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 1, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the disputed issues before her, the hearing officer determined that: (1) the appellant/cross-respondent (claimant) did not waive the right to contest the Texas Department of Insurance, Division of Workers’ Compensation (Division) order denying extension of the statutory maximum medical improvement (MMI) date by failing to file a dispute within 10 days after receiving the order; (2) the claimant reached MMI on October 12, 2011, the date of statutory MMI; and (3) the claimant’s impairment rating (IR) is 10%. The claimant appealed the hearing officer’s MMI and IR determinations. The respondent/cross-appellant (self-insured) responded, urging affirmance of the MMI and IR determinations. The self-insured cross-appealed the hearing officer’s waiver determination. The appeal file does not contain a response to the self-insured’s cross-appeal.

DECISION

Affirmed in part and reversed and rendered in part.

The determination on the waiver issue is dispositive of the MMI and IR issues. It was undisputed that on June 8, 2012, the claimant filed with the Division a Request for Extension of [MMI] for Spinal Surgery (DWC-57). In an unappealed finding of fact, the hearing officer found that on June 8, 2012, the Division issued an order denying the claimant’s DWC-57. In evidence is the order denying the DWC-57, which states it was denied by the Division because the “[r]equest received was more than 110 weeks from date income benefits begin to accrue” and because “[s]pinal [s]urgery was not performed or approved between 92-104 weeks from date benefits began to accrue.”

SECTION 408.104 AND 28 TEX. ADMIN. CODE § 126.11(g) (RULE 126.11(g))

Section 408.104 provides:

1. (a)On application by either the [claimant] or the insurance carrier, the commissioner by order may extend the 104-week period described by Section 401.011(30)(B) if the [claimant] has had spinal surgery, or has been approved for spinal surgery under Section 408.026 and commissioner rules, within 12 weeks before the expiration of the 104-week period. If an order is issued under this section, the order shall extend the statutory period for [MMI] to a date certain, based on medical evidence presented to the commissioner.

2. (b)Either the [claimant] or the insurance carrier may dispute an application for extension made under this section. A dispute under this subsection is subject to Chapter 410.

3. (c)The commissioner shall adopt rules to implement this section, including rules establishing procedures for requesting and disputing an extension.

Rule 126.11(g) provides in pertinent part:

[A claimant] or an insurance carrier may dispute the approval, denial, or the length of the extension granted by the [Division] order by filing a [Request for a Benefit Review Conference (BRC) (DWC-45)] in accordance with [Rule] 141.1 of this title . . . no later than [10] days after the date the order is received.

In the Background Information section of her decision, the hearing officer stated:

[The] [c]laimant argued that his statutory [MMI] [date] of October 12, 2011, should be extended because of extenuating circumstances. [The self-insured] argued that Texas law ([Section] 408.104 and Rule 126.11) requires strict adherence to its provisions, explaining that [the] [c]laimant who did not follow the law cannot now request a special exception.

The hearing officer further stated:

[The] [c]laimant signed three forms requesting an extension of the date of MMI. On May 7, 2012, and on June 6, 2012, he signed requests for a [BRC] on the issue of extending the date of MMI. At some point on or prior to June 8, 2012 [the] [c]laimant signed, but did not date, a form requesting the Division to issue an order to extend the date of MMI. . . .

[The] [c]laimant testified that he received the Division’s denial 1 or 2 months prior to the date of the [CCH] [October 1, 2012]. The only times he requested a [BRC] was before he received the Division’s order denying his request. [The] [c]laimant did not follow provisions of Texas law when he attempted to have the date of MMI extended. He filed his request many months after the date of his statutory MMI. Then he filed a [DWC-45] prior to the date he had notice of the Division’s order that denied the request for an extension of the date of MMI.

In Finding of Fact No. 4, the hearing officer stated that “[a]lthough the exact date [the] [c]laimant received a copy of the June 8, 2012, order is unknown, prior to June 8, 2012 [the] [c]laimant twice requested a [BRC] on the issue of extending the date of [MMI] which in essence timely disputed the Division order of June 8, 2012.” The hearing officer concluded that the claimant did not waive the right to contest the Division order denying the extension of statutory MMI date by failing to file a dispute within 10 days after receiving the order. We disagree.

Under the facts of this case, the hearing officer erred in not finding that the claimant is deemed to have received the Division order dated June 8, 2012, by June 13, 2012. See Rule 102.5(d) regarding deemed receipt. There is no evidence that the claimant filed a DWC-45 disputing the Division order denying the claimant’s DWC-57 within 10 days of receiving the Division’s order of June 8, 2012.

We note that the requirements of Rule 126.11(g) provide that a dispute of an order denying the extension of statutory MMI date must be filed no later than 10 days after receiving the Division order. A dispute filed prior to the receipt of the Division order is premature and not in compliance with Section 408.104 and the plain language of Rule 126.11(g). Under the facts of this case, the claimant’s attempt to request a BRC on the issue of extending the date of MMI prior to receiving a Division order would not be a dispute of the Division order. See Appeals Panel Decision 042275-s, decided November 8, 2004.

Accordingly, we reverse the hearing officer’s decision that the claimant did not waive the right to contest the Division order denying the extension of statutory MMI date by failing to file a dispute within 10 days after receiving the order and render a new decision that the claimant waived the right to contest the Division order denying extension of statutory MMI date by failing to file a dispute within 10 days after receiving the order.

MMI AND IR

The hearing officer’s determinations that the claimant reached MMI on October 12, 2011, statutorily, with 10% IR are supported by sufficient evidence and are affirmed.

SUMMARY

We reverse the hearing officer’s decision that the claimant did not waive the right to contest the Division order denying the extension of statutory MMI date by failing to file a dispute within 10 days after receiving the order and render a new decision that the claimant did waive the right to contest the Division order denying the extension of statutory MMI date by failing to file a dispute within 10 days after receiving the order.

We affirm the hearing officer’s decision that the claimant reached MMI on October 12, 2011, statutorily, with 10% IR.

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

[CORPORATION]

[ADDRESS]

[CITY], TEXAS [ZIP].

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
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 February 7, 2012, reconvened on April 3, 2012, June 13, 2012, with the record closing on August 21, 2012,^[1] in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) as a result of a prior decision and order, the Texas Department of Insurance, Division of Workers’ Compensation (Division) does not have jurisdiction to determine the date of maximum medical improvement (MMI); (2) as a result of a prior Division determination, the respondent/cross-appellant’s (claimant) date of MMI is May 7, 2003; (3) the claimant is entitled to supplemental income benefits (SIBs) for the 5th through 23rd quarters by virtue of appellant/cross-respondent’s (carrier) waiver; (4) the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters; (5) the claimant is not entitled to lifetime income benefits (LIBs); (6) the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104; (7) the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding; (8) the carrier is not entitled to reduce/suspend temporary income benefits (TIBs) to offset Social Security payments; and (9) the carrier is not entitled to reduce/suspend impairment income benefits (IIBs) to offset Social Security payments.

The carrier appealed, disputing the hearing officer’s determinations that the claimant is entitled to SIBs for the 5th through 23rd quarters by virtue of carrier waiver and that the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters. The claimant responded, urging affirmance.

The claimant cross-appealed, disputing the hearing officer’s determinations that the claimant is not entitled to LIBs; that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104; and that the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding. The carrier responded, urging affirmance of the determinations disputed by the claimant.

The hearing officer’s determinations that the carrier is not entitled to reduce/suspend TIBs to offset Social Security payments and that the carrier is not entitled to reduce/suspend IIBs to offset Social Security payments were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

It was undisputed that the claimant sustained a compensable injury. The claimant testified that he was injured on [date of injury], when he fell down a flight of stairs.

LIBs

The claimant contended that he is entitled to LIBs based on an aggravation of a personality disorder that resulted in an inability to obtain or retain employment. Section 408.161 specifies the criteria for which entitlement to LIBs can be established. The aggravation of a personality disorder is not one of the specified conditions for which LIBs is payable. The hearing officer’s determination that the claimant is not entitled to LIBs is supported by sufficient evidence and is affirmed.

EXTENSION OF STATUTORY MMI FOR SPINAL SURGERY

Section 408.104(a) provides in part, that on application by either the claimant or the carrier, the Commissioner may extend the 104-week period described by Section 401.011(30)(B) (date of statutory MMI) if the claimant had spinal surgery, or has been approved for spinal surgery under Section 408.026 and the Commissioner rules within 12 weeks before the expiration of the 104-week period. The parties stipulated that the date of statutory MMI is July 26, 2004. In evidence is a Request for Extension of [MMI] for Spinal Surgery (DWC-57), dated February 19, 2011, and date stamped as received by the Division on March 7, 2011. The DWC-57 requests an extension of statutory MMI based on a cervical spine surgery performed on February 2, 2005. The hearing officer’s determination that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104 is supported by sufficient evidence and is affirmed.

