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This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 18, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to left shoulder PASTA lesion, left shoulder rotator cuff tendinosis, paraesthesia of the skin, left shoulder impingement syndrome, left shoulder supraspinatus/infraspinatus tendinosis with subtle articular fraying critical zone supraspinatus tendon, left circumferential labral truncation with more high-grade tearing through the superior labrum, left shoulder subscapularis tendinosis, and cervical strain; (2) the respondent (claimant) reached maximum medical improvement (MMI) on October 7, 2021; and (3) the claimant’s impairment rating (IR) is 15%. The appellant (carrier) appealed the ALJ’s extent of injury and IR determinations. The claimant responded, urging affirmance of the appealed determinations. The ALJ’s determination that the claimant reached MMI on October 7, 2021, was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the carrier has accepted a left shoulder rotator cuff strain, left elbow contusion, and left ulnar neuropathy as the compensable injury; and the claimant reached MMI on October 7, 2021, as certified by (Dr. L), the designated doctor, and (Dr. C), the post-designated doctor required medical examination (RME) doctor. The claimant was injured on (date of injury), when she fell over an open drawer and landed on her left side.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), extends to a left shoulder PASTA lesion, left shoulder rotator cuff tendinosis, paraesthesia of the skin, left shoulder impingement syndrome, left shoulder supraspinatus/infraspinatus tendinosis with subtle articular fraying critical zone supraspinatus tendon, left circumferential labral truncation with more high-grade tearing through the superior labrum, left shoulder subscapularis tendinosis, and cervical strain is supported by sufficient evidence and is affirmed.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, in part, that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.  

The ALJ determined that the claimant’s IR is 15% as certified by Dr. L, the designated doctor. Dr. L initially examined the claimant on September 24, 2020, and certified that the claimant had not reached MMI. Dr. L next examined the claimant on October 4, 2021, and certified the claimant reached MMI on August 12, 2021, with a 15% IR. As discussed above, the date of MMI in this case is October 7, 2021; therefore, neither of these certifications can be adopted.   

Dr. L next examined the claimant on May 23, 2022, and issued four certifications, all of which certified the claimant reached MMI on October 7, 2021, based on various conditions. Dr. L assigned a 10% IR in two of his certifications and assigned a 15% IR in the other two certifications. However, none of Dr. L’s certifications consider and rate the compensable injury in this case, which is a left shoulder rotator cuff strain, left elbow contusion, left ulnar neuropathy, a left shoulder PASTA lesion, left shoulder rotator cuff tendinosis, paraesthesia of the skin, left shoulder impingement syndrome, left shoulder supraspinatus/infraspinatus tendinosis with subtle articular fraying critical zone supraspinatus tendon, left circumferential labral truncation with more high-grade tearing through the superior labrum, left shoulder subscapularis tendinosis, and cervical strain.

Dr. L’s first certification assigning a 10% IR considers only the carrier-accepted conditions of a left shoulder rotator cuff strain, left elbow contusion, and left ulnar neuropathy. The other certification that assigns a 10% IR considers the carrier-accepted conditions and left circumferential labral truncation with more high-grade tearing through the superior labrum. One of Dr. L’s certifications assigning a 15% IR considers depression and anxiety, conditions which are not part of the compensable injury at this time. The other considers, among other conditions, left shoulder rotator cuff tendinopathy and a left rotator cuff sprain, conditions which are not part of the compensable injury at this time.

The only other certification in evidence from Dr. L certifying an October 7, 2021, date of MMI is dated July 1, 2022, in response to a letter of clarification sent to him by the Division on June 30, 2022. Dr. L assigned a 15% IR; however, this certification again considers left shoulder rotator cuff tendinopathy and a left rotator cuff sprain, both of which are not part of the compensable injury at this time.

There are no other certifications in evidence that certify an October 7, 2021, date of MMI and assign a 15% IR. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 15%.

The only other certifications in evidence that certify an October 7, 2021, date of MMI are from Dr. C, the post-designated doctor RME doctor. In all of his certifications Dr. C assigned a 10% IR based on various conditions, and all but one of Dr. C’s certifications fail to consider and rate a cervical strain, which is part of the compensable injury.  

Dr. C’s attached narrative report indicates that his final certification considers and rates a left shoulder rotator cuff strain, left elbow contusion, left ulnar neuropathy, a left shoulder PASTA lesion, left shoulder rotator cuff tendinosis, paraesthesia of the skin, left shoulder impingement syndrome, left shoulder supraspinatus/infraspinatus tendinosis with subtle articular fraying critical zone supraspinatus tendon, left circumferential labral truncation with more high-grade tearing through the superior labrum, left shoulder subscapularis tendinosis, and a cervical strain. Using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides), Dr. C assigned 14% upper extremity (UE) impairment for loss of range of motion (ROM) of the claimant’s left shoulder and 3% UE impairment for loss of ROM of the left elbow. Dr. C combined these impairments for a total 17% UE impairment, and, using Table 3 on page 3/20 of the AMA Guides, converted the 17% UE impairment to 10% whole person impairment (WPI). Dr. C combined 10% WPI with 0% assigned for the claimant’s cervical strain for a total IR of 10%. Dr. C’s assigned 10% IR is based on the compensable injury in this case, is in compliance with the AMA Guides, and is supported by the evidence. Therefore, we render a new decision that the claimant’s IR is 10% as assigned by Dr. C.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), extends to a left shoulder PASTA lesion, left shoulder rotator cuff tendinosis, paraesthesia of the skin, left shoulder impingement syndrome, left shoulder supraspinatus/infraspinatus tendinosis with subtle articular fraying critical zone supraspinatus tendon, left circumferential labral truncation with more high-grade tearing through the superior labrum, left shoulder subscapularis tendinosis, and cervical strain.

We reverse the ALJ’s determination that the claimant’s IR is 15%, and we render a new decision that the claimant’s IR is 10% as assigned by Dr. C.

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

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

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 16, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that:  (1) the compensable injury of (date of injury), does not extend to a disc protrusion at L2-3, disc bulge and protrusion at C3-4, or disc bulge and anterolisthesis at C7-T1; (2) the appellant (claimant) reached maximum medical improvement (MMI) on October 4, 2021; and (3) the claimant’s impairment rating (IR) is 14%. The claimant appealed, disputing the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.  

DECISION

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

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of at least a lumbar strain, cervical strain, bilateral shoulder strain, and bilateral knee strain. We note the stipulation in Finding of Fact No. 1.D. states the compensable injury is also a left shoulder strain. The parties stipulated to bilateral shoulder strain, not a left shoulder strain, and that condition is necessarily included in bilateral shoulder strain. We reform Finding of Fact No. 1.D. to strike “left shoulder strain” from the parties’ stipulation.

