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 14, 2021, with the record closing on April 29, 2021, 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 spine strain, right shoulder sprain, and left shoulder sprain; (2) the compensable injury of (date of injury), does not extend to right shoulder impingement syndrome or tear of right supraspinatus tendon; (3) the appellant (claimant) reached maximum medical improvement (MMI) on March 18, 2019; (4) the claimant’s impairment rating (IR) is 6%; (5) the claimant did not have disability from March 28, 2019, through August 13, 2020; and (6) the claimant did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, so the claimant is not entitled to temporary income benefits (TIBs) from March 28, 2019, through August 13, 2020.

The claimant appealed the ALJ’s extent-of-injury determination that was adverse to him, as well as the ALJ’s MMI, IR, and disability determinations. The claimant also appealed the ALJ’s determination that he did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, and is not entitled to TIBs from March 28, 2019, through August 13, 2020. The respondent (carrier) responded, urging affirmance of the appealed determinations. The ALJ’s determination that the compensable injury of (date of injury), extends to a lumbar spine strain, right shoulder sprain, and left shoulder sprain 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); the carrier has accepted bilateral shoulder strains as the compensable injury; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. A) as designated doctor for purposes of extent of injury, MMI, IR, disability, and return to work; and the statutory MMI date is December 25, 2020. The claimant testified he was injured on (date of injury), while lifting a basket weighing between 50 and 70 pounds from one rack to a higher rack.

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 impingement syndrome or tear of right supraspinatus tendon is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from March 28, 2019, through August 13, 2020, is supported by sufficient evidence and is affirmed.

FAILURE TO SUBMIT TO DESIGNATED DOCTOR’S EXAMINATION

The ALJ’s determination that the claimant did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, and the claimant is not entitled to TIBs from March 28, 2019, through August 13, 2020, is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on March 18, 2019, 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 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 found the preponderance of the other medical evidence is contrary to the certification of Dr. A, the designated doctor. This finding is supported by the evidence, which is further discussed below. The ALJ then found the evidence supported the certification of (Dr. L), the post-designated doctor required medical examination doctor, and determined that the claimant’s IR is 6% based on Dr. L’s certification.

Dr. L initially examined the claimant on November 10, 2020, and issued alternate certifications. In one of his certifications Dr. L opined that the claimant had not reached MMI but was expected to do so February 10, 2021, based upon a left shoulder strain/sprain, right shoulder strain/sprain, lumbar strain, right shoulder impingement syndrome, and tear of the right supraspinatus tendon. In his other certification Dr. L certified the claimant reached MMI on March 18, 2019, with a 6% IR based on a left shoulder strain and right shoulder strain. We note that neither of these certifications considers and rates the entire compensable injury in this case, which is bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain.

Dr. L then examined the claimant on April 7, 2021, and again certified the claimant reached MMI on March 18, 2019, with a 6% IR. Dr. L based this certification on bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain. We note that although Dr. L acknowledged the compensable injury included a lumbar spine strain, he did not specifically discuss an IR for that condition. It is this certification that was adopted by the ALJ.

Dr. L stated in his report that he used the range of motion (ROM) measurements from Dr. A’s August 13, 2020, examination to determine the IR because “this was the first evaluation that documented the bilateral shoulder planes of motion,” and assessed the same IR as Dr. A.  We note that Dr. A’s August 13, 2020, report contains two sets of ROM measurements for the right shoulder, one for “TODAY(’s)” date of August 13, 2020, and the second for December 3, 2018. Dr. A’s report contains one set of ROM measurements for the claimant’s left shoulder with no date specified. Dr. A stated in his report that the claimant’s right shoulder examination “was limited due to recent surgery” and his right shoulder movement was “severely restricted,” and we note those ROM measurements do not correspond with the impairments Dr. A assessed for the right shoulder. Dr. A did not identify in his report where the December 3, 2018, ROM measurements were taken.

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. L assigned a 6% IR based on the bilateral shoulder ROM measurements noted in Dr. A’s examination by combining 2% whole person impairment (WPI) for the left shoulder with 4% WPI for the right shoulder. Specifically, Dr. L used Figure 38 on page 3/43, Figure 41 on page 3/44, Figure 44 on page 3/45, and Table 3 on page 3/20 of the AMA Guides.

Using Dr. A’s ROM measurements listed for the right shoulder, Dr. L assigned 2% upper extremity (UE) impairment for flexion; 1% UE impairment for extension; 1% UE impairment for abduction; and 2% UE impairment for internal rotation. We note the ROM measurements listed in Dr. A’s and Dr. L’s reports for right shoulder adduction and external rotation both result in 0% impairment. Dr. L stated that these figures add to “7% (UE) impairment,” which, using Table 3 on page 3/20, “converts to a 4% WPI rating.”  Adding the impairments for right shoulder flexion, extension, abduction, and internal rotation results in 6% UE impairment, not 7%. We note Dr. A’s report contains this same error. However, Table 3 provides that both 6% UE impairment and 7% UE impairment convert to 4% WPI.

Using Dr. A’s ROM measurements listed for the claimant’s left shoulder, Dr. L assigned 2% UE impairment for flexion and 2% UE impairment for adduction.^[1] Dr. L noted the remaining left shoulder planes “were full.” Dr. L stated these impairments add to 4% UE impairment, which converts to 2% WPI.  Dr. A’s August 13, 2020, report lists the claimant’s left shoulder ROM as 65° of internal rotation, for which both he and Dr. L assessed 0% impairment. However, Figure 44 on page 3/45 of the AMA Guides provides that 65° of internal rotation results in either 2% UE impairment or 1% UE impairment depending on how 65° internal rotation is rounded, not 0% UE impairment.  

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.  Because there are questions regarding how to round the ROM measurements, which require medical judgment, a mathematical correction would not be appropriate in this case.  Dr. L’s IR cannot be adopted.  

There are numerous other certifications in evidence. As discussed above, Dr. L initially examined the claimant on November 10, 2020, and issued alternate certifications. In one of his certifications Dr. L opined that the claimant had not reached MMI but was expected to do so February 10, 2021. Given that we have affirmed the ALJ’s determination that the claimant reached MMI on March 18, 2019, this certification cannot be adopted. In his other certification Dr. L certified the claimant reached MMI on March 18, 2019, with a 6% IR based on a left shoulder strain and right shoulder strain. However, because this IR contains the same error as explained above, and because this IR does not consider and rate the compensable injury of bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain, this IR cannot be adopted.

The other certifications in evidence are from Dr. A, the designated doctor. Dr. A initially examined the claimant on August 13, 2020, and issued three certifications. In the first certification Dr. A certified the claimant reached MMI on March 28, 2019, with a 6% IR. We note Dr. A’s 6% IR contains the same error as discussed above for Dr. L’s 6% IR. In the second and third certifications Dr. A opined the claimant had not reached MMI but was expected to do so on December 15, 2020, based on various disputed conditions. Because we have affirmed the ALJ’s determination that the claimant reached MMI on March 18, 2019, these certifications cannot be adopted.

Dr. A also examined the claimant on January 7, 2021, and again issued three certifications. In all three of these certifications Dr. A certified the claimant reached MMI on December 25, 2020, with a 20% IR based on various accepted and disputed conditions. Dr. A also provided three additional certifications in response to a letter of clarification sent to him by the ALJ on January 28, 2021, all of which certified the claimant reached MMI on December 25, 2020, with a 15% IR. Because these certifications are not based on the affirmed MMI date of March 18, 2019, they cannot be adopted.

There is no IR in evidence that can be adopted. Therefore, we reverse the ALJ’s determination that the claimant’s IR is 6%, and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to right shoulder impingement syndrome or tear of right supraspinatus tendon.

We affirm the ALJ’s determination that the claimant did not have disability from March 28, 2019, through August 13, 2020.

We affirm the ALJ’s determination that the claimant did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, and the claimant is not entitled to TIBs from March 28, 2019, through August 13, 2020.

We affirm the ALJ’s determination that the claimant reached MMI on March 18, 2019.

We reverse the ALJ’s determination that the claimant’s IR is 6%, and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. A is the designated doctor in this case. On remand the ALJ is to determine whether Dr. A is still qualified and available to be the designated doctor.  If Dr. A is still qualified and available to be the designated doctor, the ALJ is to inform Dr. A that the compensable injury in this case is bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain and that the date of MMI is March 18, 2019. The ALJ is to notify Dr. A of his error in calculating 7% UE impairment for the claimant’s right shoulder, and in calculating 0% impairment for 65° of internal rotation for the claimant’s left shoulder. As previously noted, Dr. A’s August 13, 2020, report contains two sets of ROM measurements for the claimant’s right shoulder with different dates. The ALJ is to ask Dr. A to clarify which ROM measurements he is using to assess the claimant’s IR, the date those measurements were taken, and where those measurements were obtained. The ALJ is to request Dr. A to rate the entire compensable injury as of the MMI date of March 18, 2019, considering the medical records, the certifying examination, and rating criteria in the AMA Guides.