REIMBURSEMENT FOR MEDICAL EXPENSES

The hearing officer’s determination that the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding is supported by sufficient evidence and is affirmed.

JURISDICTION TO DECIDE MMI

The disputed issue before the hearing officer regarding jurisdiction to determine the date of MMI was as follows: “As a result of the decision and order of the [CCH] and affirmation by [the] Appeals Panel in [Appeals Panel Decision (APD)] 080435 [decided May 27, 2008], does the Division have jurisdiction to determine the date of [MMI]?” Although not discussed specifically in its appeal, the carrier appealed Conclusion of Law No. 4, which was “[t]he Division does not have jurisdiction to determine the date of [MMI].” The carrier appealed Conclusion of Law No. 5, which was “[t]he date of [MMI] is May 7, 2003.”

In evidence was a decision and order dated February 23, 2008, which determined in part that the claimant’s date of MMI is May 7, 2003, and the claimant’s impairment rating (IR) is 21%. Division records indicate that the hearing officer’s decision was allowed to become final. See Section 410.205. Because a prior determination of MMI had been made, the hearing officer in the instant case determined that the Division does not have jurisdiction to determine the date of MMI. The hearing officer additionally made a conclusion of law recognizing the prior determination that the claimant’s MMI date is May 7, 2003. The hearing officer’s determinations that the Division does not have jurisdiction to determine the date of MMI and recognizing the prior determination that the date of the claimant’s MMI is May 7, 2003, is supported by sufficient evidence and is affirmed.

SIBS AND CARRIER WAIVER

In evidence was a Decision and Order dated September 14, 2006, which determined that the claimant is not entitled to SIBs for the 2nd, 3rd, and 4th quarters. At that CCH, the parties stipulated that the claimant’s IR is 15% or more but did not stipulate to the MMI date. The parties did stipulate to the qualifying periods and quarter dates for the SIBs quarters at issue. Division records indicate that decision was appealed to the Appeals Panel and the hearing officer’s decision and order was allowed to become final. The claimant sought judicial review on the determination of non-entitlement to SIBs for the 2nd, 3rd, and 4th quarters. In evidence is an Order granting the carrier’s motion for no-evidence summary judgment on the determination of non-entitlement to SIBs for the 2nd, 3rd, and 4th quarters. The claimant requested a motion for new trial but it was denied. The evidence indicates that the qualifying periods and quarter dates for the first 4 quarters of SIBs were based on a certification of a different MMI date and a 15% IR. In evidence is a Benefit Dispute Agreement (DWC-24) that states the parties agree the Division does not have jurisdiction to re-determine entitlement to SIBs for the 1st, 2nd, 3rd, and 4th quarters.

In evidence was a Decision and Order dated February 23, 2008, in which the following issues were in dispute: (1) Did the IR and date of MMI assigned by [Dr. L] on October 1, 2005, become final under 28 TEX. ADMIN. CODE § 130.102(g) (Rule 130.102(g))?; (2) What is the date of MMI?; and (3) What is the claimant’s IR? In that decision, it was determined that the IR and MMI assigned by Dr. L on October 1, 2005, did not become final under Rule 130.102(g); that the claimant’s date of MMI is May 7, 2003; and that the claimant’s IR is 21%. Division records indicate that decision was appealed to the Appeals Panel and the hearing officer’s decision and order was allowed to become final.

At issue in the instant case, was the claimant’s entitlement to SIBs for the 5th through 23rd quarters and whether the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters. The parties stipulated that 401 weeks expired for this claim on March 29, 2010.

There is evidence that the claimant filed two sets of Applications for [SIBs] (DWC-52) for the 5th through 11th quarters. There is some evidence in the record that the claimant filed the first set of SIBs applications for the 5th through 11th quarters for qualifying periods and quarter dates based on the earlier certification of a different date of MMI with a 15% IR, and that the carrier disputed entitlement to SIBs for those quarters. These applications are dated prior to the subsequent CCH held in 2008, which determined that the claimant reached MMI on May 7, 2003, with a 21% IR. However, there is insufficient evidence to establish the date the carrier received those applications. Some of the SIBs applications for the 5th through 11th quarters filed, which were based on the earlier certification of MMI and IR, contain a stamp of a date received but the stamp is illegible and it is not clear that the date receipt stamp is that of the carrier. The hearing officer failed to discuss and make findings on these SIBs applications. However, the claimant failed to provide evidence to establish the date the carrier received these SIBs applications. The claimant had the burden of proof on this issue. See APD 031326, decided July 8, 2003.

The claimant’s second set of DWC-52s for the 5th through 11th quarters was based on the MMI date of May 7, 2003, with a 21% IR. As previously noted, in the decision and order decided February 23, 2008, it was determined that the claimant’s date of MMI is May 7, 2003, with a 21% IR. In evidence are SIBs applications dated April 14, 2010, for the 5th through 23rd quarters based on the certification of MMI of May 7, 2003, with a 21% IR. The claimant testified that he filed all of these applications at the same time after the resolution in district court of the 2nd, 3rd, and 4th quarters of SIBs. The claimant argued that the carrier waived its right to contest entitlement to these quarters because it failed to timely request a benefit review conference (BRC) for these SIBs applications. The carrier argued that the claimant failed to timely file his applications for the 5th through 23rd quarters.

The hearing officer based her determination that the carrier waived the right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters on the carrier’s failure to deny the SIBs applications for the 5th through 23rd quarters dated April 14, 2010. The hearing officer noted that there was no evidence in the record to indicate that the claimant mailed these applications in April of 2010. In evidence are two United States Postal Service (USPS) Delivery Confirmation Receipts, one dated April 22, 2010, and one with an illegible date. A certified mail receipt dated May 13, 2011, is also in evidence but there is no evidence of delivery. None of the receipts from the USPS in evidence indicate what documents were being delivered or to whom the documents were delivered. We note that the dates of these postal receipts would not relate to the earlier filing of the SIBs applications detailed above. The hearing officer found that the carrier received the claimant’s applications for SIBs for the 5th through 23rd quarters in the claimant’s BRC exchange in May of 2010.

Section 408.143 provides:

1. (a)After the [C]ommissioner’s initial determination of [SIBs], the employee must file a statement with the insurance carrier stating:

2. (2)that the employee has earned less than 80 [%] of the employee’s average weekly wage as a direct result of the employee’s impairment;

3. (3)the amount of wages the employee earned in the filing period provided by Subsection (b); and

4. (4)that the employee has complied with the requirements adopted under Section 408.1415.

5. (e)The statement required under this section must be filed quarterly on a form and in the manner provided by the commissioner. The commissioner may modify the filing period as appropriate to an individual case.

6. (f)Failure to file a statement under this section relieves the insurance carrier of liability for [SIBs] for the period during which a statement is not filed.

Rule 130.104(c) provides in part that except as otherwise provided in this section, a DWC-52 shall be filed no later than 7 days before, and no earlier than 20 days before, the beginning of the quarter for which the injured employee is applying for SIBs.

Rule 130.105(a) provides in part that: An injured employee who does not timely file a DWC-52 with the insurance carrier shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the insurance carrier, unless the following apply:

(3)a finding of an [IR] of 15% or greater in an administrative or judicial proceeding when the previous [IR] was less than 15%.

The hearing officer states in her decision that: “Subsection (3) [of Rule 130.105] is an exception to the general rule that would normally apply when a person fails to timely file a [DWC-52]. Because [the] [c]laimant’s case falls within one of the exceptions, the consequences for failing to timely file do not apply to this case. [The] [c]laimant’s [DWC-52s] were timely.”

However, as previously noted a CCH was held in 2006, to determine the claimant’s entitlement to SIBs for the 2nd, 3rd, and 4th quarters. During that CCH the parties stipulated that the claimant’s IR is 15% or greater. There was no evidence that the “previous IR was less than 15%.” See Old Republic Insurance Company v. Rodriguez, 2004 Tex. App. LEXIS 3785 (Tex. App.-El Paso, April 29, 2004). Subsection (3) is not an exception that applies to the facts of this case and the hearing officer erred in its application to the facts of this case.

The parties stipulated that 401 weeks expired on March 29, 2010. Section 408.083 provides that an employee’s eligibility for TIBs, IIBs, and SIBs terminates on the expiration of 401 weeks after the date of injury.

The hearing officer specifically found that the carrier received the claimant’s DWC-52s for the 5th through 23rd quarters in the claimant’s BRC exchange in May of 2010. In evidence is a SIBs calculation sheet, which reflects that the dates of the SIBs quarters are based on the 21% IR with the May 7, 2003, MMI date. The SIBs calculation sheet identifies the 23rd quarter period as beginning January 14, 2010, and ending on April 14, 2010. Any day in May of 2010 would be later than 7 days before the beginning of the quarter for which the claimant was applying for SIBs. Accordingly, the claimant would not have timely filed DWC-52s for any of the quarters at issue.

For the reasons discussed above, we reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters and render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters.

The hearing officer’s findings that the claimant is not entitled to SIBs on the merits for the 5th through 23rd quarters are supported by sufficient evidence. The hearing officer’s determination that the claimant is entitled to SIBs for the 5th through 23rd quarters was premised on her determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the disputed quarters. Given that we have reversed the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the disputed quarters, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 5th through 23rd quarters and render a new decision that the claimant is not entitled to SIBs for the 5th through 23rd quarters.

SUMMARY

We affirm the hearing officer’s determination that as a result of a prior decision and order, the Division does not have jurisdiction to determine the date of MMI.

We affirm the hearing officer’s determination that as a result of a prior Division determination, the claimant’s date of MMI is May 7, 2003.

We affirm the hearing officer’s determination that the claimant is not entitled to LIBs.

We affirm the hearing officer’s determination that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104.

We affirm the hearing officer’s determination that the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding.

We reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters and render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters.

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 5th through 23rd quarters by virtue of carrier waiver and render a new decision that the claimant is not entitled to SIBs for the 5th through 23rd quarters.

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

1. The dates of May 4, 2012, and June 20, 2012, referenced as dates the CCH was reconvened in the hearing officer’s decision and order are incorrect.

   ↑

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 6, 2009. Regarding the six issues before her, the hearing officer determined that: (1) the first maximum medical improvement (MMI) certification and assigned impairment rating (IR) issued by (Dr. E) on July 7, 2008, did not become final; (2) the appellant (claimant) is entitled to an extension of his statutory date of MMI; (3) the claimant’s compensable injury of ___________, includes an instability pattern (spondylolisthesis) at L5-S1 with lumbar stenosis and radiculopathy, degenerative disc disease of the lumbar spine and cervical spine but does not include depression or anxiety; (4) the claimant sustained disability from July 8, 2008, through June 22, 2009; (5) the claimant reached MMI on April 14, 2009; and (6) the claimant has a 10% whole body IR.

The hearing officer’s determinations that: (1) Dr. E’s first certification of MMI and IR did not become final; (2) the claimant is entitled to an extension of his statutory MMI date; (3) the claimant’s compensable injury of ___________, includes an instability pattern (spondylolisthesis) at L5-S1 with lumbar stenosis and radiculopathy, degenerative disc disease of the lumbar and cervical spine; and (4) the claimant sustained disability from July 8, 2008, through June 22, 2009, have not been appealed and have become final pursuant to Section 410.169.

The claimant appeals the determinations that the compensable injury does not include depression or anxiety as being against the great weight and preponderance of the evidence, and that the MMI date and IR did not consider the depression and anxiety. The respondent (carrier) responded, urging affirmance.

DECISION

Reversed and remanded.

It is undisputed that the claimant was an airline employee and that on ___________, sustained a compensable injury when he tripped over a wheel “chock” and fell backward, claiming injuries to his neck and low back. In evidence is a letter (EES-14) dated June 5, 2007, appointing Dr. E as a designated doctor to determine MMI, IR, extent of injury and disability. Subsequently, another EES-14 letter dated February 28, 2008, again appointed Dr. E as a designated doctor to determine MMI/IR and disability. In evidence are Reports of Medical Evaluation (DWC-69) and narratives dated June 26, 2007, and March 7, 2008, from Dr. E stating that the claimant is not at MMI. The claimant had cervical spinal surgery on July 20, 2007. A third DWC-69 and narrative dated July 7, 2008, from Dr. E certified that the claimant reached MMI on July 7, 2008, with an 8% IR (based on cervical loss of range of motion). Dr. E opined in the July 7, 2008, narrative that the extent of injury was “a protruding disc in the cervical spine at two levels and cervical and lumbar pain.” That IR was disputed and Dr. E amended his report in a report dated August 4, 2008, certifying MMI on July 7, 2008, with a 5% IR based on 0% impairment for the lumbar spine and 5% impairment for the cervical spine using Diagnosis-Related Estimate (DRE) Cervicothoracic Category II: Minor Impairment pursuant to the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides).

The claimant had lumbar spine surgery on October 29, 2008. In evidence is a Chronic Pain Assessment report dated August 19, 2008, from (Dr. RG), a referral psychiatrist. Dr. RG discussed the claimant’s cervical surgery (of July 20, 2007) and the claimant’s complaints. Dr. RG diagnosed a “[p]ain disorder associated with both psychological factors and a general medical condition, major depressive disorder, a single episode severe without psychotic features.” Individual therapy session notes dated October 20, 2008, through April 7, 2009, diagnose severe depression. A follow-up report dated April 14, 2009, from Dr. RG references claimant’s lumbar spine surgery in October 2008 and indicates that the claimant is more depressed and “stressed out about his financial situation.”

(Dr. G), the treating doctor, in a DWC-69 and narrative dated June 22, 2009, certified MMI on that date with a 19% IR. Dr. G assessed a 5% impairment for DRE Cervicothoracic Category II: Minor Impairment; 5% impairment for DRE Lumbosacral Category II: Minor Impairment; and 10% impairment for a class 2 (mild impairment) due to mental and behavioral disorders referencing pages 14/300-301 of the AMA Guides, for a combined whole person impairment of 19%.

In evidence is an amended DWC-69 dated July 8, 2009, from Dr. E, the designated doctor, referencing a June 26, 2009, date of examination certifying “statutory” MMI of April 14, 2009, with a 10% IR. Dr. E states the claimant “falls within Category DRE III and therefore qualifies for 10 percent impairment” (apparently for DRE Lumbosacral Category III: Radiculopathy which has a 10% IR). Also in evidence is a narrative dated June 26, 2009, from Dr. E which states:

This is one of the best results of back surgery that I have seen. The issue was a letter from the [Texas Department of Insurance, Division of Workers’ Compensation (Division)] regarding the MMI date. As you are aware, the MMI determination is done on the day of the evaluation and does not take into consideration any future plans of surgery. However, on this occasion, the claimant underwent further surgery on 10-19-08^[1] and it had been approved by the insurance carrier and I assume sanctioned by the [Division]. That under the circumstances changes the MMI date to 6-22-09, which had already been determined by [Dr. G]. I do not agree with the impairment [rating] determined by [Dr. G], but that is not an issue that I have been asked to address on this occasion. Attached is an amended [DWC 69] to reflect the new MMI date.

The amended DWC-69 referred to gives an MMI date of April 14, 2009. Dr. E’s 10% IR does not rate the cervical injury, nor do any of Dr. E’s reports reference or comment on Dr. RG’s records regarding depression.

EXTENT OF INJURY

The hearing officer in the Discussion portion of her decision, writes:

Although [Dr. E] did not specifically address [c]laimant’s depression and anxiety, his omission of any reference to these conditions as being compensable necessarily excludes them from the ambit of the compensable injury. As the record of the [CCH] does not persuasively indicate otherwise, it is appropriate to conclude that the claim injury does not extend to or include these matters.

The hearing officer then makes an appealed Finding of Fact No. 12 stating: “[Dr. E] was of the opinion that [c]laimant’s compensable injury of ___________ did not extend to or include depression or anxiety.” Dr. E only gave his opinion as a designated doctor on the extent of the claimant’s compensable injury in a narrative dated July 7, 2008. The claimant was not diagnosed with a major depressive disorder until August 19, 2008, by Dr. RG, a psychiatrist. Dr. E’s narrative report dated June 26, 2009, states that he had records from Dr. G, the treating doctor, and the surgeon but he does not list any of Dr. RG’s records in his review of the claimant’s medical records that were forwarded to him. Because Dr. E's report failed to identify all findings, normal and abnormal, related to the compensable injury and an explanation of the analysis performed to find whether MMI was reached, it can not be inferred that he was of the opinion that the compensable injury does not include depression or anxiety merely by his failure to mention or address those conditions in his report. 28 TEX. ADMIN. CODE § 130.1(d)(1)(B)(iii) (Rule 130.1(d)(1)(B)(iii)). As the hearing officer commented in her discussion, Dr. E never specifically addresses claimant’s alleged depression or anxiety. Further, there is no indication in the evidence that Dr. E had records from Dr. RG available for him for review.

Section 408.0041 provides that the treating doctor and carrier are both responsible for sending to the designated doctor all of the injured employees medical records relating to the issue to be evaluated by the designated doctor that are in their possession. The hearing officer finds that the preponderance of the evidence is not contrary to Dr. E’s opinions regarding the extent of the claimant’s compensable injury of ___________. That finding is not supported by the evidence as previously discussed above. Dr. E’s opinion on extent of injury was given prior to the claimant’s diagnosis of major depressive disorder. There is no indication that Dr. E had the claimant’s records in which he was diagnosed with a major depressive disorder at the time he assessed the claimant’s IR. Accordingly, we reverse the hearing officer’s determination that the claimant’s compensable injury does not include depression or anxiety and we remand to the hearing officer to take such further action as directed below.

MMI/IR

Given our reversal of the extent-of-injury determination, we likewise reverse and remand the hearing officer’s MMI and IR determinations for further consideration. In Appeals Panel Decision (APD) 030966, decided May 27, 2003, the Appeals Panel reversed and remanded a hearing officer’s determination on extent of injury (failure to consider evidence of depression). The Appeals Panel then held that the MMI and IR issues must also be reversed and remanded.

Regarding the IR issue, we also note that Dr. E, the designated doctor, appointed under the June 5, 2007, EES-14 letter to determine the extent of injury, opined that the compensable injury included “a protruding disc in the cervical spine at two levels.” The claimant had cervical spinal surgery on July 20, 2007, and Dr. E, in his July 7, 2008, report assessed a 5% impairment based on DRE Cervicothoracic Category II: Minor Impairment. In this case, in an unappealed determination, the hearing officer found the compensable injury included degenerative disc disease of the cervical spine. Nonetheless, in Dr. E’s July 8, 2009, report, which the hearing officer adopted, Dr. E does not even mention, much less rate an injury to the cervical spine, attributing the 10% IR to “Category DRE III” (which can only be DRE Lumbosacral Category III: Radiculopathy under the AMA Guides). On remand the designated doctor must rate the entire compensable injury in accordance with the AMA Guides.

EXTENSION OF MMI FOR SPINAL SURGERY

The hearing officer determined that the claimant is entitled to an extension of his statutory date of MMI. That determination is supported by the evidence and was not appealed. However, the claimant does appeal the MMI date, contending that only the hearing officer or Division had authority to extend MMI past the otherwise statutory date of MMI.

Section 408.104 and Rule 126.11 are the relevant statutory and rule provisions applicable. Section 408.104(a) provides, in part, that the Division “may extend the 104-week period described by Section 401.011(30)(B) if the employee has had spinal surgery . . . within 12 weeks before the expiration of the 104-week period.” The hearing officer determined that the claimant is entitled to an extension of his statutory MMI and that determination is supported by the evidence and was not appealed. However, the order extending the statutory period of MMI “shall extend the statutory period for [MMI] to a date certain, based on medical evidence . . . .” Section 408.104(a). In making a determination for an extension of the date of MMI the Division hearing officer shall consider items listed in Rule 126.11(f). The hearing officer failed to extend the date of statutory MMI “to a specific and certain date.” Rule 126.11(a). We remand the case to the hearing officer to determine the extension of statutory MMI to a specific and certain date.

REMAND INSTRUCTION

On remand the hearing officer is to determine an extension of the statutory date of MMI to a specific date applying the criteria in Rule 126.11(f). The hearing officer is then to determine whether Dr. E is still qualified and available to be the designated doctor, and if so, ensure that all the medical records, including the records of Dr. RG, are sent to the designated doctor. The designated doctor is to be told of the date to which statutory MMI has been extended. The designated doctor is to render an opinion on the extent of injury, MMI (which cannot be later than the extended date of statutory MMI) and IR based on the entire compensable injury, consistent with the AMA Guides and this decision. The hearing officer may request the designated doctor to give alternate opinions including and excluding depression or anxiety. The hearing officer is to provide the designated doctor’s response to the parties and to allow the parties an opportunity to present evidence and respond. The hearing officer then is to make determinations regarding the extent of injury, MMI and IR. If Dr. E is no longer qualified or available to serve as the designated doctor then another designated doctor is to be appointed pursuant to Rule 126.7(h) to determine the extent of injury and the claimant’s MMI and IR.

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 AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701-3232.

Thomas A. Knapp

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that lumbar surgery was on October 29, 2008.

   ↑

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 August 9, 2004. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) is entitled to change treating doctors to Dr. M pursuant to Section 408.022, and that the appellant (carrier) waived the right to contest the Texas Workers’ Compensation Commission’s (Commission) Order extending the date of statutory maximum medical improvement (MMI) by failing to file a dispute within 10 days after receiving the Order. The carrier appeals the hearing officer’s determinations on the disputed issues. No response was received from the claimant.

DECISION

Affirmed.

TREATING DOCTOR ISSUE

The claimant testified that he requested to change his treating doctor to Dr. M because his initial treating doctor stopped handling workers’ compensation cases and that is a reason he put on his Employee’s Request to Change Treating Doctors (TWCC-53). No contrary evidence was presented at the CCH on the treating doctor issue. The hearing officer decided that the claimant is entitled to change treating doctors to Dr. M pursuant to Section 408.022. We conclude that the hearing officer’s determination on the treating doctor issue is supported by sufficient evidence and that it is not 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 (Tex. 1986).

WAIVER ISSUE

The claimant testified that he was approved for spinal surgery, but that he has not had the spinal surgery as of the date of the CCH because of a lung problem. The evidence reflects that the claimant’s Request for Extension of [MMI] for Spinal surgery (TWCC-57) was filed with the Commission on June 16, 2003, and that the Commission approved the request by Order dated August 4, 2003. The Order extended the statutory date of MMI to December 8, 2003, which was an additional 28 weeks. Section 408.104 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.11 (Rule 126.11) are the relevant statutory and rule provisions. The hearing officer decided that the carrier waived the right to contest the Order extending the date of statutory MMI by failing to file a dispute within 10 days after receiving the Order.

The carrier contends that the Order is invalid because it was not issued within 10 days of the date the request was received by the Commission as required by Rule 126.11(b). We do not agree with the carrier’s contention. Although the Order was not issued within the 10-day period, Rule 126.11 does not make the Order invalid for failing to comply with the 10-day provision. In Texas Workers’ Compensation Commission Appeal No. 033096, decided January 13, 2004, the Appeals Panel rejected a claimant’s argument that he did not have to comply with the provisions of Rule 126.11(g) (the dispute provision) because the Commission failed to comply with the 10-day provision of Rule 126.11(b). The Appeals Panel stated that where the Commission’s noncompliance with a rule provision does not prevent the claimant from complying with his obligations under the rules, the Commission’s noncompliance does not necessarily relieve the claimant of his compliance obligations. A similar 10-day provision is in Rule 142.16(c), which provides that no later than the 10th day after the close of the CCH, the hearing officer shall file all decisions with the division of hearings. The Appeals Panel has held that a hearing officer’s decision is not void for failure to file the decision within the 10-day time frame provided in Rule 142.16(c), and that the time line set out in that rule is directory, and not mandatory. Texas Workers’ Compensation Commission Appeal No. 011399, decided August 1, 2001. We hold that the Order extending the date of statutory MMI is not invalid for failure to issue the Order within the 10-day period provided for in Rule 126.11(b).

The carrier contends that the Order is null and void under Rule 126.11(j) because the claimant has not had surgery. We disagree with the carrier’s contention under the facts of this case. In discussing Rule 126.11(j), the preamble at 23 Tex. Reg. 553 (1998) states:

Subsection (j) addresses the situation where an extension is granted but surgery is not performed. The Legislative Committee Bill Analysis indicates that it was the intent of HB 3522 to provide extensions of [MMI] when spinal surgery is performed. In the event that surgery is not performed (possibly through a finding of non-concurrence through the appeals process or some other reason), any order granting an extension becomes null and void. This is because the statute requires spinal surgery as a prerequiste for the granting of an extension.

Rule 126.11(j) provides as follows:

In the event that the extension of the date of [MMI] is granted based on a finding of liability for spinal surgery within the 12 week period and a party appeals the preauthorized approval to a benefit [CCH], any extension of the date of [MMI] ordered by the commission shall be conditional pending final decision under the commission’s jurisdiction of the liability for spinal surgery. If spinal surgery is not performed within six weeks after the date the final decision of the commission is issued, the order for the extension of the date of [MMI] shall be null and void.

Despite the broad language in the preamble regarding Rule 126.11(j), a plain reading of that rule provision reflects that it is limited to a situation where there is an appeal to a CCH of preauthorized approval of liability for spinal surgery and the Commission issues a final decision on the issue of liability for spinal surgery. In that event, if spinal surgery is not performed within six weeks after the date the final decision of the Commission is issued, the final decision being the final decision on the appeal of the preauthorized approval of liability for spinal surgery, then the order for the extension of the date of MMI shall be null and void. In the case under review, there is no evidence, nor even a contention, that there was ever any appeal of a preauthorized approval of liability for spinal surgery. Consequently, there is no evidence of a final decision by the Commission on any such appeal of liability for spinal surgery and since there is no such final decision on liability for spinal surgery, there is no final decision to which the six-week period provided for in Rule 126.11(j) can apply. Since the Commission has set forth in Rule 126.11(j) the circumstance under which an order for the extension of the statutory date of MMI becomes null and void, the Appeals Panel does not have the authority to informally amend the rule through an Appeals Panel decision to make an order for the extension of statutory MMI null and void in situations not set forth in Rule 126.11(j). See Rodriguez v. Service Lloyds Insurance Company, 997 S.W.2d 248 (Tex. 1999). Consequently, since the carrier has failed to show that Rule 126.11(j) applies to the facts of this case, the carrier has failed to show that the Order extending the MMI date in this case is null and void under that rule provision.

Rule 126.11(g) provides in part that an injured employee or an insurance carrier may dispute the approval, denial, or length of the extension granted by the Commission order by filing a Request for a Benefit Review Conference [BRC] (TWCC-45) in accordance with Rule 141.1 no later than 10 days after the date the order is received. Rule 126.11(h) provides that if a TWCC-45 is not received by the Commission within 10 days after the date the order granting or denying the extension was received by the disputing party, the parties waive their right to dispute the Commission order. The claimant’s request for an extension of MMI was filed with the Commission on June 16, 2003. An adjuster for the carrier stated in an affidavit that she filed a TWCC-45 on June 26, 2003, in which the carrier disputed the claimant’s request for an extension of MMI. The hearing officer noted that the TWCC-45 was not file stamped by the Commission. The hearing officer found that the carrier is deemed to have received the Commission’s Order of August 4, 2003, extending the date of statutory MMI, by August 9, 2003. See Rule 102.5(d) regarding deemed receipt. There is no evidence that the carrier filed a TWCC-45 disputing the Commission’s approval of the claimant’s request for extension of MMI within 10 days after receiving the Commission’s Order extending the date of statutory MMI. The hearing officer found that the carrier did not request a BRC within 10 days of receiving the Commission’s Order of August 4, 2003. The hearing officer concluded that the carrier waived its right to contest the Commission’s Order extending the date of statutory MMI by failing to file a dispute within 10 days after receiving the order.

The carrier contends that it did not waive the right to dispute the Commission’s Order extending the date of statutory MMI because it filed a TWCC-45 disputing the claimant’s request for extension of MMI on June 26, 2003, and that to hold that its dispute was premature would be to place form over substance. We do not agree with the carrier’s contention. In the preamble to Rule 126.11 at 23 Tex. Reg. 556 (1998) a commenter requested that the language in Rule 126.11(g) be changed to allow for a dispute of the application (request) and not the action of the Commission based on the application. The Commission disagreed, citing language in Section 408.104(c), and stating that “[t]his allows the Commission to determine the dispute resolution process and indicates that it is the extension that may be disputed as opposed to simply the application for an extension.” In an analogous situation, in applying the provisions of Rule 130.108(c) regarding a carrier’s dispute of first quarter supplemental income benefits (SIBs), the Appeals Panel held in Texas Workers’ Compensation Commission Appeal No. 033137-s, decided January 20, 2004, that “[a]ny action by the carrier to dispute the claimant’s entitlement to first quarter SIBs prior to the Commission’s initial determination of entitlement is simply premature and of no effect.”

The hearing officer found that the carrier did not request a BRC on June 26, 2003, to dispute the extension of the claimant’s MMI. It was undisputed at the CCH that a BRC request was filed on June 26, 2003, even though the TWCC-45 in evidence was not date stamped by the Commission. We hold that if the carrier filed a TWCC-45 on June 26, 2003, disputing the claimant’s request for an extension of MMI, it was premature and of no effect because it was not filed “no later than ten days after the date the order is received” as provided in Rule 126.11(g). Consequently, the hearing officer did not err in determining that the carrier waived its right to contest the Commission’s Order of August 4, 2003, extending the claimant’s date of statutory MMI because there is no evidence that the carrier complied with Rule 126.11(g) by filing a TWCC-45 no later than 10 days after the date the Order was received and thus waived its right to dispute the Commission Order under Rule 126.11(h).

The carrier also asserts as a basis for overturning the hearing officer’s decision that the claimant was told he needed surgery more than 12 weeks before the expiration of 104 weeks after his income benefits began to accrue and that the claimant was told he was not a surgical candidate before his application for extension of MMI. In Texas Workers’ Compensation Appeal No. 012325, decided November 21, 2001, the Appeals Panel applied the waiver provision of Rule 126.11(h) stating:

We cannot agree that the waiver provision of Rule 126.11(h) applies only if the Commission’s order is otherwise valid. To the contrary, if an extension is correctly or incorrectly granted or denied under Section 408.104 and Rule 126.11, the party disputing the order must file a BRC request within the 10-day period for doing so or the party loses the right to challenge that order. If the waiver provision of Rule 126.11(h) were not so interpreted, it would be meaningless.

We affirm the decision and order of the hearing officer.

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

DOROTHY A. LANGLEY

10000 N. CENTRAL EXPRESSWAY

DALLAS, TEXAS 75231.

Robert W. Potts

CONCUR:

Judy L. S. Barnes
Appeals Judge

Daniel R. Barry
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 12, 2004. The hearing officer determined that the appellant (claimant) waived the right to contest the Texas Workers’ Compensation Commission (Commission) Order extending the date of maximum medical improvement (MMI) by failing to file a dispute within 10 days after receiving the Commission Order. The claimant appealed the hearing officer’s determination. The respondent (self-insured) responded, urging affirmance.

DECISION

Affirmed.

Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 126.11 (Rule 126.11) sets forth the procedure for obtaining a Commission Order for the extension of the date of MMI for spinal surgery and the effect such orders have. Rule 126.11(h) states:

If a request for benefit review conference [BRC] is not received by the commission within ten days after the date the order granting or denying the extension was received by the disputing party, the parties waive their right to dispute the commission order. In the event that an order is timely disputed, the order shall remain binding pending final resolution of the dispute.

It is undisputed that the Request for Extension of [MMI] for Spinal Surgery (TWCC-57) was denied by the Commission on July 8, 2003; that the Commission Order was mailed to the claimant on July 10, 2003; and that the Request for a [BRC] (TWCC-45) disputing the Commission Order of July 8, 2003, was received by the Commission on August 14, 2003. The claimant, for the first time on appeal, argues that her attorney relied on an “official action” advising the attorney to wait on a designated doctor’s report before the claimant requested a BRC. Additionally, the claimant alleges for the first time on appeal that she requested dispute resolution information system notes, but the request was not processed in time for the CCH. As a general rule, the Appeals Panel does not consider matters raised for the first time on appeal.

The hearing officer did not err in determining that the claimant waived the right to contest the Commission Order extending the date of MMI by failing to file a dispute within 10 days after receiving the Commission Order. We have reviewed the complained-of determination and conclude that the hearing officer’s determination is not wrong as a matter of law and is not 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 hearing officer’s decision and order and affirmed.

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

MAYOR OF (CITY)

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Veronica L. Ruberto

CONCUR:

Daniel R. Barry
Appeals Judge

Chris Cowan
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on October 20, 2003. The hearing officer determined that the appellant (claimant) is not entitled to an extension of the statutory maximum medical improvement (MMI) date pursuant to Section 408.104 and that the claimant waived the right to dispute the Texas Workers’ Compensation Commission’s (Commission) denial of the request to extend the statutory MMI date by not disputing within 10 days of receiving the denial. The claimant appeals these determinations. The respondent (self-insured) urges affirmance of the hearing officer’s decision.

DECISION

Affirmed.

Section 408.104 is entitled [MMI] After Spinal Surgery and applies to claims for injuries that occur on or after January 1, 1998. It provides in part:

1. (a)On application by either the employee or the insurance carrier, the commission by order may extend the 104-week period described by Section 401.011(30)(B) if the employee has had spinal surgery, or has been approved for spinal surgery under Section 408.026 and commission rules, within 12 weeks before the expiration of the 104-week period. If an order is issued under this section, the order shall extend the statutory period for [MMI] to a date certain, based on medical evidence presented to the commission.

Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.11(g) (Rule 126.11(g)) provides that an injured employee or a carrier "may dispute the approval, denial, or length of the extension granted by the commission order by filing a request for a benefit review conference [BRC] . . . no later than ten days after the date the order is received." Rule 126.11(h) states that if the request for the BRC "is not received by the commission within ten days after the date the order granting or denying the extension was received by the disputing party, the parties waive their right to dispute the commission order." The claimant asserts that his compliance with the provisions of Rule 126.11(g) was not required because the Commission failed to comply with the requirements of 126.11(b), which provide that the Commission shall issue an order in response to a request for an extension of statutory MMI within 10 days after receiving the request. However, where the Commission’s noncompliance with a rule provision does not prevent the claimant from complying with his obligations under the rules, the Commission’s noncompliance does not necessarily relieve the claimant of his compliance obligations. See Texas Workers Compensation Commission Appeal No. 033014, decided December 23, 2003. The claimant alternatively argues that he did dispute the denial of the extension as evidenced by Commission records indicating that he contacted the Commission within 10 days of the issuance of the denial. Commission records indicate that the claimant made phone calls to the Commission after the issuance of the denial, but prior to the 10-day deadline and indicated that he wanted to speak with the Official Actions Officer who issued the denial; however, the hearing officer noted and Commission records reflect that there is no indication that the claimant actually disputed the denial until he orally requested a BRC on July 7, 2003. Based upon the claimant’s concession that he received the denial on June 19, 2003, the 10-day deadline would have been June 30, 2003. Accordingly, we perceive no error in the hearing officer’s determination that the claimant waived the right to dispute the Commission’s denial of his request for an extension of the statutory MMI date.

Because we have affirmed the waiver determination, we need not address the issue of whether the claimant was entitled to the extension, as regardless of the validity of the Commission’s order, the disputing party must file a BRC request within the 10-day period for doing so or the party loses the right to challenge that order. If the waiver provision of Rule 126.11(h) were not so interpreted, it would be meaningless. Texas Workers Compensation Commission Appeal No. 012325, decided November 21, 2001.

We note the claimant’s arguments relating to liberal construction of the Act but cannot agree that the doctrine of liberal construction supports clear provisions of the rules to be read out of existence. See Rodriguez v. Service Lloyds Insurance Company, 997 S.W.2d 248 (Tex. 1999).

The decision and order of the hearing officer are affirmed.

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

CORPORATION SERVICE COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Chris Cowan
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 8, 2003. With respect to the sole disputed issue before her, the hearing officer determined that the respondent (claimant herein) is entitled to have her statutory maximum medical improvement (MMI) date extended to May 4, 2004, pursuant to Section 408.104. The appellant (carrier herein) files a request for review, arguing that the hearing officer’s decision to extend the MMI date was contrary to the evidence; that the hearing officer erred in excluding a medical report it offered; that the hearing officer erred in extending the MMI date more than 12 weeks beyond the date of statutory MMI; and that the hearing officer’s decision includes a typographical error concerning the date to which she extended the date of MMI. The claimant responds that the evidence supports the decision of the hearing officer and that the hearing officer did not err in excluding evidence that was not timely exchanged.

DECISION

We reform the decision of the hearing officer to correct typographical errors. Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer, as reformed.

As far as the carrier’s evidentiary point is concerned, the hearing officer excluded a report from the carrier’s peer review doctor. It was undisputed that this report was not exchanged within 15 days of the benefit review conference (BRC). The carrier argued that it had good cause for failing to exchange the document timely because the document was not in existence until more than 15 days after the BRC and the carrier exchanged the medical report as soon as it received it. The hearing officer found that the carrier did not have good cause because it failed to exercise due diligence by not obtaining the document earlier. As the report reflects on its face that it was created at the request of the carrier, a request which was made only two days prior to its creation, we do not find that the hearing officer abused her discretion by finding the carrier did not have good cause for the untimely exchange because it did not act with due diligence. Thus, we find no error in her excluding the peer review report.

Section 408.104 is entitled “[MMI] After Spinal Surgery” and applies to claims for injuries that occur on or after January 1, 1998. It provides in part:

(a)On application by either the employee or the insurance carrier, the [Texas Workers' Compensation Commission (Commission)] by order may extend the 104-week period described by Section 401.011(30)(B) if the employee has had spinal surgery, or has been approved for spinal surgery under Section 408.026 and commission rules, within 12 weeks before the expiration of the 104-week period. If an order is issued under this section, the order shall extend the statutory period for [MMI] to a date certain, based on medical evidence presented to the commission.

Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 126.11 (Rule 126.11) is entitled “Extension of the Date of [MMI] for Spinal Surgery.” Subsection (f) provides:

In making the determination to approve or deny a request for an extension of the date of [MMI], the commission shall consider:

(1)typical recovery times for the specific spinal surgery procedure;

(2)projected date and information regarding when the condition may be medically stable as provided by the treating doctor or surgeon;

(3)case specific information regarding any extenuating circumstances that may have resulted in variances from conservative treatment protocols and time frames that may impact recovery times as provided by the treating doctor or the surgeon;

(4)information from any source regarding intentional or non-intentional delays in securing the surgery or medical treatment for the compensable injury;

(5)any pending, unresolved disputes regarding the date of [MMI]; and

(6)any pertinent information provided by the insurance carrier, injured employee, and/or the injured employee's representative regarding the extension being requested under this section.

The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). The parties stipulated that the claimant sustained a compensable injury on ______________; that her statutory MMI date was November 15, 2002; that the carrier approved her request for spinal surgery on October 23, 2002, and that she underwent spinal surgery on November 4, 2002. The hearing officer determined that the facts did support the extension of the claimant’s statutory MMI date for six months.

The hearing officer’s determination of the six-month time extension was based upon medical evidence that recovery time from multilevel spinal fusion varied from six months to a year. The hearing officer was acting within her province as the fact finder in resolving the conflicting evidence and nothing in our review of the record demonstrates that the hearing officer's determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

However, there are typographical errors in the decision of the hearing officer. While she clearly states in her decision that the MMI date should be extended for six months until May 3, 2003, in both her findings of fact and conclusions of law the date to which MMI is extended is stated as May 3, 2004. The use of May 3, 2004, is clearly a typographical error. We therefore reform the decision and order of the hearing officer to read “May 3, 2003” wherever it reads “May 3, 2004.”

We affirm the decision and order of the hearing officer as reformed.

The true corporate name of the insurance carrier is AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 N. ST. PAUL STREET

DALLAS, TEXAS 75201.

Gary L. Kilgore
Appeals Judge

CONCUR:

Judy L. S. Barnes
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 February 24, 2003. With respect to the sole disputed issue before him,^[1] the hearing officer determined that the appellant (claimant) is not entitled to have her statutory maximum medical improvement (MMI) date extended pursuant to Section 408.104. The claimant appeals, arguing that the hearing officer committed legal error and applied the wrong standard in determining whether the claimant’s statutory MMI date could be extended. The respondent (carrier) responds, urging that the hearing officer be affirmed.

DECISION

Finding no reversible error, we affirm.

Section 408.104 is entitled “[MMI] After Spinal Surgery” and applies to claims for injuries that occur on or after January 1, 1998. It provides in part:

(a)On application by either the employee or the insurance carrier, the [Texas Workers' Compensation Commission (Commission)] by order may extend the 104-week period described by Section 401.011(30)(B) if the employee has had spinal surgery, or has been approved for spinal surgery under Section 408.026 and commission rules, within 12 weeks before the expiration of the 104-week period. If an order is issued under this section, the order shall extend the statutory period for [MMI] to a date certain, based on medical evidence presented to the commission.

Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 126.11 (Rule 126.11) is entitled “Extension of the Date of [MMI] for Spinal Surgery.” Subsection (c) provides:

Prior to submission to the commission of a request for an extension of the date of [MMI], the requestor shall request from the treating doctor or surgeon the information listed in subsection (f) of this section. The request shall also be sent to the injured employee, the injured employee's representative, and the insurance carrier by first class mail on the same day it is submitted to the treating doctor or surgeon. The treating doctor or surgeon shall provide to the injured employee, the injured employee's representative, and the insurance carrier the information requested in subsection (f) of this section within 10 days of the date the request is received. If the requesting party has not received the information from the treating doctor or surgeon within 15 days, the request may be submitted to the commission without this information.

Rule 102.9(c) provides for written orders by the Commission to produce information. Rule 126.11(f) states:

In making the determination to approve or deny a request for an extension of the date of [MMI], the commission shall consider:

(1)typical recovery times for the specific spinal surgery procedure;

(2)projected date and information regarding when the condition may be medically stable as provided by the treating doctor or surgeon;

(3)case specific information regarding any extenuating circumstances that may have resulted in variances from conservative treatment protocols and time frames specified in §134.1001 (relating to Spine Treatment Guideline) or that may impact recovery times as provided by the treating doctor or the surgeon;

(4)information from any source regarding intentional or non-intentional delays in securing the surgery or medical treatment for the compensable injury;

(5)any pending, unresolved disputes regarding the date of [MMI]; and

(6)any pertinent information provided by the insurance carrier, injured employee, and/or the injured employee's representative regarding the extension being requested under this section.

The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). The parties do not dispute that the claimant sustained a compensable injury to her spine on _____________; that she had a three-level lumbar fusion (after approval in the spinal surgery process) on August 13, 2002 (within 12 weeks of her original statutory date of MMI); that she originally had a statutory MMI date of September 17, 2002; and that the Commission extended her statutory MMI date following her July 2002 request, but before her actual spinal surgery, until November 16, 2002^[2]. The hearing officer determined that the facts did not support the extension of the claimant’s statutory MMI date, as the medical reports from her treating doctor (surgeon) were prospective and speculative in nature because the treating doctor predicted the claimant would require an additional 12 to 18 months to recover following her surgery before she had her surgery. The hearing officer found, and noted that the claimant testified, that the claimant experienced no relief as a result of the surgery and that the claimant’s lumbar spine, postsurgery, became medically stable no later than September 17, 2002, her original statutory MMI. In so finding, the hearing officer noted the above-referenced Section 408.104 and Rule 126.11(f); he clearly considered the relevant legal guidance. The hearing officer did not abuse his discretion or misapply the germane legal provisions with respect to his determination that the claimant is not entitled to an extension of her statutory MMI date. The hearing officer followed guiding rules and principles in making his determination, and we thus perceive no abuse of discretion. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).

The hearing officer was acting within his province as the fact finder in resolving the conflicting evidence and nothing in our review of the record demonstrates that the hearing officer's determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is UNITED STATES FIDELITY AND GUARANTY COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Michael B. McShane

Appeals Panel

Manager-Judge

CONCUR:

Chris Cowan
Appeals Judge

Gary L. Kilgore
Appeals Judge

1. The parties stipulated to the claimant’s average weekly wage at the CCH, thus disposing of the second certified issue from the benefit review conference.

   ↑

2. While the whole of the Commission’s file as we received it has documentation regarding the claimant’s request for, the Commission’s granting, and the carrier’s challenging, an extension of her statutory MMI date, no such documents were entered into evidence at the CCH. Given that the parties did not seem to dispute the chain of events leading them to the CCH, we only comment that we do not wish to disabuse the hearing officer of the notion that such documents are helpful in our review and often need to be admitted into the record.

   ↑

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 February 6, 2003. The hearing officer determined that appellant (claimant) reached maximum medical improvement (MMI) on August 8, 2001, with an impairment rating (IR) of one percent. The hearing officer also determined that claimant is not entitled to have statutory MMI extended pursuant to Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 126.11 (Rule 126.11). Claimant appealed these determinations on sufficiency grounds. Claimant also contends that the hearing officer abused his discretion in failing to add a disability issue. Respondent (carrier) responded that the Appeals Panel should affirm the hearing officer's decision and order.

DECISION

We affirm as reformed.

We first note it is undisputed that Finding of Fact No. 3 contains a clerical error. It states, “The certification of [Dr. C], the designated doctor, was not was contrary to the great weight of the other medical evidence.” It is apparent that the hearing officer meant to state “was not” rather than “was not was.” Therefore, we reform Finding of Fact No. 3 to state, “The certification of [Dr. C], the designated doctor, was not contrary to the great weight of the other medical evidence.”

Claimant contends that the hearing officer erred in determining that he reached MMI on August 8, 2001, with a one percent IR. Claimant asserts that the great weight of the other medical evidence is contrary to the report of the designated doctor. Claimant sustained a compensable injury on _______________. Claimant underwent an MRI on January 9, 2001, which revealed a herniated disc at L5-S1. Dr. M stated in a March 8, 2001, report that he did not feel that spinal surgery was appropriate. After a discogram, Dr. M noted a symptomatic disc and stated on January 30, 2002, that an opinion on spinal surgery would be appropriate. The designated doctor was informed of the discogram results. On February 4, 2002, the designated doctor made his MMI and IR certification. On March 15, 2002, the Texas Workers' Compensation Commission (Commission) wrote to the designated doctor asking him to review additional medical information. The designated doctor responded that he did not think claimant had a surgical lesion or neurological deficit and declined to change his MMI date or IR. Carrier preauthorized spinal surgery on August 9, 2002, after the designated doctor had already certified claimant to be at MMI. On August 27, 2002, the Commission again wrote to the designated doctor asking him to review his MMI date in light of the fact that surgery had been preauthorized. The designated doctor noted that surgery has a high risk of failure, but stated that the appropriate time to reexamine claimant would be after his postoperative rehabilitation. September 14, 2002, was the date of statutory MMI. Claimant underwent a laminectomy, diskectomy, and fusion on September 23, 2002. On October 31, 2002, following the surgery, the Commission again wrote to the designated doctor regarding the surgery and any possible change in the date of MMI and the IR. The designated doctor responded that his previous report would remain unchanged. However, he said that if the treating doctor “feels substantial and objective evidence of improvement has occurred, [he] would be happy to re-examine [claimant] at a later date” that should be at least six months after surgery.

Claimant asserts that the designated doctor should not have found he was at MMI because his condition was not stable and he was about to undergo surgery. Claimant complains that the designated doctor did not think he had any neurological deficit or that he needed surgery.

Sections 408.122(c) and 408.125(e) of the 1989 Act provide that the report of a Commission-appointed designated doctor determining the date of MMI and the claimant's IR shall have presumptive weight and the Commission shall base its determination on such report, unless the great weight of other medical evidence is to the contrary. We have held that a "great weight" determination requires more than a mere balancing or preponderance of the evidence. Texas Workers' Compensation Commission Appeal No. 960897, decided June 28, 1996. No other doctor's report, including the treating doctor's report, is accorded the special presumptive status; and the designated doctor's report should not be rejected absent a substantial basis for doing so. Appeal No. 960897.

We have recognized that a designated doctor may choose to amend the MMI date and IR based on contemplated surgery that actually takes place after statutory MMI. Texas Workers' Compensation Commission Appeal No. 020457, decided April 5, 2002. The length of time that surgery occurs after statutory MMI has been reached may be considered by the hearing officer as a factor in whether the “great weight” of contrary medical evidence overcomes the designated doctor’s report. Texas Workers' Compensation Commission Appeal No. 021971, decided September 5, 2002. We have said, however, that the occurrence of spinal surgery approved through the second opinion process at any point after statutory MMI in the “life” of a claim does not necessarily compel reevaluation by the designated doctor. Appeal No. 021971.

In this case, at the hearing, claimant declined to ask that the Commission seek further clarification from the designated doctor regarding the effects of claimant’s surgery and whether he would amend his MMI date and IR. Claimant sought, instead, for the hearing officer to find that the great weight of the other medical evidence is contrary to the designated doctor’s report based on the evidence before the hearing officer. The hearing officer determined that the great weight of the other medical evidence was not contrary to the designated doctor’s report. We conclude that that determination is not 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). We further conclude that the hearing officer did not err in according presumptive weight to the designated doctor’s report and in determining that claimant reached MMI on August 8, 2001, with a one percent IR.

Claimant next contends that the hearing officer erred in determining that he is not entitled to have the statutory MMI date extended pursuant to Section 408.104. The designated doctor certified on February 4, 2002, that claimant reached MMI on August 8, 2001, and claimant then disputed the designated doctor’s report by asking for a benefit review conference. The hearing officer found that claimant filed a Request for Extension of [MMI] for Spinal Surgery (TWCC-57) on September 9, 2002, and that it was denied that same day. At the hearing on the MMI and IR issues, the hearing officer then determined that the designated doctor’s report is entitled to presumptive weight and we have affirmed that determination. Therefore, the MMI determination has been “finally resolved.” Applying Rule 126.11(k), we conclude that claimant’s MMI date may not be extended because claimant reached MMI prior to requesting an extension under this section.

The preamble to Rule 126.11 states that, “If the certification was timely disputed and the resolution of such a dispute determines that the injured employee reached [MMI] at a date which is different than the date of [MMI] specified in the order for the extension, the earlier date shall apply." Even though there was no order extending MMI in this case, we will still consider this as indicative of the meaning of the rule. The preamble indicates that a determination that an employee has “reached MMI” for the purposes of Rule 126.11(k) does not depend solely on whether a designated doctor has merely certified that a claimant is at MMI. The preamble to Rule 126.11 indicates that if a claimant has been certified to be at MMI before the statutory MMI date and that claimant disputes the designated doctor’s certification, the claimant may still seek an extension of MMI under Rule 126.11 and Section 408.104 during the pendency of the dispute. However, when the MMI issue is “finally resolved” through the dispute resolution process, and a claimant is found to be at MMI before the statutory date in accordance with the designated doctor’s certification, then the claimant is not entitled to an extension under Rule 126.11. Rule 126.11(k).