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

EXTENT OF INJURY

That portion of the ALJ’s determination that the compensable injury does not extend to a disc protrusion at L2-3, disc bulge and protrusion at C3-4, or disc bulge and anterolisthesis at C7-T1 is supported by sufficient evidence and is affirmed.

The claimant contends on appeal that the ALJ failed to make determinations regarding the compensability of a disc bulge and protrusion at L3-4. In its response the carrier agrees the ALJ failed to address a disc bulge and protrusion at L3-4.    

In evidence is the Benefit Review Conference (BRC) report dated June 30, 2022. The BRC report reflects the following conditions were included in the extent-of-injury issue: disc protrusion at L2-3, disc bulge and protrusion at L3-4, disc bulge and protrusion at C3-4, and disc bulge and anterolisthesis at C7-T1. The extent-of-injury issue statement on the decision and order omits a disc bulge and protrusion at L3-4. At the CCH the ALJ read the extent-of-injury issue as reflected on the decision and order and did not address a disc bulge and protrusion at L3-4. The parties agreed to the issue statement as read by the ALJ and reflected in the decision and order, both of which omit a disc bulge and protrusion at L3-4. However, a review of the record reflects that the parties actually litigated the compensability of a disc bulge and protrusion at L3-4. The ALJ failed to make any findings of fact, conclusions of law, or a decision regarding that condition. We therefore reverse the ALJ’s extent-of-injury determination as being incomplete, and we remand the issue of whether the compensable injury extends to a disc bulge and protrusion at L3-4 to the ALJ for further action consistent with this decision.   

MMI/IR

Because we have remanded a portion of the extent-of-injury determination, we also reverse the ALJ’s determinations that the claimant reached MMI on October 4, 2021, with a 14% IR, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

Pursuant to Section 410.203(c), the Appeals Panel may not remand a case more than once.  Because we are remanding this case to the ALJ, we note that (Dr. W) 14% IR adopted by the ALJ contains a mathematical error. Dr. W, the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division), examined the claimant on December 13, 2021, and again on April 12, 2022. Those certifications in which Dr. W assigned a 14% IR certify an MMI date of October 4, 2021, and are based on various conditions and the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). In both of his narrative reports attached to his certifications, Dr. W noted he used range of motion measurements taken by (Dr. C) on October 7, 2021, to assign the 14% IR. Dr. W’s 14% IR included a 4% whole person impairment for “-4[°] extension” for the claimant’s left knee. However, Table 41, Knee Impairments, on page 3/78 of the AMA Guides does not provide any impairment for -4° knee extension.

SUMMARY

We reform Finding of Fact No. 1.D. by striking “left shoulder strain” from the parties’ stipulation.

We affirm that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to a disc protrusion at L2-3, disc bulge and protrusion at C3-4, or disc bulge and anterolisthesis at C7-T1.

We reverse the ALJ’s extent-of-injury determination as being incomplete, and we remand the issue of whether the compensable injury of (date of injury), extends to a disc bulge and protrusion at L3-4 to the ALJ for further action consistent with this decision.

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

We reverse the ALJ’s determination that the claimant’s IR is 14%, and we remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a determination whether the compensable injury of (date of injury), extends to a disc bulge and protrusion at L3-4, the claimant’s date of MMI, and the claimant’s IR.

Dr. W is the designated doctor.  The ALJ is to determine whether Dr. W is still qualified and available to be the designated doctor.  If Dr. W is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Division rules to opine on the issues of MMI and IR. The ALJ is to inform the designated doctor what conditions are included in the compensable injury. The ALJ is to request that the designated doctor give an opinion on the claimant’s date of MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination.  If Dr. W is still qualified and available, the ALJ is to inform him of the mathematical error made in his 14% 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 ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is PHOENIX INSURANCE COMPANY, A SUBSIDIARY OF THE TRAVELERS INDEMNITY COMPANY and the name and address of its registered agent for service of process is

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 23, 2022, with the record closing on August 4, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury sustained on (date of injury), does not extend to left shoulder tendinosis of the supraspinatus, left shoulder tendinosis of the infraspinatus, left shoulder tendinosis of the subscapular, an aggravation of lumbar stenosis L3-4, aggravation of osteophytes at L3-4, lumbar radiculopathy, or aggravation of cervical osteophytes C6-7; (2) the appellant (claimant) reached maximum medical improvement (MMI) on October 16, 2021; and (3) the claimant’s impairment rating (IR) is four percent.  The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded, urging affirmance of the disputed extent of injury, MMI, and IR determinations.  

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that: the claimant sustained a compensable injury on (date of injury); the accepted compensable injury is a strain of the neck and strain of the left shoulder; and the statutory date of MMI is October 18, 2021. (Dr. N) was initially appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor to address MMI, IR, and extent of injury. The ALJ stated in his decision that “[b]ecause [Dr. N] did not have all of the medical records placed into evidence” in relation to the claimant’s treatment with doctors outside the workers’ compensation system, the claimant was referred back to the designated doctor for a re-examination. A new designated doctor, (Dr. W), was appointed by the Division. The claimant testified he was injured on (date of injury), while pulling on duct work.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to left shoulder tendinosis of the supraspinatus, left shoulder tendinosis of the infraspinatus, left shoulder tendinosis of the subscapular, an aggravation of lumbar stenosis L3-4, aggravation of osteophytes at L3-4, lumbar radiculopathy, or aggravation of cervical osteophytes C6-7 is supported by sufficient evidence and is affirmed.

MMI/IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.”  Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Division shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.  Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.    

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

At the conclusion of the CCH, the ALJ issued a Presiding Officer’s Directive to order a designated doctor examination informing the designated doctor that the date of statutory MMI is October 18, 2021. Dr. W examined the claimant on April 22, 2022. Dr. W certified that the claimant reached MMI on the statutory date of October 16, 2021. Dr. W noted in the narrative report that the claimant had not reached clinical MMI because the claimant stated he had not received physical therapy. Dr. W opined that for the strain of the neck and strain of the left shoulder the claimant reached MMI on the statutory date, October 16, 2021. As previously noted, the parties stipulated that the statutory date of MMI is October 18, 2021. However, Dr. W submitted a Report of Medical Evaluation (DWC-69) certifying the claimant reached MMI on the statutory date of October 16, 2021 (rather than October 18, 2021), with a four percent IR. There are no DWC-69s in evidence from Dr. W with the correct statutory MMI date, October 18, 2021, as agreed to by the parties.

