Dispute of DD MMI Date 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 was held on November 8, 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 anxiety, post-traumatic stress disorder (PTSD), C6-7 disc protrusion, or C7 radiculopathy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 4, 2022; and (3) the claimant’s impairment rating (IR) is two 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, 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), in the form of at least a cervical sprain/strain and a left shoulder sprain/strain; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. G) as designated doctor for the issues of MMI and IR; and the Division appointed (Dr. M) as designated doctor for the issue of extent of injury. The claimant testified she was injured by a patient who became combative when she was trying to replace a mask oxygen delivery system on the patient.

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 anxiety, PTSD, C6-7 disc protrusion, or C7 radiculopathy 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 preponderance of the other medical evidence was not contrary to the certification from the designated doctor, Dr. G, that the claimant reached MMI on February 4, 2022, with a two percent IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). In the certification adopted by the ALJ, Dr. G’s narrative report states that he examined the claimant on February 4, 2022, and considered the following conditions: cervical strain and left shoulder strain. Dr. C assessed zero percent impairment for the claimant’s cervical spine. Dr. G assessed two percent IR for the claimant’s left shoulder strain for loss of range of motion. As previously noted, the parties stipulated that the compensable injury includes a cervical sprain and a left shoulder sprain. Dr. G failed to consider and rate a cervical sprain and a left shoulder sprain, which the parties stipulated were a part of the compensable injury. Dr. G’s certification cannot be adopted because it does not rate the entire compensable injury. See Appeals Panel Decision (APD) 221745, decided January 12, 2023. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on February 4, 2022, and that the claimant’s IR is two percent.

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

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to anxiety, PTSD, C6-7 disc protrusion, or C7 radiculopathy.

We reverse the ALJ’s determination that the claimant reached MMI on February 4, 2022, and 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 two percent and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a cervical sprain/strain and a left shoulder sprain/strain but does not extend to anxiety, PTSD, C6-7 disc protrusion, or C7 radiculopathy. The ALJ is to request the designated doctor to give an opinion on the claimant’s MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination.

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

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

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). Contested case hearings (CCH) were held on August 22, 2022, and October 26, 2022, with the record closing on November 10, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). With regard to Docket No. (Docket No. 1) the ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to a concussion or post-traumatic stress disorder (PTSD); (2) the appellant (claimant) had disability resulting from an injury sustained on (date of injury), from May 20, 2021, through December 19, 2021; (3) the claimant’s post-injury earnings (PIE) from May 20, 2021, through December 19, 2021, were $0.00; (4) the claimant is not entitled to income benefits from June 1, 2021, through November 30, 2021, under Section 405.044(d)(6) due to the compensable injury of (date of injury); and (5) the claimant is entitled to income benefits from May 20, 2021, through May 31, 2021, and from December 1, 2021, through December 19, 2021, under Section 405.044(d)(6), due to the compensable injury of (date of injury). With regard to Docket No. (Docket No. 2) the ALJ resolved the disputed issues by deciding that: (1) (Dr. K) was not properly appointed as designated doctor in accordance with 28 Tex. Admin. Code § 127.140(a)(6) (Rule 127.140(a)(6)); (2) the claimant reached maximum medical improvement (MMI) on October 1, 2021; and (3) the claimant’s impairment rating (IR) is zero percent.

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

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

DECISION

Reformed in part, affirmed in part, and reversed and remanded in part.

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

ENTITLEMENT TO INCOME BENEFITS

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a concussion or PTSD is supported by sufficient evidence and is affirmed.

MMI/IR

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

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. Rule 130.1(c)(3) provides, in part, that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

The ALJ found the preponderance of the other medical evidence is contrary to the certification of the designated doctor, (Dr. C), that the claimant reached MMI on March 3, 2022, with a zero percent IR, and determined the claimant reached MMI on October 1, 2021, with a zero percent IR as certified by (Dr. O), the post-designated doctor required medical examination doctor. The ALJ stated in the discussion portion of the decision that “[Dr. C’s] certification was unpersuasive to establish that the compensable injury improved beyond October 1, 2021.”

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

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

SUMMARY

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

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

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

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

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

REMAND INSTRUCTIONS

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

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 (CCH) was held on November 8, 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 an aggravation of disc herniation with stenosis at L4-5 and disc herniation with stenosis at L5-S1, but not spondylolisthesis at L5-S1; (2) the respondent (claimant) has not reached maximum medical improvement (MMI); and (3) because the claimant has not reached MMI, an impairment rating (IR) cannot be assigned. The appellant (carrier) appealed that portion of the ALJ’s extent-of-injury determination that was against it, as well as the ALJ’s MMI and IR determinations. The claimant responded, urging affirmance of the appealed determinations.

The ALJ’s determination that the compensable injury of (date of injury), does not extend to spondylolisthesis at L5-S1 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 at least in the form of the carrier-accepted condition of lumbar sprain/strain and that (Dr. A) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor on the issues of MMI, IR, and extent of injury. The claimant, a parts clerk, was injured after squatting to put down a box that weighed approximately 50-60 pounds. He testified that when he stood up, he felt a pinch and pop in his back and pain that went down his left leg.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), extends to an aggravation of disc herniation with stenosis at L4-5 and stenosis at L5-S1 is supported by sufficient evidence and is affirmed.

The ALJ also determined that the compensable injury of (date of injury), extends to a disc herniation at L5-S1. The ALJ stated in the discussion portion of his decision that “[Dr. A], the designated doctor, persuasively explained how the disputed conditions of L4-5 disc herniation with stenosis and L5-S1 disc herniation with stenosis were caused by the compensable injury.”

The carrier noted in its appeal that Dr. A did not specifically opine on the causation of a L5-S1 herniation. In explaining his opinion regarding the extent of the claimant’s compensable injury, Dr. A stated in his April 12, 2022, narrative report:

In my medical opinion, as the patient extended his back, and then twisted his body when he felt a pop in his back this resulted in an increase [in] axial and tensional type of forces on [the] lumbar spine resulting in the aggravation of the preexisting degenerative disc at [L4-5] causing it to extrude the disc material and become a herniation. In my medical opinion this also resulted in the aggravation to the foramina [sic] stenosis present at [L4-5] and L5-S1, resulting in the inflammation of the L5 and S1 nerve roots resulting in a radiculopathy at these levels.

Although Dr. A discussed stenosis at the L5-S1 level, he did not opine on a disc herniation at that level.

The ALJ’s statement that Dr. A persuasively explained how the disputed condition of an L5-S1 disc herniation was caused by the compensable injury is a misstatement of the evidence. While the ALJ can accept or reject in whole or in part Dr. A’s opinion, the ALJ’s decision in this case is based, in part, on a misstatement of the medical evidence in the record. Accordingly, we reverse the ALJ’s determination that the (date of injury), compensable injury extends to a disc herniation at L5-S1, and we remand the issue of whether the (date of injury), compensable injury extends to a disc herniation at L5-S1 to the ALJ for further action consistent with this decision.

MMI AND IR

Because we have reversed and remanded a portion of the extent-of-injury issue, we also reverse the ALJ’s determinations that the claimant has not reached MMI, and because the claimant has not reached MMI, an IR cannot be assigned. 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), extends to an aggravation of disc herniation with stenosis at L4-5 and stenosis at L5-S1.

We reverse the ALJ’s determination that the (date of injury), compensable injury extends to a disc herniation at L5-S1, and we remand the issue of whether the (date of injury), compensable injury extends to a disc herniation at L5-S1 to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determinations that the claimant has not reached MMI, and because the claimant has not reached MMI, an IR cannot be assigned. 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 correct the misstatement regarding Dr. A’s extent-of-injury opinion. The ALJ shall consider all of the evidence and make a determination whether the (date of injury), compensable injury extends to a disc herniation at L5-S1 that is supported by the evidence. The ALJ is then to make determinations regarding MMI and IR.

The true corporate name of the insurance carrier is AIU 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.

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

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

DECISION

Affirmed as clarified.

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

EXTENT OF INJURY

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

DISABILITY

That portion of the ALJ’s determination that the claimant did not have disability beginning October 6, 2021, through the date of the CCH is supported by sufficient evidence and is affirmed.

MMI/IR

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

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

Dr. B examined the claimant on June 15, 2022, and issued three certifications based on varying conditions. In the certification that considers the compensable injury in this case, which is a right hip contusion, right knee sprain, lumbar strain, bilateral wrist sprains/strains, and a rib contusion, Dr. B certified the claimant reached MMI on October 5, 2021. Using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides) and ROM values Dr. B assigned zero percent impairment for the right hip contusion, right knee sprain, lumbar strain, left wrist sprain/strain, and rib contusion, and a one percent whole person impairment for the right wrist sprain/strain.

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

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

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

SUMMARY

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

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

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

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

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

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 8, 2022, and October 24, 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 an injury to the right shoulder, cervical spine, or lumbar spine; (2) the appellant (claimant) reached maximum medical improvement (MMI) on October 11, 2021; and (3) the claimant’s impairment rating (IR) is eight 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, 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), at least in the form of a left shoulder rotator cuff tear, left shoulder sprain, and left shoulder strain; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. W) to address whether the claimant reached MMI, and if so, to assign an IR; and that in this case, the date of statutory MMI is November 23, 2022. The claimant testified that he was injured when he fell while walking on a pipe.

EXTENT OF INJURY

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

MMI/IR

The ALJ found that the October 11, 2021, date of MMI with an eight percent impairment assigned by Dr. W is not contrary to the preponderance of the evidence. Dr. W examined the claimant on June 22, 2022, and provided two certifications of MMI and IR. In both certifications, Dr. W certified that the claimant reached MMI on October 11, 2021, with an eight percent IR. In the first scenario, Dr. W, 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), considered and rated the following conditions: left shoulder sprain, left shoulder rotator cuff tear, and moderate tendinosis with diffuse partial thickness tearing. The impairment awarded was based on loss of range of motion of the claimant’s left shoulder. In the second scenario, Dr. W rated and considered the following conditions: sprain to the left shoulder, rotator cuff tear, moderate tendinosis with diffuse partial thickness tearing, minimal subscapularis tendinosis, and mild intraarticular long head of the biceps tendinosis. As noted above, the parties stipulated that the compensable injury extends to a left shoulder rotator cuff tear, a left shoulder sprain, and a left shoulder strain. In both scenarios, Dr. W failed to consider and rate a left shoulder strain which the parties have stipulated is part of the compensable injury. Additionally, in both scenarios, Dr. W considers and rates moderate tendinosis with diffuse partial thickness tearing which has not yet been determined to be a part of the claimant’s (date of injury), compensable injury. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on October 11, 2021, and that the claimant’s IR is eight percent.

There is only one other certification of MMI/IR in evidence. (Dr. M), a referral doctor selected to act in place of the treating doctor, examined the claimant on October 8, 2021, and certified that the claimant reached MMI on August 30, 2021, with a seven percent IR. Dr. M considered and rated the following conditions: left shoulder sprain and sprain of the left rotator cuff capsule. As previously noted, the parties stipulated that the compensable injury extends to a left shoulder strain, left shoulder sprain, and left shoulder rotator cuff tear. Dr. M failed to rate the entire compensable injury and accordingly, his certification cannot be adopted.

There are no other certifications of MMI/IR in evidence. Consequently, 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 an injury to the right shoulder, cervical spine, or lumbar spine.

We reverse the ALJ’s determination that the claimant reached MMI on October 11, 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 eight percent and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to advise the designated doctor that the statutory date of MMI is November 23, 2022, as agreed to by the parties, and that the compensable injury of (date of injury), extends to a left shoulder rotator cuff tear, left shoulder sprain, and left shoulder strain but does not extend to an injury to the right shoulder, cervical spine, or lumbar spine.

The ALJ is to request the designated doctor to give an opinion on the claimant’s MMI date, which can be no later than November 23, 2022, and rate the entire compensable injury in accordance with the AMA Guides, considering the medical record and the certifying examination.

The parties are to be provided with the designated doctor’s new certification of MMI and IR 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.

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 31, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to L3-4 fluid in the facet joints and a left foraminal disc protrusion/herniation measuring 4.5 mm producing moderate left neural foramen stenosis touching the L3 nerve root; L4-5 fluid in the facet joints and a left foraminal disc protrusion/herniation measuring 2.5 mm; L5-S1 fluid in the facet joints with a circumferential disc bulge measuring 6 mm and a superimposed central disc protrusion/herniation measuring 8 mm producing moderate central canal stenosis; severe stenosis of the bilateral lateral recesses impinging the bilateral L5 nerve roots; somatic dysfunction of the sacroiliac joint; sacroccygeal disorder; peripheral radiculopathy; or facet arthropathy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on March 26, 2021; (3) the claimant’s impairment rating (IR) is five percent; and (4) the claimant had disability beginning on March 27, 2021, and continuing through April 29, 2021, but not thereafter through the date of the CCH.

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

DECISION

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

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

EXTENT OF INJURY

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

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

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

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

MMI/IR/DISABILITY

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

SUMMARY

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

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

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

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

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

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

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

REMAND INSTRUCTIONS

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

(Dr. H) is the most recently appointed designated doctor in this case. If a new certification is necessary in this case, the ALJ is to determine whether Dr. H is still qualified and available to be the designated doctor. If Dr. H is no longer qualified or available to serve as the designated doctor, and if necessary, another designated doctor is to be appointed pursuant to the Texas Department of Insurance, Division of Workers’ Compensation (Division) rules to opine on the issues of MMI and IR. The ALJ is to inform the designated doctor what conditions are included in the compensable injury. The ALJ is to request that the designated doctor give an opinion on the claimant’s date of MMI and rate the entire compensable injury in accordance with the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides) considering the medical record and the certifying examination.

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 September 14, 2022, with the record closing on October 12, 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 shoulder high-grade partial thickness tear of the supraspinatus with a full thickness tear of the mid fibers, left shoulder high-grade bursal surface tear of the infraspinatus anterior insertional fibers, or left shoulder low-grade interstitial tear of the superior insertional fibers of the subscapularis; (2) the appellant (claimant) reached maximum medical improvement (MMI) on March 19, 2021; and (3) the claimant’s impairment rating (IR) is one percent.

The claimant appealed the ALJ’s extent of injury, MMI, and IR 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), at least in the form of a left wrist sprain, left hand and fingers sprain, and left hand contusion. The claimant was injured on (date of injury), when a box of meat she was trying to place on a rolling cart fell on her left hand.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to left shoulder high-grade partial thickness tear of the supraspinatus with a full thickness tear of the mid fibers, left shoulder high-grade bursal surface tear of the infraspinatus anterior insertional fibers, or left shoulder low-grade interstitial tear of the superior insertional fibers of the subscapularis 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.

The ALJ determined the claimant reached MMI on March 19, 2021, with a one percent IR as assigned by (Dr. J), the designated doctor.

Dr. J initially examined the claimant on July 21, 2021, and issued alternate certifications on that date. In both certifications Dr. J opined the claimant had not reached MMI based on various conditions. The first certification considers only an injury of the left hand and pain in the left wrist. The second certification considers those conditions as well as left shoulder high-grade partial thickness tear of the supraspinatus with a full thickness tear of the mid fibers, left shoulder high-grade bursal surface tear of the infraspinatus anterior insertional fibers, and left shoulder low-grade interstitial tear of the superior insertional fibers of the subscapularis. We have affirmed the ALJ’s determination that the compensable injury does not extend to these conditions. Neither of Dr. J’s July 21, 2021, certifications consider the compensable injury.

Dr. J next examined the claimant on April 19, 2022, and certified the claimant reached MMI on March 19, 2021, with a one percent IR. The ALJ correctly noted in the discussion portion of the decision and order that Dr. J incorrectly dated the Report of Medical Evaluation (DWC-69) as April 19, 2021, rather than April 19, 2022. Dr. J did not consider and rate left fingers sprain, a condition which the parties stipulated is part of the compensable injury.

Dr. J next examined on June 21, 2022, and again issued alternate certifications. In the first Dr. J opined the claimant had not reached MMI considering, in part, the noncompensable conditions of left shoulder high-grade partial thickness tear of the supraspinatus with a full thickness tear of the mid fibers, left shoulder high-grade bursal surface tear of the infraspinatus anterior insertional fibers, and left shoulder low-grade interstitial tear of the superior insertional fibers of the subscapularis. In the second Dr. J certified the claimant reached MMI on March 19, 2021, with a one percent IR; this certification does not consider and rate left fingers sprain, which is part of the compensable injury.

A letter of clarification was sent to Dr. J on September 22, 2022, by the ALJ, notifying Dr. J that pain in the left wrist, a condition considered and rated by Dr. J, had not specifically been determined to be part of the compensable injury and requested Dr. J to remove that condition from consideration. Dr. J did so, and again issued two certifications, one certifying the claimant had not reached MMI and the other certifying the claimant reached MMI on March 19, 2021, with a one percent IR. However, neither of these certifications consider the compensable injury. The first certification considered the noncompensable conditions of left shoulder high-grade partial thickness tear of the supraspinatus with a full thickness tear of the mid fibers, left shoulder high-grade bursal surface tear of the infraspinatus anterior insertional fibers, and left shoulder low-grade interstitial tear of the superior insertional fibers of the subscapularis. The second certification does not consider and rate left fingers sprain.

None of Dr. J’s certifications in evidence consider and rate the compensable injury in this case. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on March 19, 2021, with a one percent IR.

There are other certifications in evidence; however, none consider and rate the compensable injury. (Dr. R-B), the treating doctor, examined the claimant on March 31, 2021, and certified the claimant reached MMI on that same date with no permanent impairment. Dr. R-B only considered an “[i]njury of [the] left hand.” (Dr. C), the post-designated doctor required medical examination doctor, examined the claimant on September 15, 2021, and issued alternate certifications dated September 19, 2021. In the first certification Dr. C opined the claimant had not reached MMI in part based on conditions that were determined to be not part of the compensable injury. In the second certification Dr. C certified the claimant reached MMI on May 26, 2021, with a zero percent IR considering a left wrist sprain and left hand contusion. Although Dr. C noted decreased range of motion in the claimant’s left index and middle fingers, he stated in his narrative report that he opined any functional limitation in the digits were secondary to osteoarthritic degenerative change and inflammation and was not causally related to the compensable injury. Dr. C did not specifically consider and rate left hand and fingers sprain, which are part of the compensable injury.

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 of (date of injury), does not extend to left shoulder high-grade partial thickness tear of the supraspinatus with a full thickness tear of the mid fibers, left shoulder high-grade bursal surface tear of the infraspinatus anterior insertional fibers, or left shoulder low-grade interstitial tear of the superior insertional fibers of the subscapularis.

We reverse the ALJ’s determination that the claimant reached MMI on March 19, 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 one percent and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. J is the designated doctor in this case. The ALJ is to determine whether Dr. J is still qualified and available to be the designated doctor. If Dr. J 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 opine on the issues of MMI and IR. The ALJ is to inform the designated doctor that the compensable injury extends to a left wrist sprain, left hand and fingers sprain, and left hand contusion. The ALJ is to request that the designated doctor give an opinion on the claimant’s date of MMI, which cannot be after the statutory date of MMI, and rate the entire compensable injury in accordance with the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) considering the medical record and the certifying examination.

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

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.

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 March 28, 2022, with the record closing on September 20, 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 concussion; (2) the compensable injury of (date of injury), does not extend to aggravation of C6-7 disc herniation, aggravation of C6-7 spondylosis, lumbar disc protrusion at L4-5, L2-3 disc protrusion, or lumbar radiculopathy; (3) the respondent (claimant) reached maximum medical improvement (MMI) on August 6, 2021; and (4) the claimant’s impairment rating (IR) is 5%. The appellant (carrier) appeals the ALJ’s determination that the compensable injury extends to a concussion as well as the ALJ’s determinations of MMI and IR. The appeal file does not contain a response from the claimant. The ALJ’s determination that the compensable injury does not extend to aggravation of C6-7 disc herniation, aggravation of C6-7 spondylosis, lumbar disc protrusion at L4-5, L2-3 disc protrusion, or lumbar radiculopathy 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); the compensable injury extends to a head contusion, right elbow fracture, right shoulder sprain, cervical strain, and lumbar strain; the date of statutory MMI is July 25, 2022; and (Dr. L) was properly appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to opine on the issues of MMI, IR, and extent of injury. The claimant testified that he was injured when he was hit by a forklift.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), extends to a concussion is supported by sufficient evidence and is affirmed.

MMI/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 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.

Dr. L examined the claimant on February 26, 2021, and again on September 30, 2021. The ALJ correctly noted that none of the certifying reports from Dr. L considered and rated only the compensable conditions and could not be adopted.

The required medical examination doctor, (Dr. H), examined the claimant on November 10, 2021. The ALJ correctly noted that none of the certifying reports from Dr. H considered and rated only the compensable conditions and could not be adopted.

On April 29, 2022, the ALJ issued a Presiding Officer’s Directive (POD) requesting a new designated doctor be appointed because Dr. L was no longer certified to assess impairment as a designated doctor. (Dr. Le) was appointed to opine on the issues of MMI and IR. Dr. Le examined the claimant on June 7, 2022, and certified that the claimant reached MMI on October 6, 2021, and assessed 0% impairment. Dr. Le considered and rated the following conditions: head contusion/concussion, right elbow fracture, right shoulder strain, cervical strain, and lumbar strain. We note that the parties stipulated that the compensable injury extends to a right shoulder sprain not a right shoulder strain. On June 22, 2022, the ALJ issued a letter of clarification (LOC) to Dr. Le requesting further explanation of the date of MMI and of the impairment assessed for the head, lumbar spine, and cervical spine. Dr. Le responded on June 23, 2022, and certified that the claimant reached MMI on February 10, 2021, with a 5% IR.

On July 11, 2022, the ALJ issued a second POD and requested that Dr. Le re-examine the claimant. In the second POD the ALJ misidentified the right shoulder injury as a strain. As previously noted, the parties stipulated that the compensable injury extends to a right shoulder sprain.

Dr. Le re-examined the claimant on August 17, 2022. Dr. Le certified that the claimant reached MMI on August 6, 2021, and assessed a 10% IR. Dr. Le considered and rated the following conditions: head contusion, concussion, right elbow fracture, right shoulder strain, cervical strain, and lumbar strain. As previously noted, the parties stipulated that the compensable injury extends to a right shoulder sprain. The ALJ sent another LOC to Dr. Le on September 6, 2022, requesting that Dr. Le further explain the MMI date he assigned and further explain his assessment of the claimant’s IR. In response to the LOC dated September 6, 2022, Dr. Le certified that the claimant reached MMI on August 6, 2021, and assessed a 5% IR.

Dr. Le rated a right shoulder strain rather than a right shoulder sprain in his certifications. Accordingly, none of the certifications from Dr. Le can be adopted. There are no other certifications in evidence that can be adopted. We reverse the ALJ’s determination that the claimant reached MMI on August 6, 2021, and that the claimant’s IR is 5%. 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), extends to a concussion.

We reverse the ALJ’s determination that the claimant reached MMI on August 6, 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 5% and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to inform the designated doctor that the (date of injury), compensable injury is a head contusion, concussion, right elbow fracture, right shoulder sprain, cervical strain, and lumbar strain. The ALJ is also to inform the designated doctor that the (date of injury), compensable injury does not extend to aggravation of C6-7 disc herniation, aggravation of C6-7 spondylosis, lumbar disc protrusion at L4-5, L2-3 disc protrusion, or lumbar radiculopathy and that the statutory date of MMI is July 25, 2022.

The ALJ is to request the designated doctor to give an opinion on the claimant’s MMI, which cannot be later than the statutory date of July 25, 2022, and IR by rating 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 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

DECISION

Reversed and remanded.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury which extends to a head injury with concussion without loss of consciousness; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. S) as designated doctor to address MMI and IR; and that there are no other conditions or diagnoses that need to be adjudicated in this case for the purpose of determining MMI and IR. The claimant testified that she was injured on (date of injury), when a box fell and hit her in the head when she was unloading a trailer.

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 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. S, the designated doctor, examined the claimant on May 31, 2022, and certified that the claimant had not yet reached MMI. Dr. S listed the following diagnoses in his narrative report: head injury and concussion without loss of consciousness and hearing loss due to a broken hearing aid. Dr. S stated in his narrative report that fixing the hearing aid will result in improved function and is necessary to certify a date of MMI. The ALJ noted in her discussion of the evidence that hearing loss due to a broken hearing aid was not a part of the compensable injury. The ALJ found that the preponderance of the other medical evidence was contrary to the certification from Dr. S that the claimant was not at MMI. This finding is supported by sufficient evidence.

(Dr. N), a treating doctor referral, examined the claimant on January 5, 2022, and certified that the claimant reached MMI on October 13, 2021, with a seven percent IR. In the narrative report, Dr. N listed the head and neck (cervical spine) as the body parts injured by the claimant. 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. N assessed seven percent impairment for the claimant’s head injury and placed the claimant in Cervicothoracic Diagnosis-Related Estimate Category I: Complaints or Symptoms, assigning zero percent impairment. A cervical spine injury has not yet been determined to be a part of the compensable injury. Accordingly, the certification from Dr. N cannot be adopted. Therefore, we reverse the ALJ’s determinations that the claimant reached MMI on October 13, 2021, and the claimant’s IR is seven percent.

There is no other certification of MMI/IR in evidence. Accordingly, 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 claimant reached MMI on October 13, 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 seven percent and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a head injury with concussion without loss of consciousness.

The ALJ is to request the designated doctor to rate the entire compensable injury in accordance with the AMA Guides and considering the medical record and the certifying examination.

The parties are to be provided with the designated doctor’s new MMI and IR certification and are to be allowed an opportunity to respond. The ALJ is then to make a determination on the claimant’s MMI/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), TEXAS (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 September 29, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to left wrist Capitate cyst, left wrist Triquetrum cyst, bilateral ulnar neuropathy, bilateral sensory neuropathy, L4 disc herniation, L5 disc herniation, C3-4 central disc extrusion, C4-5 central disc extrusion, C7-T1 central disc extrusion, left shoulder severe arthritis to the acromioclavicular joint, concussion with loss of consciousness, cognitive impairment, left cubital tunnel syndrome (CuTS), or left carpal tunnel syndrome (CTS); (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 3, 2022; and (3) the claimant’s impairment rating (IR) is 14%. The claimant appealed, disputing the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the disputed determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of at least a head contusion without loss of consciousness, C6-7 left foraminal disc extrusion, left shoulder full thickness supraspinatus tear, left wrist sprain/strain, lumbar sprain/strain Grade 1, and thoracic sprain/strain Grade 1. The claimant was injured on (date of injury), while he was driving a street sweeper and was rear-ended by an 18-wheeler carrying two trailers.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to left wrist Capitate cyst, left wrist Triquetrum cyst, bilateral ulnar neuropathy, bilateral sensory neuropathy, L4 disc herniation, L5 disc herniation, C3-4 central disc extrusion, C4-5 central disc extrusion, C7-T1 central disc extrusion, left shoulder severe arthritis to the acromioclavicular joint, concussion with loss of consciousness, cognitive impairment, left CuTS, or left CTS is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on February 3, 2022, is supported by sufficient evidence and is affirmed.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, 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 certification from (Dr. B), the post-designated doctor required medical examination doctor, is supported by the preponderance of the evidence. The ALJ therefore determined the claimant reached MMI on February 3, 2022, with a 14% IR.

Dr. B examined the claimant on June 21, 2022, and issued three certifications on July 13, 2022, based on various conditions. Only one of these certifications considers the compensable injury in this case, which is a head contusion without loss of consciousness, C6-7 left foraminal disc extrusion, left shoulder full thickness supraspinatus tear, left wrist sprain/strain, lumbar sprain/strain Grade 1, and thoracic sprain/strain Grade 1. Using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides), Dr. B assigned 0% impairment for the head contusion without loss of consciousness. Dr. B also placed the claimant in Diagnosis-Related Estimate (DRE) Cervicothoracic Category II: Minor Impairment for 5% impairment for the cervical spine, DRE Thoracolumbar Category I: Complaints or Symptoms for 0% impairment for the thoracic spine, and DRE Lumbosacral Category I: Complaints or Symptoms for 0% impairment for the lumbar spine. Dr. B further assigned 15% upper extremity (UE) impairment based on range of motion deficits and a distal clavicle resection of the left shoulder, and 0% UE impairment for the left wrist and elbow. Dr. B converted 15% UE impairment to 9% whole person impairment (WPI), then combined 9% WPI with 5% WPI for the cervical spine for a total IR of 14%.

However, Dr. B’s assigned impairment for the left shoulder contains an error. Dr. B correctly assigned 2% UE impairment for 150° of flexion, 0% impairment for 50° of extension, 4% impairment for 100° of abduction, 0% impairment for 40° of adduction, and 0% impairment for 85° of internal rotation. Dr. B also assigned 0% impairment for 50° of external rotation. Figure 44 on page 3/45 of the AMA Guides provides that 50° of external rotation results in 1% impairment, not 0% impairment as assigned by Dr. B. Adding the correct UE impairments for the left shoulder results in 7% UE impairment, not 6% UE impairment as assigned by Dr. B. Combining 7% UE impairment with 10% UE impairment for the distal clavicle resection results in 16% UE impairment, not 15% UE impairment as assigned by Dr. B. Table 3 on page 3/20 of the AMA Guides provides that 16% UE impairment converts to 10% WPI, not 9% WPI as assigned by Dr. B. 10% WPI for the left shoulder combined with 5% WPI for the cervical spine, 0% WPI for the thoracic spine, 0% WPI for the lumbar spine, 0% WPI for the head, and 0% WPI for the left wrist and elbow results in a total IR of 15%, not 14% as assigned by Dr. B.

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 Dr. B’s IR is supported by the preponderance of the evidence. After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 14%, and we render a new decision that the claimant’s IR is 15% as mathematically corrected.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to left wrist Capitate cyst, left wrist Triquetrum cyst, bilateral ulnar neuropathy, bilateral sensory neuropathy, L4 disc herniation, L5 disc herniation, C3-C4 central disc extrusion, C4-C5 central disc extrusion, C7-T1 central disc extrusion, left shoulder severe arthritis to the acromioclavicular joint, concussion with loss of consciousness, cognitive impairment, left CuTS, or left CTS.

We affirm the ALJ’s determination that the claimant reached MMI on February 3, 2022.

We reverse the ALJ’s determination that the claimant’s IR is 14%, and we render a new decision that the claimant’s IR is 15% as mathematically corrected.

The true corporate name of the insurance carrier is ACIG 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