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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 (CCH) was held on December 10, 2020, and March 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 central and left-sided disc herniation at C4-5, central and left-sided disc herniation at C5-6, bilateral tarsal tunnel syndrome, C6 radiculopathy, bilateral cervical radiculopathy left greater than right at C6, or bilateral plantar fibromatosis; (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 17, 2020; and (3) the claimant’s impairment rating (IR) is 10%.  The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded, urging affirmance of the disputed determinations.

DECISION

Affirmed in part, reversed and rendered 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 cervical sprain/strain, lumbar sprain/strain, and right ankle sprain/strain; the Texas Department of Insurance, Division of Workers’ Compensation (Division) initially appointed (Dr. G) as the designated doctor to address extent of injury, MMI, and IR; the Division then appointed (Dr. R) to address extent of injury; finally, the Division appointed (Dr. C) to address extent of injury, MMI, and IR; and the date of statutory MMI is February 24, 2020. Although the ALJ did not incorporate it into the decision, we note that the parties additionally stipulated on the record that the claimant reached MMI on February 17, 2020, with a 10% IR. The claimant, who was a training supervisor for (employer), was injured on (date of injury), while trying to clear a jam of boxes in a chute. The claimant climbed up the chute and released the jammed boxes which then fell on her. She proceeded to flip onto her back and slide down the chute with her arms outstretched. Her boots got stuck in the conveyor belt and boxes continued to fall on her until she was able to free herself. We note that Carrier’s Exhibit E was withdrawn by the carrier during the CCH but was not omitted in the Evidence Presented section of the decision.

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 of (date of injury), does not extend to central and left-sided disc herniation at C4-5, bilateral tarsal tunnel syndrome, C6 radiculopathy, bilateral cervical radiculopathy left greater than right at C6, or bilateral plantar fibromatosis is supported by sufficient evidence and is affirmed.

The extent-of-injury issue reported in the Benefit Review Conference Report is as follows:

Does the compensable injury of (date of injury), extend to central and left sided disc herniation at C4-5, central and right sided disc herniation at C5-6, facet arthropathy at L4-5, central herniation with posterior annular tear at L5-S1, bilateral legs radiculopathy, bilateral arms radiculopathy, bilateral plantar fasciitis, lumbago with sciatica, neck pain, bilateral lower extremity paraesthesia, bilateral upper extremity paraesthesia, chronic progressive neuropathy bilateral upper extremity, chronic progressive neuropathy bilateral lower extremity, and narrowing of the spinal cervical canal?

At the CCH on March 16, 2022, the parties agreed on the record to modify the extent-of-injury issue as follows:

Does the compensable injury of (date of injury), extend to central and left-sided disc herniation at C4-5, central and right-sided disc herniation at C5-6, bilateral tarsal tunnel syndrome, C6 radiculopathy, bilateral cervical radiculopathy left greater than right at C6, and bilateral plantar fibromatosis?

In her decision and order, the ALJ mistakenly listed the second condition as central and left-sided disc herniation at C5-6. The parties did not agree to add or litigate the extent-of-injury condition of central and left-sided disc herniation at C5-6. The ALJ exceeded the scope of the disputed extent-of-injury issue before her. See Appeals Panel Decision (APD) 181285, decided July 26, 2018. Accordingly, we reverse the extent-of-injury determination and render a new decision by striking the condition of central and left-sided disc herniation at C5-6.

Additionally, the ALJ failed to make a determination on the certified condition of central and right-sided disc herniation at C5-6 which was a disputed condition before her to determine. Accordingly, we reverse the extent-of-injury issue as being incomplete and remand to the ALJ to decide whether or not the compensable injury of (date of injury), extends to central and right-sided disc herniation at C5-6.

MMI/IR

Section 410.166 and 28 Tex. Admin. Code § 147.4(c) (Rule 147.4(c)) provide, in part, that an oral agreement of the parties that is preserved in the record is final and binding on the date made. As noted above, the parties stipulated at the March 16, 2022, CCH that the claimant reached MMI on February 17, 2020, with a 10% IR in accordance with the certifications of Dr. C. Under the facts of this case, the ALJ’s determination that the claimant reached MMI on February 17, 2020, with a 10% IR is supported by sufficient evidence and is affirmed.

SUMMARY  

We affirm that portion of the ALJ’s extent-of injury determination that the compensable injury of (date of injury), does not extend to central and left-sided disc herniation at C4-5, bilateral tarsal tunnel syndrome, C6 radiculopathy, bilateral cervical radiculopathy left greater than right at C6, or bilateral plantar fibromatosis.

We reverse that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to central and left-sided disc herniation at C5-6 as exceeding the scope of the extent-of-injury issue and render a new decision by striking the ALJ’s determination that the compensable injury of (date of injury), does not extend to central and left-sided disc herniation at C5-6.

We reverse the ALJ’s extent-of-injury determination as being incomplete and remand to the ALJ to determine whether the compensable injury of (date of injury), extends to central and right-sided disc herniation at C5-6.

We affirm the ALJ’s determination that the claimant reached MMI on February 17, 2020, with a 10% IR.

REMAND INSTRUCTIONS  

On remand the ALJ is to make a determination of whether the compensable injury of (date of injury), extends to central and right-sided disc herniation at C5-6.

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 LM INSURANCE CORPORATION and the name and address of its registered agent for service of process is

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 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), does not extend to a left knee sprain or aggravation of left knee medial compartment osteoarthritis; (2) the respondent (claimant) reached maximum medical improvement (MMI) on September 18, 2020; (3) the claimant’s impairment rating (IR) is zero percent; (4) the claimant had good cause for failing to go to the required medical examination (RME) on August 26, 2021; and (5) the claimant is entitled to temporary income benefits (TIBs) from August 26, 2021, through the date of the CCH.

The appellant (carrier) appealed the ALJ’s determinations that the claimant had good cause for failing to go to the RME on August 26, 2021, and that the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH. The claimant responded, urging affirmance of those determinations. The ALJ’s extent of injury, MMI, and IR determinations were not appealed and have 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 in the form of at least a left knee contusion on (date of injury), and the statutory date of MMI is December 9, 2021. The claimant was injured on (date of injury), when she tripped over a hose and fell on her left leg.

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).  

The ALJ’s determination that the claimant had good cause for failing to go to the RME on August 26, 2021, is supported by sufficient evidence and is affirmed.

The carrier contends on appeal that the ALJ erred in determining the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH because the claimant reached MMI on September 18, 2020.  Section 408.101(a) provides that an employee is entitled to TIBs if the employee has a disability and has not attained MMI.  Section 408.102(a) provides TIBs continue until the employee reaches MMI.  As previously noted, the ALJ’s determination that the claimant reached MMI on September 18, 2020, was not appealed and has become final. Accordingly, it was error for the ALJ to determine that the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH. See Appeals Panel Decision 181731, decided September 10, 2018. We therefore reverse the ALJ’s determination that the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH, and render a new decision that the claimant is not entitled to TIBs from August 26, 2021, through the date of the CCH, because she was determined to have reached MMI on September 18, 2020.

SUMMARY

We affirm the ALJ’s determination that the claimant had good cause for failing to go to the RME on August 26, 2021.

We reverse the ALJ’s determination that the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH, and render a new decision that the claimant is not entitled to TIBs from August 26, 2021, through the date of the CCH.

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

CORPORATION SERVICE COMPANY d/b/a CSC-LAWYERS
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 March 17, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to a left foot fracture or left ankle tendinitis; (2) the appellant (claimant) reached maximum medical improvement (MMI) on December 16, 2020; (3) the claimant’s impairment rating (IR) is two percent; and (4) the first certification of MMI and assigned IR from (Dr. P) on February 4, 2021, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12). The claimant appealed the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded to the claimant’s appeal, urging affirmance of the ALJ’s determinations.  

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. P on February 4, 2021, did not become final under Section 408.123 and Rule 130.12 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: (1) on (date of injury), the claimant sustained a compensable injury; (2) the compensable injury of (date of injury), extends to a left foot sprain and left ankle sprain; and (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) properly appointed Dr. P as designated doctor to determine MMI, IR, and extent of injury. The claimant testified that she was injured on (date of injury), while working as a patient care assistant and twisted her foot while walking into a building from a parking garage. We note that in his decision, the ALJ stated that the carrier was represented by (attorney) at the March 17, 2022, CCH. However, the record indicates that (attorney) appeared to represent the carrier at the March 17, 2022, CCH. We also note that the ALJ mistakenly stated in Stipulation 1.C. that the employer is self-insured with the carrier; however, the employer is not self-insured.

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 left foot fracture or left ankle tendinitis is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on December 16, 2020, 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. 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 December 16, 2020, with a two percent IR in accordance with the certification of Dr. P, the designated doctor. Dr. P examined the claimant on December 16, 2020, and in the adopted certification, assigned the two percent IR based on the compensable conditions of a left foot sprain and a left ankle sprain. Using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides), Dr. P assessed two percent impairment based on range of motion (ROM) deficits in the left ankle and left hindfoot. There was a mistake in Dr. P’s left foot impairment calculation. Dr. P assigned impairment based on the following left ankle and hindfoot measurements: flexion 45°; extension 52°; inversion 20°; and eversion 30°. According to Tables 42 and 43 on page 3/78 of the AMA Guides, the claimant’s ROM measurements of flexion, extension and eversion result in zero percent impairment. However, according to Table 43 on page 3/78, 20° of inversion results in a one percent whole person impairment (WPI), instead of a two percent WPI as certified by Dr. P.

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See Appeals Panel Decision (APD) 171766, decided September 7, 2017; APD 172488, decided December 18, 2017; APD 152464, decided February 17, 2016; APD 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011.

The ALJ found that the preponderance of the other medical evidence is not contrary to the certification of Dr. P. After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is two percent, and we render a new decision that the claimant’s IR is one percent, as mathematically corrected.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a left foot fracture or left ankle tendinitis.

We affirm the ALJ’s determination that the claimant reached MMI on December 16, 2020.

We reverse the ALJ’s determination that the claimant’s IR is two percent, and we render a new decision that the claimant’s IR is one percent, as mathematically corrected.

The true corporate name of the insurance carrier is SAFETY NATIONAL CASUALTY CORPORATION 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 February 17, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to an unspecified sprain of right shoulder joint; unspecified sprain of right elbow; lesion of radial nerve, right upper limb; lesion of ulnar nerve, right upper limb; unspecified disorder of synovium or tendon, right forearm; or radial styloid tenosynovitis de Quervain, right wrist; and (2) the appellant’s (claimant) impairment rating (IR) is 9%. The claimant appealed the ALJ’s determinations of extent of injury 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 rendered in part.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury; (2) the carrier has accepted a compensable injury in the form of a right hand puncture with foreign body; right hand extensor tendon injury; right radial sensory nerve injury; laceration of extensor tendon of right forearm; and instability of right wrist joint; (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. Y) as designated doctor to determine the issues of extent of injury, maximum medical improvement (MMI), and IR; and (4) the claimant reached MMI on July 15, 2021, as certified by Dr. Y and treating doctor referral, (Dr. K). The claimant testified that he was injured on (date of injury), while working as a diesel mechanic. A co-worker was swinging a sledgehammer when a piece of it broke off and punctured the claimant’s right hand.

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 an unspecified sprain of right shoulder joint; unspecified sprain of right elbow; lesion of radial nerve, right upper limb; lesion of ulnar nerve, right upper limb; unspecified disorder of synovium or tendon, right forearm; or radial styloid tenosynovitis de Quervain, right wrist 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.  

As stated above, the parties stipulated that the claimant reached MMI on July 15, 2021. The ALJ determined that the claimant’s IR is 9% in accordance with the certification of Dr. Y, the designated doctor. Dr. Y examined the claimant on July 28, 2021, and assigned the 9% IR based on the compensable conditions of a right hand puncture with foreign body; right hand extensor tendon injury; right radial sensory nerve injury; laceration of extensor tendon of right forearm; and instability of right wrist joint. 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. Y assessed a 0% impairment for right hand puncture with foreign body. He assigned an 11% upper extremity (UE) impairment for the claimant’s right hand extensor tendon injury and instability of the right wrist joint based on deficits in the claimant’s right wrist range of motion (ROM). Dr. Y then assigned 3% UE impairment for the right radial sensory nerve injury. Finally, Dr. Y assigned 1% UE impairment for the laceration of the extensor tendon of the right forearm based on ROM deficits in the claimant’s right elbow based on the following ROM measurements: flexion 130°; extension 0°; pronation 60°; and supination 90°. Dr. Y then combined the 11% UE impairment, 3% UE impairment, and 1% UE impairment for a total 15% UE impairment. Dr. Y then converted the 15% UE impairment to 9% whole person impairment (WPI).

However, there was a mistake in Dr. Y’s right elbow calculation. According to Figures 32 and 35 on pages 3/40 and 3/41, respectively, of the AMA Guides, flexion of 130° results in 1% UE impairment; extension of 0° results in 0% UE impairment; pronation of 60° results in 1% UE impairment; and supination of 90° results in 0% UE impairment. Adding these figures results in 2% UE impairment for the right elbow, not 1% UE impairment as indicated by Dr. Y. Combining 11% UE impairment, 3% UE impairment, and 2% UE impairment results in a total 16% UE impairment. Using Table 3 on page 3/20 of the AMA Guides, 16% UE impairment converts to a WPI of 10%, not 9% as certified by Dr. Y.

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See Appeals Panel Decision (APD) 171766, decided September 7, 2017; APD 172488, decided December 18, 2017; APD 152464, decided February 17, 2016; APD 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011.

The ALJ found that the preponderance of the other medical evidence is not contrary to the certification of IR by Dr. Y. After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 9%, and we render a new decision that the claimant’s IR is 10% as mathematically corrected.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to an unspecified sprain of right shoulder joint; unspecified sprain of right elbow; lesion of radial nerve, right upper limb; lesion of ulnar nerve, right upper limb; unspecified disorder of synovium or tendon, right forearm; or radial styloid tenosynovitis de Quervain, right wrist.

We reverse the ALJ’s determination that the claimant’s IR is 9%, and we render a new decision that the claimant’s IR is 10% as mathematically corrected.

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 9, 2022, with the record closing on March 11, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to a lumbar sprain; (2) the compensable injury of (date of injury), does not extend to lumbar radiculopathy or lumbar disc herniation at L4-5; (3) the appellant (claimant) had disability from March 27, 2020, through October 14, 2021, resulting from an injury sustained on (date of injury); (4) the claimant reached maximum medical improvement (MMI) on March 26, 2020; and (5) the claimant’s impairment rating (IR) is zero percent.

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

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. F) as designated doctor to address MMI and IR and that the carrier has accepted liability for a lumbar strain. The claimant testified he was injured on (date of injury), while he and a co-worker were pulling a hose along with another co-worker.

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

The extent-of-injury issue contained in the Benefit Review Conference Report lists the following condition at issue: lumbar sprain. Both parties agreed at the CCH that a lumbar sprain was a part of the extent-of-injury issue to be resolved.

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.  28 Tex. Admin. Code § 142.16 (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 ALJ states in Conclusion of Law No. 3, the summary on page one, and the Decision portion of the decision and order that the compensable injury of (date of injury), extends to a lumbar sprain.  However, the ALJ made no findings of fact whether the compensable injury extends to a lumbar sprain.  Because the ALJ’s decision contains no findings of fact regarding whether the compensable injury of (date of injury), extends to a lumbar sprain, which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16.  We reverse the ALJ’s determination that the compensable injury of (date of injury), extends to a lumbar sprain as being incomplete, and we remand the issue of whether the compensable injury of (date of injury), extends to a lumbar sprain. See Appeals Panel Decision (APD) 132339, decided December 12, 2013.  

DISABILITY

Because we have reversed and remanded a portion of the extent-of-injury determination, we also reverse the ALJ’s determination that the claimant had disability as a result of the compensable injury sustained on (date of injury), from March 27, 2020, through October 14, 2021, and remand the disability issue to the ALJ for further action consistent with this decision.    

MMI/IR

Given that we have reversed a portion of the ALJ’s extent-of-injury determination and remanded that issue to the ALJ to make a determination consistent with this decision, we reverse the ALJ’s determination that the claimant reached MMI on March 26, 2020, and that the claimant’s IR is zero percent, and we remand the issues of MMI and IR to the ALJ to make a determination consistent with this decision.    

SUMMARY

We affirm that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to lumbar radiculopathy or a lumbar disc herniation at L4-5.

We reverse that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), extends to a lumbar sprain and we remand the issue of whether the compensable injury of (date of injury), extends to a lumbar sprain for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant had disability as a result of the compensable injury sustained on (date of injury), from March 27, 2020, through October 14, 2021, and remand the disability issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant reached MMI on March 26, 2020, and remand the MMI issue to the ALJ for further action consistent with this decision.

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

REMAND INSTRUCTIONS

On remand the ALJ is to consider all of the evidence, make findings of fact, and render conclusions of law and a decision regarding the issues of whether the compensable injury of (date of injury), extends to a lumbar sprain; the claimant’s date of MMI, and the claimant’s IR; and whether the claimant had disability from March 27, 2020, through October 14, 2021, resulting from an injury sustained on (date of injury).

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 ACE AMERICAN INSURANCE COMPANY 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 March 1, 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 radiculopathy of C7 or right biceps tendinosis; and (2) the appellant’s (claimant) impairment rating (IR) is 8%. The claimant appealed the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the carrier has accepted liability for C6-7 disc herniation, right shoulder impingement, right shoulder strain, right distal biceps tendon rupture, left shoulder impingement, left shoulder strain, left pectoralis major tendon rupture, and C. difficile colitis, and that the claimant reached maximum medical improvement (MMI) on April 6, 2020. It is undisputed the claimant sustained a compensable injury on (date of injury), when he fell while trying to climb down into a screw lift machine.

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 radiculopathy of C7 or right biceps tendinosis 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.  

(Dr. A) was the designated doctor appointed by the Division to determine MMI and IR. Dr. A examined the claimant on October 15, 2020, and issued two Reports of Medical Evaluation (DWC-69s), both certifying an April 6, 2020, date of MMI and assigning a 22% IR. The ALJ correctly noted in her discussion that Dr. A included conditions that have been determined not to be compensable. Specifically, Dr. A’s certifications consider radiculopathy of C7 and right biceps tendinosis. The ALJ found that Dr. A’s certification is contrary to the preponderance of the other medical evidence because it is not based on the compensable injury. The ALJ’s finding is supported by sufficient evidence and is affirmed.

The ALJ determined the claimant’s IR is 8% as certified by (Dr. D), the post-designated doctor required medical examination doctor. Dr. D examined the claimant on February 26, 2021, and issued two DWC-69s on March 7, 2021. Both of Dr. D’s certifications certify an MMI date of April 6, 2020, with an 8% IR. Dr. D’s narrative report reflects that one of Dr. D’s certifications does not consider C. difficile colitis, which is a condition that is part of the compensable injury. However, the other certification does consider the entire compensable injury, and it is this certification that the ALJ adopted.

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. D placed the claimant in Diagnosis-Related Estimate (DRE) Category II: Minor Impairment for 5% impairment for the claimant’s cervical spine. Dr. D also assigned 2% whole person impairment (WPI) for the claimant’s right upper extremity (UE) and 1% WPI for the claimant’s left UE based on range of motion (ROM) deficits. Dr. D combined these impairments for a WPI of 8%. Although Dr. D’s 2% WPI for the claimant’s right UE was made in accordance with the AMA Guides, his 1% WPI for the claimant’s left UE was not.

Dr. D’s attached worksheet for the claimant’s left shoulder reflects he correctly assigned 1% impairment for 160° of flexion and 1% impairment for 150° of abduction, as well as 2% impairment for 50° of internal rotation as provided in Figures 38, 41, and 44 on pages 3/43, 3/44, and 3/45 of the AMA Guides, respectively. Dr. D’s worksheet also reflects that he added these impairments for 4% UE impairment, and then correctly converted the 4% UE impairment to 2% WPI as provided by Table 3 on page 3/20. However, Dr. D incorrectly stated in his narrative report that the claimant’s left shoulder resulted in 1% WPI, rather than 2% WPI as shown on his worksheet.

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR.  See Appeals Panel Decision (APD) 171766, decided September 7, 2017; APD 172488, decided December 18, 2017; APD 152464, decided February 17, 2016; APD 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011.

Combining 2% WPI for loss of ROM of the claimant’s right UE, with 2% WPI for loss of ROM of the claimant’s left UE results in 4% WPI. Combining 5% WPI for the claimant’s cervical spine and 4% WPI for the claimant’s right and left UE results in a 9% IR, not an 8% IR as certified by Dr. D. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 8%, and we render a new decision that the claimant’s IR is 9%, as mathematically corrected.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to radiculopathy of C7 or right biceps tendinosis.

We reverse the ALJ’s determination that the claimant’s IR is 8%, and we render a new decision that the claimant’s IR is 9%, as mathematically corrected.

The true corporate name of the insurance carrier is STARR INDEMNITY AND LIABILITY COMPANY and the name and address of its registered agent for service of process is

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 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 lesion of the saphenous and medial plantar cutaneous nerve, swelling of the left foot, ankle, or calf, or altered gait; (2) the date of maximum medical improvement (MMI) is December 19, 2019; (3) the appellant’s (claimant) impairment rating (IR) is zero percent; and (4) the claimant did not have disability from December 19, 2019, through the date of the CCH resulting from an injury sustained on (date of injury). The claimant appealed, disputing the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part, reversed by striking in part, and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the carrier has accepted a left foot puncture wound with foreign body as the compensable injury; and the statutory date of MMI is July 14, 2021. The claimant was injured on (date of injury), when a metal rod went through his left foot while working on a scaffold.

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 of (date of injury), does not extend to lesion of the saphenous and medial plantar cutaneous nerve, swelling of the left foot and ankle, or altered gait is supported by sufficient evidence and is affirmed.

At the CCH the ALJ stated the extent-of-injury issue as follows: does the compensable injury of (date of injury), extend to a lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, lesion of the saphenous nerve and medial plantar cutaneous nerve, swelling of the left foot/ankle, altered gait, and pain in the left foot? The parties agreed at the CCH that this was the correct extent-of-injury issue to be litigated. However, the ALJ made findings of fact, conclusions of law, and a decision regarding only lesion of the saphenous and medial plantar cutaneous nerve, swelling of the left foot and ankle, and altered gait. The ALJ did not make findings of fact, conclusions of law, or a decision regarding lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, and pain in the left foot.  

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.  28 Tex. Admin. Code § 142.16 (Rule 142.16) provides that a 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 ALJ failed to make findings of fact, conclusions of law, and a decision regarding the disputed conditions of lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, or pain in the left foot in this case and as required by Section 410.168 and Rule 142.16. See Appeals Panel Decision (APD) 132339, decided December 12, 2013; APD 150510, decided April 21, 2015; APD 162262, decided January 10, 2017; APD 181349, decided August 15, 2018; and APD 210332, decided May 3, 2021.  Accordingly, we reverse the ALJ’s decision as being incomplete and we remand the issue of whether the compensable injury extends to those conditions.

Additionally, we note the ALJ determined that the compensable injury does not extend to swelling of the left calf, which was not one of the disputed conditions agreed to by the parties at the CCH. We therefore reverse the ALJ’s decision by striking her determination that the compensable injury does not extend to swelling of the left calf as exceeding the scope of the extent-of-injury issue.

MMI/IR AND DISABILITY

We have reversed and remanded and reversed by striking portions of the ALJ’s extent-of-injury determination.  We therefore reverse the ALJ’s determinations that the claimant reached MMI on December 19, 2019, with a zero percent IR and that the claimant did not have disability from December 19, 2019, through the date of the CCH resulting from an injury sustained on (date of injury). We remand the issues of MMI, IR, and whether the claimant had disability from December 19, 2019, through the date of the CCH resulting from an injury sustained on (date of injury), to the ALJ for further action consistent with this decision.  

SUMMARY

We affirm that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to lesion of the saphenous and medial plantar cutaneous nerve, swelling of the left foot and ankle, or altered gait.

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 lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, and pain in the left foot for further action consistent with this decision.

We reverse and strike that portion of the ALJ’s determination that the compensable injury does not extend to swelling of the left calf as exceeding the scope of the extent-of-injury issue.

We reverse the ALJ’s determination that the claimant reached MMI on December 19, 2019, and we remand the issue of MMI to the ALJ for further action consistent with this decision.

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

We reverse the ALJ’s determination that the claimant did not have disability from December 19, 2019, through the date of the CCH resulting from an injury sustained on (date of injury), and we remand this issue to the ALJ 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 a lesion of the sciatic nerve lower limb, neuralgia and neuritis unspecified, traumatic arthropathy of the left ankle and foot, and pain in the left foot that is consistent and supported by the evidence.

The ALJ is then to determine when the claimant reached MMI and the claimant’s IR. The ALJ is also to determine whether the claimant had disability from December 19, 2019, through the date of the CCH resulting from an injury sustained on (date of injury). 

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

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

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 6, 2021, with the record closing on February 8, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to a right shoulder complete rotator cuff tear/rupture, right shoulder rotator cuff strain, or right shoulder bicipital tendinitis; (2) the appellant (claimant) reached maximum medical improvement (MMI) on January 22, 2021; and (3) the claimant’s impairment rating (IR) is six percent.

The claimant appealed, disputing the ALJ’s determinations of the extent of the compensable injury, as well as MMI and IR.  The respondent (carrier) responded, urging affirmance of the disputed issues.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury at least in the form of a right shoulder sprain and strain, right knee contusion, left knee contusion, and a contusion of the front wall of the thorax; and (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. C) as designated doctor to address MMI, IR, and the extent of the compensable injury. The claimant testified that he was injured on (date of injury), when he was walking by cardboard compactor machines and tripped on plastic. He fell forward, striking his chest and shoulder and landing on his knees.

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 of (date of injury), does not extend to a right shoulder complete rotator cuff tear/rupture and right shoulder bicipital tendinitis is supported by sufficient evidence and is affirmed.

At issue was also whether the compensable injury of (date of injury), includes a right shoulder rotator cuff strain. In her discussion the ALJ stated that although sprains and strains normally do not require expert medical evidence to establish causation, the disputed right rotator cuff strain would require expert medical evidence given the specific location being claimed. We disagree.  

The Texas courts have long established the general rule that “expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience” of the fact finder.  Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007).  The Appeals Panel has previously held that proof of causation must be established to a reasonable medical probability by expert evidence where the subject is so complex that a fact finder lacks the ability from common knowledge to find a causal connection.  Appeals Panel Decision (APD) 022301, decided October 23, 2002.  See also City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.—San Antonio 2009, no pet.) citing Guevara.    

However, where the subject is one where the fact finder has the ability from common knowledge to find a causal connection, expert evidence is not required to establish causation.  See APD 120383, decided April 20, 2012, where the Appeals Panel rejected the contention that a cervical strain requires expert medical evidence; APD 992946, decided February 14, 2000, where the Appeals Panel declined to hold expert medical evidence was required to prove a shoulder strain; and APD 952129, decided January 31, 1996, where the Appeals Panel declined to hold expert medical evidence was required to prove a back strain.  See also APD 130808, decided May 20, 2013, where the Appeals Panel held that Grade II cervical sprain/strain and Grade II lumbar sprain/strain do not require expert medical evidence. See also APD 170984, decided June 21, 2017, where the Appeals Panel declined to hold expert medical evidence was required to prove the compensability of a deltoid ligament sprain.

The ALJ is requiring expert evidence of causation with regard to the right shoulder rotator cuff strain to establish causation.  Although the ALJ could accept or reject in whole, or in part, the claimant’s testimony or other evidence, the ALJ is requiring a higher standard than is required under the law, as cited in this decision, to establish causation for the right shoulder rotator cuff strain. Accordingly, we reverse that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right shoulder rotator cuff strain and we remand that portion of the extent-of-injury issue to the ALJ to make a determination consistent with this decision.    

MMI/IR  

Given that we have reversed a portion of the ALJ’s extent-of-injury determination and remanded that issue to the ALJ to make a determination consistent with this decision, we reverse the ALJ’s determinations that the claimant reached MMI on January 22, 2021, and that the claimant’s IR is six percent, and we remand the issues of MMI and IR to the ALJ to make a determination consistent with this decision.  

SUMMARY  

We affirm that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to a right shoulder complete rotator cuff tear/rupture and right shoulder bicipital tendinitis.

We reverse that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right shoulder rotator cuff strain and we remand that portion of the extent-of-injury issue to the ALJ to make a determination consistent with this decision.  

We reverse the ALJ’s determinations that the claimant reached MMI on January 22, 2021, and that the claimant’s IR is six percent, and we remand the issues of MMI and IR to the ALJ to make a determination consistent with this decision.  

REMAND INSTRUCTIONS  

On remand the ALJ should analyze the evidence in the record using the correct standard to determine whether or not the claimant met his burden of proof to establish causation for the condition of a right shoulder rotator cuff strain.  

Dr. C is the designated doctor.  If a new certification of MMI and IR is necessary in this case, the ALJ is to determine whether Dr. C is still qualified and available to be the designated doctor.  If Dr. C is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Division rules to determine MMI and the IR.    

The ALJ is to inform the designated doctor of the conditions that are part of the compensable injury of (date of injury), as stipulated to by the parties: right shoulder sprain and strain, right knee contusion, left knee contusion, and a contusion of the front wall of the thorax.  The ALJ is to inform the designated doctor that the compensable injury of (date of injury), does not include a right shoulder complete rotator cuff tear/rupture and right shoulder bicipital tendinitis.      

The parties are to be provided with the ALJ’s letter to the designated doctor, the designated doctor’s response, and to be allowed an opportunity to respond.  The ALJ is to make determinations which are supported by the evidence on extent of injury, MMI, and IR 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 NEW HAMPSHIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 9[1], 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to left shoulder bicipital tendinitis, lumbar disc displacement, right knee sprain, cervical spondylosis at C3-4, C4-5, C5-6, or C6-7, lumbar spondylosis at L5-S1, L5-S1 disc bulge, cervical disc bulges at C3-4 through C6-7, cervical stenosis at C4-5 or C5-6, thoracic sprain/strain, supraspinatus tendinosis, bilateral stenosis at C6-7, left shoulder spondylosis, or left shoulder sprain/strain; (2) the appellant (claimant) reached maximum medical improvement (MMI) on July 10, 2020; and (3) the claimant’s impairment rating (IR) is zero percent.

The claimant appealed, disputing the ALJ’s determinations of the extent of the compensable injury as well as MMI and IR.  The appeal file does not contain a response from the respondent (carrier).

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury; (2) the compensable injury of (date of injury), extends to a lumbar sprain and a cervical sprain; and (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. A) as designated doctor to address MMI, IR, and the extent of the compensable injury. The claimant testified he was injured on (date of injury), when he slipped and fell.

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 of (date of injury), does not extend to left shoulder bicipital tendinitis, lumbar disc displacement, right knee sprain, cervical spondylosis at C3-4, C4-5, C5-6, or C6-7, lumbar spondylosis at L5-S1, L5-S1 disc bulge, cervical disc bulges at C3-4 through C6-7, cervical stenosis at C4-5 or C5-6, supraspinatus tendinosis, bilateral stenosis at C6-7, left shoulder spondylosis, or left shoulder sprain/strain is supported by sufficient evidence and is affirmed.

At issue was also whether the compensable injury of (date of injury), includes a thoracic sprain/strain. In her discussion the ALJ stated that in this case the disputed conditions with the exception of the right knee sprain and left shoulder sprain/strain are sufficiently complex and require expert medical causation evidence to establish compensability.

The Texas courts have long established the general rule that “expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience” of the fact finder.  Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007).  The Appeals Panel has previously held that proof of causation must be established to a reasonable medical probability by expert evidence where the subject is so complex that a fact finder lacks the ability from common knowledge to find a causal connection.  Appeals Panel Decision (APD) 022301, decided October 23, 2002.  See also City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.—San Antonio 2009, no pet.) citing Guevara.    

However, where the subject is one where the fact finder has the ability from common knowledge to find a causal connection, expert evidence is not required to establish causation.  See APD 120383, decided April 20, 2012, where the Appeals Panel rejected the contention that a cervical strain requires expert medical evidence; APD 992946, decided February 14, 2000, where the Appeals Panel declined to hold expert medical evidence was required to prove a shoulder strain; and APD 952129, decided January 31, 1996, where the Appeals Panel declined to hold expert medical evidence was required to prove a back strain.  See also APD 130808, decided May 20, 2013, where the Appeals Panel held that Grade II cervical sprain/strain and Grade II lumbar sprain/strain do not require expert medical evidence. See also APD 130915, decided May 20, 2013; and APD 141478, decided September 11, 2014.

The ALJ is requiring expert evidence of causation with regard to the thoracic sprain/strain to establish causation.  Although the ALJ could accept or reject in whole or in part the claimant’s testimony or other evidence, the ALJ is requiring a higher standard than is required under the law, as cited in this decision, to establish causation for the thoracic sprain/strain. Accordingly, we reverse that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to a thoracic sprain/strain and we remand that portion of the extent-of-injury issue to the ALJ to make a determination consistent with this decision.    

MMI/IR  

Given that we have reversed a portion of the ALJ’s extent-of-injury determination and remanded that issue to the ALJ to make a determination consistent with this decision, we reverse the ALJ’s determinations that the claimant reached MMI on July 10, 2020, and that the claimant’s IR is zero percent, and we remand the issues of MMI and IR to the ALJ to make a determination consistent with this decision.  

SUMMARY  

We affirm that portion of the ALJ’s extent-of-injury determination that the compensable injury of (date of injury), does not extend to left shoulder bicipital tendinitis, lumbar disc displacement, right knee sprain, cervical spondylosis at C3-4, C4-5, C5-6, or C6-7, lumbar spondylosis at L5-S1, L5-S1 disc bulge, cervical disc bulges at C3-4 through C6-7, cervical stenosis at C4-5 or C5-6, supraspinatus tendinosis, bilateral stenosis at C6-7, left shoulder spondylosis, or left shoulder sprain/strain.

We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to a thoracic sprain/strain and we remand that portion of the extent-of-injury issue to the ALJ to make a determination consistent with this decision.  

We reverse the ALJ’s determinations that the claimant reached MMI on July 10, 2020, and the claimant’s IR is zero percent, and we remand the issues of MMI and IR to the ALJ to make a determination consistent with this decision.  

REMAND INSTRUCTIONS  

On remand the ALJ should analyze the evidence in the record using the correct standard to determine whether or not the claimant met his burden of proof to establish causation for the condition of thoracic sprain/strain.  

Dr. A is the designated doctor.  If a new certification of MMI and IR is necessary in this case, the ALJ is to determine whether Dr. A is still qualified and available to be the designated doctor. If Dr. A is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Division rules to determine MMI and IR. The ALJ is to inform the designated doctor that the compensable injury extends to a lumbar sprain and a cervical sprain, but it does not extend to left shoulder bicipital tendinitis, lumbar disc displacement, right knee sprain, cervical spondylosis at C3-4, C4-5, C5-6, or C6-7, lumbar spondylosis at L5-S1, L5-S1 disc bulge, cervical disc bulges at C3-4 through C6-7, cervical stenosis at C4-5 or C5-6, supraspinatus tendinosis, bilateral stenosis at C6-7, left shoulder spondylosis, or left shoulder sprain/strain. The parties are to be provided with the ALJ’s letter to the designated doctor, the designated doctor’s response, and allowed an opportunity to respond.  The ALJ is to make determinations which are supported by the evidence on extent of injury, 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 HARTFORD CASUALTY INSURANCE COMPANY 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

  1. The ALJ erroneously indicates in the decision that the CCH was held on February 8, 2022.

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 January 26, 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), does not extend to complex regional pain syndrome; (2) the date of maximum medical improvement (MMI) is December 14, 2020; and (3) the respondent/cross-appellant’s (claimant) impairment rating (IR) is 15%. The appellant/cross-respondent (self-insured) appealed the ALJ’s MMI and IR determinations. The appeal does not contain a response from the claimant to the self-insured’s appeal. The claimant cross-appealed the ALJ’s extent-of-injury determination. The self-insured responded, urging affirmance of the appealed determination.

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 at least a dog bite wound with nerve damage to the sensory nerves on the dorsum of the right hand and right hand laceration with puncture wound; the date of statutory MMI is January 18, 2021; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. H) as the initial designated doctor to determine MMI, IR, and extent of injury; and the Division appointed (Dr. W) as the successor designated doctor to determine the issues of MMI, IR, and extent of injury. The claimant was injured on (date of injury), when he was bitten on his right hand by a Pit Bull while attempting to read a water meter.

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 complex regional pain syndrome is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the date of MMI is December 14, 2020, 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 the claimant’s IR is 15% as certified by Dr. H, the initial designated doctor appointed by the Division to determine MMI and IR. Dr. H examined the claimant on December 14, 2020, and certified that the claimant reached MMI on December 14, 2020, considering the compensable injury of a dog bite wound with nerve damage to the sensory nerves on the dorsum of the right hand and right hand laceration with puncture wound. 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. H assigned a 15% IR. Dr. H explained in his narrative report that the 15% IR is comprised of the following: 5% upper extremity (UE) impairment for loss of range of motion (ROM) of the right hand, 3% UE impairment for loss of ROM of the right wrist, 4% UE impairment for sensory loss, and 10% whole person impairment (WPI) for skin disorders. Dr. H’s 5% UE impairment for the right hand, 4% UE impairment for sensory loss, and 10% WPI for skin disorders were all made in accordance with the AMA Guides. However, Dr. H’s 3% UE impairment for loss of ROM of the right wrist was not.

Dr. H’s narrative report listed the following regarding the claimant’s right wrist:

Range of Motion:
Wrist:
Flexion 58°
Extension 47°
Supination 54°
Pronation 84°
Ulnar deviation 42°
Radial deviation 38°

Using Figure 26 on page 3/36 of the AMA Guides and Figure 29 on page 3/38 of the AMA Guides, Dr. H assigned the following UE impairments for the claimant’s right wrist based on loss of ROM: 0% impairment for 58° of flexion, 2% impairment for 47° of extension, 0% impairment for 42° of ulnar deviation, and 0% impairment for 38° of radial deviation. Dr. H also assigned 1% impairment for 54° of supination and 0% impairment for 84° of pronation using Figure 35 [UE] Impairments Due to Lack of Pronation and Supination on page 3/41. Page 3/38 of the AMA Guides provides the following:

Determining Impairments Due to Abnormal Motion of the Wrist Joint

1. Determine the impairments of the [UE] contributed by abnormal wrist motions relating to flexion and extension and to radial and ulnar deviation.

Impairments of pronation and supination are ascribed to the elbow, because the major muscles for this function are inserted about the elbow.

2. Because the relative value of each wrist functional unit has been taken into consideration in the impairment charts, impairments of flexion and extension and of radial and ulnar deviation are added (emphasis in original) to determine the impairment of the [UE].

3. Use Table 3 [on page 3/20] to relate impairment of the [UE] to impairment of the whole person. 

Dr. H included UE impairments for ROM of supination and pronation under Figure 35 on page 3/41; however, as discussed above, impairments for supination and pronation are for the elbow, not the wrist. Dr. H did not identify or discuss elbow ROM measurements in his report. It is unclear why Dr. H assigned UE impairments for supination and pronation under Figure 35.

Dr. H combined 5% UE impairment for ROM deficits of the right hand with 3% UE impairment for ROM deficits of the right wrist, which included impairment for supination as explained above, with 4% UE impairment for sensory loss for a total UE impairment of 12%. Using Table 3 on page 3/20, Dr. H converted 12% UE impairment to 5% WPI. However, we note Table 3 provides that 12% UE impairment converts to 7% WPI. Dr. H then combined 5% WPI with 10% WPI based on skin disorders for a total 15% IR. Dr. H’s 15% IR does not comply with the AMA Guides; therefore, we reverse the ALJ’s determination that the claimant’ IR is 15%.

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR.  See Appeals Panel Decision (APD) 171766, decided September 7, 2017; APD 152464, decided February 17, 2016; 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, in the case on appeal, Dr. H assigned impairment for the claimant’s right wrist using ROM measurements taken for supination and pronation, which are not appropriate ROM measurements for the wrist. As such, we do not believe a mathematical correction is appropriate in this case.

There is no other certification in evidence certifying an MMI date of December 14, 2020. Accordingly, we remand the issue of IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to complex regional pain syndrome.

We affirm the ALJ’s determination that the date of MMI is December 14, 2020.

We reverse the ALJ’s determination that the claimant’s IR is 15%, and we remand the issue of IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. W is the most recently appointed 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, 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 in this case is a dog bite wound with nerve damage to the sensory nerves on the dorsum of the right hand and right hand laceration with puncture wound, and that the date of MMI is December 14, 2020. The ALJ is to request the designated doctor to rate the entire compensable injury and assign an IR in accordance with Rule 130.1(c)(3) based on the claimant’s condition as of the MMI date of December 14, 2020, considering the medical records, the certifying examination, and rating criteria in the AMA Guides.  

The parties are to be provided with the ALJ’s letter of clarification to Dr. W or Presiding Officer’s Directive to Order Designated Doctor Examination if another designated doctor is assigned, as well as the designated doctor’s report.  The ALJ is to give the parties an opportunity to respond prior to closing the record and issuing a 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 (a self-insured governmental entity) and the name and address of its registered agent for service of process is

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

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