This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 13, 2016, with the record closing on November 1, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent’s (claimant) commutation of impairment income benefits (IIBs) on August 5, 2011, is not valid or final; (2) the claimant had disability from July 9, 2011, through January 13, 2016, the date of the CCH; (3) the claimant reached maximum medical improvement (MMI) on June 13, 2013; and (4) the claimant’s impairment rating (IR) is 10%.

The appellant (carrier) appealed, contending that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be manifestly unjust, and that the hearing officer failed to properly apply the law to the facts of the case. The claimant responded, urging affirmance of the hearing officer’s determinations.

DECISION

Affirmed in part; reversed and rendered in part; and reversed and remanded in part.

The parties stipulated in part to the following at the CCH: the claimant sustained a compensable injury on (date of injury), to include at least a lumbar strain/sprain, thoracic sprain/strain, disc bulge at T11-12, and Schmorl’s Node at T11; (Dr. G), the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) examined the claimant on June 30, 2011, and certified that the claimant reached MMI on June 30, 2011, with a 5% IR for a lumbar sprain/strain and a thoracic sprain/strain; the claimant requested commutation of his IIBs and the request was in writing on an Employee’s Election for Commuted (Lump Sum) [IIBs] (DWC-51); the claimant’s pre-injury average weekly wage (AWW) is $486.92; and the claimant’s eighth day of partial disability was June 8, 2011.

The claimant testified he was injured when he lifted a heavy claw-foot bathtub at work on (date of injury). As noted above, Dr. G, the designated doctor, examined the claimant on June 30, 2011, and certified that the claimant reached MMI on that date with a 5% IR based on lumbar and thoracic sprains/strains. The claimant signed the DWC-51 on August 1, 2011, requesting commutation of his IIBs, and the carrier approved the claimant’s DWC-51 on August 5, 2011. In evidence is an Agreed Judgment signed by the parties on March 13, 2015, in which the parties agreed that the claimant’s (date of injury), compensable injury extends to disc bulge at T11-12 and Schmorl’s node at T11.

COMMUTATION OF IIBs

Section 408.128 provides the following:

(a) An employee may elect to commute the remainder of the [IIBs] to which the employee is entitled if the employee has returned to work for at least three months, earning at least 80% of the employee's [AWW].

(b) An employee who elects to commute [IIBs] is not entitled to additional income benefits for the compensable injury.

28 TEX. ADMIN. CODE § 147.10 (Rule 147.10) provides the following:

(a) An employee may elect to commute [IIBs] when the employee has returned to work for at least three months, earning at least 80% of the employee's [AWW].

(b) A request to commute must:

  (1) be in writing on a [Division]-prescribed form;

  (2) state the date the employee reached [MMI]; the [IR]; and the employee's weekly [IIBs];

  (3) be sent to the carrier; and

  (4) be filed with the [Division] field office managing the claim.

(c) The [Division]-prescribed form shall include a warning to the employee that commutation terminates the employee's entitlement to additional income benefits for the injury.

(d) The employee may contact the [Division] field office managing the claim to obtain or verify the information required to be included in the request.

(e) The carrier shall send a notice of approval or denial of the request to the employee no later than 14 days after receipt of the request. A notice of approval shall include payment of the commuted [IIBs]. A notice of denial shall include the carrier's reasons for denial. A copy of the notice shall be filed with the [Division] field office managing the claim.

(f) If the carrier denies the request, the employee may request the [Division] to schedule a benefit review conference (BRC) to resolve the issue, as provided by §141.1 of this title (relating to Requesting and Setting a [BRC]).

We hold that in this case the DWC-51 on its face was sufficient to meet the statutory requirements to commute IIBs under Section 408.128. Therefore, the hearing officer’s determination that the claimant’s commutation of IIBs on August 5, 2011, is not valid or final is legal error. Accordingly, we reverse the hearing officer’s determination that the claimant’s commutation of IIBs on August 5, 2011, is not valid or final, and we render a new decision that the claimant’s commutation of IIBs on August 5, 2011, is valid and final.

The claimant’s DWC-51 in evidence shows that the claimant filled out the blanks for the MMI date (although as noted by the hearing officer this date is difficult to read), the IR, the rating doctor’s name, that neither he nor the carrier disputed the IR, and the weekly IIBs amount as being $340.84. The claimant also stated that he had “no lost time” in the date returned to work blank, and checked the box stating that he had returned to work for at least three months. However, the claimant left the “present rate of pay” blank.

The hearing officer noted in her Discussion that the claimant testified he initially returned to work at his regular pay rate of $15.00 per hour, and that his hourly wage rate was reduced by $3.00 beginning on June 6, 2011. The hearing officer stated that “[a]ssuming that [the] [c]laimant continued to work as many hours post injury as he did pre-injury, then he would still be earning 80% of his AWW,” and that his post-injury earnings were well above the 80% threshold to be eligible for commutation of IIBs. The hearing officer also noted that the claimant testified he earned no wages after his job was terminated, and that “[a]ssuming [the] [c]laimant returned to work on March 16, 2011, after his (date of injury), injury, he worked earning at least 80% of his AWW, until July 8, 2011^[1], a period greater than three months,” and that he had not been working for approximately 23 days before filing the DWC-51.

The hearing officer noted that while Rule 147.10 does not specifically require the date of return to work and the present rate of pay be included on the DWC-51, Rule 147.10 does require that an injured worker must have returned to work for at least three months earning at least 80% of his or her AWW, and that if the information requested by the DWC-51 is not included, a determination cannot be made whether or not an injured worker is eligible to commute IIBs. The hearing officer also noted that the Appeals Panel has instructed that a carrier does not need to go behind the document to determine whether the representations made by the claimant are accurate or whether the claimant had any inconsistent intentions; however, the hearing officer stated that “on the face of the DWC-51, [the] [c]arrier did not have enough information to determine whether [the] [c]laimant was legally qualified to commute IIBs.” The hearing officer cited Appeals Panel Decision (APD) 991241, decided July 23, 1999, in support of her determination that the claimant’s commutation of IIBs on August 5, 2011, is not valid or final.

In APD 991241, supra, the claimant testified that she wanted to sell Avon and had obtained a sales bag, but had earned no money since her injury. The claimant also testified she told her attorney she had not returned to work and that her attorney told her she did not have to return to work to receive a lump sum payment. The claimant obtained a DWC-51 and signed only her name to the blank form and returned it to her attorney. The claimant’s attorney completed the DWC-51, and the carrier approved it. The DWC-51 did not contain an MMI date, did not indicate whether the IR was disputed, did not indicate the present rate of pay, but underneath the blank for rate of pay stated that “% varies by sales.” The hearing officer determined that the claimant’s commutation of IIBs was not valid and final. The Appeals Panel affirmed, noting that the key elements of the DWC-51 are the IR and whether the claimant has returned to work for at least three months earning at least 80% of the pre-injury AWW because those are the statutory criteria for commutation of IIBs. The Appeals Panel noted that while the DWC-51 indicated that the claimant returned to work for at least three months, the “present rate of pay” was blank, the form stated “% varies by sales” and the box “weekly” was checked. The Appeals Panel stated that in that case the information contained on the DWC-51 was insufficient to convey that the claimant was making at least 80% of her pre-injury AWW.

The hearing officer in the case on appeal stated in her Discussion that:

In the case at bar, as in APD 991241, without the present rate of pay, [the] [c]arrier did not have sufficient information on the DWC-51^[2] to determine whether [the] [c]laimant was making 80% of his pre-injury [AWW]. It is determined that [the] [c]laimant’s election to receive a lump sum of IIBs was not made in accordance with the requirements of Section 408.128 and Rule 147.10, and is not valid or final.

Unlike the facts in APD 991241, supra, the evidence in the case on appeal established that the claimant had returned to work for at least three months earning at least 80% of the AWW. The claimant testified that he had returned to work on March 16, 2011, the day after his injury, and worked the same hours (40 per week) with the same rate of pay ($15.00 per hour) as he did before the injury. The evidence established that the employer offered the claimant a modified duty position on June 3, 2011, in which he worked the same number of hours at $12.00 per hour. The claimant testified that he no longer worked for the employer after July 8, 2011, due to his injury.

We have held that in this case, the DWC-51 on its face was sufficient to meet the statutory requirements to commute IIBs under Section 408.128. For the above-discussed reasons, the case on appeal is distinguishable from APD 991241, supra.

MMI/IR

The hearing officer determined that the claimant reached MMI on June 13, 2013, with a 10% IR as certified by (Dr. M), the subsequently-appointed designated doctor.

Dr. M examined the claimant on April 25, 2016, in response to a Presiding Officer Directive from the hearing officer on the issues of MMI and IR. Dr. M certified that the claimant reached MMI statutorily on June 5, 2013, with a 10% IR based on the accepted conditions of lumbar and thoracic sprains/strains, disc bulge at T11-12, and Schmorl’s node at T11.

After some discussion the parties at the CCH stipulated that the statutory date of MMI is June 5, 2013. However, in evidence are emails from the hearing officer to the parties in which the hearing officer noted that the parties stipulated the date of statutory MMI is June 13, 2013, and that the correct statutory MMI date based on the dates of disability should be June 5, 2013. The hearing officer requested the parties to stipulate that the statutory date of MMI is June 5, 2013; however, the carrier declined to so stipulate. The hearing officer sent Dr. M a letter of clarification notifying him that the statutory date of MMI is June 13, 2013. Dr. M amended his MMI/IR certification to state that the claimant reached MMI statutorily on June 13, 2013, with a 10% IR. The hearing officer stated in the decision and order that the parties stipulated the statutory date of MMI is June 13, 2013, and determined that the claimant reached MMI on June 13, 2013, with a 10% IR as certified by Dr. M.

The hearing officer incorrectly stated the parties stipulated that the statutory date of MMI is June 13, 2013, and the hearing officer did not make any findings of fact regarding the statutory date of MMI. Accordingly, we reverse the hearing officer’s determinations that the claimant reached MMI on June 13, 2013, with a 10% IR, and we remand this case to the hearing officer to clarify the parties’ stipulation regarding the statutory date of MMI or to make a finding of fact on the correct statutory date of MMI.

DISABILITY

We affirm the hearing officer’s determination that the claimant had disability from July 9, 2011, through January 13, 2016, the date of the CCH. However, given that we have reversed the hearing officer’s determination that the claimant’s commutation of IIBs on August 5, 2011, is not valid or final and have rendered a new decision that the claimant’s commutation of IIBs on August 5, 2011, is valid and final, the claimant is not entitled to additional income benefits for the compensable injury. See Section 408.128(b).

SUMMARY

We affirm the hearing officer’s determination that the claimant had disability from July 9, 2011, through January 13, 2016, the date of the CCH.

We reverse the hearing officer’s determination that the claimant’s commutation of IIBs on August 5, 2011, is not valid or final, and we render a new decision that the claimant’s commutation of IIBs on August 5, 2011, is valid and final.

We reverse the hearing officer’s determination that the claimant reached MMI on June 13, 2013, and we remand the issue of MMI to the hearing officer for further action consistent with this decision.

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

REMAND INSTRUCTIONS

Dr. M is the designated doctor in this case. On remand, the hearing officer 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.

The hearing officer is to ask the parties to stipulate to the statutory date of MMI or make a finding regarding the statutory date of MMI. If the stipulated or found statutory date of MMI differs from the dates in evidence, the hearing officer is to notify the designated doctor of the date of statutory MMI. The hearing officer is to inform the designated doctor that the compensable injury extends to lumbar and thoracic sprains/strains, disc bulge at T11-12, and Schmorl’s node at T11. The hearing officer is to request the designated doctor give an opinion on the claimant’s MMI, which can be no later than the statutory date of MMI (Section 401.011(30)), and IR by rating the entire compensable injury as of the date of MMI 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 MMI/IR certification, if any. The hearing officer is 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 hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See APD 060721, decided June 12, 2006.

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note the hearing officer inadvertently stated a date of 2016 rather than the correct date of 2011.

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2. We note that the hearing officer inadvertently identified the form as a DWC-52.

   ↑

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 April 28, 2004. On the sole issue, the hearing officer decided that the commutation of impairment income benefits (IIBs) on May 24, 2002, is valid and final. The appellant (claimant) appeals, asserting that the commutation is invalid because maximum medical improvement (MMI) and impairment rating (IR) were in dispute, and because she was misinformed about her eligibility for future income benefits. The respondent (carrier) urges affirmance.

DECISION

Affirmed.

The hearing officer did not err in determining that the claimant’s commutation of IIBs is valid and final. Section 408.128(a) provides that an employee may elect to commute the remainder of IIBs to which she is entitled "if the employee has returned to work for at least three months, earning at least 80 percent of the employee's average weekly wage." Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 147.10 (Rule 147.10) further provides that the request must be in writing on a form prescribed by the Texas Workers' Compensation Commission (Commission); must state the date of MMI, the IR, and the employee’s weekly income benefit; must be sent to the carrier and filed with the Commission field office; and must include a warning that commutation terminates the employee's entitlement to additional income benefits for the injury. We have said that a carrier need not go behind the document to determine whether the representations contained therein are accurate or whether the claimant has any inconsistent intentions. Texas Workers’ Compensation Commission Appeal No. 992541, decided December 29, 1999; see also Texas Workers’ Compensation Commission Appeal No. 93894, decided November 17, 1993 (noting that in requesting commutation of IIBs the claimant essentially expressed an agreement with the MMI/IR certification referenced therein). The hearing officer considered the evidence and found that the requirements of Section 408.128 and Rule 147.10 were satisfied. The hearing officer was not persuaded that the claimant was misinformed concerning her eligibility for future income benefits. In view of the evidence presented, we cannot conclude that the hearing officer's determination is 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).

The decision and order of the hearing officer is affirmed.

The true corporate name of the insurance carrier is THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750

AUSTIN, TEXAS 78701.

Edward Vilano

CONCUR:

Judy L. S. Barnes
Appeals Judge

Gary L. Kilgore
Appeals Judge

This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On October 6, 1999, a contested case hearing (CCH) was held. The issues were:

1. Did Claimant [appellant] commute her Impairment Income Benefits [IIBS] pursuant to Section 408.128?

2. Who is the correct designated doctor?

3. Has Claimant reached maximum medical improvement [MMI], and if so, on what date?

4. What is Claimant’s impairment rating [IR]?

With regard to those issues, the hearing officer determined that claimant had commuted her IIBS; that the correct designated doctor was Dr. T; and that claimant reached MMI on November 6, 1997, with an 11% IR as assessed by Dr. T, whose report was not contrary to the great weight of other medical evidence.

Claimant appealed, contending that she had not made a “knowing and voluntary” commutation of IIBS; that the Employee’s Election for Commuted (Lump Sum) Impairment Income Benefits (TWCC-51) form that she signed contained “ambiguities and omissions”; that the correct designated doctor was Dr. MT; that she was not at MMI on November 6, 1997; and that another post-surgery examination “by the designated doctor is necessary to determine an appropriate date of MMI and [IR].” Claimant requests that we reverse the hearing officer’s decision and render a decision in her favor. Respondent (carrier) responds to the points raised in claimant’s appeal and urges affirmance.

DECISION

Affirmed.

The parties stipulated that claimant sustained a compensable (low back) injury (sweeping and mopping) on * * *. An MRI performed on December 2, 1996, indicated a “2-3mm” disc bulge at L4-5 and a “3mm” disc bulge at L5-S1 with degenerative changes noted at both levels. Claimant was apparently being treated by Dr. G, who referred claimant to Dr. S. Dr. S, in a note dated July 7, 1997, commented that he “did not feel [claimant] ... required surgery and that she should ‘live with it.”’ Claimant was subsequently examined by Dr. M, who, in a Report of Medical Evaluation (TWCC-69) and narrative, both dated September 8, 1997, certified claimant at MMI on that date with a seven percent IR. Dr. G checked on the TWCC-69 form that he disagreed with Dr. M’s MMI certification and IR. The hearing officer notes that claimant disputed that rating as reflected in a Dispute Resolution Information System (DRIS) note on September 22, 1997. This apparently lead to the appointment of Dr. T as the designated doctor.

Dr. T, on a TWCC-69 and narrative dated November 13, 1997, certified MMI on November 6, 1997 (the date she examined claimant), with an 11% IR “due to loss of range of motion and according to Table 49 [of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides)]. Dr. T noted various medical reports, including Dr. S’s note, and commented that claimant’s “condition is static and stable at the time of the final examination.” Dr. G again disagreed with the rating, commenting that he believed claimant would require disc surgery and that, in his opinion, MMI had not been reached.

The DRIS notes reflect that claimant called the Texas Workers’ Compensation Commission acknowledging receipt of Dr. T’s report, and requested a series of advanced payments on her IIBS by filing Employee’s Request for Acceleration of Impairment Income Benefits Interim (TWCC-46) and Request for Payment of Advanced Compensation (TWCC-47) forms. The DRIS notes indicate claimant received $1,963.00 on November 24, 1997; $900.00 on December 12, 1997; and another $750.00 on March 3, 1998. In evidence is a benefit review conference agreement dated January 2, 1998, where the parties agreed that claimant had disability from August 26 to November 6, 1997. The DRIS notes indicated that claimant called the Commission on April 27, 1998, disputing Dr. T’s IR and was mailed a Request for Benefit Review Conference (TWCC-45) form.

Nonetheless, claimant completed and signed a (TWCC-51 on April 29, 1998, requesting a lump sum commutation of her IIBS based on Dr. T’s 11% IR. The TWCC-51, in bold print, contained the warning that by taking a lump sum payment of IIBS, she would not be able to collect supplemental income benefits or “any additional income benefits.” In the box in block 8, claimant checked “No” as to whether the IR had been disputed by claimant or carrier, but, in handwriting, wrote “Did not agree.” Claimant stated on the form that she had returned to work on January 20, 1998, and had returned to work for at least three months at $230.00 per week. (Claimant’s stipulated preinjury average weekly wage (AWW) was $227.92.) Claimant signed the form and, upon receipt of the TWCC-51 on April 29, 1998, carrier paid claimant an additional $534.00 for IIBS from May 1 through June 25, 1998. Claimant, at the CCH, testified that she was expecting about $2,000.00 in a lump sum but received only $534.00. (Claimant had apparently not considered all her prior advance payments.) A Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) mailed to claimant on April 30, 1998, indicated that claimant had received a total of $5,264.82 in income benefits. Claimant subsequently filed a TWCC-45 disputing Dr. T’s IR, which the DRIS notes indicate was received by the Commission on May 11, 1998.

Claimant seeks to avoid the commutation of IIBS because she had not made a “knowing and voluntary election.” Claimant bases this on her testimony that she was in a mentally fragile condition and had a methadone dependency problem. Claimant testified that from December 1997 through March 1999 she was pretty much “whacked out” and was “high” nearly all the time. Claimant testified that during this period she had lost custody of her minor son, as she was unable to care for him. Claimant testified that she had signed up with a temporary employment agency in January 1998 and had worked “some” when work was available. The hearing officer, in her Statement of the Evidence, commented that claimant’s “testimony as to her mental state at the time she signed the document [the TWCC-51] and as to whether she knowingly and voluntarily signed the document was not persuasive.”

Section 408.128(a) provides that an employee may elect to commute IIBS to which he is entitled in a lump sum payment “if the employee has returned to work for at least three months, earning at least 80 percent of the employee’s [AWW].” Subsection (b) further provides that an employee who elects to commute IIBS “is not entitled to additional income benefits for the compensable injury.” Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 147.10 (Rule 147.10) requires that the form to request a commutation of IIBS must state the date the employee reached MMI; the IR; and the amount of the weekly benefit. It must also “include a warning to the employee that commutation terminates the employee’s entitlement to additional income benefits for the injury.” The TWCC-51 was created for this purpose. In this case, although the stated date of MMI on the TWCC-51 is listed as November 5, 1997 (which is what Dr. T’s narrative states), whereas November 6, 1997, was listed on the TWCC-69, we do not view that minor discrepancy, which is also in Dr. T’s report, as invalidating the request for commutation. The contradiction where the claimant marked that the IR was not disputed and then wrote “did not agree” is an ambiguity for the hearing officer to resolve. That claimant did not agree with the IR does not necessarily mean that she was disputing it. Similarly, claimant, during the November 1997 through April 1998 time frame, was requesting, and accepting, advances based on Dr. T’s 11% IR, while at the same time disputing or disagreeing with that same rating. It appears that claimant wants both the 11% IR in lump sum advances and then wants to dispute the same IR, which has been the basis of the lump sum advances. Claimant substantially complied with the requirement to commute by marking there was no dispute of the IR; that she had returned to work on January 20, 1998; and that she had returned to work for at least three months, earning $230.00 per week. Claimant then accepted the lump sum benefits, even though they were less than she had expected. As we discussed in Texas Workers’ Compensation Commission Appeal No. 980829, decided June 10, 1998, and Texas Workers’ Compensation Commission Appeal No. 951549, decided November 1, 1995, claimant was advised in bold print of the consequences of requesting a commutation, chose to proceed and accepted the benefits of that commutation. We will not require a carrier to go behind the TWCC-51 to determine whether the representations are accurate and whether claimant has any inconsistent intentions, absent fraud by the carrier. Claimant, on the TWCC-51, stated that she had not disputed the 11% IR and, even though perhaps not agreeing, claimant nonetheless initiated and accepted the benefits of the commutation. Claimant’s methadone problem is not mentioned until a report dated January 11, 1999, where Dr. M mentions that claimant is taking methadone “10 mg three times a day.” Carrier is not obligated to ascertain that claimant may have been “whacked out” or what drugs claimant may have been using. The hearing officer, who is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), was not persuaded by claimant’s testimony and we will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we decline to substitute our opinion of the credibility of the claimant for that of the hearing officer. The hearing officer’s determination that claimant’s IIBS were properly commuted in accordance with Section 408.128 and Rule 147.10 is supported by the evidence.

Claimant testified that she continued to have back pain but what, if any, treatment claimant was receiving in the latter part of 1998 is not clear. Dr. G, in a letter dated June 9, 1998, seems to request a second MRI and said that the December 2, 1996, MRI “demonstrated a 2mm herniated disc.” Dr. G also asks for “a hearing on the claimant’s MMI.” Dr. G says MMI has not been reached “and will not be able to until spinal surgery has been performed.” The parties agreed that statutory MMI (Section 401.011(30)(B)) was reached on December 1, 1998. At that time, no spinal surgery was scheduled or even contemplated other than Dr. G’s comments that claimant would not reach MMI until spinal surgery was performed. Certainly, the second opinion spinal surgery process was not begun until March 1999.

Claimant was referred to Dr. M for reexamination and, in his report dated January 11, 1999, Dr. M notes “persistence of [claimant’s] symptomology,” suggests additional diagnostic tests “to determine the source of her symptoms” and a psychological evaluation. Dr. G referred claimant to Dr. P, who, in a report dated January 28, 1999, noted “opioid dependence with recent withdrawal from Methadone.” Dr. P opined that nothing could be done until the opioid dependence has been resolved. Claimant testified that she entered into a drug rehabilitation program and, at some point, the second opinion spinal surgery process was begun. Claimant had spinal surgery on April 16, 1999. Dr. T, the designated doctor, in a letter dated June 17, 1999, sought to rescind her earlier MMI certification and IR, which she stated had been based on Dr. S’s report that claimant “was not a surgical candidate.” Dr. T notes the April 16, 1999, surgery, claimant’s improvement following that surgery and suggests that another examination of claimant be performed. It is unclear, even to claimant, why Dr. MT was subsequently appointed as a second designated doctor to assess an IR only. Dr. MT, in a TWCC-69 and narrative dated July 19, 1999, certified MMI and assessed a 20% IR, explaining in detail how he arrived at that IR.

The hearing officer, in her Statement of the Evidence, commented:

Surgery had not been recommended until January 1999, which is fourteen months after [Dr. T’s] initial report and five months after Claimant would have reached statutory [MMI] [sic, the surgery was four and one-half months after the agreed-upon December 1, 1998, date of statutory MMI]. A recommendation for spinal surgery was not initiated until March 3, 1999, and surgery was on April 16, 1999. The report was not amended within a reasonable period of time and [Dr. T’s] report of November 14, 1997, is entitled to presumptive weight. The great weight of the other medical evidence is not contrary and Claimant reached [MMI] on November 6, 1997, with an [IR] of 11%.

The hearing officer found that Dr. T was the correct designated doctor and that she had not timely amended her report. In Texas Workers’ Compensation Commission Appeal No. 971770, decided October 23, 1997, the Appeals Panel set out at some length, with numerous case citations, the principles to be applied in determining whether a designated doctor’s amendment of a prior report was effective, particularly in the context of what constituted a reasonable time to amend the report. Important to the analysis is the date of statutory MMI and the date when surgery came under active consideration. Texas Workers’ Compensation Commission Appeal No. 990058, decided February 24, 1999. In this case, the hearing officer considered the time frames involved and made findings that the designated doctor did not amend her report within a reasonable period of time. We have held that a reasonable time may vary according to the facts of a particular case. Texas Workers’ Compensation Commission Appeal No. 941168, decided October 14, 1994, and Appeal No. 971770, supra. Very clearly, surgery was not contemplated either when the designated doctor rendered her initial report in November 1997 or on the date of statutory MMI on December 1, 1998. In this case, the hearing officer found Dr. T was the designated doctor and accorded presumptive weight to her November 1997 report. We hold that the hearing officer’s decision is sufficiently supported by the evidence.

Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.

Thomas A. Knapp
Appeals Judge

CONCUR:

Joe Sebesta
Appeals Judge

Susan M. Kelley
Appeals Judge

This appeal arises under the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On June 25, 1999, a contested case hearing (CCH) was held. The disputed issues were:

1.Did the Claimant [appellant] commute his impairment income benefits [IIBS] pursuant to Section 408.128?

2.As a result of the decision and order does the commission [Texas Workers' Compensation Commission] have jurisdiction to determine the impairment rating [IR]?

3.Is the Claimant entitled to supplemental income benefits [SIBS] for the 1st compensable quarter, November 20, 1998 through February 18, 1999?

4.Is the Carrier [respondent] entitled to reduce income benefits to recoup the previous overpayment of $2776.80?

With regard to those issues, the hearing officer determined that claimant elected to commute, and did commute, his IIBS pursuant to Section 408.128; that the parties litigated the IR at a prior CCH (the August 1998 CCH); that claimant's 19% IR has become final; that the Commission does "not now have jurisdiction to determine the [IR]"; that claimant is not entitled to SIBS for the first compensable quarter (stipulated to and not appealed); and that carrier is not entitled to reduce income benefits to recoup an overpayment of $2,776.80 (essentially not appealed).

Claimant appeals a number of the hearing officer's findings, essentially arguing that claimant's commutation in February 1998 of an 11% IR assessed by the designated doctor was invalid because the IR was subsequently increased to 19% and that the commutation was invalid because claimant could not read and did not understand that by commuting IIBS he would not be entitled to any additional income benefits and because claimant "was not read his rights." Claimant contends that the Commission no longer has jurisdiction to hear the 19% IR and that any commutation of the 11% IR was therefore invalid. Claimant requests that we reverse the hearing officer's decision on the appealed issues and render a decision in his favor. Carrier responds, first challenging that the appeal is by an entity and an individual not a party to the proceedings and urging that the appeal should be dismissed for lack of jurisdiction. Carrier asserts that claimant's representative failed to comply with the Commission rules and was engaged in the practice of law without a license. Otherwise, carrier generally urges affirmance, citing authority for its contentions.

DECISION

Affirmed.

We will first address carrier's contention that claimant's appeal should be dismissed for want of jurisdiction pursuant to Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE §§ 150.3 and 143.3 (Rules 150.3 and 143.3). The appeal is entitled "Claimant's Request for Review," and states that it is "CLAIMANT'S REQUEST FOR REVIEW" and is signed by Mr. G. The appeal itself has the signature block of (IWAC), and is signed by Mr. G. Carrier contends that neither IWAC nor Mr. G are proper parties to the proceeding, that Mr. G has not complied with Rule 150.3 (or Rule 143.3) and, therefore, the appeal should be dismissed. Rule 150.3 references the definition of a representative in Section 401.011(37) and their authority as outlined in Section 402.071. Rule 150.3(a)(3) provides that a person who is neither an adjuster or attorney (presumably such as Mr. G) is to file a power of attorney or written authorization from the claimant. Carrier contends that Mr. G failed to do so and, therefore, claimant's appeal should be dismissed. We disagree and note that Rule 150.3(b) provides that a representative who fails to comply with the 1989 Act or Commission rules "may be subject to sanctions, including suspension, as provided by the [1989] Act § 2.09(f) [since codified as Section 402.072] and § 10.07(d) [since codified as Section 415.023]. Consequently, the penalty or sanction for failing to comply with the 1989 Act or Commission rules runs against the representative rather than the claimant. Carrier is free to request sanctions against the representative for failing to comply with the statutory and/or regulatory provisions and/or illegal practice of law with the proper agencies, but such a violation does not result in dismissal of claimant's appeal for lack of jurisdiction.

Mr. G represented claimant at an earlier CCH and, at this CCH, signed in as claimant's representative. Mr. G acted as claimant's representative throughout both CCHs without complaint by carrier. Although it would have been better had the appeal either been signed by claimant or, at least, signed by Mr. G for claimant (instead of IWAC), we do not consider that failure to result in dismissal of the appeal, which fairly clearly was, and is, on claimant's behalf. Carrier cites Texas Workers' Compensation Commission Appeal No. 960861, decided June 7, 1996. In a similar situation, an injured employee was being "assisted" or represented by a nonlawyer representative, who filed an appeal which stated that "the claimant requests that an appeal be filed . . . . " In Appeal No. 960861, a copy was sent to the claimant, while in this case, that is not evident; however, we elect to follow Appeal No. 960861, which held that "under these circumstances, we are unwilling to conclude that the authority he [the representative] exercised for the claimant at the CCH did not extend to filing an appeal on the claimant's behalf." Carrier asks us to reconsider this issue. We have done so and decline to change our position, noting, as stated previously, that the carrier has other means for asking for penalties and sanctions, to include suspension, for a representative that fails to comply with the 1989 Act or Commission rules, short of penalizing the claimant by dismissing his or her claim.

Carrier cites Texas Workers' Compensation Commission Appeal No. 950940, decided July 21, 1995, a case where we found an appeal filed by the employee's girlfriend, and perhaps without his knowledge, to be untimely. We distinguish that case from the instant case for several different reasons. First, the key to that case was the appeal was untimely regardless of who filed it. Secondly, the girlfriend in Appeal No. 950940 never met the definition and had not acted as claimant's representative; whereas, in the instant case, Mr. G clearly was claimant's unchallenged representative in two CCHs. Third, in Appeal No. 950940, the filed document implied that the claimant in that case did "not know that the friend is filing" the appeal, that the document itself says "it was a bit late to ask for an appeal," and that the document did not seek specific relief. In that case, the "appeal" was dismissed for lack of jurisdiction because it was untimely. Consequently, that case is no authority for dismissal of this case for lack of jurisdiction.

Nor do we find carrier's contention that the appeal fails to comply with the minimum requirements of Rule 143.3 (that the appeal clearly and concisely rebuts each issue that claimant wants reviewed). While we agree that some of claimant's arguments are hard to follow and tend to be repeated, they are the same arguments that claimant made at the CCH where carrier had no difficulty in countering those arguments. We do not find carrier's contention that it did not have "fair notice of what is being claimed" meritorious.

Claimant testified, and it is generally undisputed, that claimant was performing his job duties for the employer, a fast food chain, on _______, when he slipped in some liquid, fell and sustained injuries to his neck, back and shoulder. Claimant did not have any surgery and treated with several doctors, including one doctor that assessed a three percent IR. Eventually, he was sent to Dr. H, whose letterhead indicates he is a "board certified neurologist" and who, in a Report of Medical Evaluation (TWCC-69) dated October 23, 1997, and narrative, certified maximum medical improvement (MMI) (not an issue) and assessed a 19% IR. This IR was apparently disputed and Dr. L was appointed as a Commission-selected designated doctor. Documentation in evidence establishes that Dr. L certified MMI and assessed an 11% IR on December 18, 1997. Claimant testified that he disputed that IR and that he believed Dr. H's 19% IR was correct.

Claimant, at some time, had apparently returned to work and had requested, and been paid, three advances on his income benefits. Apparently, claimant requested a fourth advance, which was refused by carrier. See Rule 126.4, particularly Rule 126.4(f). Although not entirely clear under what circumstances commutation was sought, claimant went to the Commission and, on an Employee's Election for Commuted (Lump Sum) Impairment Income Benefits (TWCC-51), requested commutation of IIBS for the _______, injury. On the TWCC-51, the block stating "Did you or insurance company dispute the rating?" is marked "Yes." Carrier attempted to call or depose the Commission employee that had assisted claimant in completing the TWCC-51, but was denied. Claimant testified that although he had attended the 10th grade, he actually only had a fifth grade education and could not read at all. There was a good deal of testimony from both claimant and carrier's claims supervisor as to what claimant had or had not been told, what he may or may not have understood, whether the warning on the TWCC-51 had been explained and what representations may have been made. In any event, claimant signed the TWCC-51 on February 12, 1998; it was sent to carrier by facsimile transmission, was approved and claimant received a lump sum commutation based on his 11% IR. Claimant testified that in April and August 1998, he sustained additional unspecified injuries while working for the new employer.

Subsequently, Dr. L's IR was challenged and a CCH was convened on August 26, 1998, with the issues being MMI and IR. The hearing officer in that CCH determined that the great weight of other medical evidence was contrary to the designated doctor's report and adopted Dr. H's 19% IR. That decision was not appealed and has become final. Unknown to the hearing officer and the parties, Dr. L, on the date of the CCH, had revised his IR and raised it from 11% to 16%. The testimony was, and the hearing officer found, that carrier paid and claimant received "a lump sum payment of [IIBS] for an additional 8% of whole body impairment."

The hearing officer, in an unappealed finding, found that claimant's testimony that he would sign a TWCC-51 without being able to read it and without having it read to him "is not credible." In disputed findings the hearing officer found that claimant understood that if he commuted his IIBS he would not be eligible for SIBS. We have often stated that the 1989 Act provides that the hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). Where there are conflicts in the evidence, the hearing officer resolves the conflicts and determines what facts the evidence has established. As an appeals body, we will not substitute our judgment for that of the hearing officer when the determination is not so against the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers' Compensation Commission Appeal No. 950456, decided May 9, 1995. Consequently, on those points on appeal dealing with what claimant knew or did not know, what was or was not explained, we defer to the hearing officer as the sole judge of the credibility of the evidence.

Section 408.128(a) provides that an employee may elect to commute the remainder of the IIBS if the employee has returned to work for at least three months (at 80% of his preinjury wage). Section 408.128(b) states that "[a]n employee who elects to commute [IIBS] is not entitled to additional income benefits for the compensable injury." We note that neither Section 408.128 nor Rule 147.10 (the implementing Commission rule) contain any exception for good cause based on misunderstanding or lack of explanation of the law. Rule 147.10(c) does prescribe that the warning to the employee that commutation terminates entitlement to additional income benefits be included on the form. We have previously addressed the contentions claimant raises in Texas Workers' Compensation Commission Appeal No. 94207, decided April 6, 1994, which reversed a hearing officer's decision that a claimant had not made an informed choice to commute IIBS. In that case, the claimant stated his belief that he had been accepting accelerated benefits only for one portion of his injury, and that he could receive further income benefits based upon another component of the injury. In reversing the hearing officer's decision that claimant's decision had not been "clear and informed," the Appeals Panel cited Texas Workers' Compensation Commission Appeal No. 93894, decided November 17, 1993, which determined that an agreement to commute IIBS was binding upon the claimant in the face of his testimony that he did not understand what he was doing and that he neither read nor understood the form. Both Appeal No. 94207, supra, and Appeal No. 93894, supra, relied upon the fact that the form for commuting IIBS warns of the consequences of the act of commutation. And see similar cases, Texas Workers' Compensation Commission Appeal No. 950167, decided March 17, 1995, and Texas Workers' Compensation Commission Appeal No. 951549, decided November 1, 1995.

As noted in Appeal No. 94207, supra, the legislature plainly provided that an election to commute precludes entitlement for the receipt of further income benefits. In this case, the safeguards and warnings provided by Rule 147.10 have been complied with. The fact that the IR commuted was subsequently changed (raised) does not invalidate the commutation of the 11% IR. Claimant was aware and, indeed, was urging that the Commission adopt Dr. H's 19% IR at the time that he commuted the designated doctor's 11% IR. Nor does the fact that the carrier paid an additional eight percent (24 weeks) of IIBS invalidate the commutation. Claimant was not entitled to that payment and, as carrier states, that overpayment was simply "a gratuitous payment." As Appeal No. 951549, supra, notes, the same result would not be the case where there is fraud or where the application itself, or other information in possession of the carrier, would establish that the statutory requirements for commutation did not exist. That does not appear to be the case here, where claimant seeks to invalidate his commutation on the basis of his ability to read/ understand the TWCC-51 and/or that a subsequent higher IR somehow invalidated the commutation.

Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer's determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.

Thomas A. Knapp
Appeals Judge

CONCUR:

Robert W. Potts
Appeals Judge

Tommy W. Lueders
Appeals Judge

Pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), a contested case hearing was held in (city), Texas, on January 5, 1995, (hearing officer) presiding as hearing officer. He determined that the claimant has not reached maximum medical improvement (MMI), any impairment rating (IR) is premature and in violation of the Act and Rules, and that the appellant (claimant) is not entitled to additional income benefits since she commuted her impairment income benefits (IIBS). The claimant appeals asking that the appeals panel review the case and, in essence, urges that she was mislead in requesting her IIBS be paid in a lump sum and that she should not be bound by it. The respondent (carrier) urges that the evidence and law supports the hearing officer's determination that the claimant was not entitled to further income benefits.

DECISION

The decision is affirmed.

We address only the issue that this is appealed, that is, whether the claimant commuted her IIBS and is not entitled to additional income benefits. The claimant sustained a compensable back injury on (date of injury), lifting some cans from a conveyor belt. She underwent a course of conservative treatment desiring to avoid surgery. She testified that she was off work from (date of injury) to (date). She further testified that she returned to work until August 19, 1993 and then was off until January 3, 1994, when she was released to work. She continued to work until September 6, 1994, when her back was worse and she asserts she was not able to work. In any event, her treating doctor, (Dr. G) certified that she had reached MMI on December 14, 1993, and assessed an IR of 22%. There was no evidence that either party disputed the MMI; however, the carrier disputed the IR. A designated doctor, (Dr. L), was ultimately selected by the Commission to render an IR on the claimant. Dr. L examined the claimant on February 22, 1994, and in a report dated March 11, 1994, certified that the claimant's IR was 13%. The carrier apparently began to pay weekly IIBS after the claimant returned to work and the claimant called the carrier to inquire why she was getting checks after she had gone back to work. According to the claimant, the insurance adjuster explained that she would get three weeks of IIBS for each percentage point of the IR, and that it could be paid in a lump sum but that the claimant would have to go through the Commission for a form. The claimant stated that she told the adjuster she might have to have surgery in the future and that she, the claimant, misunderstood the adjuster or was mislead by the adjuster and believed that signing for a lump sum would not affect any future benefits, including income benefits. In any event, the claimant contacted the Commission and requested a form for a lump sum payment. The claimant filled out the form, Employee's Election for Commuted (Lump Sum) Impairment Income Benefits (TWCC-51), dated and signed on April 6, 1994, and was subsequently approved for a lump sum payment of $6,380.00. The Form 51 explains the effect of a lump sum payment, contains a specific warning section, and in bold, all capital letter type sets out:

IF YOU TAKE A LUMP SUM PAYMENT OF YOUR IMPAIRMENT INCOME BENEFITS, YOU WILL NOT BE ABLE TO COLLECT SUPPLEMENTAL INCOME BENEFITS OR ANY ADDITIONAL INCOME BENEFITS FOR THE INJURY. Medical benefits related to this injury will not be affected if you receive a lump sum.

As stated, the claimant continued to work until September 6, 1994, when she states her back was worse to the point of not being able to work. She stated she saw her doctor intermittently during the period from January to September 1994. In December, 1994 Dr. G recommended surgery and a second opinion doctor concurred on December 20, 1994. Dr. G, in a note dated "12-5-94" apparently amending his earlier December 1993 certification of MMI, stated:

I have been asked to dictate a statement concerning this patient. MMI has not been reached due to pending surgery. As a result of surgery, her impairment rating will change, The degree is undetermined at this time.

Although the thrust of the claimant's position seems to be that she was mislead by the carrier's adjuster and told that her income benefits would not be affected by a lump sum payment, it is apparent that the hearing officer was not so persuaded, particularly in view of the fact the claimant initiated the request for a lump sum, contacted the Commission to obtain the necessary form, and the form contained clear, highlighted, and unambiguous language and a warning section. We cannot find his determination that the claimant commuted her IIBS and is not entitled to additional income benefits to be so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). To the contrary, there is sufficient evidence to support his decision. Further, we find this case to be markedly analogous to our decision in Texas Workers' Compensation Commission Appeal No. 93894, decided November 17, 1993.

In Appeal No. 93894, the claimant sustained a back injury, was under conservative treatment although the distinct possibility of surgery in the future was known, he was certified as having reached MMI with an IR, he initiated and elected to obtain a lump sum for IIBS and similarly signed a form as in this case, subsequently did have surgery, and claimed he did not understand what the results would be from signing for a lump sum payment for IIBS. The hearing officer in that case similarly determined that MMI had not been reached and that an IR was premature (up to the time of the hearing) but that he was bound by the lump sum payment request and not entitled to any additional income benefits for the compensable injury. In that case we stated:

Section 408.128(b) specifically provides that an employee who elects to commute IIBS is not entitled to additional income benefits for the compensable injury. Consequently, despite the fact that the designated doctor subsequently found that the claimant had not reached MMI, the claimant, by electing to commute IIBS based on the impairment rating assigned by Dr. M, waived any entitlement to additional income benefits under the particular facts of this case. The evidence demonstrates that at the time the claimant elected to commute IIBS he knew that Dr. M's certification of MMI and eight percent impairment rating were subject to the need for surgery. . . . Despite his awareness of facts tending to show that he had not reached MMI, the claimant nevertheless contacted the carrier and requested lump sum payment of IIBS based on Dr. M's certification of MMI and eight percent impairment rating thereby indicating that he did not dispute Dr. M's report and in essence giving every appearance of having agreed that he was entitled to IIBS based on the finding of Dr. M. The form the claimant filled out to request IIBS warned him of the consequences of his election. We decline to hold, under the particular circumstances presented, that there is no basis for entitlement to IIBS at the time the claimant elected to commute IIBS.

Concluding that Appeal 93894, supra, is dispositive of the case before us now, we affirm the decision and order of the hearing officer.

Stark O. Sanders, Jr.
Chief Appeals Judge

CONCUR:

Robert W. Potts
Appeals Judge

Alan C. Ernst
Appeals Judge