If Dr. A is no longer qualified or available, then another designated doctor is to be appointed to determine the claimant’s IR.  The ALJ is to inform the designated doctor that the compensable injury in this case is bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain and that the date of MMI is March 18, 2019.  The ALJ is to request the designated doctor to rate the entire compensable injury in accordance with Rule 130.1(c)(3) based on the claimant’s condition as of the MMI date of March 18, 2019, 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. A 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 AMERICAN ZURICH 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that Dr. A states in his report he assigned 2% UE impairment for abduction, not adduction as specified by Dr. L.  Dr. A assigned 0% UE impairment for adduction.  We view Dr. L’s use of adduction versus abduction as a typographical error.  ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 11, 2021, with the record closing on January 15, 2021, 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 respondent (claimant) had good cause for failing to submit to the designated doctor’s referral examination of June 18, 2020, and the claimant is entitled to temporary income benefits (TIBs) from July 16, 2020, through the date of the CCH; and (2) the claimant had disability beginning July 16, 2020, and continuing through the date of the CCH resulting from an injury sustained on (date of injury). The appellant (self-insured) appealed the ALJ’s determinations. The claimant responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed as clarified.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); that the Texas Department of Insurance, Division of Workers’ Compensation (Division) selected (Dr. O) as the designated doctor to determine maximum medical improvement (MMI) and impairment rating (IR); and that the self-insured suspended payment of TIBs to the claimant effective July 16, 2020. The record established that the claimant, a former police officer for the City of (city), was injured on (date of injury), when she was physically assaulted by a suspect while responding to a robbery.

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).

DISABILITY

The ALJ’s determination that the claimant had disability beginning July 16, 2020, and continuing through the date of the CCH resulting from an injury sustained on (date of injury), is supported by sufficient evidence and is affirmed.

GOOD CAUSE FOR FAILING TO SUBMIT TO DESIGNATED DOCTOR’S REFERRAL EXAMINATION

The issue as stated at the CCH and agreed to by the parties was whether the claimant had good cause for failing to submit to the designated doctor examination on June 18, 2020, and if so, is the claimant entitled to TIBs from July 16, 2020, to the present. However, the ALJ amended that issue to reflect the issue as actually litigated by the parties at the CCH. The issue as actually litigated and amended by the ALJ is whether the claimant had good cause for failing to submit to the designated doctor’s referral examination of June 18, 2020, and if so, is claimant entitled to TIBs from July 16, 2020, to the present. It was undisputed by the parties that the June 18, 2020, examination was with a referral doctor referred by the designated doctor for him to address the issues of MMI and IR.

Dr. O, the designated doctor appointed by the Division to address MMI and IR, examined the claimant on March 4, 2020. Dr. O certified on June 24, 2020, that the claimant had not reached MMI but was expected to do so on or about August 4, 2020. In an attached narrative report Dr. O stated the following:

The following is a detailed list of all additional diagnostic testing conducted and reviewed as part of the evaluation including the type of testing, date testing performed, identity of any and all referral healthcare providers utilized to perform additional testing. An explanation of the purpose and necessity of these tests will be further explained in the determinations listed below.

I recommended the [claimant] undergo Psychological Testing/Evaluation which was scheduled on [March 18, 2020], however the [claimant] did not attend the appointment. This was rescheduled to [June 18, 2020], however the [claimant] again did not show for the evaluation.

On August 25, 2020, a letter of clarification was sent to Dr. O requesting him to explain how he was able to reach a determination on MMI and IR without the requested psychological testing/evaluation he had previously indicated was necessary to determine MMI and IR. Dr. O responded on December 1, 2020. Dr. O stated that multiple attempts had been made to contact the claimant by telephone to schedule the testing per her telephone number listed on the Request for Designated Doctor Examination (DWC-32) with no response. Dr. O further stated that since the psychological testing could not be scheduled, the determination that the claimant had not reached MMI was made as the claimant “was undergoing active treatment for her psychological issues at the time of my evaluation” and “[t]herefore, with reasonable anticipation of further improvement with no other objective information to consider, she was placed [n]ot at MMI.” Based upon the claimant’s failure to attend the referral examinations on March 18, 2020, and June 18, 2020, the self-insured suspended the claimant’s TIBs.

The ALJ determined that the claimant had good cause for failing to submit to the designated doctor’s referral examination of June 18, 2020, and that the claimant is entitled to TIBs from July 16, 2020, through the date of the CCH. The ALJ noted in her discussion that the claimant did not receive notice of the two designated doctor referral examinations, and that this failure to receive notice would constitute good cause. The ALJ was persuaded by the evidence that the claimant had good cause for failing to attend the designated doctor referral examinations, and that portion of the ALJ’s determination that the claimant had good cause for failing to submit to the designated doctor’s referral examination of June 18, 2020, is supported by sufficient evidence.

However, the ALJ made statements in the discussion that require clarification. The ALJ referenced 28 TEX. ADMIN. CODE § 127.10 (Rule 127.10) and Rule 127.25 in her discussion, and stated that “[n]either Rule 127.10 nor Rule 127.25 impose a ‘good cause’ requirement for failing or refusing to attend a referral examination, or for suspension of [TIBs] for failure or refusing to attend a referral examination.” The ALJ further stated that, under the circumstances of this case, “there is no provision allowing for [the self-insured] to suspend [TIBs] based on [the] [c]laimant’s failure to attend a referral examination, and [the] [c]laimant was not required to demonstrate that she had good cause for failing to attend a referral examination.” We disagree.

Rule 127.25 provides the following:

(a) An insurance carrier may suspend [TIBs] if an injured employee, without good cause, fails to attend a designated doctor examination.

(b) In the absence of a finding by the [D]ivision to the contrary, an insurance carrier may presume that the injured employee did not have good cause to fail to attend the examination if by the day the examination was originally scheduled to occur the injured employee has both:

(1) failed to submit to the examination; and

(2) failed to contact the designated doctor's office to reschedule the examination.

(c) If the injured employee contacts the designated doctor within 21 days of the scheduled date of the missed examination to reschedule the examination, the designated doctor shall schedule the examination to occur as soon as possible, but not later than the 21st day after the injured employee contacted the doctor.

(d) If the injured employee fails to contact the designated doctor within 21 days of the scheduled date of the missed examination but wishes to reschedule the examination, the injured employee must request a new examination under §127.1 of this title (relating to Requesting a Designated Doctor Examination).

(e) The insurance carrier shall reinstate TIBs effective as of the date the injured employee submitted to the rescheduled examination under subsection (c) of this section or the examination scheduled pursuant to the injured employee's request under subsection (d) of this section unless the report of the designated doctor indicates that the injured employee has reached MMI or is otherwise not eligible for income benefits. The reinitiation of TIBs shall occur no later than the seventh day following:

(1) the date the insurance carrier was notified that the injured employee submitted to the examination; or

(2) the date that the insurance carrier was notified that the [D]ivision found that the injured employee had good cause for not attending the examination.

(f) An injured employee is not entitled to TIBs for a period during which the insurance carrier suspended benefits pursuant to this section unless the injured employee later submits to the examination and the [D]ivision finds or the insurance carrier determines that the injured employee had good cause for failure to attend the examination.

(g) This section will become effective September 1, 2012.

Rule 127.10(c) provides in pertinent part the following:

The designated doctor shall perform additional testing when necessary to resolve the issue in question. The designated doctor shall also refer an injured employee to other health care providers when the referral is necessary to resolve the issue in question and the designated doctor is not qualified to fully resolve the issue in question.

*****

If the injured employee fails or refuses to attend the designated doctor's requested additional testing or referral examination within 15 working days or within the additional time approved by the [D]ivision, the designated doctor shall complete the doctor's report based on the designated doctor's examination of the injured employee, the medical records received, and other information available to the doctor and indicate the injured employee's failure or refusal to attend the testing or referral examination in the report.

The preamble to Rule 127.10(c) discusses, in part, the Division’s response to concerns regarding the necessity or reasonableness of designated doctor referrals for testing and notes that “referrals for additional testing are often absolutely necessary for and thus essentially part of the designated doctor’s examination of an injured employee.” See 35 Tex. Reg. 11325, December 17, 2010.

In Appeals Panel Decision 140790, decided June 6, 2014, the designated doctor appointed by the Division to determine the extent of the claimant’s compensable injury stated in his report that the claimant needed an orthopedic evaluation and diagnostic studies because he was unable to determine the extent of the claimant’s compensable injury based on his examination alone. However, the designated doctor was unaware that he was required to refer the claimant for testing as opposed to referring to an orthopedic doctor to test the claimant and the testing was not ordered. The Appeals Panel in that case noted that “[t]he plain language of Rule 127.10(c) provides that when additional testing is necessary to resolve the issue in question, the designated doctor shall perform additional testing or if he is not qualified to do so, refer the injured employee to other health care providers to conduct such testing.” The Appeals Panel pointed out that the designated doctor clearly stated that the claimant needed an orthopedic evaluation and diagnostic studies to determine the extent of the claimant’s compensable injury, and that this established a necessity to refer the claimant for additional testing pursuant to Rule 127.10(c).

In the case on appeal, Dr. O stated in his June 24, 2020, report that he recommended the claimant to undergo psychological testing/evaluation as additional testing necessary to determine MMI and IR. Because the referral appointment was necessary for Dr. O to determine the Division-appointed issues of MMI and IR, the referral appointment, by extension, is a part of his examination to determine MMI and IR. Therefore, the claimant’s failure to attend Dr. O’s referral appointment, if she did not have good cause for that failure, could be subject to the self-insured suspending TIBs under Rule 127.25. However, as previously noted the ALJ was persuaded by the evidence that the claimant did not receive notice of the referral appointments, which she stated in her discussion would constitute good cause. That portion of the ALJ’s determination that the claimant had good cause for failing to submit to the designated doctor’s referral examination of June 18, 2020, is supported by sufficient evidence. Therefore, we affirm the ALJ’s determination that the claimant had good cause for failing to submit to the designated doctor’s referral examination of June 18, 2020, and the claimant is entitled to TIBs from July 16, 2020, through the date of the CCH.

SUMMARY

We affirm the ALJ’s determination that the claimant had disability beginning July 16, 2020, and continuing through the date of the CCH resulting from an injury sustained on (date of injury).

We affirm as clarified the ALJ’s determination that the claimant had good cause for failing to submit to the designated doctor’s referral examination of June 18, 2020, and the claimant is entitled to TIBs from July 16, 2020, through the date of the CCH.

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

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act).  A contested case hearing was held on October 3, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ).  The ALJ resolved the disputed issue by deciding that the appellant (claimant) did not have good cause for failing to submit to the designated doctor’s examination on June 27, 2019; the claimant is not entitled to temporary income benefits (TIBs) from July 2 through August 20, 2019; and the claimant is entitled to TIBs for August 21, 2019.  The claimant appealed, disputing the ALJ’s determinations of good cause for failing to attend the designated doctor’s examination on June 27, 2019, and that the claimant is not entitled to TIBs from July 2 through August 20, 2019.  The respondent (carrier) responded, urging affirmance of the determinations disputed by the claimant.  That portion of the ALJ’s determination that the claimant is entitled to TIBs on August 21, 2019, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury).  The evidence reflected that the claimant was injured when a truck he was driving overturned.  The claimant was scheduled to attend a designated doctor’s appointment with (Dr. S) on June 27, 2019.  The claimant testified that beginning 2 days before the scheduled appointment with Dr. S he had a sore throat and migraine headaches.  The claimant testified that on June 26, 2019, he called his attorney’s office to inform them he was ill and would not be able to attend the designated doctor’s appointment scheduled for the next day, June 27, 2019.  In evidence is a letter from Dr. S dated July 12, 2019, acknowledging that a representative from the claimant’s attorney’s office called on June 26, 2019, to reschedule the designated doctor’s appointment due to the claimant’s illness.  Additionally, in evidence is a phone report dated June 26, 2019, that documents a legal assistant with the claimant’s attorney’s office called the office of Dr. S, as well as ExamWorks, Dr. S’s scheduling company, on that day to inform them of the claimant’s illness and his inability to attend the appointment for June 27, 2019.  The note further documented that Dr. S would not be able to reschedule an appointment within 21 days.  A new designated doctor was appointed and the claimant attended the examination with the subsequently appointed designated doctor on August 21, 2019.

28 TEX. ADMIN. CODE § 127.25(a) (Rule 127.25(a)) provides that an insurance carrier may suspend TIBs if an injured employee, without good cause, fails to attend a designated doctor examination.  Rule 127.25(b) provides that in the absence of a finding by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to the contrary, an insurance carrier may presume that the injured employee did not have good cause to fail to attend the examination if by the day the examination was originally scheduled to occur the injured employee has both:  (1) failed to submit to the examination; and (2) failed to contact the designated doctor’s office to reschedule the examination.  Rule 127.25(c) provides that if the injured employee contacts the designated doctor within 21 days of the scheduled date of the missed examination to reschedule the examination, the designated doctor shall schedule the examination to occur as soon as possible, but not later than the 21st day after the injured employee contacted the doctor.

We review good cause determinations under an abuse-of-discretion standard.  Appeals Panel Decision (APD) 002251, decided November 8, 2000.  The ALJ’s determination will not be set aside unless the ALJ acted without reference to any guiding rules or principles.  See Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The test for good cause is that of ordinary prudence; that is, the degree of diligence an ordinarily prudent person would have exercised under the same or similar circumstances.  APD 051193, decided July 13, 2005.

The ALJ stated on the record that he believed the claimant was ill on June 26, 2019.  In his discussion, the ALJ stated that the manner in which the claimant attempted to reschedule the examination was not consistent with the Division rules.  The ALJ stated Rule 127.25(c) requires “[the] [c]laimant himself should contact the designated doctor . . . , not his attorney.  [The] [c]laimant did not attempt himself to contact the designated doctor.  Moreover, it was a legal assistant (not even [the] [c]laimant’s attorney) who contacted the designated doctor and ExamWorks on [the] [c]laimant’s behalf.”

Section 401.011(37) defines representative, in part, as a person, including an attorney, authorized by the commissioner to assist or represent an employee in a matter arising under the 1989 Act that relates to the payment of compensation.  We cannot conclude that, when the claimant has a representative, he or she is required to personally contact the designated doctor to reschedule an appointment before good cause can be found.  Accordingly, we reverse the ALJ’s determination that the claimant did not have good cause for failing to submit to the designated doctor’s examination on June 27, 2019, and we render a new decision that the claimant did have good cause for failing to submit to the designated doctor’s examination on June 27, 2019.  Since a new decision has been rendered that the claimant had good cause for failing to submit to the designated doctor’s examination on June 27, 2019, we also reverse the ALJ’s determination that the claimant is not entitled to TIBs from July 2 through August 20, 2019, and render a new decision that the claimant is entitled to TIBs from July 2 through August 20, 2019.

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

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

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 10, 2015, in Houston, Texas, with (hearing officer) presiding as hearing officer. Prior to issuing a Decision and Order in this case, (hearing officer) ceased to be a hearing officer with the Texas Department of Insurance, Division of Workers’ Compensation (Division) and the case was reassigned to hearing officer (hearing officer), to listen to the CCH recording held on June 10, 2015, review the evidence, and write a decision to resolve the issues in dispute.

The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) had disability beginning on June 3, 2014, and continuing through November 3, 2014; and (2) the claimant had good cause for failing to submit to the designated doctor’s examination on June 3, 2014. We note that the issue of good cause for failure to attend the designated doctor’s examination included an issue of the period the claimant would not be entitled to temporary income benefits (TIBs) if the claimant did not have good cause for failing to attend that examination.

The appellant (carrier) appealed both of the hearing officer’s determinations, contending that the hearing officer erred in making those determinations. The claimant responded, urging affirmance of the hearing officer’s determinations.

DECISION

Affirmed in part and reversed and rendered in part.

DISABILITY

The hearing officer’s determination that the claimant had disability beginning on June 3, 2014, and continuing through November 3, 2014, is supported by sufficient evidence and is affirmed.

GOOD CAUSE FOR FAILING TO SUBMIT TO THE JUNE 3, 2014, DESIGNATED DOCTOR EXAMINATION

It is undisputed by the parties that a designated doctor examination was scheduled for April 29, 2014, with (Dr. F), and that this examination was rescheduled, at the claimant’s request, to occur on June 3, 2014. The claimant testified that at that time she was represented by an attorney, (Mr. C), for her workers’ compensation claim and a third party action. The claimant testified that when she received the Commissioner Order (Order) notifying her of the June 3, 2014, designated doctor examination, she called Mr. C about the appointment. The claimant testified that Mr. C asked the claimant to fax him the Order. The claimant also testified that Mr. C told her not to attend the June 3, 2014, designated doctor examination, and that he would have the claimant seen by other doctors regarding her work-related injury. The claimant then testified that she did not attend the June 3, 2014, appointment on the advice of her attorney.