Claimant also contended that the hearing officer erred in failing to add an issue regarding disability. We perceive no reversible error in this regard.

As reformed, we affirm the hearing officer's decision and order.

According to information provided by carrier, 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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Judy L. S. Barnes

CONCUR:

Robert W. Potts
Appeals Judge

CONCURRING OPINION:

I concur in the result.

I write separately because I do not agree that MMI was finally resolved prior to the claimant requesting an extension of MMI per Rule 126.11(k). MMI was not finally resolved^[1] until the hearing officer issued his decision on February 12, 2003. The claimant filed a TWCC-57 on September 9, 2002. The claimant requested the extension prior to a final determination on the MMI issue. However, in this particular case, I concur in the result because there is evidence to support the hearing officer’s determination that the MMI date is August 8, 2001.

Roy L. Warren
Appeals Judge

1. Section 410.169 provides that a decision of a hearing officer is final in the absence of an appeal and is binding during the pendency of the appeal.

   ↑

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 20, 2001, with (hearing officer) presiding as hearing officer, to resolve the following disputed issues:

1. 1.Is the [appellant] Claimant entitled to have the statutory maximum medical improvement [MMI] date extended pursuant to TEX. LAB. CODE ANN. Section 408.104 and, if so, to what date;

2. 1.Did the claimant abandon medical treatment without good cause, justifying the suspension of temporary income benefits [TIBs] under [Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.4] Rule130.4; and

3. 1.Did the Claimant have disability as a result of the injury sustained on ____________, from March 24, 2000, through August 6, 2000.

The hearing officer issued his Decision and Order on December 5, 2001, concluding that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104; [that the claimant did not have disability beginning March 24, 2000, through August 6, 2000;] and that the claimant abandoned medical treatment without good cause, justifying the suspension of TIBs under Rule 130.4 beginning on January 24, 2000, and continuing until March 20, 2000. The claimant appealed these adverse determinations on evidentiary sufficiency grounds and the respondent (carrier) filed a response urging affirmance. In Texas Workers’ Compensation Commission Appeal No. 020020, decided February 27, 2002, the Appeals Panel remanded this case for reconstruction of the hearing record because the audio tape of the hearing was inaudible. The hearing officer held a remand hearing on March 21, 2002. The parties appeared, the claimant again testified, the parties agreed that the date of statutory MMI was June 20, 2001, and the record of the prior hearing was incorporated into the record before us on appeal. The hearing officer made the same findings of fact and conclusions of law he made after the previous hearing and the claimant has again appealed these adverse determinations, attaching to his appeal certain medical records which were excluded from admission at the remand hearing. The claimant also contends that the statutory MMI date is June 24, 2001, and that he did not authorize the ombudsman to agree to the date of June 20, 2001. The carrier has responded urging the absence of error and the sufficiency of the evidence to support the challenged determinations.

DECISION

Affirmed.

The claimant’s testimony and medical evidence reflected that he was injured at work in (city 1), Texas on ____________, when the ladder rung he was standing on broke and he fell to the floor, and that his injuries included the discs at L4-5 and L5-S1. He said he has not been able to work since that date because of his back injury. The claimant further testified that he underwent chemotherapy for hepatitis C from January through April 2000; that he was in the hospital with encephalopathy from April 28 to May 7, 2000; that later in May 2000 he moved to (city 2), Texas and visited emergency rooms on June 3 and June 20, 2000, with complaints of low back pain; and that in March 2001 he returned to city 1.

Section 401.011(30) defines MMI to mean the earlier of “(A) 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; (B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or (C) the date determined as provided by Section 408.104.” And see Rule 130.4. Our decision in Appeal No. 020020 suggested that the hearing officer revisit his determination that the claimant’s statutory MMI date is June 16, 2001, since the parties had agreed that the date of statutory MMI is June 20, 2001. At the close of the remand hearing, the parties discussed the MMI date; the carrier stated that an exhibit reflected the statutory MMI date as June 20, 2001; the ombudsman noted that the claimant’s first day of lost time from work was June 17, 1999, and that, considering the Leap Year, the statutory MMI date was June 20, 2001, using a date wheel to calculate it; and the hearing officer then stated that the parties had previously agreed that the statutory MMI date was June 20, 2001. Accordingly, we find no error in his finding of fact to that effect.

Section 408.104 provides, in part, that the Texas Workers’ Compensation Commission (Commission) “may extend the 104 week period if the employee has had spinal surgery, or has been approved for spinal surgery under Section 408.026 and commission rules, within 12 weeks before the expiration of the 104-week period.” And see Rule 126.11, Extension of the Date of [MMI] for Spinal Surgery. The claimant testified that he underwent spinal surgery by Dr. S on January 16, 2001, and again on November 27, 2001, when the hardware and bone growth stimulator were removed. In evidence is the claimant’s “Request for Extension of [MMI] for Spinal Surgery (TWCC-57),” which he signed on June 20, 2001, together with the Commission order on that form, signed on June 26, 2001, extending the statutory MMI date an additional 26 weeks to December 19, 2001, based on a benefit accrual date of June 24, 1999. Also in evidence is a separate Commission “Order for Extension of the Statutory Date of [MMI],” dated June 26, 2001, extending the statutory MMI date to December 19, 2001, and stating that Dr. S “will do/or had surgery on January 16, 2000, or one due on August 9, 2001.” The evidence reflects that the carrier then disputed this Order, requesting an expedited benefit review conference. Also in evidence is a Recommendation for Spinal Surgery (TWCC-63) signed by Dr. S on July 17, 2001, and a Commission notification letter dated August 24, 2001, advising that the claimant has been approved for spinal surgery. In his statement of the evidence, the hearing officer states that the claimant does not qualify to have his date of statutory MMI extended because his initial spinal surgery occurred on January 16, 2001, a date more than 12 weeks in advance of June 20, 2001, and because his second surgery was neither performed nor approved within 12 weeks before June 20, 2001. The hearing officer’s factual findings supporting his conclusion of law on extension of the date of statutory MMI issue are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951);Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

With regard to the abandonment of medical care issue, Section 408.101(a) provides that TIBs shall be paid so long as the employee has disability and until MMI is reached. Section 408.102(b) provides that the Commission shall by rule establish a presumption that MMI has been reached based on a lack of medical improvement in the employee’s condition. Rule 130.4(b) and (c), effective March 8, 1991, through January 1, 2002, provides, in part, that if there has not been a certification from a doctor that an injured employee has reached MMI, a carrier may follow the procedure outlined in this rule and shall presume, only to invoke this procedure, that an employee has reached MMI if “it appears that the employee has failed to attend two or more consecutively scheduled health care appointments.” The hearing officer’s statement of the evidence states that the claimant “missed appointments scheduled for January 24, 2000, and January 30, 2000,” that after December 15, 1999, the claimant did not see Dr. B, his treating doctor at the time, until March 20, 2000; and that, “[a]ccordingly, the preponderance of the evidence shows that since the Claimant missed two medical appointments, the Claimant had abandoned medical treatment beginning January 24, 2000, the date of the first missed appointment, until March 20, 2000, the date the Claimant next saw [Dr. B].” The hearing officer also made findings of fact to this effect in Finding of Fact Nos. 5 and 6. The hearing officer obviously applied the version of Rule 130.4 in effect at the time of the first hearing and made the same comments and findings in his remand decision. Since the original decision was reversed and remanded only because the tape recording of the hearing was inaudible, and the remand hearing was held essentially to reconstruct the record, we do not find error in the hearing officer’s continuing to apply the provisions of Rule 130.4 in effect prior to January 2, 2002. We are satisfied that the findings of fact on this issue, based on the rule in effect at the earlier hearing, are sufficiently supported by the evidence. King, supra; Cain, supra.

Finally, with respect to the disability issue, the hearing officer sets forth in his statement of the evidence the several reasons why he determined that the claimant failed to meet his burden of proof on this issue, including the claimant’s not having been treated by his treating doctor after December 15, 1999, until March 20, 2000; his being treated for hepatitis C and later for encephalopathy and his move to city 2; and commencement of treatment with Dr. S on August 6, 2000. Again, under our standard of review, we are satisfied that the hearing officer’s factual determination that the claimant “did not show that he was unable to obtain or [sic] retain employment at preinjury wages as a result of the compensable injury of ____________, after December 15, 1999, until August 6, 2000,” is sufficiently supported by the evidence.

The decision and order of the hearing officer are affirmed.

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

C T CORPORATION SYSTEMS

350 NORTH ST. PAUL, SUITE 2900

DALLAS, TEXAS 75201.

Philip F. O’Neill
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Robert E. Lang

Appeals Panel

Manager/Judge