Since Rule 130.1(c)(3) provides an assignment of IR shall be based on the claimant’s condition as of the MMI date, Dr. W’s four percent IR with the October 16, 2021, statutory MMI date cannot be adopted.  We therefore reverse the ALJ’s determination that the claimant reached MMI on October 16, 2021, the statutory date, and that the claimant’s IR is four percent.  See Appeals Panel Decision (APD) 130238, decided March 13, 2013.

There are two other MMI/IR certifications in evidence that rate the compensable injury.  The first is that of Dr. N, the initial designated doctor.  Dr. N examined the claimant on July 9, 2021, and certified that for the compensable conditions the claimant reached MMI on March 23, 2021, with a zero percent IR.  However, as previously noted a second designated doctor was appointed in this case because Dr. N did not have the claimant’s medical records of his treatment with doctors outside the workers’ compensation system. Accordingly, Dr. N’s certification of MMI and IR cannot be adopted.  See APD 211980, decided January 21, 2022.

The other MMI/IR certification in evidence that rates the compensable injury was from (Dr. S), a required medical examination doctor. Dr. S examined the claimant on July 6, 2022. Dr. S certified that the claimant reached MMI on the statutory date of October 16, 2021, for a strain of the neck and strain of the left shoulder. Dr. S assessed zero percent IR. As previously noted, the parties stipulated that the statutory date of MMI in this case is October 18, 2021. Dr. S stated in his narrative report that he agreed the claimant had reached MMI on the statutory date. There are no DWC-69s in evidence from Dr. S with the correct statutory date of MMI, October 18, 2021, as agreed to by the parties. Accordingly, the certification from Dr. S cannot be adopted.

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

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to left shoulder tendinosis of the supraspinatus, left shoulder tendinosis of the infraspinatus, left shoulder tendinosis of the subscapular, an aggravation of lumbar stenosis L3-4, aggravation of osteophytes at L3-4, lumbar radiculopathy, or aggravation of cervical osteophytes C6-7.

We reverse the ALJ’s determination that the claimant reached MMI on October 16, 2021, and remand the MMI issue to the ALJ for further action consistent with this decision.

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

REMAND INSTRUCTIONS

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

The ALJ is to advise the designated doctor that the statutory date of MMI is October 18, 2021, as agreed to by the parties, and that the compensable injury of (date of injury), extends to a strain of the neck and a strain of the left shoulder but does not extend to left shoulder tendinosis of the supraspinatus, left shoulder tendinosis of the infraspinatus, left shoulder tendinosis of the subscapular, an aggravation of lumbar stenosis L3-4, an aggravation of osteophytes at L3-4, lumbar radiculopathy, or an aggravation of cervical osteophytes C6-7.      

The ALJ is to request the designated doctor to give an opinion on the claimant’s MMI, which can be no later than October 18, 2021, and rate the entire compensable injury, which extends to a strain of the neck and a strain of the left shoulder in accordance with the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides), considering the medical record and the certifying examination.     

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

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

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 28, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to right wrist carpal tunnel syndrome (CTS) or right triangular fibrocartilage complex (TFCC) tear; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. F) on June 19, 2019, became final pursuant to Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (3) the date of MMI is June 4, 2019; and (4) the appellant’s (claimant) IR is seven percent. The claimant appealed, disputing the ALJ’s determinations. The claimant additionally appeals an evidentiary ruling made by the ALJ excluding a letter of causation because it was not timely exchanged. The respondent (self-insured) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part, and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a right hand sprain and right wrist sprain; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed Dr. F as designated doctor to address MMI and IR; and the statutory date of MMI is April 6, 2021. The claimant was injured on (date of injury), while using a drill to assemble parts.

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

EVIDENTIARY RULING

At the CCH the self-insured objected to the admission of a letter of causation from (Dr. O), the claimant’s treating doctor, on the grounds that the report had not been timely exchanged. To obtain a reversal of a judgment based on the ALJ’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.—San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the ALJ acted without reference to any guiding rules or principles. Appeals Panel Decision (APD) 043000, decided January 12, 2005; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).

Rule 142.13(c)(1) provides, in part, that the parties exchange documentary evidence “no later than 15 days after the benefit review conference [BRC].” Rule 142.13(c)(2) further provides that “[t]hereafter, parties shall exchange additional documentary evidence as it becomes available.” Rule 142.13(c)(3) provides, in part, that the ALJ shall make a determination whether good cause exists for a party not having previously exchanged such information or documents to introduce such evidence at the hearing. A party who belatedly investigates the facts and then does not disclose known information in order to make further investigation and development runs the risk of having evidence excluded for failure of exchange. See APD 991744, decided October 1, 1999.

In this case, the BRC was held on February 16, 2022. The exhibit in question, a report from Dr. O, labeled “Causation Letter,” is dated May 30, 2022. The self-insured contended that the exhibit in question was not exchanged until the day of the CCH. The ALJ noted that there had been two prior settings for the CCH in April and June of 2022 that were rescheduled. The ALJ stated on the record that she did not find good cause for the late exchange of the exhibit. We find no abuse of discretion in the ALJ's application of the exchange of evidence rules and perceive no reversible error in the evidentiary ruling that the claimant did not have good cause for failing to timely exchange the report.

FINALITY

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. F on June 19, 2019, became final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

MMI/IR

The ALJ’s determinations that the claimant reached MMI on June 4, 2019, and the claimant’s IR is seven percent are supported by sufficient evidence and are affirmed.

EXTENT OF INJURY

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due, and if so, an award of benefits due.

The extent-of-injury issue as stated on the BRC Report and as agreed to by the parties at the CCH was whether the compensable injury of (date of injury), extends to right wrist CTS and right TFCC tear. Although Conclusion of Law No. 3 and the decision state that the compensable injury of (date of injury), does not extend to right wrist CTS and right TFCC tear, the ALJ made no specific finding of fact regarding the compensability of the disputed conditions as required by Section 410.168 and Rule 142.16. See APD 132339, decided December 12, 2013; APD 150510, decided April 21, 2015; APD 162262, decided January 10, 2017; and APD 181349, decided August 15, 2018.

Accordingly, we reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to right wrist CTS and right TFCC tear, and we remand the issue of whether the compensable injury of (date of injury), extends to right wrist CTS and right TFCC tear to the ALJ to make findings of fact on that issue.

SUMMARY

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. F on June 19, 2019, became final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that the claimant reached MMI on June 4, 2019.

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

We reverse the ALJ’s extent-of-injury determination as incomplete, and remand the issue of whether the (date of injury), compensable injury extends to right wrist CTS and right TFCC tear for further action consistent with this decision.