The hearing officer determined that the claimant had good cause for failing to attend the June 3, 2014, designated doctor examination. The hearing officer makes clear in his decision that the claimant’s reliance on her attorney’s advice not to attend the June 3, 2014, designated doctor examination constituted good cause for failing to attend that examination. However, bad advice received from one’s own attorney is not an excuse for the failure to comply with Division requirements. See Appeals Panel Decision (APD) 031799, decided August 18, 2003; APD 022223, decided October 8, 2002; APD 981939, decided September 30, 1998; and APD 951487, decided October 19, 1995. Accordingly, we reverse the hearing officer’s determination that the claimant had good cause for failing to submit to the designated doctor’s examination on June 3, 2014, and we render a new decision that the claimant did not have good cause for failing to submit to the designated doctor’s examination on June 3, 2014.

SUSPENSION OF TIBs

28 TEX. ADMIN. CODE § 127.25(a) (Rule 127.25(a)) provides that an insurance carrier may suspend TIBs if an injured employee, without good cause, fails to attend a designated doctor examination. Because we have rendered a new decision that the claimant did not have good cause for failing to submit to the designated doctor’s examination on June 3, 2014, pursuant to Rule 127.25(a) the carrier is entitled to suspend TIBs. We now turn to the issue of what period the claimant is not entitled to TIBs, which was a disputed issue at the CCH.

The claimant testified that she eventually fired Mr. C as her attorney and then hired (Mr. FD) in August of 2014 to represent her in her workers’ compensation claim. The claimant testified that Mr. FD immediately sent a Request for Designated Doctor Examination (DWC-32) to the Division and told the claimant that she must attend the next scheduled designated doctor appointment. It was undisputed and the evidence established that a designated doctor examination was set for October 7, 2014, with (Dr. G); however, that examination was rescheduled at the request of Dr. G to occur on October 11, 2014. In evidence is a letter dated October 10, 2014, requesting the Division to redesignate because Dr. G believed the claimant’s injury was outside the scope of his practice. It was undisputed and the evidence established that a designated doctor examination was scheduled to occur on November 4, 2014, with (Dr. B), and that the claimant attended the November 4, 2014, designated doctor examination. Also in evidence is a Report of Medical Evaluation (DWC-69) in which Dr. B certified that the claimant had not reached maximum medical improvement (MMI) but was expected to do so on or about May 4, 2015.

Rule 127.25(e) provides in pertinent part that the insurance carrier shall reinstate TIBs effective as of the date the injured employee submitted to the rescheduled examination unless the report of the designated doctor indicates that the injured employee has reached MMI or is otherwise not eligible for income benefits. Rule 127.25(f) provides in pertinent part that an injured employee is not entitled to TIBs for a period during which the insurance carrier suspended benefits pursuant to Rule 127.25 unless the injured employee later submits to the examination and the Division finds or the insurance carrier determines that the injured employee had good cause for failure to attend the examination.

The claimant argued that if it was determined she did not have good cause for failing to attend the June 3, 2014, designated doctor examination, she should receive TIBs beginning October 7, 2014, the date of the first rescheduled designated doctor examination, because it was not her fault that the designated doctor examination was not scheduled until and ultimately occurred on November 4, 2014. However, Rule 127.25 requires actual attendance of the designated doctor’s examination. Additionally, Rule 127.25 does not provide for an exception to the suspension of TIBs based on a delay in the subsequent appointment of a designated doctor examination. See APD 141226, decided August 8, 2014. We note that APD 141226 was decided under a previous version of Rule 127.25; however, the cited legal proposition remains the same under both versions of Rule 127.25.

Therefore, pursuant to Rule 127.25, the carrier is entitled to suspend TIBs beginning June 3, 2014, when the claimant failed, without good cause, to attend the June 3, 2014, designated doctor examination, through November 4, 2014, the date the claimant submitted to the rescheduled designated doctor examination. Accordingly, we render a new decision that the claimant is not entitled to TIBs beginning June 3, 2014, through November 4, 2014.

SUMMARY

We affirm the hearing officer’s determination that the claimant had disability beginning on June 3, 2014, and continuing through November 3, 2014.

We reverse the hearing officer’s determination that the claimant had good cause for failing to submit to the designated doctor’s examination on June 3, 2014, and we render a new decision that the claimant did not have good cause for failing to submit to the designated doctor’s examination on June 3, 2014.

We render a new decision that the claimant is not entitled to TIBs beginning June 3, 2014, through November 4, 2014.

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

CORPORATION SERVICES CO.

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
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 October 9, 2014, in Houston, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [Date of Injury], does not extend to cervical stenosis at C5-7, cervical kyphosis, cervical radiculopathy, cervical herniated nucleus pulposus (HNP), lumbar HNPs at L4-S1, disc herniations at L5-S1, lumbar disc abnormalities at L5-S1, and lumbar radiculopathy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 5, 2013; (3) the claimant’s impairment rating (IR) is 14%; (4) the claimant had disability resulting from the compensable injury of [Date of Injury], during the period beginning February 21 through October 7, 2012, but she did not have disability during the period beginning February 6 through May 5, 2013 (the disability periods at issue); and (5) the claimant did not have good cause for failing to submit to the designated doctor’s examination on February 27, 2012, and is not entitled to temporary income benefits (TIBs) during the period beginning February 27, 2012, and continuing through February 19, 2013. We note that the hearing officer’s decision states a different zip code for the address of the respondent’s (carrier) registered agent for service of process than is contained on the carrier information form in evidence.

The claimant appealed all of the hearing officer’s determinations essentially on a sufficiency of the evidence point of error. The carrier responded, urging affirmance of the hearing officer’s determinations.

DECISION

Affirmed in part, affirmed as reformed in part, and reversed and rendered in part.

The parties stipulated in part that the claimant sustained a compensable injury on [Date of Injury], at least in the form of a cervical sprain/strain, lumbar sprain/strain, right hip sprain/strain, right elbow sprain/strain, and right elbow contusion. The claimant testified that she was injured when she slipped and fell on ice.

MOTION FOR CONTINUANCE

The hearing officer noted in her decision that the claimant requested after the CCH held on October 9, 2014, to leave the record open for two weeks so that she could obtain additional medical evidence to support her position regarding the extent-of-injury issue. The hearing officer further noted that the claimant did not provide any additional medical evidence, and therefore closed the record on October 23, 2014.

The claimant contends in her appeal that she obtained a letter from her doctor after the hearing officer closed the record. The claimant attached a copy of a letter from (Dr. M), dated November 20, 2014, in which Dr. M states that the cause of his delay in submitting the claimant’s letter of causation was “[d]ue to my surgical teaching obligations, personal family vacation, and extensive surgical practice. . . .”

Documents submitted for the first time on appeal are generally not considered unless they constitute newly discovered evidence.  See generally, Appeals Panel Decision (APD) 091375, decided December 2, 2009; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ) see also APD 101100, decided October 13, 2010.   In determining whether new evidence submitted with an appeal or response requires remand for further consideration, the Appeals Panel considers whether the evidence came to the knowledge of the party after the hearing, whether it is cumulative of other evidence of record, whether it was not offered at the hearing due to a lack of diligence, and whether it is so material that it would probably result in a different decision.  See APD 051405, decided August 9, 2005.  We do not agree that the documents submitted by the claimant for the first time on appeal meet the requirements for newly discovered evidence. The documents could have been discovered prior to the CCH, were in part cumulative of other evidence admitted at the CCH, and were not so material that it would probably result in a different decision.  Therefore, the documents attached to the claimant’s appeal were not considered by the Appeals Panel.

FINDING OF FACT NO. 1.F.

The parties stipulated on the record that (Dr. G), the designated doctor for purposes of MMI and IR, certified that the claimant reached MMI as of July 17, 2012, with a 14% IR for the accepted compensable injury. However, the decision incorrectly states in Finding of Fact No. 1.F. that “[o]n February 19, 2013, [Dr. G] certified that [the] [c]laimant reached MMI as of February 5, 2013, with a 14% IR for the accepted compensable injury.” We reform the hearing officer’s decision by amending Finding of Fact No. 1.F. to read as follows below, to comply with the actual stipulation made by the parties at the CCH:

Dr. G certified that the claimant reached MMI as of July 17, 2012, with a 14% IR for the accepted compensable injury.

EVIDENCE PRESENTED

At the CCH Claimant’s Exhibits 1 through 14 were admitted into evidence, as were Carrier’s Exhibits A through S. However, the decision incorrectly reflects that Claimant’s Exhibits 1 through 16 were admitted, as were Carrier’s Exhibits A through Q. We reform the hearing officer’s decision to show that Claimant’s Exhibits 1 through 14 and Carrier’s Exhibits A through S were admitted to reflect the correct exhibits offered by the claimant and the carrier and admitted into evidence at the CCH.

EXTENT OF INJURY, MMI, IR, AND DISABILITY

The hearing officer’s determinations that the compensable injury of [Date of Injury], does not extend to cervical stenosis at C5-7, cervical kyphosis, cervical radiculopathy, cervical HNP, lumbar HNPs at L4-S1, disc herniations at L5-S1, lumbar disc abnormalities at L5-S1, and lumbar radiculopathy; the claimant reached MMI on February 5, 2013; the claimant’s IR is 14%; and that the claimant had disability resulting from the compensable injury of [Date of Injury], during the period beginning February 21 through October 7, 2012, but she did not have disability during the period beginning February 6 through May 5, 2013, are supported by sufficient evidence and are affirmed.

GOOD CAUSE FOR FAILING TO SUBMIT TO THE DESIGNATED DOCTOR’S EXAMINATION AND ENTITLEMENT TO TIBS

The issue before the hearing officer as listed on the Benefit Review Conference (BRC) report and agreed to by the parties is the following:

Did the claimant have good cause for failing to submit to the designated doctor’s appointment on February 21, 2012, and if so, is the claimant entitled to [TIBs] from December 4, 2012,^[1] through March 12, 2013?

The hearing officer determined that the claimant did not have good cause for failing to submit to the designated doctor’s examination on February 27, 2012, and is not entitled to TIBs during the period beginning February 27, 2012, and continuing through February 19, 2013.

We note that the issue before the hearing officer was whether the claimant had good cause for failing to submit to the designated doctor’s appointment on February 21, 2012, not February 27, 2012. However, the hearing officer found in an unappealed finding of fact that the February 21, 2012, designated doctor appointment was rescheduled to February 27, 2012. It was undisputed that the claimant failed to attend the designated doctor appointment scheduled for February 27, 2012, and that the claimant did not submit to a designated doctor examination until February 19, 2013. The record reflects, and the parties litigated at the CCH, that the date of the designated doctor examination in question was February 27, 2012, rather than February 21, 2012. The hearing officer’s determination that the claimant did not have good cause for failing to submit to the February 27, 2012, designated doctor examination is supported by sufficient evidence and is affirmed.

As noted above, the hearing officer also determined that the claimant is not entitled to TIBs during the period beginning February 27, 2012, and continuing through February 19, 2013, because of her failure to attend the February 27, 2012, designated doctor examination.

The rule governing the claimant’s failure to attend the February 27, 2012, designated doctor appointment in this case is 28 TEX. ADMIN. CODE § 127.25 (Rule 127.25), effective from [Date of Injury], through August 31, 2012. That rule provides the following:

(a) An insurance carrier may suspend [TIBs] if an injured employee, without good cause, fails to attend a designated doctor examination.

(b) In the absence of a finding by the [Texas Department of Insurance, Division of Workers’ Compensation (Division)] to the contrary, an insurance carrier may presume that the injured employee did not have good cause to fail to attend the examination if by the day the examination was originally scheduled to occur the injured employee has both:

(1) failed to submit to the examination; and

(2) failed to contact the designated doctor’s office to reschedule the examination.

(c) If, after the insurance carrier suspends TIBs pursuant to this subsection, the injured employee contacts the designated doctor to reschedule the examination, the designated doctor shall schedule the examination to occur as soon as possible, but not later than the 21st day after the injured employee contacted the doctor. The insurance carrier shall reinstate TIBs effective as of the date the injured employee submitted to the examination unless the report of the designated doctor indicates that the injured employee has reached MMI or is otherwise not eligible for income benefits. The re-initiation of TIBs shall occur no later than the seventh day following:

(1) the date the insurance carrier was notified that the injured employee submitted to the examination; or

(2) the date that the insurance carrier was notified that the [D]ivision found that the injured employee had good cause for not attending the examination.

(d) An injured employee is not entitled to TIBs for a period during which the insurance carrier suspended benefits pursuant to this subsection unless the injured employee later submits to the examination and the [D]ivision finds or the insurance carrier determines that the injured employee had good cause for failure to attend the examination.

(e) This section becomes effective on [Date of Injury].

As noted above, the issue before the hearing officer as reflected on the BRC report and agreed to by the parties at the CCH was whether the claimant was entitled to TIBs from December 4, 2012, through March 12, 2013. The hearing officer’s determination that the claimant is not entitled to TIBs during the period beginning February 27, 2012, and continuing through February 19, 2013, does not address the entire period before the hearing officer. However, Rule 127.25 provides that an insurance carrier may suspend TIBs when an injured employee, without good cause, fails to attend a designated doctor examination as of the date the injured employee failed to attend the designated doctor examination. As previously discussed, the date of the designated doctor examination in question was February 27, 2012. The carrier in this case is unable to suspend TIBs under Rule 127.25 for any period prior to February 27, 2012. Furthermore, Rule 127.25(c) provides that the carrier shall reinstate TIBs effective as of the date the injured employee submitted to the examination unless the report of the designated doctor indicates that the injured employee has reached MMI or is otherwise not eligible for income benefits. It is undisputed that the claimant attended the February 19, 2013, designated doctor examination. Under the circumstances in this case, the hearing officer should have amended the issue to determine whether the claimant is entitled to TIBs from February 27, 2012, through February 18, 2013, to reflect the actual time period in dispute. Any period outside February 27, 2012, through February 18, 2013, would not fall under Rule 127.25, and as such cannot be addressed by that rule.

We have affirmed the hearing officer’s determination that the claimant did not have good cause for failing to submit to the February 27, 2012, designated doctor examination. Section 408.101(a) and Rule 129.2(a) provide that once an injured employee reaches MMI, he or she is no longer entitled to TIBs.

We affirm that portion of the hearing officer’s determination that the claimant is not entitled to TIBs beginning February 27, 2012. We have affirmed the hearing officer’s determination that the claimant reached MMI on February 5, 2013. Therefore, even though the claimant attended the February 19, 2013, designated doctor examination, which under Rule 127.25 could allow reinstatement of TIBs as of that date, the claimant would not be entitled to TIBs after February 5, 2013. We reverse that portion of the hearing officer’s determination that the claimant is not entitled to TIBs continuing through February 19, 2013, and we render a new decision that the claimant is not entitled to TIBs continuing through February 18, 2013.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of [Date of Injury], does not extend to cervical stenosis at C5-7, cervical kyphosis, cervical radiculopathy, cervical HNP, lumbar HNPs at L4-S1, disc herniations at L5-S1, lumbar disc abnormalities at L5-S1, and lumbar radiculopathy.

We affirm the hearing officer’s determination that the claimant reached MMI on February 5, 2013.

We affirm the hearing officer’s determination that the claimant’s IR is 14%.

We affirm the hearing officer’s determination that the claimant had disability resulting from the compensable injury of [Date of Injury], during the period beginning February 21 through October 7, 2012, but she did not have disability during the period beginning February 6 through May 5, 2013.

We affirm that portion of the hearing officer’s determination that the claimant is not entitled to TIBs beginning February 27, 2012.

We reverse that portion of the hearing officer’s determination that the claimant is not entitled to TIBs continuing through February 19, 2013, and we render a new decision that the claimant is not entitled to TIBs continuing through February 18, 2013.

We reform the hearing officer’s decision by amending Finding of Fact No. 1.F. to read as follows below, to comply with the actual stipulation made by the parties at the CCH:

Dr. G certified that the claimant reached MMI as of July 17, 2012, with a 14% IR for the accepted compensable injury.

We reform the hearing officer’s decision to show that Claimant’s Exhibits 1 through 14, and Carrier’s Exhibits A through S were admitted to reflect the correct exhibits offered by the claimant and the carrier and admitted into evidence at the CCH.

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

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that the decision incorrectly identifies the beginning date of the period of TIBs entitlement as January 4, 2012, rather than December 4, 2012, as listed on the BRC report and agreed to by the parties at the CCH.

   ↑

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 April 24, 2014, in Fort Worth, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [date of injury], extends to complex regional pain syndrome (CRPS); (2) the respondent (claimant) had disability resulting from an injury sustained on [date of injury], from December 13, 2010, through the date of the CCH; (3) the claimant did not have good cause for failing to submit to the designated doctor’s examination on May 24, 2012; (4) the appellant (carrier) is entitled to suspend temporary income benefits (TIBs) from May 24 through July 11, 2012, and from August 9 through August 30, 2012; and (4) the carrier is not entitled to suspend TIBs from July 12 to August 8, 2012, and from August 31, 2012, through the date of the CCH.

The carrier appealed the hearing officer’s extent of injury and disability determinations on a sufficiency of the evidence point of error. The carrier also appealed the hearing officer’s determination that the carrier is not entitled to suspend TIBs from July 12 to August 8, 2012, and from August 31, 2012, through the date of the CCH. The carrier contended that the hearing officer’s determination violates the requirements of 28 TEX. ADMIN. CODE § 127.25 (Rule 127.25). The appeal file does not contain a response from the claimant to the carrier’s appeal. The hearing officer’s determinations that the claimant did not have good cause for failing to submit to the designated doctor’s examination on May 24, 2012, and that the carrier is entitled to suspend TIBs from May 24 through July 11, 2012, and from August 9 through August 30, 2012, 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 that the claimant sustained a compensable injury on [date of injury]. The claimant testified that she severely twisted her right ankle when she stepped in an overgrown culvert.

EXTENT OF INJURY AND DISABILITY

The hearing officer’s determinations that the compensable injury of [date of injury], extends to CRPS and that the claimant had disability from December 13, 2010, through the date of the CCH is supported by sufficient evidence and is affirmed.

FAILURE TO ATTEND DESIGNATED DOCTOR EXAMINATIONS

The hearing officer determined that the claimant did not have good cause for failing to submit to the designated doctor’s examination on May 24, 2012. As discussed above this determination was not appealed and has become final pursuant to Section 410.169.

In Finding of Fact No. 7, the hearing officer found that the claimant did not have good cause for not attending the designated doctor examination on August 9, 2012. That finding was not appealed. However, the hearing officer failed to make a conclusion of law or a decision on this issue. It is undisputed that the issue of whether the claimant had good cause for failing to submit to the designated doctor’s examination on August 9, 2012, was an issue in dispute before the hearing officer and was actually litigated at the CCH. We reverse the hearing officer’s decision as being incomplete and we render a new decision that the claimant did not have good cause for not attending the August 9, 2012, designated doctor’s examination to conform to Finding of Fact No. 7 and the evidence.

SUSPENSION OF TIBs

The evidence established that a designated doctor examination was originally scheduled for May 21, 2012, but was rescheduled by (Churchill) to occur on May 24, 2012, and Churchill mailed a letter to the claimant at her confirmed home address notifying her of the date and time of the rescheduled examination. The claimant testified she did not recall receiving this letter. In evidence is a letter dated May 24, 2012, from Churchill sent to the claimant notifying her that she did not attend the appointment scheduled on that date. Evidence reflects that the claimant called the Texas Department of Insurance, Division of Workers’ Compensation (Division) on July 12, 2012, to reschedule the examination. Churchill sent a letter to the claimant on July 13, 2012, notifying her that the appointment was rescheduled for August 9, 2012. The claimant testified that she attempted to attend the appointment scheduled for August 9, 2012, but that she arrived as the designated doctor was leaving because she had gotten lost. Evidence reflects that the claimant contacted the designated doctor’s office on August 31, 2012, to reschedule the appointment. On that same date, the designated doctor contacted the Division to appoint a new designated doctor for the claimant. Evidence also reflects that the claimant called the Division on September 17, 2012, to request another designated doctor. A designated doctor appointment was scheduled for March 6, 2014, which the claimant attended.

The hearing officer noted in the Discussion portion of the decision that the claimant called the Division on July 12, 2012, to reschedule the May 24, 2012, designated doctor appointment she had missed, and determined that the carrier is not entitled to suspend TIBs from July 12 to August 8, 2012. The hearing officer also noted the following in the Discussion:

On August 31, 2012 [the] [c]laimant called the [d]esignated [d]octor’s office to reschedule the appointment. There is no explanation in evidence as to why the appointment did not get rescheduled until March 6, 2014. The [d]esignated [d]octor asked to be redesignated so it was up to the Division to redesignate a [d]esignated [d]octor and get an examination scheduled. The Division should have reappointed a [d]esignated [d]octor. [The] [c]laimant would have good cause for not attending a [d]esignated [d]octor appointment until March 6, 2014, because no examination was ever scheduled.

The hearing officer makes clear in his decision that he based his determination that the carrier is not entitled to suspend TIBs from July 12 to August 8, 2012, because the claimant called the Division to reschedule the designated doctor examination on July 12, 2012, and because a designated doctor appointment was rescheduled for August 9, 2012, which the claimant failed to attend. It is also clear that the hearing officer based his determination that the carrier is not entitled to suspend TIBs from August 31, 2012, through the date of the CCH because the claimant called the designated doctor’s office on August 31, 2012, to reschedule the examination and a designated doctor examination was not rescheduled until March 6, 2014.

The carrier contended on appeal that the hearing officer’s determination that the carrier is not entitled to suspend TIBs from July 12 to August 8, 2012, and from August 31, 2012, through the date of the CCH violates the requirements of Rule 127.25. The carrier argued that because the hearing officer determined the claimant did not have good cause for failing to attend the May 24, 2012, and August 9, 2012, designated doctor’s examinations, the carrier is entitled to suspend TIBs until the date the claimant submitted to the designated doctor examination.

The hearing officer correctly noted that the rule governing a claimant’s failure to attend a designated doctor appointment at the time of the designated doctor examinations in this case was Rule 127.25, effective from February 11, 2011, through August 31, 2012. That rule provides the following:

1. a)(a) An insurance carrier may suspend [TIBs] if an injured employee, without good cause, fails to attend a designated doctor examination.

2. b)(b) In the absence of a finding by the [D]ivision to the contrary, an insurance carrier may presume that the injured employee did not have good cause to fail to attend the examination if by the day the examination was originally scheduled to occur the injured employee has both: (1) failed to submit to the examination; and (2) failed to contact the designated doctor’s office to reschedule the examination.

3. c)(c) If, after the insurance carrier suspends TIBs pursuant to this subsection, the injured employee contacts the designated doctor to reschedule the examination, the designated doctor shall schedule the examination to occur as soon as possible, but not later than the 21st day after the injured employee contacted the doctor. The insurance carrier shall reinstate TIBs effective as of the date the injured employee submitted to the examination unless the report of the designated doctor indicates that the injured employee has reached [maximum medical improvement (MMI)] or is otherwise not eligible for income benefits. The re-initiation of TIBs shall occur no later than the seventh day following:

4. 4.(1) the date the insurance carrier was notified that the injured employee submitted to the examination; or

5. 5.(2) the date that the insurance carrier was notified that the [D]ivision found that the injured employee had good cause for not attending the examination.

6. f)(d) An injured employee is not entitled to TIBs for a period during which the insurance carrier suspended benefits pursuant to this subsection unless the injured employee later submits to the examination and the [D]ivision finds or the insurance carrier determines that the injured employee had good cause for failure to attend the examination.

7. g)(e) This section becomes effective on February 1, 2011.

The hearing officer determined that the claimant did not have good cause for failing to submit to the May 24, 2012, designated doctor’s examination, and as explained above, we have rendered a new decision that the claimant did not have good cause for failing to submit to the August 9, 2012, designated doctor’s examination to conform to the hearing officer’s unappealed Finding of Fact No. 7 and the evidence. The carrier is entitled to suspend TIBs because the claimant did not have good cause for failing to attend the May 24, 2012, and August 9, 2012, designated doctor examinations. Rule 127.25 requires actual attendance of the designated doctor examination; merely calling to reschedule a designated doctor examination is insufficient to meet the requirements of Rule 127.25. Additionally, Rule 127.25 does not provide for an exception to the suspension of TIBs based on a delay in the subsequent appointment of a designated doctor examination. Therefore, that portion of the hearing officer’s determination that the carrier is not entitled to suspend TIBs from July 12 to August 8, 2012, and from August 31, 2012, through March 5, 2014, is not in compliance with Rule 127.25. Accordingly, we reverse that portion of the hearing officer’s determination, and we render a new decision that the carrier is entitled to suspend TIBs from July 12 to August 8, 2012, and from August 31, 2012, through March 5, 2014.

As previously discussed, the claimant attended the March 6, 2014, designated doctor examination. Rule 127.25(c) provides that the carrier shall reinstate TIBs effective as of the date the injured employee submitted to the examination unless the report of the designated doctor indicates that the injured employee has reached MMI or is otherwise not eligible for income benefits. Based on the foregoing, we affirm that portion of the hearing officer’s determination that the carrier is not entitled to suspend TIBs from March 6, 2014, through the date of the CCH.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of [date of injury], extends to CRPS.

We affirm the hearing officer’s determination that the claimant had disability resulting from an injury sustained on [date of injury], from December 13, 2010, through the date of the CCH.

We reverse the hearing officer’s decision as incomplete, and we render a new decision that the claimant did not have good cause for failing to submit to the designated doctor’s examination on August 9, 2012, to conform to the hearing officer’s unappealed Finding of Fact No. 7 and the evidence.

We reverse that portion of the hearing officer’s determination that the carrier is not entitled to suspend TIBs from July 12 to August 8, 2012, and from August 31, 2012, through March 5, 2014, and we render a new decision that the carrier is entitled to suspend TIBs from July 12 to August 8, 2012, and from August 31, 2012, through March 5, 2014.

We affirm that portion of the hearing officer’s determination that the carrier is not entitled to suspend TIBs from March 6, 2014, through the date of the CCH.

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
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 January 11, 2006. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) had good cause for failing to submit to the designated doctor’s examination on April 15, 2002, entitling him to temporary income benefits (TIBs) from April 15 through May 8, 2002; and that the respondent (carrier) is entitled to offset claimant’s entitlement to TIBs to recoup the previous overpayment of impairment income benefits (IIBs). The claimant appealed, arguing that the evidence supporting the recoupment determination is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. The claimant additionally argues that the hearing officer applied the wrong standard to this case. The carrier responded, urging affirmance of the recoupment determination. The carrier additionally states its disagreement that “there was overwhelming evidence of good cause for the claimant to miss the designated doctor’s appointment.” We note to the extent that this could be construed as an appeal of the good cause determination that the carrier’s response was timely as a response but untimely as an appeal. The good cause determination has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The parties stipulated that the claimant sustained a compensable injury on ___; that he was scheduled to be examined by the designated doctor on April 15, 2002, but did not attend; and that the claimant was rescheduled to be examined by the designated doctor on May 9, 2002, which he did attend. The hearing officer determined that the claimant had good cause for failing to attend the examination on April 15, 2002, entitling the claimant to income benefits from April 16 through May 9, 2002. The hearing officer’s determination of good cause was not timely appealed and has become final.

The hearing officer noted in her discussion in the Background Information that there was evidence that an overpayment had been made by the carrier in the amount of $9,000.00. The hearing officer then stated that “[I]t is difficult to overlook that claimant has been paid more than he is owned in income benefits.” It was undisputed that an overpayment had been made by the carrier. It appears the carrier paid IIBs based on a 20% impairment rating (IR) based on an amended report from the designated doctor. The claimant’s IR was subsequently determined to be 12% in a CCH based on the initial assessment of the designated doctor. The carrier acknowledges that it did not pay IIBs for the 20% IR pursuant to an interlocutory order or from a decision and order of the Texas Department of Insurance, Division of Workers’ Compensation (Division). The evidence reflects that the carrier suspended TIBs for the time period of April 16 to May 8, 2002.

Section 408.121(b) provides that the carrier shall begin to pay IIBs not later than the fifth day after the date on which the carrier receives the doctor’s report certifying maximum medical improvement. IIBs shall be paid for a period based on the IR, unless that rating is disputed under subsection (c). Section 408.121(c) provides that if the carrier disputes the IR used under subsection (a), the carrier shall pay the employee IIBs for a period based on the carrier’s reasonable assessment of the correct rating. The 1989 Act contains specific provisions that allow for recoupment or reimbursement which include the following: Section 415.008, concerning fraudulently obtaining or denying benefits (although a CCH is not the proper forum to determine an administrative violation); Section 408.003, concerning reimbursement of benefit payments either initiated or supplemented by an employer, versus a carrier; and Section 410.209, which allows reimbursement to the carrier of benefit payments, via the subsequent injury fund, made pursuant to a Division order which is reversed or modified. None of the aforementioned sections are applicable to the facts of this case.

The carrier contends in its response that the hearing officer made a decision based on equity and fairness. Appeals Panel Decision 033358-s, decided February 18, 2004, noted that prior to the effective date of 28 TEX. ADMIN. CODE § 128.1(e) (Rule 128.1(e)) that most of the Appeals Panel decisions concerning recoupment were decided on equitable principles and acknowledged that much of the prior precedent on recoupment has been superceded. There is no contention that Rule 128.1(e)(2) which specifically provides for recoupment in situations when the average weekly wage is miscalculated is applicable to the instant case. The legislature has in certain sections described the circumstances under which some types of recoupment, reimbursement, or reduction of future benefits can be made. When the legislature has carefully employed a term in one section of a statute, and has excluded it in another, it should not be implied where excluded. See Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1980). No statutory provision or rule was cited as authority for recoupment under the facts as presented in this case, nor have we found one. The hearing officer’s determination that the carrier is entitled to offset claimant’s entitlement to TIBs to recoup the previous overpayment of IIBs is reversed and a new decision rendered that the carrier is not entitled to offset claimant’s entitlement to TIBs to recoup the previous overpayment of IIBs.

The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY, A DIVISION OF ZURICH NORTH AMERICA and the name and address of its registered agent for service of process is

LEO MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 18, 2005, with the record closing on November 10, 2005. The hearing officer resolved the disputed issue by deciding that the appellant (claimant) did not have good cause for her failure to attend or reschedule the designated doctor’s examination on March 31, 2005, and consequently, she is not entitled to temporary income benefits (TIBs) for the period from April 5 through April 27, 2005, pursuant to 28 TEX. ADMIN. CODE §130.6(c)(3) (Rule 130.6(c)(3)). The claimant appeals, arguing that the hearing officer’s determination is against the great weight and preponderance of the evidence, is in error and should be reversed because it is not supported by legally sufficient evidence, and incorrectly interprets and applies the applicable provisions of the Texas Labor Code. The respondent (carrier) responds, urging affirmance. The carrier contends that the hearing officer’s determination is supported by the evidence.

DECISION

Reversed and rendered.

The parties stipulated that the claimant sustained a compensable injury on ___. It was undisputed that the claimant’s initial appointment with the Texas Department of Insurance, Division of Workers’ Compensation (Division)-selected designated doctor was set for March 29, 2005, at 10:00 a.m. The claimant testified that approximately 1 hour prior to the March 29th scheduled appointment she received a call from the designated doctor’s office to reschedule the appointment due to a conflict of the designated doctor.

Rule 130.6(b) provides that the designated doctor and the injured employee shall contact each other if there exists a scheduling conflict for the designated doctor appointment. The rule further provides that whoever has the conflict must make contact at least 24 hours prior to the appointment unless it is an emergency situation. The rescheduled examination is to be set for a date within 14 days of the originally scheduled examination unless an extension is granted by the Division’s field office. No evidence was presented at the CCH regarding the reason the designated doctor had to reschedule the examination.

The claimant testified that during the phone conversation with the designated doctor’s office on March 29th, an alternative date of March 31st was proposed by the designated doctor’s office. The claimant informed the designated doctor’s office that she had a previously scheduled appointment with another doctor on that date and therefore March 31st was not a good alternative date for rescheduling the appointment. The employee from the designated doctor’s office responded that they would “get back with her [the claimant] concerning another date.” In evidence was a report dated March 31, 2005, which indicated that the claimant did in fact attend a doctor’s appointment on that date for injuries she sustained in the course and scope of her employment. The evidence indicated that an adjuster with the carrier informed the designated doctor’s office that the claimant should be told to cancel her previously scheduled appointment and that the designated doctor’s appointment should be rescheduled for March 31, 2005. The hearing officer found that a message was left on the claimant’s answering machine on March 30, 2005, informing the claimant that the designated doctor’s appointment had been set for March 31, 2005. The hearing officer found that the claimant did not act like an ordinarily prudent person under the same or similar circumstances when she failed to reschedule or attend the March 31, 2005, appointment set with the designated doctor after a message had been left for the claimant on March 30, 2005, regarding the appointment.

Rule 130.6(c) provides that an insurance carrier may suspend TIBs if an injured employee, without good cause, fails to attend a designated doctor examination. Section 408.0041(h), effective for the time period at issue in this case, provides that the Commission [now known as the Division] may order TIBs be paid for the period for which the Commission determined that the employee had good cause and that the Commission by rule shall ensure that the employee receives reasonable notice of an examination and the insurance carrier’s basis for suspension; and that the employee is provided a reasonable opportunity to reschedule an examination for good cause. Good cause is a question of fact for the hearing officer to resolve. Appeals Panel Decision (APD) 941656, decided January 26, 1995. The test for good cause is that of ordinary prudence; that is, the degree of diligence an ordinarily prudent person would have exercised under the same or similar circumstances. APD 94244, decided April 15, 1994.

In the instant case the initial designated doctor’s appointment had to be rescheduled due to a conflict of the designated doctor. The evidence indicated that the contact to reschedule the initial appointment occurred approximately 1 hour prior to the originally scheduled appointment time, not 24 hours as required by Rule 130.6(b). Further, the evidence reflected that the designated doctor’s office was aware that the claimant had a conflict on March 31, 2005, prior to re-scheduling the appointment for March 31, 2005. Potential adverse consequences also faced the claimant if she failed to attend a health care appointment concerning her compensable injury. Rule 130.4(b) provides that if maximum medical improvement (MMI) has not been certified and statutory MMI has not been reached, the carrier shall presume that an employee has reached MMI if it appears that the employee has failed to attend two or more consecutively scheduled heath care appointments and the number of days between the two examinations is greater than 60. Under the facts as presented in this case, the hearing officer’s determination that the claimant did not act like an ordinarily prudent person under the same or similar circumstances when she failed to reschedule or attend the March 31, 2005, appointment set with the designated doctor after a message was left for the claimant on March 30, 2005, is against the great weight and preponderance of the evidence. We reverse the hearing officer’s determination that the claimant did not have good cause for her failure to attend or reschedule the designated doctor’s examination on March 31, 2005, and consequently is not entitled to TIBs from April 5 through April 27, 2005, and render a new determination that the claimant did have good cause for her failure to attend or reschedule the designated doctor’s examination on March 31, 2005, and that the claimant is entitled to TIBs from April 5 through April 27, 2005.

The hearing officer’s decision and order are reversed and a new decision rendered that the claimant did have good cause for failing to attend the designated doctor’s appointment on March 31, 2005, and that the claimant is entitled to TIBs from April 5 through April 27, 2005.

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

STREET

CITY, TEXAS ZIP CODE.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on October 19, 2004. The hearing officer determined that the first certification of maximum medical improvement (MMI) and impairment rating (IR) assigned by Dr. A on October 29, 2003, did not become final under Section 408.123 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); that the appellant (claimant) reached MMI on October 29, 2003; that the claimant’s IR is 2% as certified by the designated doctor chosen by the Texas Workers’ Compensation Commission (Commission); and that the claimant had good cause for failing to submit to the designated doctor’s examination. The hearing officer’s determination on the good cause issue and the MMI date have not been appealed and have become final pursuant to Section 410.169.

The claimant appeals the hearing officer’s decision on Rule 130.12 issue, contending that the first certification of IR had not been timely disputed. By implication the claimant also disputes the IR issue, contending that the IR should be 26% as assessed by Dr. A. The respondent (carrier) responds, urging affirmance.

DECISION

Affirmed.

The parties stipulated that the claimant sustained a compensable injury on ____________, and it is undisputed that the claimant reached MMI on October 29, 2003. In evidence is the Report of Medical Evaluation (TWCC-69) and narrative report of Dr. A certifying MMI with a 26% IR (mostly right shoulder loss of range of motion (ROM)). In an unappealed finding the hearing officer determined that Dr. A was the first doctor to certify MMI and assess an IR. The hearing officer also found that the carrier received notice of Dr. A’s certification on November 12, 2003. It is undisputed that on December 3, 2003, the Commission received a Request for Designated Doctor (TWCC-32) from the carrier. The TWCC-32 sent to the Commission was incomplete in that Section III (regarding the name of the certifying doctor, MMI date and IR) was blank. Dispute Resolution Information System (DRIS) notes indicate that the claimant called the Commission on December 3, 2003, indicating he had received Dr. A’s report and that “he had received notice that the carrier would be disputing Dr. A’s IR.” The claimant requested that the Commission contact the carrier’s adjuster to see when they will be submitting the TWCC-32. The DRIS note indicates the carrier’s adjuster was contacted. Another DRIS note dated December 8, 2003, indicates “that the TWCC-32 was being returned to the carrier because Part III was incomplete.” DRIS notes dated January 7 and February 4, 2004, indicate that the claimant called to inquire about the “status of the appointment of a designated doctor.” In another DRIS note dated February 13, 2004, the claimant calls about the status of the carrier’s TWCC-32 and was told that it was “not in yet.” A completed TWCC-32 was received on February 19, 2004.

The carrier contends that the DRIS notes “clearly indicate” that Dr. A’s IR “was disputed by the Carrier and that dispute was communicated to both the Claimant and the TWCC.” The carrier further contends that “[n]othing in the Act or the Rules regarding the 90-day rule indicate that the only way to dispute an initial date of MMI and IR is by way of requesting a DD.” Applicable to this case is Section 408.123(d). We note that two different versions of Section 408.123(d) were enacted by the 78th Legislature one to be effective June 18, 2003, and the second to be effective June 20, 2003. Upon careful review of the two different versions of subsection (d), we conclude that while the language used is slightly different in each, the meaning is the same. Both versions provide that an employee’s first valid certification of MMI and first valid assignment of IR is final if not disputed within the 90 days after the date that written notification of the certification MMI and assignment of IR is provided to the employee and the carrier by verifiable means. Texas Workers’ Compensation Commission Appeal No. 041241-s, decided July 19, 2004. Rule 130.12 was adopted by the Commission to be effective on March 14, 2004, to implement Section 408.123(d). Although it was not in effect at the time the carrier received the first certification of MMI and assignment of IR we find it instructive as to the Commission’s interpretation of how both versions of Section 408.123(d) can be read together. See also Texas Workers’ Compensation Commission Appeal No. 041985, decided September 28, 2004. Rule 130.12(b) provides in pertinent part:

(b)A first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means, including IRs related to EOI disputes. The notice must contain a copy of a valid Form TWCC-69, Report of Medical Evaluation, as described in subsection (c). 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. The 90-day period may not be extended.

(1)Only an insurance carrier, an injured employee, or an injured employee’s attorney or employee representative under 150.3(a) may dispute a first certification of MMI or assigned IR under §141.1 (related to Requesting and Setting a Benefit Review Conference [BRC]) or by requesting the appointment of a designated doctor, if one has not been appointed.

Rule 130.12(b) goes on to state that a TWCC-69 non-concurrence is insufficient to dispute the first certification of MMI and IR. Rule 130.12(c) is very specific what must be included in the first certification.

One way the first certification of MMI and IR may be disputed is to request a BRC pursuant to Rule 141.1. The other way a party may dispute the first certification of MMI and IR under Rule 130.12(b)(1) is “by requesting the appointment of a designated doctor.” Rule 130.5(a) which deals with the procedure for requesting a designated doctor states that the “request shall be made in the form and manner prescribed by the Commission.” The TWCC-32 form is the form prescribed by the Commission to request a designated doctor. Consequently, we hold that Section 408.123(d), Rule 130.12(b)(1) and Rule 130.5(a) do prescribe how to dispute the first certification of MMI/IR.

The question then becomes whether the TWCC-32 with Part III incomplete, filed by the carrier on December 3, 2003, is sufficient to dispute Dr. A’s first certification of an IR. We note that irrespective of Rule 130.12 the carrier was entitled to request a designated doctor pursuant to Rule 130.5. Further, we note that on the TWCC-32 filed by the carrier on December 3, 2003, the reason given in Part II for the request for a designated doctor the carrier had checked “To dispute an assigned date of [MMI] and [IR].” At that point the only certification of MMI and IR was Dr. A’s assessment of October 29, 2003. Consequently, we hold, in this case, that the TWCC-32 filed by the carrier with the Commission on December 3, 2003, was sufficient to dispute the first (certification of MMI) assigned IR pursuant to Rule 130.12(b)(1) and that the first certification of MMI and IR assigned by Dr. A did not become final.

A designated doctor chosen by the Commission was asked to examine the claimant and assign an IR. In a report dated August 5, 2004, the designated doctor certified MMI and assessed a 2% IR based on right shoulder loss of ROM. Section 408.125(c) provides that the report of the designated doctor has presumptive weight, and the Commission shall base the IR on that report unless the great weight of the other medical evidence is to the contrary. The hearing officer considered the evidence and determined that there was not a great weight of medical evidence contrary to the IR report of the designated doctor. The hearing officer’s decision on this issue is supported by sufficient evidence.

The hearing officer’s decision and order are affirmed.

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

MR. RUSSELL RAY OLIVER, PRESIDENT

221 WEST 6TH STREET, SUITE 300

AUSTIN, TEXAS 78701-3403.

Thomas A. Knapp

CONCUR:

Robert W. Potts
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 October 1, 2003. The hearing officer determined that the appellant (claimant) had good cause for failing to attend the designated doctor examination on August 20, 2002, and that he did not have disability from August 30, 2002, through January 23, 2003, as a result of the _______________, compensable injury. The claimant appeals the disability determination. The respondent (self-insured) urges affirmance of the hearing officer’s decision. The good cause determination has not been appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed.

Disability is defined as "the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage." Section 401.011(16). The claimant bears the burden of establishing that a compensable injury was a producing cause of his disability. The hearing officer was not persuaded by the evidence that the claimant satisfied his burden of proving that he had disability from August 30, 2002, through January 23, 2003. Although the claimant asserts in his appeal that he had disability from _______________, through March 12, 2003, those were not the dates included in the disputed disability period that was presented to the hearing officer for resolution. Nothing in our review of the record indicates that the hearing officer’s decision is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The claimant appears to complain of ineffective assistance from the Texas Workers’ Compensation Commission’s ombudsman in the presentation of evidence. The claimant did not raise this matter at the hearing below, nor does the record reflect that he attempted to provide any additional documentary evidence in support of his claim. Accordingly, we decline to reverse the hearing officer’s decision on this basis.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

CITY SECRETARY

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Chris Cowan

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge