Extent of Injury Archives

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 15, 2023, 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 shoulder superior labrum anterior to posterior (SLAP) tear, right para-labral cyst, right shoulder joint effusion, right adhesive capsulitis, right shoulder impingement syndrome, or right bicep tenodesis; (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 7, 2023; and (3) the claimant’s impairment rating (IR) is two percent. The claimant appealed the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (self-insured) responded, urging affirmance of the disputed determinations.

DECISION

Affirmed as reformed.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury that extends to at least a strain of the long head of the biceps right shoulder, right shoulder strain/partial thickness tear of the supraspinatus tendon, low grade sprain of the coracoclavicular ligament, strain of sternocleidomastoid, and part of the right side of trapezium muscles on the right side of neck; (2) for the purposes of this hearing, a strain of the long head of the biceps right shoulder is the same condition as a right shoulder biceps strain; a right shoulder strain/partial thickness tear of the supraspinatus tendon is the same condition as a supraspinatus strain; a low grade sprain of the coracoclavicular ligament is the same condition as a right shoulder sprain; and a strain of sternocleidomastoid and part of the right side of trapezium muscles on the right side of neck is the same condition as a cervical strain; and (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. C) as designated doctor to address MMI and IR. The claimant was injured on (date of injury), while working as a special education teacher when a student she was attempting to control threw himself to the ground, jerking her right arm downwards.

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 shoulder SLAP tear, right para-labral cyst, right shoulder joint effusion, right adhesive capsulitis, right shoulder impingement syndrome, or right bicep tenodesis is supported by sufficient evidence and is affirmed.

MMI AND IR

The ALJ determined the claimant reached MMI on February 7, 2023, with a two percent IR. The ALJ’s determinations are supported by sufficient evidence and are affirmed. However, a decision is being written to address mistakes made by the ALJ in her discussion.

In her discussion of the evidence, the ALJ noted “[t]he designated doctor, (Dr. Cl)] was not asked to opine on the extent of injury.” However, as stated previously, the parties stipulated, and the evidence reflects, that the designated doctor in this case is Dr. C, not Dr. Cl. The ALJ also states that Dr. Cl persuasively explained that the claimant reached MMI on February 7, 2023, and correctly assigned an IR of two percent. The evidence reflects that there is no report from a doctor in evidence named Dr. Cl. Dr. C was the doctor who examined the claimant on February 7, 2023, and certified the claimant reached MMI on that date with a two percent IR. Therefore, we reform all references in the ALJ’s decision of Dr. Cl to Dr. C.

The ALJ found in Finding of Fact No. 4 that the preponderance of the other medical evidence is not contrary to the February 7, 2023, date of MMI and assigned IR of two percent as certified by Dr. Cl. After reforming the finding to state the certification was from Dr. C, not Dr. Cl, Finding of Fact No. 4 is supported by sufficient evidence and is affirmed. Accordingly, we affirm the ALJ’s determinations that the claimant reached MMI on February 7, 2023, and the IR is two percent.

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).

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). Contested case hearings were held in Tyler, Texas, on June 28, 2023, with (administrative law judge) presiding as the administrative law judge (ALJ) and on August 2, 2023, with (administrative law judge) presiding as the ALJ. The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to avascular necrosis of the femoral head, arthrofibrosis right hip, cerebral venous thrombosis, pulmonary embolus, and degenerative joint disease right hip; (2) the appellant (claimant) reached maximum medical improvement (MMI) on October 25, 2021; (3) the claimant’s impairment rating (IR) is 4%; and (4) none of the services provided by (medical facility) from June 29, 2022, through July 8, 2022, relate to the compensable injury. The claimant appealed, disputing all the ALJ’s determinations. Respondent 2 (carrier) responded, urging affirmance of the disputed determinations. The appeal file does not contain a response from respondent 1 (subclaimant).

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 that extends to at least an intertrochanteric fracture of the right femur; (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. S) as the designated doctor to address extent of injury, MMI, IR, and return to work; and (3) the date of statutory MMI is February 25, 2023. We note that although the parties stipulated to the correct date of statutory MMI on the record, the ALJ mistakenly wrote (date of injury), in Finding of Fact No. 1.G. We therefore reform Finding of Fact No. 1.G. to state that the date of statutory MMI is February 25, 2023, as stipulated on the record. We additionally note that although the ALJ indicated in his decision that the claimant affirmed that the claimant’s exhibits consisted of 251 pages, the record indicates that the claimant affirmed that there are 277 pages in the claimant’s exhibits. Therefore, we reform the Evidence Presented section of the decision to state that the claimant affirmed there are 277 pages of claimant’s exhibits. The claimant was injured on (date of injury), while working as a facility maintenance manager when he slipped and fell due to icy conditions.

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 avascular necrosis of the femoral head, arthrofibrosis right hip, cerebral venous thrombosis, pulmonary embolus, and degenerative joint disease right hip is supported by sufficient evidence and is affirmed.

RELATEDNESS OF MEDICAL SERVICES

The ALJ’s determination that none of the services provided by (medical facility) from June 29, 2022, through July 8, 2022, relate to the compensable injury is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on October 25, 2021, is supported by sufficient evidence and is affirmed.

IR

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

(A) identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;

(B) document specific laboratory or clinical findings of an impairment;

(D) compare the results of the analysis with the impairment criteria and provide the following:

(i) [a] description and explanation of specific clinical findings related to each impairment, including [0%][IRs]; and

(ii) [a] description of how the findings relate to and compare with the criteria described in the applicable chapter of the [Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides)]. The doctor’s inability to obtain required measurements must be explained.

The ALJ determined the claimant reached MMI on October 25, 2021, with a 4% IR in accordance with the certification of Dr. S, the designated doctor. Dr. S examined the claimant on December 6, 2022, and issued alternate certifications with the same MMI date and IR. In the first certification, which was adopted by the ALJ, Dr. S considered and rated the accepted condition of a right hip/femur fracture. Dr. S stated that ongoing treatment beyond October 25, 2021, would not have been expected to change the claimant’s condition. Regarding the IR, Dr. S noted that the claimant had decreased hip range of motion (ROM) at the time of Dr. S’s previous evaluation on October 12, 2021. Using Table 40 on page 3/78 of the AMA Guides, Dr. S stated the claimant had moderate ROM loss which resulted in 4% whole person IR. However, Dr. S did not include the ROM measurements from his previous exam, nor was the report from that exam in evidence. As Dr. S’s narrative does not document the clinical findings that were used to assess the claimant’s impairment, his narrative report does not comply with Rule 130.1(c)(3). See Appeals Panel Decision (APD) 211411, decided November 5, 2021; and APD 210361, decided April 30, 2021.

Dr. S’s second certification, which also certifies the claimant reached MMI on October 25, 2021, with a 4% IR, considers a right hip/femur fracture as well as the conditions of lumbar sprain/strain and hip sprain/strain. As this certification considers conditions that have not been determined to be compensable, this certification cannot be adopted. Therefore, we reverse the ALJ’s determination that the claimant’s IR is 4%. There are two other certifications in evidence which are from (Dr. H), a doctor selected by the treating doctor. Dr. H examined the claimant on March 1, 2023, and, in both certifications, certified that the claimant reached MMI on November 21, 2022, with a 20% IR. As we have affirmed the ALJ’s determination that the claimant reached MMI on October 25, 2021, Dr. H’s certifications cannot be adopted. Additionally, it is clear from Dr. H’s narrative report that he considered deep vein thrombosis and pulmonary embolism as part of the compensable injury in both certifications.

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

SUMMARY

We reform Finding of Fact No. 1.G. to state that the date of statutory MMI is February 25, 2023, as stipulated on the record.

We reform the Evidence Presented section of the decision to state that the claimant affirmed there are 277 pages of claimant’s exhibits.

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to avascular necrosis of the femoral head, arthrofibrosis right hip, cerebral venous thrombosis, pulmonary embolus, and degenerative joint disease right hip.

We affirm the ALJ’s determination that none of the services provided by (medical facility) from June 29, 2022, through July 8, 2022, relate to the compensable injury. We affirm the ALJ’s determination that the claimant reached MMI on October 25, 2021.

We reverse the ALJ’s determination that the claimant’s IR is 4% and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to advise the designated doctor that the claimant reached MMI on October 25, 2021, and request that the designated doctor rate the compensable injury, which is an intertrochanteric fracture of the right femur. The assignment of an IR is required to be based on the claimant’s condition as of the MMI date considering the medical record and the certifying examination and according to the rating criteria of the AMA Guides and the provisions of Rule 130.1(c)(3).

The parties are to be provided with the designated doctor’s new assignment of IR and are to be allowed an opportunity to respond. The ALJ is then to make a determination of 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 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.

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 July 12, 2023, with the record closing on July 14, 2023, 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), did not extend to visual disturbance or lumbar spine sprain; (2) the appellant (claimant) reached maximum medical improvement (MMI) on August 4, 2020; (3) the claimant’s impairment rating (IR) is zero percent; and (4) the claimant had disability resulting from an injury sustained on (date of injury), from June 16, 2020, through February 3, 2021, but not from February 4, 2021, through June 20, 2022. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, IR, and disability. The respondent (carrier) responded, urging affirmance. That portion of the ALJ’s disability determination that the claimant had disability resulting from the injury sustained on (date of injury), from June 16, 2020, through February 3, 2021, was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury that extends to at least a scalp laceration/contusion, concussion without loss of consciousness, cervical spine sprain/strain, and post-traumatic headaches; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. S) as the initial designated doctor to address the issues of MMI, IR, extent of injury, disability, and return to work; the Division appointed (Dr. B) as the most recent designated doctor to address the issues of MMI, IR, and return to work; the date of statutory MMI is June 20, 2022; and the claimant had disability resulting from the injury sustained on (date of injury), from June 16, 2020, through August 3, 2020. The claimant testified that he was injured on (date of injury), when a co-worker who was working about five feet above him dropped a metal object that hit the claimant on the back of his head.

EXTENT OF INJURY

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

DISABILITY

The ALJ’s determination that the claimant did not have disability resulting from an injury sustained on (date of injury), from February 4, 2021, through June 20, 2022, 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.

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. Rule 130.1(d)(1) states, in part, that a certification of MMI and assignment of an IR for the compensable injury “requires completion, signing, and submission of the Report of Medical Evaluation [DWC-69] and a narrative report.”

Dr. B examined the claimant on April 7, 2023, and certified that the claimant reached MMI on October 7, 2021, with a two percent IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). In his discussion of the MMI date, Dr. B noted the average recovery time for post-concussion syndrome, a condition that has not yet been determined to be part of the compensable injury. The ALJ found that the preponderance of the evidence was contrary to the certification from Dr. B. That finding is supported by sufficient evidence.

(Dr. Br), a carrier-selected required medical examination doctor, examined the claimant on June 30, 2022, and provided three alternate certifications. The ALJ found that the preponderance of the evidence supports the certification from Dr. Br that considered and rated the compensable injury and certified the claimant reached MMI on August 4, 2020, and assigned a zero percent IR. However, Dr. Br did not sign the DWC-69. As noted above, Rule 130.1(d)(1) provides that a certification of MMI and assignment of an IR for the compensable injury requires the “completion, signing, and submission of the [DWC-69] and a narrative report.” See Appeals Panel Decision (APD) 100510, decided June 24, 2010; APD 101734, decided January 27, 2011; and APD 230349, decided April 14, 2023. Because the DWC-69 was not signed by Dr. Br, it was error for the ALJ to adopt his certification. Consequently, we reverse the ALJ’s determinations that the claimant’s MMI date is August 4, 2020, and that the claimant’s IR is zero percent.

Dr. Br provided two other alternate certifications. We note that neither of the other certifications were signed and cannot be adopted. Additionally, the certification from Dr. Br identified as scenario 1 did not rate a cervical sprain or post-traumatic headaches which are conditions that are part of the compensable injury. The certification from Dr. Br identified as scenario 2 considered and rated a visual disturbance and lumbar sprain which have been determined not to be part of the compensable injury. See APD 140505, decided May 19, 2014.

Dr. S, the initial designated doctor, examined the claimant on October 15, 2020, and in three alternate scenarios certified that the claimant had not yet reached MMI. As noted above, the parties stipulated that the date of statutory MMI is June 20, 2022. The Appeals Panel has previously 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 172017, decided October 3, 2017; see also APD 200978, decided August 25, 2020.

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

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to visual disturbance or lumbar spine sprain.

We affirm the ALJ’s determination that the claimant did not have disability resulting from an injury sustained on (date of injury), from February 4, 2021, through June 20, 2022.

We reverse the ALJ’s determinations that the claimant’s MMI date is August 4, 2020, and that the claimant’s IR is zero percent, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a scalp laceration/contusion, concussion without loss of consciousness, cervical spine sprain/strain, and post-traumatic headaches but does not extend to visual disturbance or lumbar spine sprain. The ALJ is to request the designated doctor to give an opinion on the claimant’s MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination. The ALJ should inform the designated doctor that the date of MMI cannot be later than the statutory date of June 20, 2022.

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

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

ROBIN MILLER
5221 NORTH O’CONNOR BOULEVARD, SUITE 400
IRVING, TEXAS 75039-3711.

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 June 1, 2023, with the record closing on July 25, 2023, 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 post-concussion headaches, post-concussion vertigo, cervical sprain, thoracic sprain, or lumbar sprain; (2) the respondent (claimant) reached maximum medical improvement (MMI) on February 27, 2022; (3) the claimant’s impairment rating (IR) is 13%; and (4) the claimant had disability from June 14, 2020, through January 11, 2022, resulting from the compensable injury of (date of injury). The appellant (carrier) appeals the ALJ’s determination of disability, MMI, and IR. The appeal file does not contain a response from the claimant.

The ALJ’s determination that the compensable injury does not extend to post-concussion headaches, post-concussion vertigo, cervical sprain, thoracic sprain, or lumbar sprain was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The carrier confirmed at the CCH that it accepted a right middle finger fracture, distal interphalangeal (DIP) dislocations of the right third and fourth digits, left wrist fracture, right wrist fracture, sprain of the right shoulder, lower lip laceration, and chipping of tooth number 8 as the compensable injury and that the date of statutory MMI is February 27, 2022. The medical records reflect that the claimant was injured on (date of injury), when he fell from a ladder while painting. We note that the carrier information sheet provided to the claimant with the 10-day letter that was sent because he failed to attend the CCH contained an incorrect name of the registered agent. The correct name of the registered agent is included in the decision and order.

DISABILITY

The ALJ’s determination that the claimant had disability from June 14, 2020, through January 11, 2022, resulting from the compensable injury of (date of injury), is supported by sufficient evidence and is affirmed.

The carrier argues on appeal that the ALJ erroneously admitted a report from (Dr. C), the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) on the issues of disability and return to work. However, a review of the record reflects that the ALJ stated on the record of the CCH that she would obtain a report from Dr. C and admit the report as an ALJ exhibit. The ALJ asked whether the carrier had any objection and the carrier’s attorney responded that he had no objection.

MMI/IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, 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 record indicates that the designated doctor appointed on the issues of MMI, IR, and extent of injury, (Dr. Co), examined the claimant on March 19, 2022, and in three scenarios certified that the claimant had not yet reached MMI. A Presiding Officer’s Directive to Order Designated Doctor Exam (POD) was sent to Dr. Co to request that he re-examine the claimant because the parties agreed that the date of statutory MMI is February 27, 2022. Dr. Co examined the claimant again on July 23, 2022. Dr. Co provided two certifications of MMI/IR. In the first certification, Dr. Co certified that the claimant reached MMI on February 27, 2022, and assessed a 19% 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). Dr. Co considered and rated the following conditions: right middle finger fracture, left wrist fracture, right wrist fracture, chipping of tooth number 8, post-concussion headaches, post-concussion vertigo, thoracic sprain, lumbar sprain, and right shoulder sprain. This certification cannot be adopted because it considers and rates conditions that have been determined not to be part of the compensable injury and fails to consider DIP dislocations of the right third and fourth digits, and a lower lip laceration, which have been determined to be part of the compensable injury.

In the second scenario, Dr. Co certified that the claimant reached MMI on February 27, 2022, and assessed a 10% IR using the AMA Guides. Dr. Co considered and rated the following conditions: right middle finger fracture, left wrist fracture, right wrist fracture, and chipping of tooth number 8. This certification cannot be adopted because it fails to consider a right shoulder sprain, DIP dislocations of the right third and fourth digits, and a lower lip laceration, which have been determined to be part of the compensable injury.

On July 6, 2023, a letter of clarification (LOC) was sent to Dr. Co to inform him that it has been administratively determined that the claimant’s compensable injury of (date of injury), consists of: right middle finger fracture, DIP dislocations of the right third and fourth digits, left wrist fracture, right wrist fracture, sprain of the right shoulder, lower lip laceration, and chipping of tooth number 8. The LOC requested that Dr. Co determine when the claimant reached MMI for the named conditions and calculate his IR. Dr. Co responded in correspondence dated July 15, 2023, and certified that the claimant reached MMI on February 27, 2022, and assessed a 13% IR using the AMA Guides. Dr. Co considered and rated the following conditions: right middle finger fracture, DIP dislocation of the right third and fourth digits, left wrist fracture, right wrist fracture, right shoulder sprain, and chipping of tooth number 8. However, in the amended certification, Dr. Co failed to consider and rate a lower lip laceration which is part of the compensable injury. Additionally, we note that in assessing impairment for the claimant’s right wrist range of motion (ROM) deficits, Dr. Co failed to round the radial deviation measurements to the nearest 10° as required by the AMA Guides. See Appeals Panel Decision (APD) 022504-s, decided November 12, 2002; and APD 111384, decided November 23, 2011. Page 3/37 of the AMA Guides instructs that in measuring radial and ulnar deviation readings “[r]ound the figures to the nearest 10°.” Radial deviation of 15° should either be rounded up to 20° for 0% upper extremity (UE) impairment, or down to 10° for 2% UE impairment. Accordingly, the amended certification from Dr. Co cannot be adopted. We reverse the ALJ’s determinations that the claimant reached MMI on February 27, 2022, and that the claimant’s IR is 13%.

The only other certifications in evidence are from the carrier-selected required medical examination doctor, (Dr. M). Dr. M examined the claimant on September 22, 2022. Dr. M provided three scenarios. In the first scenario, Dr. M certified that the claimant reached MMI on February 27, 2022, and assessed 0% impairment. In that scenario, Dr. M considered and rated the following conditions: right middle finger fracture, left wrist fracture, right wrist fracture, and chipping of tooth number 8. This certification could not be adopted because it does not consider the entire compensable injury.

In the second scenario, Dr. M certified that the claimant reached statutory MMI on February 27, 2022, and certified a 12% IR. Dr. M considered and rated the following conditions: right middle finger fracture, left wrist fracture, right wrist fracture, chipping of tooth number 8, post-concussion headaches, post-concussion vertigo, thoracic sprain, lumbar sprain, and right shoulder sprain. This certification cannot be adopted because Dr. M fails to rate and consider the entire compensable injury and rates conditions that have been determined not to be part of the compensable injury.

In the third scenario, Dr. M certified that the claimant reached MMI on February 27, 2022, and assessed a 2% IR. Dr. M considered and rated a right middle finger fracture, DIP dislocations of the right third and fourth digits, a left wrist fracture, a right wrist fracture, a right shoulder sprain, lower lip laceration, and chipping of tooth number 8. Dr. M notes that the claimant recovered full ROM of both wrists and hands. Dr. M further stated that the claimant’s lip laceration had healed well and did not qualify for impairment and that there was no applicable impairment for his dental injury since it did not lead to any difficulty with speech or dietary limitations. Dr. M assessed 4% UE impairment for loss of ROM of the right shoulder, which converts to 2% whole person impairment. Dr. M provided ROM measurements of the claimant’s right shoulder; however, Dr. M did not use those measurements in assigning impairment for the claimant’s right shoulder. Dr. M stated in his narrative that he used ROM findings from the examination on March 14, 2022, and supplemented as needed by the designated doctor exam on July 23, 2022. Dr. M did not provide the claimant’s ROM measurements used to calculate the claimant’s IR in his narrative report. The ROM measurements that Dr. M used came, in part, from an examination report that was not in evidence. As such, we cannot determine what the correct ROM measurements are regarding the right shoulder and this certification cannot be adopted.

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

SUMMARY

We affirm the ALJ’s determination that the claimant had disability from June 14, 2020, through January 11, 2022, resulting from the compensable injury of (date of injury).

We reverse the ALJ’s determinations that the claimant reached MMI on February 27, 2022, and that the claimant’s IR is 13%, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. Co is the designated doctor in this case. On remand, the ALJ is to determine whether Dr. Co is still qualified and available to be the designated doctor. If Dr. Co is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to opine on the issues of MMI and 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 right middle finger fracture, DIP dislocations of the right third and fourth digits, left wrist fracture, right wrist fracture, right shoulder sprain, lower lip laceration, and chipping of tooth number 8. The ALJ is to inform the designated doctor that the compensable injury does not extend to post-concussion headaches, post-concussion vertigo, cervical sprain, thoracic sprain, or lumbar sprain. The ALJ is to inform the designated doctor that the date of MMI can be no later than the statutory date of February 27, 2022. The ALJ is then to request that the designated doctor certify an MMI date and assign an IR for the compensable injury based on the injured employee's condition as of the MMI date, considering the medical record and the certifying examination. The ALJ is to advise the designated doctor to round ROM figures as required by the AMA Guides and instruct the designated doctor to provide all measurements that were used to calculate the IR per Rule 130.1(c)(3). 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 POD, the designated doctor's report, and are to be allowed an opportunity to respond. The ALJ is to make a determination on MMI and IR which is supported by the evidence and consistent with this decision.

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

JEANETTE WARD, PRESIDENT & CEO
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 was held on July 19, 2023, with the record closing on July 26, 2023, 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 disc bulges at L3-4 or L4-5 or disc herniations at C4-5 or C6-7; (2) the appellant (claimant) reached maximum medical improvement (MMI) on August 25, 2022; and (3) the claimant’s impairment rating (IR) is six 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 as reformed.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. E) as designated doctor to address the issues of MMI and IR; and the statutory MMI date in this case is August 25, 2022. The claimant testified that he was injured on (date of injury), when the trailer of the truck he was driving jackknifed and hit the side of the cab of the truck.

The parties did not stipulate to the conditions that comprised the compensable injury. The ALJ found at Finding of Fact No. 5 that the carrier accepted a lower left leg strain, cervical sprain, cervical strain, a left knee medial meniscus tear, and a sprain of the left wrist as compensable. However, a review of the record reflects that the carrier also accepted a lumbar sprain and a lumbar strain. The ALJ confirmed on the record that the carrier accepted the following conditions: a lower left leg strain, cervical sprain, cervical strain, a lumbar sprain, a lumbar strain, a left knee medial meniscus tear, and a sprain of the left wrist. In Finding of Fact No. 5, the ALJ inadvertently left off the conditions of lumbar sprain and lumbar strain. We note the certification from the designated doctor adopted by the ALJ considered and rated a lumbar sprain and a lumbar strain. We reform Finding of Fact No. 5 to include the conditions of lumbar sprain and lumbar strain to conform to the evidence.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to disc bulges at L3-4 or L4-5 or disc herniations at C4-5 or C6-7 is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on August 25, 2022, is supported by sufficient evidence and is affirmed.

IR

The ALJ’s determination that the claimant’s IR is six percent is supported by sufficient evidence and is affirmed.

SUMMARY

We reform Finding of Fact No. 5 to read as follows: the insurance carrier has accepted a lower left leg strain, cervical sprain, cervical strain, left knee medial meniscus tear, a sprain of the left wrist, lumbar sprain, and lumbar strain as compensable.

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to disc bulges at L3-4 or L4-5 or disc herniations at C4-5 or C6-7.

We affirm the ALJ’s determination that the claimant reached MMI on August 25, 2022.

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

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.

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 March 9, 2023, with the record closing on June 20, 2023, 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 cervical sprain, cervical strain, thoracic sprain, thoracic strain, lumbar sprain, lumbar strain, left scapula fracture, left rotator cuff tear, large left renal subcapsular hematoma, right occipital condyle avulsion fracture, left 5 to 12 posterior rib fractures, fractures of the left transverse process fractures of T10 to T12, left L1 to L4 transverse process fractures, right L1, L3, and L4 transverse process fractures, bilateral transverse process fractures of L3 and L4, non-displaced fracture of the anterior superior end plates of L4 and L5, left pneumothorax, and anxiety; (2) the compensable injury of (date of injury), does not extend to post-traumatic stress disorder (PTSD); (3) the respondent (claimant) reached maximum medical improvement (MMI) on October 5, 2021; (4) the claimant’s impairment rating (IR) is 18%; and (5) the first certification of MMI and assigned IR from (Dr. S) on July 30, 2021, did not become final pursuant to Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12). The appellant (carrier) appeals the ALJ’s determinations of the extent-of-injury conditions favorable to the claimant, MMI, IR, and finality. The appeal file does not contain a response from the claimant to the carrier’s appeal. The ALJ’s determination that the compensable injury does not extend to PTSD 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), that includes at least a wedge compression fracture of the first lumbar vertebra; (Dr. K) was the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) on the issue of extent of injury; Dr. S was appointed by the Division on the issues of MMI and IR. We note that although it was inadvertently left out of the decision, a review of the record reflects the parties stipulated that the statutory date of MMI for this claim is August 11, 2022. The claimant testified that he was injured on (date of injury), when using a torch to cut metal to be loaded for recycling when a large piece of metal fell on him. The claimant testified that he was in the hospital for about a month.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), extends to a cervical sprain, cervical strain, thoracic sprain, thoracic strain, lumbar sprain, lumbar strain, left scapula fracture, left rotator cuff tear, large left renal subcapsular hematoma, right occipital condyle avulsion fracture, left 5 to 12 posterior rib fractures, fractures of the left transverse process fractures of T10 to T12, left L1 to L4 transverse process fractures, right L1, L3, and L4 transverse process fractures, bilateral transverse process fractures of L3 and L4, non-displaced fracture of the anterior superior end plates of L4 and L5, left pneumothorax, and anxiety is supported by sufficient evidence and is affirmed.

FINALITY

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. S on July 30, 2021, did not become final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

MMI/IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 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. S, the designated doctor for purposes of MMI and IR, examined the claimant on July 30, 2021, and certified that the claimant reached MMI on July 27, 2021, and assigned an IR of 14%. Dr. S considered and rated a wedge compression fracture of the first lumbar vertebra, a cervical sprain, cervical strain, thoracic sprain, thoracic strain, lumbar sprain, lumbar strain, and a left scapular fracture. As previously noted, the ALJ’s determination that the compensable injury of (date of injury), extends to a cervical sprain, cervical strain, thoracic sprain, thoracic strain, lumbar sprain, lumbar strain, left scapula fracture, left rotator cuff tear, large left renal subcapsular hematoma, right occipital condyle avulsion fracture, left 5 to 12 posterior rib fractures, fractures of the left transverse process fractures of T10 to T12, left L1 to L4 transverse process fractures, right L1, L3, and L4 transverse process fractures, bilateral transverse process fractures of L3 and L4, non-displaced fracture of the anterior superior end plates of L4 and L5, left pneumothorax, and anxiety has been affirmed. The certification from Dr. S did not consider and rate the entire compensable injury and could not be adopted.

In evidence is a response from Dr. S to a letter of clarification (LOC) sent to him requesting that he only address the compensable condition of a wedge compression fracture. Dr. S provided a new Report of Medical Evaluation (DWC-69) and certified that the claimant reached MMI on July 27, 2021, with a 10% IR considering only a wedge compression fracture of the first lumbar vertebra. This certification cannot be adopted because it did not consider and rate the entire compensable injury.

The ALJ correctly noted in her decision that there was no certification of MMI and assigned IR that rated the determined conditions. Therefore, the ALJ issued a Presiding Officer’s Directive to Order Designated Doctor Exam after the CCH. (Dr. Q) was appointed as designated doctor and examined the claimant on May 10, 2023. Dr. Q certified that the claimant reached MMI on October 5, 2021, and assigned an 18% 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). Dr. Q did not consider and rate a wedge compression fracture of the first lumbar vertebra, left 5 to 12 posterior rib fractures, left pneumothorax, or T10-12 transverse process fractures, so, the ALJ subsequently sent Dr. Q an LOC requesting that Dr. Q issue a certification of MMI/IR that includes the entire compensable injury.

Dr. Q responded to the LOC acknowledging that he inadvertently left off some of the conditions that were part of the compensable injury and submitted a corrected DWC-69. Dr. Q again certified that the claimant reached MMI on October 5, 2021, and assessed an 18% IR.

Dr. Q assigned 0% impairment for the left 5 to 12 posterior rib fractures and the left pneumothorax. Dr. Q assessed 4% whole person impairment for loss of range of motion of the left shoulder considering the left scapula fracture and left rotator cuff tear. Dr. Q noted that the large left renal subcapsular hematoma was completely healed. Dr. Q placed the claimant in Cervicothoracic Diagnosis-Related Estimate (DRE) Category I and assigned 0% impairment for the cervical spine considering the cervical sprain, cervical strain, and right occipital condyle avulsion fracture. Dr. Q placed the claimant in Thoracolumbar DRE Category II and assigned 5% impairment considering left transverse process fractures of T10 to T12, thoracic strain, and thoracic sprain. Dr. Q placed the claimant in Lumbosacral DRE Category III and assigned 10% considering a lumbar strain, lumbar sprain, a wedge compression fracture of L1, and bilateral transverse process fractures from L1 to L4. We note that the compensable injury includes bilateral transverse process fractures of L3 and L4, left L1 to L4 transverse process fractures, and right L1, L3, and L4 transverse process fractures. In considering transverse process fractures from L1 to L4, Dr. Q considered and rated right L2 transverse process fracture which is not part of the compensable injury.

Dr. Q utilized Chapter 4, the Nervous System of the AMA Guides to rate emotional disorders associated with PTSD and assigned 0% impairment. In his discussion of impairment, Dr. Q stated that the claimant’s medical records revealed pre-existing evidence of emotional problems and did not meet the criteria for a permanent impairment. Dr. Q noted that PTSD is a condition that is expected to resolve over time and does not cause functional limitations in the claimant’s normal activities of daily living. However, the ALJ determined that PTSD was not part of the compensable injury and that determination has been affirmed. The ALJ’s determination that the compensable injury includes anxiety has been affirmed. Dr. Q’s report rates PTSD rather than anxiety. Because Dr. Q’s certification rates a condition that has not yet been determined to be part of the compensable injury (right L2 transverse process fracture), fails to rate anxiety, and rates a condition that has been determined not to be part of the compensable injury (PTSD), his certification cannot be adopted.

There is no other certification in evidence that rates the entire compensable injury. Accordingly, we reverse the ALJ’s determination that the claimant reached MMI on October 5, 2021, with an 18% IR and remand the issues of MMI and IR for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), extends to a cervical sprain, cervical strain, thoracic sprain, thoracic strain, lumbar sprain, lumbar strain, left scapula fracture, left rotator cuff tear, large left renal subcapsular hematoma, right occipital condyle avulsion fracture, left 5 to 12 posterior rib fractures, fractures of the left transverse process fractures of T10 to T12, left L1 to L4 transverse process fractures, right L1, L3, and L4 transverse process fractures, bilateral transverse process fractures of L3 and L4, non-displaced fracture of the anterior superior end plates of L4 and L5, left pneumothorax, and anxiety.

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. S on July 30, 2021, did not become final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determination that the claimant reached MMI on October 5, 2021, and remand the issue of MMI to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant’s IR is 18% and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to request that the designated doctor give an opinion on the claimant’s date of MMI, which can be no later than the stipulated statutory date of MMI, August 11, 2022, and rate the entire (date of injury), compensable injury which includes a wedge compression fracture of the first lumbar vertebra, a cervical sprain, cervical strain, thoracic sprain, thoracic strain, lumbar sprain, lumbar strain, left scapula fracture, left rotator cuff tear, large left renal subcapsular hematoma, right occipital condyle avulsion fracture, left 5 to 12 posterior rib fractures, fractures of the left transverse process fractures of T10 to T12, left L1 to L4 transverse process fractures, right L1, L3, and L4 transverse process fractures, bilateral transverse process fractures of L3 and L4, non-displaced fracture of the anterior superior end plates of L4 and L5, left pneumothorax, and anxiety in accordance with the AMA Guides considering the medical record and the certifying examination. The ALJ is to inform the designated doctor that the compensable injury of (date of injury), does not extend to PTSD.

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). Contested case hearings (CCH) were held on July 1, 2021, November 8, 2021, and December 29, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ) and on October 11, 2022, with the record closing on June 8, 2023, in (city), Texas, with (administrative law judge) presiding as the ALJ. The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to right phrenic nerve disorder of diaphragm, right phrenic nerve lesion of diaphragm, and paralysis of diaphragm; (2) respondent 1/cross-appellant (claimant) reached maximum medical improvement (MMI) on July 24, 2020; (3) the claimant’s impairment rating (IR) is 51%; (4) the first certification of MMI and assigned IR from (Dr. Br) on April 28, 2020, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); and (5) the claimant is not entitled to lifetime income benefits (LIBs) from June 22, 2020, through the date of the CCH based on the loss of, or total and permanent loss of use of, both feet/both hands/one foot and one hand. The appellant/cross-respondent (carrier) appealed the ALJ’s determinations regarding extent of injury, finality, MMI, and IR. The claimant responded, urging affirmance of the determinations the carrier appealed. The claimant cross-appealed, disputing the ALJ’s determinations regarding LIBs. The carrier responded, urging affirmance of the ALJ’s LIBs determination. The appeal file does not contain a response from Respondent 2 (subclaimant).

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 at least a lumbar sprain, lumbar strain, thoracic sprain, and thoracic strain; (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. B) as designated doctor to address the issues of extent of injury, MMI, IR, and return to work; and (4) the date of statutory MMI is July 24, 2020. The claimant, a security officer, was injured on (date of injury), when his vehicle was struck by another driver.

The ALJ is the sole judge of the weight and credibility to 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 [14thDist.] 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 right phrenic nerve disorder of diaphragm, right phrenic nerve lesion of diaphragm, and paralysis of diaphragm is supported by sufficient evidence and is affirmed.

FINALITY

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. Br on April 28, 2020, did not become final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

LIBS

The ALJ’s determination that the claimant is not entitled to LIBs from June 22, 2020, through the date of the CCH based on the loss of, or total and permanent loss of use of, both feet/both hands/one foot and one hand is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on July 24, 2020, is supported by sufficient evidence and is affirmed.

IR

Rule 130.1(c)(3) provides, in pertinent part, that the assignment of an IR shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination, and the doctor assigning the IR shall:

(A) identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;

(B) document specific laboratory or clinical findings of an impairment;

(D) compare the results of the analysis with the impairment criteria and provide the following:

(i) [a] description and explanation of specific clinical findings related to each impairment, including [0%] [IRs]; and

The first designated doctor, Dr. B, examined the claimant on July 2, 2019, and issued two alternate certifications that the claimant had not yet reached MMI. On February 28, 2022, a Presiding Officer’s Directive to Order Designated Doctor Exam (POD) was issued by the first ALJ in the case, and (Dr. R), the second designated doctor, was appointed to address MMI and IR for the compensable injury. On April 9, 2022, Dr. R examined the claimant and considering a lumbar sprain/strain, thoracic sprain/strain, right phrenic nerve disorder of diaphragm, right phrenic nerve lesion of diaphragm, and paralysis of diaphragm certified the claimant reached MMI on July 24, 2020, with a 35% IR based on Table 8, page 5/162 of the AMA Guides. On October 27, 2022, the second ALJ in the case issued a letter of clarification to Dr. R asking if a pulmonary function test (PFT) had been completed and pointing out that there was no mention of a value for diffusing capacity of carbon monoxide (Dco) in her report. Dr. R responded that if the additional values of Dco and measured exercise capacity (VO2) are required, she requests a reexamination so that a PFT can be ordered. On November 4, 2022, a second POD was issued; however, Dr. R was no longer available. A third POD was issued on December 20, 2022, which instructed the new designated doctor, (Dr. P), to provide an MMI and IR certification based on the compensable conditions and informed him that the claimant still needed a full PFT in order to assess his respiratory impairment. Dr. P examined the claimant on March 20, 2023, and in an amended certification determined the claimant reached MMI on July 24, 2020, with a 51% IR, which was adopted by the ALJ. Dr. P assessed 0% impairment for the lumbar sprain/strain and thoracic sprain/strain. For the right phrenic nerve disorder of diaphragm, right phrenic nerve lesion of diaphragm, and paralysis of diaphragm, Dr. P stated in his narrative report that he had recommended the claimant undergo a PFT but was informed by the claimant’s pulmonologist that it was not possible for the claimant to undergo the test. Dr. P stated he was informed that the claimant’s condition had progressed to the point that he requires the continuous use of mechanical ventilation to breathe. Dr. P further stated that based on this information, he felt the most appropriate category for the claimant to be placed would be the severe category per Table 8 of the AMA Guides and assessed a 51% IR.

The AMA Guides provide on page 5/163 that Table 8 presents criteria for estimating the extent of permanent impairment and that spirometry and single breath Dco must be performed. The AMA Guides provide that for an assignment of 51% impairment under Class 4 of Table 8 of the AMA Guides, all of the listed criteria except for VO2 max must be met. The required methodology includes, in part, measurements made from at least three acceptable spirometric tracings of forced expiration: forced vital capacity (FVC), forced expiratory volume in the first second (FEV1), and the ratio of FEV1/FVC, a predicted normal single-breath Dco Value for an individual according to age, and utilization of Table 8 (page 5/162) for estimating the extent of permanent impairment. As noted above, Dr. P did not have the required values to appropriately use Table 8 of the AMA Guides because the claimant could not undergo a PFT. Accordingly, Dr. P’s assessment of IR cannot be adopted. See Appeals Panel Decision (APD) 112026, decided April 5, 2012. The ALJ’s determination that the claimant’s IR is 51% is reversed. We note that the claimant’s compensable conditions of right phrenic nerve disorder of diaphragm, right phrenic nerve lesion of diaphragm, and paralysis of diaphragm are nerve injuries and not injuries of the lungs. Chapter 4 of the AMA Guides provides for measuring impairment from nerve injuries, including neurological impairment of respiration in Section 4.3c on page 4/149.

As discussed above, Dr. B, the first designated doctor, issued two certifications that the claimant had not reached MMI. We have affirmed the ALJ’s determination that the claimant reached MMI on the statutory date of July 24, 2020; therefore, these certifications cannot be adopted.

As mentioned earlier, Dr. R, the second designated doctor, certified the claimant reached MMI on July 24, 2020, with a 35% IR considering the compensable injury based on Table 8 of the AMA Guides. As Dr. R did not have the required values to appropriately use Table 8 of the AMA Guides, her assessment of IR cannot be adopted.

Dr. Br, the carrier-selected required medical examination doctor, examined the claimant on March 3, 2020, and issued two alternate certifications. In the first certification, Dr. Br certified the claimant reached MMI on October 19, 2018, with a 0% IR considering and rating a lumbar sprain/strain and thoracic sprain/strain. As this certification does not rate the compensable conditions of right phrenic nerve disorder of diaphragm, right phrenic nerve lesion of diaphragm, and paralysis of diaphragm and because we have affirmed the ALJ’s determination that the claimant reached MMI on the statutory date of July 24, 2020, it cannot be adopted. In the second certification, Dr. Br certified the claimant reached MMI on January 7, 2019, with a 0% IR considering and rating a lumbar sprain/strain, thoracic sprain/strain, and right phrenic nerve paralysis with resulting diaphragm impairment. We have affirmed the ALJ’s determination that the claimant reached MMI on the statutory date of July 24, 2020; therefore, this certification cannot be adopted.

There are no other certifications in evidence. 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), extends to right phrenic nerve disorder of diaphragm, right phrenic nerve lesion of diaphragm, and paralysis of diaphragm.

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. Br on April 28, 2020, did not become final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that the claimant is not entitled to LIBs from June 22, 2020, through the date of the CCH based on the loss of, or total and permanent loss of use of, both feet/both hands/one foot and one hand.

We affirm the ALJ’s determination that the claimant reached MMI on July 24, 2020.

We reverse the ALJ’s determination that the claimant’s IR is 51% and remand the issue of IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. P is the designated doctor in this case. On remand, the ALJ is to determine whether Dr. P is still qualified and available to be the designated doctor.

The ALJ is to request that the designated doctor rate the entire compensable injury, which is a lumbar sprain/strain, thoracic sprain/strain, right phrenic nerve disorder of diaphragm, right phrenic nerve lesion of diaphragm, and paralysis of diaphragm, based on the claimant’s condition as of the date of MMI, July 24, 2020. The ALJ is to advise the designated doctor that without all the required data and a complete PFT, Table 8 on page 5/162 of the AMA Guides cannot be appropriately used to assess the claimant’s IR. The ALJ is to further advise the designated doctor that Chapter 4 of the AMA Guides provides for measuring the impairment from nerve injuries, including neurological impairment of respiration in Section 4.3c on page 4/149.

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

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 June 29, 2023, 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 right shoulder supraspinatus and infraspinatus tendinosis with partial tearing, right shoulder longhead bicep tendinosis, right shoulder superior labrum contusion with mild tearing, or right shoulder adhesive capsulitis; (2) the claimant did not have disability from August 9, 2022, through the date of the CCH resulting from the compensable injury sustained on (date of injury); (3) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. C) dated September 28, 2022, became final pursuant to Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (4) the appellant (claimant) reached MMI on June 27, 2022; and (5) the claimant’s IR is 2%. The claimant appealed, disputing the ALJ’s determinations of extent of injury, finality, disability, MMI, and IR. The respondent (carrier) responded, urging affirmance of the disputed extent of injury, finality, disability, MMI, and IR determinations.

DECISION

Affirmed in part, and reversed and rendered in part.

The parties stipulated, in part, that: the claimant sustained a compensable injury on (date of injury), in the form of at least the insurance carrier-accepted condition of right shoulder acromioclavicular joint sprain; the first valid certification of MMI and assigned IR was by Dr. C on September 28, 2022; Dr. C was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) on the issues of MMI and IR; and the claimant first disputed the certification of MMI and assigned IR of Dr. C on February 21, 2023, when she filed a request for a benefit review conference on those issues. The claimant testified that she was injured on (date of injury), when she was pulling a lever on an extrusion machine.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to right shoulder supraspinatus and infraspinatus tendinosis with partial tearing, right shoulder longhead bicep tendinosis, right shoulder superior labrum contusion with mild tearing, or right shoulder adhesive capsulitis is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from August 9, 2022, through the date of the CCH resulting from the compensable 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; that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both. Section 408.123(f) provides, in part, that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described in Subsection (e) if: (1) compelling medical evidence exists of: (A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the IR.

The ALJ found that none of the exceptions to the 90-day rule were applicable. On September 28, 2022, Dr. C examined the claimant and certified the claimant reached MMI on June 27, 2022, and assigned a 2% 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). Dr. C considered and rated a right shoulder acromioclavicular joint sprain.

Dr. C noted in her narrative the range of motion (ROM) measurements used to assess impairment and the upper extremity (UE) impairment assigned. Dr. C’s narrative listed the following: flexion 170° (1%); extension 43° (when rounded to 40°) (1%); abduction 175° (0%); adduction 40° (1%); internal rotation 80° (0%); and external rotation 95° (0%); using Figures 38, 41, and 44, on pages 3/43, 3/44, and 3/45, respectively, of the AMA Guides. The ROM values used by Dr. C to assess impairment included the measurements recorded in the physical therapy notes on June 27, 2022, for flexion, abduction, internal rotation, and external rotation. However, Dr. C noted that those measurements were incomplete. Dr. C used the ROM values obtained in her examination for adduction and extension. The impairments Dr. C assigned for ROM measurements for right shoulder flexion, extension, abduction, internal rotation, and external rotation were all correctly calculated in accordance with the AMA Guides. However, Dr. C assigned 1% UE impairment for 40° of adduction. Figure 41 on page 3/44 of the AMA Guides does not provide that 40° of adduction results in 1% UE impairment but rather results in 0% UE impairment. Dr. C incorrectly assigned 1% UE impairment for loss of ROM for adduction of the right shoulder.

Dr. C’s miscalculation of the impairment for ROM loss of the right shoulder constitutes compelling medical evidence of a significant error by Dr. C in calculating the claimant’s IR, and therefore, the exception in Section 408.123(f)(1)(A) applies. Accordingly, we reverse the ALJ’s determination that the first MMI/IR certification from Dr. C on September 28, 2022, became final under Section 408.123 and Rule 130.12, and we render a new decision that the first MMI/IR certification from Dr. C on September 28, 2022, did not become final under Section 408.123 and Rule 130.12.

MMI

The ALJ’s determination that the claimant reached MMI on June 27, 2022, is supported by sufficient evidence and is affirmed.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the 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.

As previously noted, there is compelling medical evidence of a significant error by Dr. C in calculating the claimant’s IR. Therefore, Dr. C’s assessment of IR cannot be adopted. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 2%.

There is one other certification in evidence. (Dr. H), a doctor selected by the treating doctor to act in the treating doctor’s place, examined the claimant on January 6, 2023. Dr. H certified that the claimant reached MMI on June 27, 2022, with a 3% IR. Dr. H considered and rated a right shoulder acromioclavicular joint sprain using the AMA Guides based on loss of ROM. Dr. H noted that the measured ROM values by the physical therapist taken on June 27, 2022, were incomplete. Dr. H stated he compared his values for loss of ROM of the claimant’s right shoulder with the ROM measurements taken by Dr. C during the examination performed by her on September 28, 2022, and he considered her measurements to be accurate. Those ROM measurements and the UE IR assigned were as follows: flexion 137° (rounded to 140°) (3%); extension 43° (rounded to 40°) (1%); abduction 151° (rounded to 150°) (1%); adduction 40° (0%); internal rotation 80° (0%); and external rotation 65° (whether rounded up to 70° or rounded down to 60°) (0%). Dr. H correctly assigned 5% UE impairment for loss of ROM of the claimant’s right shoulder which converted to 3% whole person impairment. We render a new decision that the claimant’s IR is 3%.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to right shoulder supraspinatus and infraspinatus tendinosis with partial tearing, right shoulder longhead bicep tendinosis, right shoulder superior labrum contusion with mild tearing, or right shoulder adhesive capsulitis.

We affirm the ALJ’s determination that the claimant did not have disability from August 9, 2022, through the date of the CCH resulting from the compensable injury sustained on (date of injury).

We reverse the ALJ’s determination that the first MMI/IR certification from Dr. C on September 28, 2022, became final under Section 408.123 and Rule 130.12, and we render a new decision that the first MMI/IR certification from Dr. C on September 28, 2022, did not become final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that the claimant reached MMI on June 27, 2022.

We reverse the ALJ’s determination that the claimant’s IR is 2% and render a new decision that the claimant’s IR is 3%.

The true corporate name of the insurance carrier is FEDERAL 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 75201-4284.

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 June 12, 2023, 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 post-traumatic stress disorder (PTSD); (2) the respondent (claimant) reached maximum medical improvement (MMI) on October 14, 2022; and (3) the claimant’s impairment rating (IR) is 26%. The appellant (carrier) appealed ALJ’s extent of injury, MMI, and IR determinations. The claimant responded, urging affirmance of the appealed determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury that includes at least a left lumbar strain, pain in joint pelvic region, L5 fracture, lumbar radiculitis, sacral ala fracture, left sacroiliac joint dislocation, left pubic ramus fracture, pubic symphysis subluxation, pelvic ring disruption, and left acetabular fracture; (2) the compensable injury of (date of injury), does not extend to major depressive disorder and anxiety disorder; (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. L) as designated doctor to determine extent of injury, MMI, and IR; and (4) the date of statutory MMI is October 25, 2022. The claimant, a railroad conductor, was injured on (date of injury), when a train rail car struck and ran over him.

EXTENT OF INJURY

28 Tex. Admin. Code § 127.130(a) (Rule 127.130(a)) provides, in part, that this section applies to designated doctor assignments. Rule 127.130(b)(7) states that to determine injuries and diagnoses relating to mental and behavioral disorders, a designated doctor must be a licensed medical doctor or doctor of osteopathy.

The ALJ determined that the compensable injury of (date of injury), extends to PTSD based on the opinion of Dr. L, the designated doctor. The ALJ stated in his decision that Dr. L’s opinion was persuasive. However, the ALJ goes on to state that the extent-of-injury opinion from (Dr. H), the carrier-selected required medical examination doctor, cannot be adopted pursuant to Rule 127.130(b)(7). Although Dr. H is a doctor of chiropractic and not a medical doctor or a doctor of osteopathy, as noted above, Rule 127.130 applies to designated doctors and not required medical examination doctors. Therefore, Dr. H’s opinion cannot be excluded on that basis.

Although pursuant to Section 410.165(a) the ALJ could accept or reject in whole or in part any evidence, the ALJ incorrectly stated that Dr. H’s opinion cannot be adopted pursuant to Rule 127.130(b)(7). Accordingly, we reverse the ALJ’s determination that the compensable injury of (date of injury), extends to PTSD, and we remand the extent-of-injury issue to the ALJ. On remand, the ALJ is to consider Dr. H’s opinion and give it proper weight.

MMI AND IR

As we have remanded the issue whether the compensable injury of (date of injury), extends to PTSD, we must also reverse the ALJ’s determinations that the claimant reached MMI on October 14, 2022, and the claimant’s IR is 26% and 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. Given that we are remanding this case for the ALJ to make determinations on whether the compensable injury extends to PTSD, MMI, and IR, we note that the IR from Dr. L that was adopted by the ALJ contains a mathematical error in the range of motion (ROM) calculation for the left hip. Dr. L’s narrative report reflects that he assigned 2% impairment based on 40° of flexion in the left hip. However, Table 40 on page 3/78 of 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) indicates that 40° of hip flexion results in 8% whole person impairment (WPI). Additionally, we note that there is no Report of Medical Evaluation (DWC-69) from Dr. L that places the claimant at MMI on October 14, 2022. The record contains a response to a letter of clarification from Dr. L dated April 3, 2023, in which he states the MMI date should be October 14, 2022, instead of October 24, 2022, but there is no amended DWC-69 in evidence reflecting the change. Dr. L goes on to state in his response that there may be errors in his ROM calculation and that the only means of being correct requires that he reexamine the claimant. The record does not contain a new report from Dr. L.

Finally, we note that the IR from Dr. H that rates the injury as decided by the ALJ also contains an error in the left hip ROM calculation. In the physical evaluation and examination portion of his narrative report, Dr. H correctly notes that the ROM deficits in the claimant’s left hip result in a total of 10% impairment. However, in the IR determination and calculations for the pelvis/hip portion of the narrative report, Dr. H mistakenly notes that the ROM impairment for the left hip is 8%.

SUMMARY

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

We reverse the ALJ’s determinations that the claimant reached MMI on October 14, 2022, and the claimant’s IR is 26% 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 consider Dr. H’s opinion regarding the extent-of-injury issue and give the report proper weight in making his determination. The ALJ is then to make a determination on whether the compensable injury of (date of injury), extends to PTSD considering all of the evidence.

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.

The ALJ is to request that the designated doctor rate the entire compensable injury based on the claimant’s condition as of the date of MMI. The ALJ is to advise the designated doctor that according to the AMA Guides, 40° of flexion for the hip results in 8% WPI.

The parties are to be provided with the correspondence to the designated doctor, the designated doctor’s response, and are to be allowed an opportunity to respond. The ALJ is then to make determinations regarding the issues of MMI and IR that are supported by the evidence and consistent with this decision.

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

JEANETTE WARD, PRESIDENT & CEO
2200 ALDRICH STREET
AUSTIN, TEXAS 78723-3474.

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 June 7, 2023, 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 focal tear of the anterosuperior glenoid labrum, or supraspinatus or infraspinatus tendinosis of the left shoulder; (2) the appellant (claimant) reached maximum medical improvement (MMI) on December 8, 2022; and (3) the claimant’s impairment rating (IR) is five percent. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded, urging affirmance of the 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), which includes at least a left shoulder sprain; and that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. E) as designated doctor to address the issues of MMI, IR, and extent of injury. The claimant testified that he was injured on (date of injury), when unloading windows and doors from a dolly.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a focal tear of the anterosuperior glenoid labrum, or supraspinatus or infraspinatus tendinosis of the left shoulder is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on December 8, 2022, is supported by sufficient evidence and is affirmed.

IR

The ALJ determined that the claimant reached MMI on December 8, 2022, with a five percent IR as certified by Dr. E, the designated doctor. Dr. E examined the claimant on January 10, 2023, and certified that for a left shoulder sprain, the claimant reached MMI on December 8, 2022, 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). Dr. E assessed five percent IR based on loss of range of motion (ROM) of the left shoulder. In her narrative report under her explanation for the MMI date, Dr. E noted that physical therapy treatment notes from December 8, 2022, documented clear improvement in ROM as follows: flexion 130°, extension 45°, abduction 100 °, adduction 35°, internal rotation 90°, and external rotation 70°. However, in the chart included in her narrative under the IR heading, Dr. E assessed impairment based on 90° of external rotation rather than 70°, and 70° of internal rotation rather than 90°. The physical therapy treatment note from December 8, 2022, was not in evidence. Because there is an inconsistency in the measurements reported by Dr. E for loss of ROM of the claimant’s left shoulder, this certification cannot be adopted. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is five percent.

Dr. E provided an alternate certification that the claimant had not yet reached MMI. However, that certification considered a left shoulder sprain, a focal tear of the anterosuperior glenoid labrum, and supraspinatus and infraspinatus tendinosis of the left shoulder. As previously noted, the ALJ’s determinations that the claimant reached MMI on December 8, 2022, and that the compensable injury did not include a focal tear of the anterosuperior glenoid labrum, or supraspinatus or infraspinatus tendinosis of the left shoulder has been affirmed. Accordingly, this certification cannot be adopted.

(Dr. P), a doctor selected by the treating doctor to act in his place, examined the claimant on February 16, 2023, and certified that the claimant reached MMI on December 8, 2022, with a five percent IR. In his narrative report, Dr. P states that he utilized the ROM measurements from Dr. E in assessing IR. As previously noted, the ROM measurements used by Dr. E to assess impairment for the claimant’s left shoulder were inconsistent. Therefore, Dr. P’s assessment of IR cannot be adopted.

Dr. P provided an alternate certification that the claimant had not yet reached MMI but it considers a condition that has been determined not to be part of the compensable injury. Additionally, the ALJ’s determination that the claimant reached MMI on December 8, 2022, has been affirmed. Accordingly, this certification cannot be adopted.

There are no other certifications in evidence. 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 a focal tear of the anterosuperior glenoid labrum, or supraspinatus or infraspinatus tendinosis of the left shoulder.

We affirm the ALJ’s determination that the claimant reached MMI on December 8, 2022.

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

REMAND INSTRUCTIONS

Dr. E is the designated doctor in this case. The ALJ is to determine whether Dr. E is still qualified and available to serve as designated doctor. If Dr. E is still qualified and available, the ALJ is to ask Dr. E to clarify her inconsistent statements regarding the ROM measurements for internal rotation and external rotation of the left shoulder and assess impairment for the (date of injury), compensable injury, as of the MMI date of December 8, 2022.

If Dr. E is no longer qualified or available, then another designated doctor is to be appointed to determine the claimant’s IR for the compensable injury of (date of injury). The ALJ is to advise the designated doctor that the compensable injury of (date of injury), includes a left shoulder sprain but does not extend to a focal tear of the anterosuperior glenoid labrum, or supraspinatus or infraspinatus tendinosis of the left shoulder. The assignment of IR is required to be based on the claimant’s condition as of December 8, 2022, the date of MMI in this case, 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 IR consistent with this decision.

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge