that the claimant reached MMI for the compensable injury. The ALJ is also to notify Dr. Q of his error in failing to round the radial deviation ROM figures as required by the AMA Guides.

The parties are to be provided the correspondence to the designated doctor, the designated doctor’s response, and are to be allowed an opportunity to respond. The ALJ is then to make determinations on MMI, which cannot be after the statutory date of MMI, and IR consistent with this decision.

The true corporate name of the insurance carrier is ARCH 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