REMAND INSTRUCTIONS

The ALJ is to make findings of fact, conclusions of law, and a determination whether the compensable injury of (date of injury), extends to right wrist CTS and right TFCC tear that is supported by the evidence.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 GENERAL MOTORS L.L.C. (a certified self-insured), and the name and address of its registered agent for service of process is

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 7, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to lumbar disc herniation at L4-5 or lumbar radiculopathy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on July 21, 2021; and (3) the claimant’s impairment rating (IR) is five percent. The claimant appeals the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded, urging affirmance of the issues of extent of injury, MMI, and IR.

DECISION

Affirmed in part, and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the carrier accepted a compensable injury in the form of a lumbar sprain/strain and a thoracic sprain/strain; and (Dr. V) was selected by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor to address the issues of MMI and IR. The claimant testified that she was injured on (date of injury), while working for the employer as a forklift driver.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a lumbar disc herniation at L4-5 or lumbar radiculopathy is supported by sufficient evidence and is affirmed.

MMI/IR

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

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, in part, that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.    

Dr. V examined the claimant on December 10, 2021, and certified in his narrative report that the claimant reached MMI on July 21, 2020, with a five percent IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). In his narrative report, Dr. V stated he chose July 21, 2020, as the MMI date because, “the [claimant] has received appropriate conservative medical management treatment including participation in two post-injury physical therapy programs by that date….”  However, the accompanying Report of Medical Evaluation (DWC-69) certifies that the claimant reached MMI on July 21, 2021, rather than July 21, 2020.

Therefore, there is an internal inconsistency between the MMI date Dr. V certified on the DWC-69 and the MMI date Dr. V certified in the accompanying narrative report.  Because the narrative report and DWC-69 list different dates regarding when the claimant reached MMI, we do not consider that internal inconsistency to be a clerical error that can be corrected.  See Appeals Panel Decision (APD) 220068, decided March 3, 2022.  Accordingly, the ALJ’s determination that the claimant reached MMI on July 21, 2021, is reversed.   

With regard to the IR, as noted above, Rule 130.1(c)(3) provides that an assignment of IR shall be based on the injured employee’s condition as of the MMI date.  Given that we have reversed the ALJ’s MMI determination, we reverse the ALJ’s determination that the claimant’s IR is five percent.     

Dr. F), a doctor selected by the treating doctor to act in his place, examined the claimant on March 7, 2022, and certified that the claimant had not reached MMI. As the ALJ noted in her discussion of the evidence, Dr. F considered treatment for non-compensable conditions, specifically lumbar radiculopathy, and this certification could not be adopted.

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

REMAND INSTRUCTIONS

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

If Dr. V is still qualified and available to serve as the designated doctor, the ALJ is to advise Dr. V that his December 10, 2021, DWC-69 and accompanying narrative report have an internal inconsistency regarding the date of MMI.    

The ALJ is to advise the appointed designated doctor that the compensable injury of (date of injury), extends to a lumbar sprain/strain and a thoracic sprain/strain but does not extend to a lumbar disc herniation at L4-5 or lumbar radiculopathy.  The ALJ is to request that the designated doctor give an opinion on the claimant’s date of MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination.  

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

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

The true corporate name of the insurance carrier is THE TRAVELERS INDEMNITY COMPANY and the name and address of its registered agent for service of process is

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 2, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to cervical spine disc disorder at C3-4 and C4-5 with cervical radiculopathy, left shoulder impingement syndrome, or left hip labral tear; (2) the appellant (claimant) reached maximum medical improvement (MMI) on October 27, 2021; and (3) the claimant’s impairment rating (IR) is five percent.

The claimant appealed the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded, urging affirmance of the appealed determinations.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that: (1) the carrier has accepted a (date of injury), compensable injury in the nature of cervical, thoracic, and lumbar spine sprains, lumbar radiculopathy, bilateral shoulder sprains and strains, bilateral elbow sprains and strains, and left wrist sprain and strain; and (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. W) as the designated doctor on the issues of MMI, IR, and return to work. The claimant testified that he was injured in a motor vehicle accident on (date of injury).

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to cervical spine disc disorder at C3-4 and C4-5 with cervical radiculopathy, left shoulder impingement syndrome, or left hip labral tear is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on October 27, 2021, as certified by Dr. W is supported by sufficient evidence and is affirmed.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, in part, that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.  

The ALJ determined that the claimant reached MMI on October 27, 2021, with a five percent IR as certified by Dr. W, the designated doctor appointed by the Division. Dr. W, using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides), placed the claimant in Diagnosis-Related Estimate (DRE) Cervicothoracic Category II: Minor Impairment and assigned five percent impairment. Dr. W placed the claimant in DRE Lumbosacral Category I: Complaints or Symptoms and assigned zero percent impairment. We note that Dr. W did not specifically identify the DRE spinal region in which she placed the claimant for the thoracic spine.

In Appeals Panel Decision (APD) 051306-s, decided August 3, 2005, the Appeals Panel discussed the application of the AMA Guides in rating cervical, thoracic, and lumbar injuries and held as follows:       

Applying the language from the bottom of page 3/95 of the AMA Guides, if the injury is primarily to the cervical spine the rating would be under part 3.3h, page 3/103 cervicothoracic spine impairment, if the injury was primarily to the thoracic area of the spine the rating would be under part 3.3i page 3/106 for thoracolumbar spine impairment and if the injury is primarily to the lumbar portion of the spine, the impairment would be under part 3.3g page 3/101 lumbosacral spine impairment.  Pursuant to part 3.3f, page 3/101, paragraph 8, if more than one spine region is impaired, the doctor is to determine the impairment of the other regions and combine the regional impairments using the Combined Values Chart to express the patients (sic) total spine impairment.      

In the narrative report, Dr. W noted the claimant would be assessed zero percent for loss of range of motion (ROM) of the upper extremity (UE) bilaterally referencing an attached Figure 1 that specified the ROM measurements relied on. Dr. W stated that “[t]here is a deficit noted for flexion of the left shoulder but noting Apley’s test, there is no impairment assigned.”  

The Figure 1 Dr. W attached to the narrative provides the following ROM measurements for both the right and left wrist: flexion 50°, extension 50°, radial deviation 20°, and ulnar deviation 30°. Figure 26 on page 3/36 of the AMA Guides provides that 50° of flexion results in two percent UE impairment and 50° of extension also results in two percent UE impairment.

The Figure 1 Dr. W attached to the narrative provides the following ROM measurements for the right and left elbows: flexion 130°, extension 0°, pronation 80°, and supination 80°. Figure 32 on page 3/40 of the AMA Guides provides that 130° of flexion results in 1% UE impairment. We note that the AMA Guides provide on page 3/17 that if both limbs are involved, calculate the whole-person impairment for each on a separate chart and combine the percents of each limb. See APD 192264, decided February 6, 2020; APD 130633, decided April 24, 2013; and APD 220893, decided July 20, 2022.

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR.  See APD 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011.  However, as previously explained, Dr. W misapplied the AMA Guides in several instances regarding the claimant’s left wrist and right and left elbows. Dr. W specifically mentioned why she was not assigning impairment for the ROM deficit of the claimant’s left shoulder but did not explain why she was not assessing impairment for the measured loss of ROM of the claimant’s left wrist and right and left elbows.  

Given that Dr. W’s narrative report has numerous inaccuracies and discrepancies in applying the AMA Guides, we do not consider it appropriate to mathematically correct the IR.  Dr. W’s certification cannot be adopted. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is five percent.  

In evidence is a Report of Medical Evaluation (DWC-69) from (Dr. F), a doctor selected by the treating doctor to act in his place. Dr. F examined the claimant on May 19, 2022, and certified that the claimant had not yet reached MMI. As previously noted, the ALJ’s determination that the claimant reached MMI on October 27, 2021, has been affirmed. Accordingly, Dr. F’s certification that the claimant has not reached MMI cannot be adopted. There is no other certification of MMI/IR in evidence. As there is no MMI/IR certification in evidence that can be adopted, we remand the issue of IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determinations that the (date of injury), compensable injury does not extend to cervical spine disc disorder at C3-4 and C4-5 with cervical radiculopathy, left shoulder impingement syndrome, or left hip labral tear.

We affirm the ALJ’s determination that the claimant reached MMI on October 27, 2021.

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

REMAND INSTRUCTIONS

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

The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to cervical, thoracic, and lumbar spine sprains, lumbar radiculopathy, bilateral shoulder sprains and strains, bilateral elbow sprains and strains, and left wrist sprain and strain but does not extend to cervical spine disc disorder at C3-4 and C4-5 with cervical radiculopathy, left shoulder impingement syndrome, or left hip labral tear.

The ALJ is to request the designated doctor to rate the entire compensable injury as of the date of MMI, which is October 27, 2021, in accordance with the AMA Guides and considering the medical record and the certifying examination.  If Dr. W is still qualified and available to serve as designated doctor in this case, the ALJ is to point out the errors in calculating the impairment for the left wrist and elbows or ask the doctor to explain why impairment for the left wrist and bilateral elbows was not assessed.  

The parties are to be provided with the designated doctor’s new MMI and IR certification, as of the MMI date of October 27, 2021, and are to be allowed an opportunity to respond.  The ALJ is then to make a determination on the claimant’s IR for the (date of injury), compensable injury as of the MMI date of October 27, 2021. 

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 XL INSURANCE AMERICA, INC. and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 18, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to intraosseous ganglion in the third metacarpal head or triggering right ring finger; (2) the appellant (claimant) did not have disability from March 18, 2022, through the present from an injury sustained on (date of injury); (3) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. G) on March 31, 2020, became final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (4) the claimant reached MMI on February 10, 2020; and (5) the claimant’s IR is zero percent. The claimant appealed the ALJ’s determinations of extent of injury, disability, finality, MMI, and IR. The respondent (carrier) responded to the claimant’s appeal, urging affirmance of the ALJ’s determinations.  

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury in the form of at least a grade 1 sprain of ulnar collateral ligament MCP joint right middle finger and grade 1-2 sprain of radial collateral ligament MCP joint. The claimant testified that she was injured on (date of injury), while working as a supervisor and cleaning buildings for the employer. The claimant further testified that she was taking out the trash when her right hand got jammed by the door between her right middle and ring fingers.  

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to intraosseous ganglion in the third metacarpal head or triggering right ring finger is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from March 18, 2022, through the present from an injury sustained on (date of injury), is supported by sufficient evidence and is affirmed.

FINALITY

Section 408.123(e) provides that, except as otherwise provided by Section 408.123, an employee’s first valid certification of MMI and first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means.  Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means, including IRs related to extent-of-injury disputes.  The notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c).      

In Appeals Panel Decision (APD) 042163-s, decided October 21, 2004, the Appeals Panel discussed whether the deemed receipt provision of Rule 102.4 was applicable and what is meant by “verifiable means.”  APD 041985-s, decided September 28, 2004, and APD 042163-s, supra, both reference the preamble to Rule 130.12.  The preamble provides that the 90-day period “begins when that party receives verifiable written notice of the MMI/IR certification.”    

The preamble goes on to state:    

Written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party.  This may include acknowledged receipt by the injured employee or insurance carrier, a statement of personal delivery, confirmed delivery by e-mail, confirmed delivery by facsimile, or some other confirmed delivery to the home or business address.  The goal of this requirement is not to regulate how a system participant makes delivery of a report or other information to another system participant, but to ensure that the system participant filing the report or providing the information has verifiable proof that it was delivered.  29 Tex. Reg. 2331, March 5, 2004.    

The ALJ found that the March 31, 2020, certification by Dr. G, a doctor selected by the treating doctor to act in his place, was the first valid certification of MMI and assigned IR for the purposes of Section 408.123 and Rule 130.12. This finding is supported by sufficient evidence. The ALJ further found that Dr. G’s certification was delivered to the claimant by verifiable means on August 24, 2021. In the ALJ’s decision, the ALJ explains that in evidence is a Dispute Resolution Information System (DRIS) note that indicates the claimant contacted the Texas Department of Insurance, Division of Workers’ Compensation (Division) to dispute Dr. G’s certification on August 24, 2021. While a review of the record reflects conflicting evidence concerning the date the claimant may have received Dr. G’s certification, the ALJ relied on DRIS notes to find that Dr. G’s certification was delivered to the claimant by verifiable means on or before August 24, 2021.

In APD 152374, decided February 3, 2016, the ALJ similarly relied on a DRIS note that indicated the claimant called the Division regarding the dispute of a certification to find that the claimant was provided with written notice by verifiable means. In that case, the Appeals Panel disagreed that the DRIS note in question was sufficient to establish delivery by verifiable means and noted “[t]he DRIS note, which indicates only that the claimant’s attorney and doctor are disputing [the] report, does not constitute reasonable confirmation of delivery of written notice to the claimant on that date.” Likewise in the present case, the DRIS note dated August 24, 2021, is insufficient to establish that Dr. G’s report was delivered to the claimant by verifiable means. Therefore, we reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12.

A review of the record indicates that there were several other dates put forth by the carrier as dates the claimant may have received Dr. G’s certification. The ALJ did not make further findings regarding the alternate dates. Therefore, we remand the issue of finality to the ALJ for further action consistent with this decision.

MMI AND IR

As we have reversed and remanded the issue of whether the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12, we also reverse the ALJ’s determinations that the claimant reached MMI on February 10, 2020, with a zero percent IR and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to intraosseous ganglion in the third metacarpal head or triggering right ring finger.

We affirm the ALJ’s determination that the claimant did not have disability from March 18, 2022, through the present from an injury sustained on (date of injury).

We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12, and we remand the issue of finality to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determinations that the claimant reached MMI on February 10, 2020, with a zero percent IR and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to make findings of fact regarding whether the claimant received Dr. G’s certification by verifiable means and, if so, on what date.  The ALJ is to make a determination of whether the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12 that is consistent with the evidence and this decision. If the ALJ determines that Dr. G’s March 31, 2020, certification did not become final, he is to request a designated doctor on the issues of MMI and IR.

The ALJ is then to make a determination of MMI and IR that is consistent with the evidence and this decision.  

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

The true corporate name of the insurance carrier is ACCIDENT FUND INSURANCE COMPANY OF AMERICA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 8, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the compensable injury of (date of injury), extends to herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma; (2) the compensable injury of (date of injury), does not extend to vision loss to the right eye; (3) the appellant/crossrespondent (claimant) reached maximum medical improvement (MMI) on September 22, 2020; (4) the claimant’s impairment rating (IR) is 40%; and (5) (Dr. T) was appointed as the designated doctor in accordance with Section 408.0041 and 28 Tex. Admin. Code § 127.5 (Rule 127.5).

The claimant appealed the ALJ’s extent-of-injury determination that was adverse to him, as well as the ALJ’s determination that his IR is 40%. The respondent/crossappellant (carrier) responded, urging affirmance of the appealed determinations. The carrier cross-appealed the ALJ’s extent-of-injury determination that was favorable to the claimant. The claimant responded, urging affirmance of that determination. The ALJ’s determinations that the claimant reached MMI on September 22, 2020, and that Dr. T was appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.5 were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to at least a head concussion, fractured teeth, cervical sprain/strain, thoracic sprain/strain, and cervical disc herniations at C5-6 and C6-7; Dr. T was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine extent of injury, MMI, and IR; and the statutory date of MMI is September 22, 2020. The claimant, a heavy equipment operator, was injured on (date of injury), when a heavy beam fell on the left top side of his head while he and another employee were erecting a large sign.

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

EXTENT OF INJURY

The ALJ’s determinations that the compensable injury of (date of injury), extends to herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma, but does not extend to vision loss to the right eye are supported by sufficient evidence and are affirmed.

IR

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

The ALJ determined the claimant reached MMI on September 22, 2020, with a 40% IR as assigned by (Dr. M), the post-designated doctor required medical examination doctor. Dr. M examined the claimant on September 17, 2021, and issued several certifications which all certified the claimant reached MMI on September 22, 2020, with a 40% IR based on different conditions and using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). However, none of Dr. M’s certifications considered and rated the compensable injury in this case, which is a head concussion, fractured teeth, cervical sprain/strain, thoracic sprain/strain, and cervical disc herniations at C5-6 and C6-7, herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma.

All of Dr. M’s certifications consider and rate a head contusion, a condition which is not part of the compensable injury at this time. Additionally, one certification fails to consider a herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma. Another certification fails to consider cord compression at T7-8, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma. Another certification considers other conditions that have not yet been determined to be compensable: left abdominal bulge of neurogenic origin consistent with left abdominal wall paralysis and left upper and lower extremity partial paralysis secondary to radiculopathy, among other conditions. None of Dr. M’s certifications consider and rate the compensable injury and, therefore, none can be adopted.

Additionally, we note that Dr. M explained in his attached narrative report that he assigned a 40% whole person impairment (WPI) “for classification into [Diagnosis Related Estimate (DRE)] Cervicothoracic Category VI: Cauda Equina Syndrome without Bowel or Bladder Signs” of the AMA Guides.

In Appeals Panel Decision (APD) 051306-s, decided August 3, 2005, the Appeals Panel discussed the application of the AMA Guides in rating cervical, thoracic, and lumbar injuries and held as follows:

Applying the language from the bottom of page 3/95 of the AMA Guides, if the injury is primarily to the cervical spine the rating would be under part 3.3h, page 3/103 cervicothoracic spine impairment, if the injury was primarily to the thoracic area of the spine the rating would be under part 3.3i page 3/106 for thoracolumbar spine impairment and if the injury is primarily to the lumbar portion of the spine, the impairment would be under part 3.3g page 3/101 lumbosacral spine impairment. Pursuant to part 3.3f, page 3/101, paragraph 8, if more than one spine region is impaired, the doctor is to determine the impairment of the other regions and combine the regional impairments using the Combined Values Chart to express the patients (sic) total spine impairment.

The parties stipulated that the compensable injury extends to, in part, a thoracic sprain/strain, and we have affirmed the ALJ’s determination that the compensable injury extends to a herniated nucleus pulposus at T5-6 and herniated nucleus pulposus at T7-8 with cord compression. Dr. M assigned 40% impairment by placing the claimant in DRE Cervicothoracic Category VI: Cauda Equina Syndrome without Bowel or Bladder Signs. As noted above, the AMA Guides provide that an injury to the thoracic spine is rated under part 3.3i: Thoracolumbar Spine on page 3/106. Dr. M did not rate the compensable injury in this case in accordance with the AMA Guides. We reverse the ALJ’s determination that the claimant’s IR is 40%.

The only other certifications in evidence are from Dr. T, the designated doctor. The first certification is dated September 9, 2020, and based on an examination of that same date. In that certification Dr. T certified the claimant had not reached MMI. The date of statutory MMI in this case is September 22, 2020. The Appeals Panel has held that it is legal error to determine a claimant has not reached MMI in a decision and order dated after the date of statutory MMI. See APD 131554, decided September 3, 2013; and APD 220068, decided March 3, 2022. Dr. T’s first certification cannot be adopted.

Dr. T’s remaining certifications are all dated March 17, 2021, based on an examination of that same date, and certify an MMI date of September 22, 2020, which is the date of MMI in this case. In his first certification Dr. T assigned a 65% IR, which included a 21% WPI for loss of vision. We have affirmed the ALJ’s determination that the compensable injury does not extend to vision loss to the right eye, and vision loss to the left eye has not at this time been determined to be part of the compensable injury; therefore, Dr. T’s 65% IR cannot be adopted.

The final certifications from Dr. T both assign a 70% IR. Dr. T explained in his narrative report that both consider “exactly the same diagnoses,” which are a head concussion, fractured teeth, cervical sprain/strain, thoracic sprain/strain, cervical disc herniation at C5-6, disc herniation at C6-7, herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma. Dr. T’s narrative report shows the 70% IR is comprised of the following: 25% impairment for a head concussion; 0% IR for fractured teeth; 40% impairment for a cervical sprain/strain, cervical disc herniation at C5-6, cervical herniation at C6-7; 15% for a herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma; and 21% impairment for vision loss. Although Dr. T’s narrative report states this certification does not consider and rate vision loss, Dr. T’s narrative report clearly shows his 70% IR includes a rating for vision loss. Dr. T’s 70% IR cannot be adopted.

There is no assignment of IR in this case that can be adopted. Therefore, we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. T is the designated doctor in this case. On remand the ALJ is to determine whether Dr. T is still qualified and available to be the designated doctor. If Dr. T is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to opine on the issue of the claimant’s IR for the (date of injury), compensable injury.

On remand the ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a head concussion, fractured teeth, cervical sprain/strain, thoracic sprain/strain, cervical disc herniations at C5-6 and C6-7, herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma, but does not extend to vision loss to the right eye. The ALJ is also to inform the designated doctor that the date of MMI in this case is the statutory date of September 22, 2020. The ALJ is then to request that the designated doctor rate the entire compensable injury as of and not after September 22, 2020, the date of MMI, considering the claimant’s medical record and the certifying examination and in accordance with Rule 130.1(c)(3) and the AMA Guides.

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

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

The true corporate name of the insurance carrier is THE TRAVELERS CASUALTY AND SURETY COMPANY and the name and address of its registered agent for service of process is

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 8, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the compensable injury of (date of injury), extends to herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma; (2) the compensable injury of (date of injury), does not extend to vision loss to the right eye; (3) the appellant/cross-respondent (claimant) reached maximum medical improvement (MMI) on September 22, 2020; (4) the claimant’s impairment rating (IR) is 40%; and (5) (Dr. T) was appointed as the designated doctor in accordance with Section 408.0041 and 28 Tex. Admin. Code § 127.5 (Rule 127.5).

The claimant appealed the ALJ’s extent-of-injury determination that was adverse to him, as well as the ALJ’s determination that his IR is 40%. The respondent/cross-appellant (carrier) responded, urging affirmance of the appealed determinations. The carrier cross-appealed the ALJ’s extent-of-injury determination that was favorable to the claimant. The claimant responded, urging affirmance of that determination. The ALJ’s determinations that the claimant reached MMI on September 22, 2020, and that Dr. T was appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.5 were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to at least a head concussion, fractured teeth, cervical sprain/strain, thoracic sprain/strain, and cervical disc herniations at C5-6 and C6-7; Dr. T was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine extent of injury, MMI, and IR; and the statutory date of MMI is September 22, 2020. The claimant, a heavy equipment operator, was injured on (date of injury), when a heavy beam fell on the left top side of his head while he and another employee were erecting a large sign.

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

EXTENT OF INJURY

The ALJ’s determinations that the compensable injury of (date of injury), extends to herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma, but does not extend to vision loss to the right eye are supported by sufficient evidence and are affirmed.

IR

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

The ALJ determined the claimant reached MMI on September 22, 2020, with a 40% IR as assigned by (Dr. M), the post-designated doctor required medical examination doctor. Dr. M examined the claimant on September 17, 2021, and issued several certifications which all certified the claimant reached MMI on September 22, 2020, with a 40% IR based on different conditions and using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). However, none of Dr. M’s certifications considered and rated the compensable injury in this case, which is a head concussion, fractured teeth, cervical sprain/strain, thoracic sprain/strain, and cervical disc herniations at C5-6 and C6-7, herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma.

All of Dr. M’s certifications consider and rate a head contusion, a condition which is not part of the compensable injury at this time. Additionally, one certification fails to consider a herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma. Another certification fails to consider cord compression at T7-8, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma. Another certification considers other conditions that have not yet been determined to be compensable: left abdominal bulge of neurogenic origin consistent with left abdominal wall paralysis and left upper and lower extremity partial paralysis secondary to radiculopathy, among other conditions. None of Dr. M’s certifications consider and rate the compensable injury and, therefore, none can be adopted.

Additionally, we note that Dr. M explained in his attached narrative report that he assigned a 40% whole person impairment (WPI) “for classification into [Diagnosis-Related Estimate (DRE)] Cervicothoracic Category VI: Cauda Equina Syndrome without Bowel or Bladder Signs” of the AMA Guides.  

In Appeals Panel Decision (APD) 051306-s, decided August 3, 2005, the Appeals Panel discussed the application of the AMA Guides in rating cervical, thoracic, and lumbar injuries and held as follows:       

Applying the language from the bottom of page 3/95 of the AMA Guides, if the injury is primarily to the cervical spine the rating would be under part 3.3h, page 3/103 cervicothoracic spine impairment, if the injury was primarily to the thoracic area of the spine the rating would be under part 3.3i page 3/106 for thoracolumbar spine impairment and if the injury is primarily to the lumbar portion of the spine, the impairment would be under part 3.3g page 3/101 lumbosacral spine impairment.  Pursuant to part 3.3f, page 3/101, paragraph 8, if more than one spine region is impaired, the doctor is to determine the impairment of the other regions and combine the regional impairments using the Combined Values Chart to express the patients (sic) total spine impairment.      

The parties stipulated that the compensable injury extends to, in part, a thoracic sprain/strain, and we have affirmed the ALJ’s determination that the compensable injury extends to a herniated nucleus pulposus at T5-6 and herniated nucleus pulposus at T7-8 with cord compression.  Dr. M assigned 40% impairment by placing the claimant in DRE Cervicothoracic Category VI: Cauda Equina Syndrome without Bowel or Bladder Signs. As noted above, the AMA Guides provide that an injury to the thoracic spine is rated under part 3.3i: Thoracolumbar Spine on page 3/106. Dr. M did not rate the compensable injury in this case in accordance with the AMA Guides. We reverse the ALJ’s determination that the claimant’s IR is 40%.  

The only other certifications in evidence are from Dr. T, the designated doctor. The first certification is dated September 9, 2020, and based on an examination of that same date. In that certification Dr. T certified the claimant had not reached MMI. The date of statutory MMI in this case is September 22, 2020. The Appeals Panel has held that it is legal error to determine a claimant has not reached MMI in a decision and order dated after the date of statutory MMI. See APD 131554, decided September 3, 2013; and APD 220068, decided March 3, 2022. Dr. T’s first certification cannot be adopted.

Dr. T’s remaining certifications are all dated March 17, 2021, based on an examination of that same date, and certify an MMI date of September 22, 2020, which is the date of MMI in this case. In his first certification Dr. T assigned a 65% IR, which included a 21% WPI for loss of vision. We have affirmed the ALJ’s determination that the compensable injury does not extend to vision loss to the right eye, and vision loss to the left eye has not at this time been determined to be part of the compensable injury; therefore, Dr. T’s 65% IR cannot be adopted.

The final certifications from Dr. T both assign a 70% IR. Dr. T explained in his narrative report that both consider “exactly the same diagnoses,” which are a head concussion, fractured teeth, cervical sprain/strain, thoracic sprain/strain, cervical disc herniation at C5-6, disc herniation at C6-7, herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma.  Dr. T’s narrative report shows the 70% IR is comprised of the following: 25% impairment for a head concussion; 0% IR for fractured teeth; 40% impairment for a cervical sprain/strain, cervical disc herniation at C5-6, cervical herniation at C6-7; 15% for a herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma; and 21% impairment for vision loss. Although Dr. T’s narrative report states this certification does not consider and rate vision loss, Dr. T’s narrative report clearly shows his 70% IR includes a rating for vision loss. Dr. T’s 70% IR cannot be adopted.

There is no assignment of IR in this case that can be adopted. Therefore, we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. T is the designated doctor in this case. On remand the ALJ is to determine whether Dr. T is still qualified and available to be the designated doctor.  If Dr. T is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to opine on the issue of the claimant’s IR for the (date of injury), compensable injury.     

On remand the ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a head concussion, fractured teeth, cervical sprain/strain, thoracic sprain/strain, cervical disc herniations at C5-6 and C6-7, herniated nucleus pulposus at T5-6, herniated nucleus pulposus at T7-8 with cord compression, cervicothoracic epidural abscess, and cervicothoracic epidural hematoma, but does not extend to vision loss to the right eye. The ALJ is also to inform the designated doctor that the date of MMI in this case is the statutory date of September 22, 2020. The ALJ is then to request that the designated doctor rate the entire compensable injury as of and not after September 22, 2020, the date of MMI, considering the claimant’s medical record and the certifying examination and in accordance with Rule 130.1(c)(3) and the AMA Guides.

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

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

The true corporate name of the insurance carrier is THE TRAVELERS CASUALTY AND SURETY COMPANY and the name and address of its registered agent for service of process is

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 21, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to right shoulder acromioclavicular joint separation, effusion/rotator cuff tear, rotator cuff tendonitis, impingement syndrome, flap tear, muscle wasting and atrophy, and periarticular bursitis; (2) the compensable injury of (date of injury), does not extend to right hand neurapraxia or right hand nerve injury; (3) the appellant (claimant) reached maximum medical improvement (MMI) on August 3, 2021; and (4) the claimant’s impairment rating (IR) is five percent.

The claimant appealed that portion of the ALJ’s extent-of-injury determination that was adverse to her, as well as the ALJ’s MMI and IR determinations. The respondent (carrier) responded, urging affirmance of the appealed determinations. The ALJ’s determination that the compensable injury of (date of injury), extends to the following right shoulder conditions: acromioclavicular joint separation, effusion/rotator cuff tear, rotator cuff tendonitis, impingement syndrome, flap tear, muscle wasting and atrophy, and periarticular bursitis was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), which extends to a right shoulder sprain/strain. The claimant, a meat wrapper for the employer, was injured on (date of injury), when putting down a box of frozen meat.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to right hand neurapraxia or right hand nerve injury is supported by sufficient evidence and is affirmed.

MMI/IR

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

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.  

The ALJ determined the claimant reached MMI on August 3, 2021, with a five percent IR as certified by (Dr. L), the designated doctor appointed by the Division. Dr. L examined the claimant on November 3, 2021, and issued three certifications. In all three of his certifications Dr. L certified the claimant reached MMI on August 3, 2021, with a five percent IR. Dr. L explained in his attached narrative report that the first certification considered a right shoulder sprain/strain. As previously mentioned, the ALJ’s determination that the compensable injury extends to right shoulder acromioclavicular joint separation, effusion/rotator cuff tear, rotator cuff tendonitis, impingement syndrome, flap tear, muscle wasting and atrophy, and periarticular bursitis has become final pursuant to Section 410.169. Dr. L’s first certification does not consider and rate the entire compensable injury and cannot be adopted.

Dr. L explained that his second certification considered, among other conditions, right hand neurapraxia. We have affirmed the ALJ’s determination that the compensable injury does not extend to right hand neurapraxia. Dr. L’s second certification does not consider and rate the compensable injury and cannot be adopted.

Dr. L’s narrative report reflects his third certification did not consider and rate right shoulder muscle wasting and atrophy or right shoulder periarticular bursitis, which are part of the compensable injury. Dr. L’s third certification does not consider and rate the entire compensable injury and cannot be adopted.

None of Dr. L’s certifications that the claimant reached MMI on August 3, 2021, with a five percent IR consider and rate the entire compensable injury in this case. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on August 3, 2021, with a five percent IR.

There is one other certification in evidence, which is from (Dr. H), a previously appointed designated doctor. Dr. H examined the claimant on April 13, 2021, and certified the claimant reached MMI on that same date with a six percent IR considering a right shoulder sprain/strain only. Dr. H’s certification does not consider and rate the entire compensable injury and cannot be adopted.

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

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to right hand neurapraxia or right hand nerve injury.

We reverse the ALJ’s determination that the claimant reached MMI on August 3, 2021, and we remand the MMI issue to the ALJ for further action consistent with this decision.

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

REMAND INSTRUCTIONS

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

The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to right shoulder sprain/strain, acromioclavicular joint separation, effusion/rotator cuff tear, rotator cuff tendonitis, impingement syndrome, flap tear, muscle wasting and atrophy, and periarticular bursitis. The ALJ is also to inform the designated doctor that the compensable injury does not extend to right hand neurapraxia or right hand nerve injury. The ALJ is to request the designated doctor to give an opinion on the claimant’s MMI and rate the entire compensable injury in accordance with the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides) considering the medical record and the certifying examination.  

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

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

The true corporate name of the insurance carrier is THE TRAVELERS INDEMNITY COMPANY and the name and address of its registered agent for service of process is

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

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