This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 21, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to a left knee sprain or aggravation of left knee medial compartment osteoarthritis; (2) the respondent (claimant) reached maximum medical improvement (MMI) on September 18, 2020; (3) the claimant’s impairment rating (IR) is zero percent; (4) the claimant had good cause for failing to go to the required medical examination (RME) on August 26, 2021; and (5) the claimant is entitled to temporary income benefits (TIBs) from August 26, 2021, through the date of the CCH.

The appellant (carrier) appealed the ALJ’s determinations that the claimant had good cause for failing to go to the RME on August 26, 2021, and that the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH. The claimant responded, urging affirmance of those determinations. The ALJ’s extent of injury, MMI, and IR determinations were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury in the form of at least a left knee contusion on (date of injury), and the statutory date of MMI is December 9, 2021. The claimant was injured on (date of injury), when she tripped over a hose and fell on her left leg.

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

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

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

SUMMARY

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

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

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

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 26, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury sustained on (date of injury), does not extend to a right ankle sprain, right knee sprain, and right knee muscle spasm; (2) the appellant (claimant) reached maximum medical improvement (MMI) on June 22, 2017; (3) the claimant’s impairment rating (IR) is zero percent; and (4) the claimant did have good cause for failing to submit to the designated doctor’s examination on October 19, 2017, and is entitled to temporary income benefits (TIBs) from December 12, 2017, through January 25, 2018. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The claimant also sought clarification on his entitlement to TIBs from December 12, 2017, through January 25, 2018. The respondent (carrier) responded, urging affirmance of the disputed extent of injury, MMI, and IR determinations.

The ALJ’s determination that the claimant had good cause for failing to submit to the designated doctor’s examination on October 19, 2017, was not appealed and became final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury, at least in the form of a right shin contusion. The claimant testified that he struck his leg on a metal hopper when going to check on parts.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to a right ankle sprain, right knee sprain, and right knee muscle spasm is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on June 22, 2017, is supported by sufficient evidence and is affirmed.

IR

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

ENTITLEMENT TO TIBS

In his appeal the claimant asks, “Should [the ALJ] not have indicated that I did have good cause; however, because I reached MMI on June 22, 2017, I am not entitled to [TIBs]?” Section 408.101(a) provides that an employee is entitled to TIBs if the employee has a disability and has not attained MMI. Section 408.102(a) provides TIBs continue until the employee reaches MMI. As previously noted, the ALJ’s determination that the claimant reached MMI on June 22, 2017, is affirmed. Accordingly, it was error for the ALJ to determine that the claimant is entitled to TIBs from December 12, 2017, through January 25, 2018. We reverse that portion of the ALJ’s determination that the claimant is entitled to TIBs from December 12, 2017, through January 25, 2018, and render a new decision that the claimant is not entitled to TIBs from December 12, 2017, through January 25, 2018, because he was determined to have reached MMI on June 22, 2017.

SUMMARY

We affirm the ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to a right ankle sprain, right knee sprain, and right knee muscle spasm.

We affirm the ALJ’s determination that the claimant reached MMI on June 22, 2017.

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

We reverse that portion of the ALJ’s determination that the claimant is entitled to TIBs from December 12, 2017, through January 25, 2018, and render a new decision that the claimant is not entitled to TIBs from December 12, 2017, through January 25, 2018.

The true corporate name of the insurance carrier is ZURICH AMERICAN 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.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
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 September 8, 2014, with the record closing on November 24, 2014, in Austin, 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 a right shoulder rotator cuff tear and supraspinatus tear; (2) the employer did not tender a bona fide offer of employment (BFOE) to the respondent (claimant) and the appellant (carrier) is thereby not entitled to adjust the post-injury weekly earnings; (3) the claimant had disability due to the [Date of Injury], compensable injury from November 23, 2013, through the present; and (4) the claimant had good cause for failing to attend a post-designated doctor required medical examination (RME) on July 10, 2014, with (Dr. O) and the carrier is not entitled to suspend payment of temporary income benefits (TIBs) from July 10 through August 11, 2014.

The carrier appeals the hearing officer’s determinations of disability and that the compensable injury extends to a right shoulder rotator cuff tear and supraspinatus tear. The carrier contends in part that the evidence showed that the claimant sustained an intervening new injury occurring on March 25, 2014. The claimant responded, urging affirmance of the disputed determinations.

The hearing officer’s determination that the employer did not tender a BFOE to the claimant and the carrier is thereby not entitled to adjust the post-injury weekly earnings and that the claimant had good cause for failing to attend a post-designated doctor RME on July 10, 2014, with Dr. O and the carrier is not entitled to suspend payment of TIBs from July 10 through August 11, 2014, 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], which includes a left shoulder sprain/strain. The claimant testified that he injured his left shoulder while pulling hoses in the course and scope of his employment. In evidence was an MRI of the claimant’s left shoulder dated December 16, 2013, that gave as an impression in part: partial thickness, near-complete full width articular surface rim-rent tears of the supraspinatus, supscapularis and teres minor tendons and full thickness, partial width tear of the supraspinatus tendon.

DISABILITY

The hearing officer’s determination that the claimant had disability due to the [Date of Injury], compensable injury from November 23, 2013, through the CCH is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

The Benefit Review Conference (BRC) Report certified the extent of injury in dispute as follows: “[d]oes the compensable injury of [Date of Injury], extend to and include right shoulder rotator cuff tear, supraspinatus tear, osteoarthritis, and tendonosis?” At the CCH, the parties agreed to modify the extent-of-injury issue and noted that the BRC report incorrectly identified the injured shoulder as the right shoulder. The hearing officer correctly noted in his decision and order that the parties agreed to revise the extent-of-injury issue as follows: “[d]oes the compensable injury of [Date of Injury], extend to and include a left shoulder rotator cuff tear and supraspinatus tear?” The hearing officer noted in his discussion that the claimant’s treating doctor attributed both of these conditions to the work activities of [Date of Injury], which the doctor described accurately in his narrative report. The hearing officer further stated that the evidence put forth by the claimant in this case was more compelling and persuasive than that proffered by the carrier.

The hearing officer’s finding that the compensable injury of [Date of Injury], caused or aggravated a left shoulder rotator cuff tear and supraspinatus tear was supported by sufficient evidence. However, in Conclusion of Law No. 3, the hearing officer determined that the compensable injury of [Date of Injury], extends to a right shoulder rotator cuff tear and supraspinatus tear. The hearing officer also made a determination regarding the claimant’s right shoulder in the Decision portion of his Decision and Order as well as the initial section titled “Decision and Order.” No evidence was provided at the CCH that the claimant had an injury to his right shoulder. Accordingly, we reverse the hearing officer’s determination that the compensable injury of [Date of Injury], extends to a right shoulder rotator cuff tear and supraspinatus tear. We render a new decision that the compensable injury of [Date of Injury], extends to a left shoulder rotator cuff tear and supraspinatus tear to conform to the evidence presented at the CCH and the finding of fact made by the hearing officer.

SUMMARY

We affirm the hearing officer’s determination that the claimant had disability due to the [Date of Injury], compensable injury from November 23, 2013, through the CCH.

We reverse the hearing officer’s determination that the compensable injury of [Date of Injury], extends to a right shoulder rotator cuff tear and supraspinatus tear and render a new decision that the compensable injury of [Date of Injury], extends to a left shoulder rotator cuff tear and supraspinatus tear.

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 78701-3232.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 23, 2005, with the record closing on June 30, 2005. The issues before the hearing officer were:

1. 1.Did the [respondent/cross-appellant (claimant)] have disability for the period from September 18, 2004 through January 16, 2005?

2. 1.Did the employer tender a bona fide offer of employment [BFOE] to the claimant entitling the [appellant/cross-respondent (carrier)] to adjust the post injury weekly earnings, and if so, for what periods?

   3.Did the claimant have good cause for failing to submit to the required medical examination [RME] on November 24, 2004, and if not, for what period was claimant not entitled to temporary income benefits [TIBs]?

The hearing officer determined that the claimant had disability from September 18 through November 29, 2004, but that the claimant “abandoned treatment by November 29, 2004 and therefore did not have disability after that date,” that the employer did not make a BFOE to the claimant and that the claimant had good cause for failing to attend the RME appointment (because the claimant “did not receive the RME appointment letter from Carrier”).

The carrier appeals the disability and BFOE issues on the basis that the employer had made an offer of employment which the claimant had read and rejected and that the claimant did not have good cause for failure to attend the RME. The carrier asserts that generally the claimant was not credible in his testimony about the offer of employment and reason why he had failed to attend the RME. The claimant appeals the disability issue, contending that the issue of abandonment of treatment was not an issue before the hearing officer, that “abandonment is not a basis for the suspension of [TIBs],” that failure to attend an RME does not constitute “‘abandonment’ of medical treatment” and that he had disability through January 16, 2005. The claimant filed a response to the carrier’s Request for Review urging affirmance on the issues on which he prevailed, and the carrier filed a response to the claimant’s cross appeal urging affirmance on the issues on which it prevailed.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the claimant, an electrical apprentice, sustained a compensable injury on ________. The testimony was that the claimant sustained neck and back injuries when he fell about four feet to the floor. The claimant reported the injury and was taken by the employer to (Clinic C) where he was seen by (Dr. W). Dr. W diagnosed a cervical strain and back contusion, x-rays were taken, medication prescribed and the claimant was released to restricted duty from September 14 through September 17, 2004. The restrictions were “no reaching above shoulder and unable to drive company vehicle.”

In evidence is an offer of employment which acknowledges Dr. W’s restrictions, appears to attach a Work Status Report (TWCC-73), indicates where the employment is to be, the hours and the claimant’s preinjury wage. The last paragraph gives the claimant until September 20, 2004, to respond to the offer, and that the offer is to be accepted or rejected by calling a certain individual. The letter concludes asking the claimant to “[p]lease sign and return this letter to the main office.” The carrier contends that two people witnessed that the claimant was given the letter and refused to sign it. In one of the copies of the offer letter has a written notation “(Claimant’s Name) has read but refuses to sign 9-17-04” followed by a signature and set of initials. The claimant disputes the letter was given to him. In evidence is a copy of a certified mail receipt with a notation that “offer of lite duty mailed Certified & receipt requested & regular mail 9/16/04.” The claimant testified that he did not receive the letter, although the claimant concedes that it was sent to the correct address. A United States Postal Service (USPS) “Track & Confirm” form indicates that the item “was delivered on September 27, 2004 at 12:10 pm.” The claimant subsequently sought treatment at a chiropractic clinic where a doctor took the claimant off work on September 18, 2004.

THE BFOE ISSUE

There was disputed evidence whether the claimant ever received the employer’s offer of employment and the claimant contends that the offer did not state the physical and time requirements, was not geographically accessible (due to the claimant’s restriction against driving (the company vehicle)) and that the claimant had been “taken off work by his treating doctor before the offer of employment had expired.” 28 TEX. ADMIN. CODE § 129.6 (Rule 129.6) sets out the requirements for a BFOE. The hearing officer determined that the employer did not make a BFOE to the claimant finding that the claimant’s treating doctor had taken the claimant “off work on September 18, 2004, two days before the offer of employment was to expire.” Regarding the claimant’s credibility, we only note that Section 410.165(a) makes the hearing officer the sole judge of the weight and credibility to be given to the evidence. Although there may be other reasons why the offer of employment was not a BFOE (See Appeals Panel Decision (APD) No. 001502, decided August 10, 2000), the hearing officer’s determination on this issue is supported by the evidence.

GOOD CAUSE FOR FAILING TO ATTEND THE RME

In evidence is a letter dated October 22, 2004, from the RME doctor to the claimant, at the claimant’s address, “confirming” an RME appointment on November 24, 2004. The claimant testified that he never received the letter. The letter was sent by certified mail and indicates it was “Returned to Sender.” Another box on the USPS form checked “Return Receipt for Merchandise.” The claimant contends that he never received that letter, although conceding it was properly addressed, that the appointment fell outside of the 30 days that the carrier had for setting the appointment under Rule 126.6(b), that his attorney was not notified of the appointment and that he was not given at least 10 days notice as required by Rule 126.6(b).

Rule 126.6(b) provides that all “examinations ordered must be scheduled to occur within 30 days after receipt of the order, with at least 10 days notice to the employee and the employee’s representative (if any).” Rule 126.6(a) provides, in pertinent part that when a request is made for a medical examination the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall determine if an examination should be ordered and if so shall issue an order granting or denying the request with a copy of the order to be sent to the employee, the employee’s representative (if any), and the carrier. That order is not in evidence. Although the hearing officer comments, regarding the RME appointment, that the “Commission Order was approved on October 13, 2004” there is no evidence of that and the carrier concedes that “there is nothing in the records to show when the order was received by the carrier.” We note similarly the order was apparently also not received by the claimant or claimant’s attorney. Without evidence when the order was sent by the Division we are unable to apply a deemed date of receipt and without evidence when the order was received by the carrier, claimant or claimant’s attorney the evidence fails to establish a time line for the claimant’s RME appointment.

DISABILITY

Section 401.011(16) defines disability as the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. The hearing officer determined that the claimant “abandoned treatment by November 29, 2004 and therefore did not have disability after that date.” The hearing officer’s determination is both legally and factually incorrect. There is no provision in the 1989 Act or Division rules for disability to be terminated for this claimant based on abandonment of medical treatment. Further Rule 130.4 allows for a presumption of maximum medical improvement (MMI), under certain circumstances if the employee has failed to attend certain scheduled health care appointments and for other reasons. Reaching MMI may mean that the claimant is not entitled to TIBs pursuant to Section 408.101 but does not necessarily effect disability as defined in Section 401.011(16). In other words a claimant can have disability even after reaching MMI. Neither the abandonment of medical treatment nor the presumption of MMI pursuant to Rule 130.4 were issues before the hearing officer.

Although the claimant did miss an RME appointment and there was evidence that he failed to attend “Rehab 2112” appointments for five dates in November (November 22, 23, 24, 26 and 29, 2004) and the form indicates that the claimant was released back to the treating doctor, this does not constitute abandonment of medical care. The claimant explained why he did not attend Rehab 2112, an explanation which the hearing officer was free to accept or reject. However, even if the hearing officer rejected the claimant’s explanation why he missed those appointments, the medical records showed continued medical care on November 30, 2004, and appointments with the treating doctor in December 2004 and January 2005. The claimant testified, and it is uncontradicted, that he returned to work on January 17 or 18, 2005, with another employer, at wages greater than his preinjury wage. We hold that the hearing officer erred in ending disability on November 29, 2004, because the claimant “abandoned treatment.”

We reverse the hearing officer’s determination that the claimant’s disability ended on November 29, 2004, and render a new decision that the claimant had disability for the period from September 18, 2004, through January 16, 2005.

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

LEO F. MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251.

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 (CCH) was held on April 18, 2005. The hearing officer resolved the disputed issues by deciding that: (1) (Dr. C) was not properly appointed by the Texas Workers’ Compensation Commission (Commission) in accordance with Section 408.0041 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5 (Rule 130.5); (2) that because Dr. B was the properly appointed designated doctor, the Commission must seek clarification from Dr. B regarding whether the inclusion of the disc protrusion at L4/5 as part of the compensable injury would change his prior certification of maximum medical improvement (MMI) and impairment rating (IR) and whether he wishes to reexamine the respondent (claimant); (3) that because clarification has not been sought from Dr. B regarding his certification, the claimant’s date of MMI and IR cannot be determined; (4) that the claimant had disability from January 29, 2004, through the date of the CCH; (5) that the claimant had good cause for failing to submit to the required medical examination (RME) on March 31, 2004, and is entitled to temporary income benefits (TIBs) from March 31, 2004, through the date of the CCH; and (6) that the claimant had good cause for failing to submit to the RME on April 22, 2004, and is entitled to TIBs from April 22, 2004, to the date of the CCH.

The appellant (carrier) appealed, disputing the disability determination as well as the determination that the claimant had good cause for failing to attend the RME scheduled for April 22, 2004. The carrier also contends that the hearing officer erred in finding that the claimant is entitled to TIBs from March 31, 2004, through the date of the CCH, arguing that MMI ends a claimant’s entitlement to TIBs and that to order the carrier to now pay TIBs is an express violation of the 1989 Act.

The claimant responded, urging affirmance of the disputed determinations. In her response, the claimant also states her disagreement with the hearing officer’s determination that the appointment of Dr. C was not correct and argues that presumptive weight should be given to the report of Dr. C and that there should be a determination that the claimant has not yet reached MMI and thus has no IR. We note that although the claimant’s response was timely as a response, it is untimely as an appeal and therefore the issues disputed by the claimant in her response cannot be considered. Since there was not a timely appeal, the determinations that Dr. C was not properly appointed as the second designated doctor and that “[b]ecause the [Commission] has not sought clarification from [Dr. B] in regard to his certification, the claimant’s date of [MMI] and [IR] for the compensable lumbar sprain/strain and disc protrusion at L4/5 injury of _________, cannot be adjudicated” are final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

DISABILITY

The parties stipulated that the claimant sustained a compensable lumbar strain/sprain and a disc protrusion at L4/5 injury in the course and scope of employment with employer on _________. Disability is defined in Section 401.011(16). Whether the claimant had disability from January 29, 2004, to the date of the CCH was a fact question for the hearing officer to resolve from the conflicting evidence presented at the CCH. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. Although there is conflicting evidence on the issue of disability, we conclude that the hearing officer’s determinations are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

GOOD CAUSE

Section 408.004(e) effective for RMEs scheduled to occur after January 1, 2000, provides in part that an employee is not entitled to TIBs, during and for a period in which the employee fails to submit to an examination under Subsection (a) and (b) unless the Commission determines that the employee had good cause for the failure to submit to the examination. Rule 126.5(g) provides that a carrier “shall send a copy of the request for a medical examination order required by subsection (d) of this section to the employee and the employee’s representative (if any) by facsimile or electronic transmission if carrier has been provided with a facsimile number or email address for the recipient, otherwise, the carrier shall send the request by verifiable means.”  Rule 126.5(h) provides that a carrier “shall maintain copies of the request for a medical examination order and shall also maintain verifiable proof of successful transmission of the information.”  The rule goes on to instruct that “verifiable proof includes, but is not limited to, a facsimile confirmation sheet, certified mail return receipt, delivery confirmation from the postal or delivery service, or a copy of the electronic transmission.”

The hearing officer found that the carrier did not prove by verifiable means that the claimant received sufficient notice, including written notice, of the requested RME scheduled for April 22, 2004. The carrier argues in its appeal that it presented evidence at the CCH that the carrier sent notice of the appointment through a private shipper on April 6, 2004; that the adjuster stated under oath in responses to interrogatories that she sent notice to both the claimant and claimant’s representative on April 6, 2004; and that there was documentation from a carrier employee that the claimant called the carrier to let them know that she received the appointment notice.

The claimant testified that she did not receive notice of the appointment and denied ever receiving a delivery from the private delivery service used by the carrier. The carrier correctly points out that confirmation of delivery to the claimant’s address on April 6, 2004, from the private delivery service was in evidence. The claimant testified at the CCH as to her correct address. The address listed on the confirmation of delivery from the private delivery service on April 6, 2004, was the same address the claimant acknowledged as her correct address during the CCH. As the trier of fact, the hearing officer may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). The hearing officer was presented with conflicting evidence regarding whether the notice was sent based on representations made by employees of the carrier and the claimant’s testimony that she never received such notice. Rule 126.5(h) specifically lists the evidence of confirmation of delivery from a delivery service presented by the carrier as an example of verifiable proof. The hearing officer concluded that the carrier failed to prove by verifiable means that the claimant received written notice of the April 22, 2004, RME appointment but gave no indication as to why the confirmation of delivery to the claimant’s address by a private delivery service was not credible. We note that Rule 126.5 addresses requirements for requesting RMEs rather than the actual order and notice of the appointment. Rule 126.6 does not provide a corresponding requirement of verifiable proof of successful transmission of the information regarding the actual order. A Commission order dated March 30, 2004, approving the request for an RME appointment was in evidence. Additionally, correspondence dated April 5, 2004, notifying the claimant of the Commission ordered RME appointment scheduled for Thursday, April 22, 2004, was in evidence along with confirmation of delivery to the claimant’s address by a private delivery service on April 6, 2004.

Although there is compelling evidence regarding notice of the appointment, whether good cause exists for failure to attend a RME is a matter left up to the discretion of the hearing officer. That determination will not be set aside unless the hearing officer acted without reference to any guiding rules or principles. Texas Workers' Compensation Commission Appeal No. 010828, decided May 16, 2001. 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. Texas Workers’ Compensation Commission Appeal No. 94244, decided April 15, 1994.

As noted above, there is no requirement that the carrier prove the claimant received notice of the RME appointment by verifiable means. The hearing officer applied the wrong standard to determine whether or not the claimant received notice of the RME appointment scheduled for April 22, 2004. This was legal error and an abuse of discretion. Therefore, we remand this issue of good cause back to the hearing officer to apply the correct standard in determining whether or not the claimant had good cause for failing to submit to the RME on April 22, 2004, and is entitled to TIBs from April 22, 2004, to the date of the CCH. We note that it is undisputed that the RME scheduled for March 31, 2004, was cancelled. However, to the extent that the hearing officer’s determination that the claimant is entitled to TIBs from March 31, 2004, to the date of the CCH may conflict with the determination regarding entitlement to TIBs from April 22, 2004 to the date of the CCH, we correspondingly reverse and remand that determination.

MMI AND IR

There was not a timely appeal of the determination that the claimant’s date of MMI and IR cannot be adjudicated. However, we note that under the holding in Albertson’s, Inc. v. Ellis, 131 S.W.3d 245 (Tex. App.-Fort Worth 2004, pet. denied), an affirmance of the hearing officer’s determination that MMI and IR cannot be determined pending the appointment of a designated doctor would, in essence, be a remand.  The court noted in that case that the mere failure of the Appeals Panel to use the word “remand” in its opinion did not make its nonfinal decision (on MMI and IR) final for the purposes of judicial review, and was, in effect, a remand.

However, the carrier correctly notes in its appeal that Section 408.102 provides that TIBs continue only until the employee reaches MMI. Section 408.121(b) provides that the carrier shall begin to pay impairment income benefits not later than the fifth day after the date on which the carrier receives the doctor’s report certifying MMI. Because the claimant’s entitlement to TIBs ends upon attainment of MMI, on remand the hearing officer must also resolve the issues of MMI and IR before entitlement to TIBs can be determined.

We affirm the determination that the claimant had disability from January 29, 2004, and continuing through the date of the CCH; we reverse the determination that the claimant is entitled to TIBs from March 31, 2004, to the date of the CCH, striking that language from the decision and order; and we reverse the determination that the claimant had good cause for failing to submit to the RME on April 22, 2004, and that the claimant is entitled to TIBs from April 22, 2004, to the date of the CCH and remand back to the hearing officer for actions consistent with this decision.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Commission’s Division of Hearings 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.

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

LEO F. 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). Following a contested case hearing (CCH) held on September 10, 2004, the hearing officer resolved the disputed issues by determining that the appellant (claimant herein) was not entitled to supplemental income benefits (SIBs) for the third quarter and had good cause for failing to attend the required medical examination (RME) with Dr. G on August 1, 2004. The claimant appeals, arguing that the hearing officer erred in finding that the claimant was not entitled to SIBs for the third quarter. The respondent (carrier herein) responds that the evidence supports the decision of the hearing officer. Neither party appeals the hearing officer’s finding that the claimant had good cause not to attend the RME with Dr. G on August 1, 2004.

DECISION

A timely request for review not having been filed, the decision and order of the hearing officer have become final pursuant to Section 410.169.

Pursuant to Section 410.202(a), a written request for appeal must be filed within 15 days of the date of receipt of the hearing officer’s decision. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays, Sundays, and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal. Section 410.202(d). Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(e) (Rule 143.3(e)) provides that an appeal is presumed to have been timely filed if it is mailed not later than the 15th day after the date of receipt of the hearing officer’s decision and received by the Texas Workers' Compensation Commission (Commission) not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(e) must be satisfied in order for an appeal to be timely. Texas Workers’ Compensation Commission Appeal No. 002806, decided January 17, 2001.

The records of the Commission reflect that the decision of the hearing officer was distributed on September 17, 2004, under a cover letter of the same date. The claimant states in her request for review that she received the decision of the hearing officer on September 22, 2004. The claimant’s appeal needed to be mailed no later than October 13, 2004, the 15th day from the date of receipt. The claimant's request for review was sent to the Commission both by U.S. mail and by facsimile transmission fax. The fax is time stamped at 5:40 p.m. on October 13, 2004. Since the fax was received after 5:00 p.m. it is stamped as filed with the Commission on October 14, 2004. The reason for this is explained in our decision in Texas Workers’ Compensation Commission Appeal No. 022115, decided September 26, 2002, where we stated as follows:

Rule 102.3(e) states that “[u]nless otherwise specified by rule, any written or telephonic communications required to be filed by specified time will be considered timely only if received prior to the end of normal business hours on the last permissible day of filing.” Rule 102.3(d) provides that “[a]ny written or telephonic communications received other than during normal business hours on working days are considered received at the beginning of normal business hours on the next working day.” Finally, Rule 102.3(c) establishes that “[n]ormal business hours in the Texas workers’ compensation system are 8:00 a.m. to 5:00 p.m. Central Standard Time with the exception of the Commission’s El Paso field office whose normal business hours are 8:00 a.m. to 5:00 p.m. Mountain Standard Time.”

Having been filed on October 14, 2004, the copy of the appeal sent by fax is untimely to invoke our jurisdiction. This is also true of the copy of appeal sent by U.S. mail. The envelope in which the appeal is transmitted bears a postage meter date stamp of October 13, 2004, but also bears a United States postmark of October 14, 2004. We have repeatedly held that when there is a date discrepancy between a postal meter date stamp and the postmark of the United States Postal Service that the United States Postal Service postmark controls. Texas Workers’ Compensation Commission Appeal No. 981793, decided September 15, 1998 and cases cited therein.

The claimant’s appeal not having been timely filed, the decision and order of the hearing officer have become final. Section 410.169.

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

CORPORATION SERVICE COMPANY

800 BRAZOS

AUSTIN, TEXAS 78701.

Gary L. Kilgore

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 19, 2004. The hearing officer determined that: (1) the compensable injury of ______________, includes the right wrist, right elbow, and the diagnosis of reflex sympathetic disorder/complex regional pain syndrome, but it does not include the left wrist, right shoulder, or brachial neuritis; and (2) the respondent (claimant) is entitled to temporary income benefits for the period from March 19 through April 6, 2004, because she had good cause for failing to submit to the required medical examination on March 19, 2004. The appellant (carrier) appeals the adverse determinations on sufficiency of the evidence grounds. The claimant urges affirmance.

DECISION

Affirmed.

The carrier asserts that the hearing officer erred by making an underlying finding of fact that the claimant sustained a compensable injury on ______________. We note that in Texas Workers’ Compensation Commission Appeal No. 031034, decided June 18, 2003, the Appeals Panel affirmed the hearing officer’s determination that the claimant sustained a repetitive trauma injury with a date of injury of ______________. The carrier asserts that the issue of compensability has been appealed to the district court and has not been finally adjudicated. Section 410.205(b) provides that the decision of the Appeals Panel regarding benefits is binding during the pendency of judicial review. Accordingly, we perceive no error.

The hearing officer did not err in making the complained-of determinations. The determinations involved questions of fact for the hearing officer to resolve. The hearing officer 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, including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). In view of the evidence presented, we cannot conclude that the hearing officer's determinations 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). Nor can we conclude that the hearing officer abused his discretion in reaching his decision. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).

The decision and order of the hearing officer is affirmed.

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

CT CORPORATION SYSTEMS

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Edward Vilano

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 29, 2004. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of ______________, extends to and includes the following diagnoses: reflex sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS), chondromalacia of the left knee, torn anterior cruciate ligament left knee, and degenerative joint disease of the left knee; (2) that the respondent (claimant) reached maximum medical improvement on June 4, 2003, with a 21% impairment rating (IR); (3) that the claimant did not have good cause for failing to attend a carrier-required medical examination for July 17, 2002, beginning July 17 and continuing through July 25, 2002, that for this failure the claimant is not entitled to temporary income benefits (TIBs) only beginning July 17 and continuing through July 25, 2002; and (4) that the claimant did not have good cause for failing to attend a designated doctor required examination at the time scheduled for July 22, 2002, and that for this failure the claimant is not entitled to TIBs only for July 22, 2002. The appellant (carrier) appealed, disputing the determinations regarding extent of injury and IR. The carrier additionally appeals evidentiary rulings made by the hearing officer and asserts that the carrier is not liable for TIBs from July 22, 2002, through January 5, 2003. The claimant responded, urging affirmance of the disputed determinations.

DECISION

Affirmed.

EVIDENTIARY RULINGS

We first address the carrier’s evidentiary objections. The carrier objected to multiple exhibits offered at the CCH by the claimant on the basis that they were not timely exchanged. To obtain reversal of a decision based upon error in the admission or exclusion of evidence, it must be shown that the evidentiary ruling was in fact error, and that the error was reasonably calculated to cause, and probably did cause the rendition of an improper decision. Texas Workers’ Compensation Commission Appeal No. 91003, decided August 14, 1991. The carrier contends that the claimant failed to establish good cause for failing to timely exchange the medical records that were admitted into evidence. After considering the respective positions of the parties, the hearing officer determined that the claimant had established good cause and admitted the exhibits into evidence. We conclude that the carrier has not shown that the hearing officer abused his discretion in determining that the claimant had good cause for the late exchange nor has the carrier shown that the error, if any, amounted to reversible error. See Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.13(c) (Rule 142.13(c)).

The carrier additionally argues that it was error for the hearing officer to exclude the videotapes and private investigator’s reports it offered into evidence. The claimant objected to the admission of the videotape and report on the basis that it was untimely exchanged and because the individual depicted in the surveillance (the videotapes and report) was not the claimant. The hearing officer excluded the evidence stating that the claimant does not appear to be the individual shown in the video. The carrier argues on appeal that the hearing officer should have admitted the tapes and then made a determination of whether the claimant was the individual depicted in the videotapes. It is clear from the record that the hearing officer was convinced that the claimant was not the individual on the tape. The fact the hearing officer made this determination prior to admitting the exhibits does not amount to reversible error.

EXTENT OF INJURY

The parties stipulated that the claimant sustained a compensable injury on ______________. The claimant had the burden to prove the extent of the compensable injury. Conflicting evidence was presented on this issue. The hearing officer noted that the persuasive medical evidence indicates the compensable injuries to the claimant’s left knee when he was struck by the rotating table aggravated, was a cause of, or naturally resulted in RSD/CRPS of the lower left extremity; chondromalcia of the left knee; torn anterior cruciate ligament left knee, and degenerative joint disease of the left knee.

The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The trier of fact may believe all, part, or none of any witness's testimony because the finder of fact judges the credibility of each and every witness, determines the weight to assign to each witness's testimony, and resolves conflicts and inconsistencies in the evidence. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Texas Workers' Compensation Commission Appeal No. 93426, decided July 5, 1993. This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). Our review of the record reveals that the hearing officer’s extent-of-injury determination is supported by sufficient evidence and that it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Thus, no sound basis exists for us to disturb that determination on appeal. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

IMPAIRMENT RATING

The carrier argues that the designated doctor did not properly apply 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) and that his opinion is not supported by the medical evidence.

Section 408.125(c) provides that where there is a dispute as to the IR, the report of the Texas Workers’ Compensation Commission-appointed designated doctor is entitled to presumptive weight unless it is contrary to the great weight of the other medical evidence. Rule 130.6(i) provides that the designated doctor’s response to a request for clarification is also considered to have presumptive weight, as it is part of the designated doctor’s opinion. See also, Texas Workers’ Compensation Commission Appeal No. 013042-s, decided January 17, 2002. We have previously discussed the meaning of “the great weight of the other medical evidence” in numerous cases. We have held that it is not just equally balancing the evidence or a preponderance of the evidence that can overcome the presumptive weight given to the designated doctor’s report. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. We have also held that no other doctor’s report, including the report of the treating doctor, is accorded the special, presumptive status accorded to the report of the designated doctor. Texas Workers’ Compensation Commission Appeal No. 92366, decided September 10, 1992; Texas Workers’ Compensation Commission Appeal No. 93825, decided October 15, 1993.

Whether the great weight of the other medical evidence was contrary to the opinion of the designated doctor was a factual question for the hearing officer to resolve. When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should reverse such decision only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain, supra. In this case, we are satisfied that the hearing officer’s IR determination is sufficiently supported by the evidence.

SUSPENSION OF TIBs

The hearing officer found that the claimant did not have good cause for failing to attend a carrier required medical examination (RME) for July 17, 2002, and that for this failure the claimant is not entitled to TIBs beginning July 17 and continuing through July 25, 2002. Additionally, the hearing officer found that “on August 21, 2002, the claimant did not attend the [RME] that was rescheduled based on claimant’s failure to attend the July 17, 2002, [RME]” because it was cancelled on July 26, 2002. The carrier argues that the hearing officer could not rely on a summary generated by the claimant’s attorney to support the finding that the August 21, 2002, examination was cancelled on July 26, 2002, because “it is not evidence.” The carrier made objections to various exhibits offered by the claimant, however, no objection was made to the “summary” which it complains the hearing officer relied on in determining that the examination was cancelled on July 26, 2002. The “summary” was admitted into evidence and the weight to be given to it was a matter for the hearing officer to decide. Although another fact finder may have drawn different inferences from the evidence, which would have supported a different result, that fact does not provide a basis for us to reverse the hearing officer’s decision on appeal. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.-Corpus Christi 1977, writ ref'd n.r.e.).

The hearing officer found that on July 22, 2002, after the claimant arrived late for the designated doctor medical examination, he asked at the doctor’s office to have the examination rescheduled, and that the claimant’s request for reexamination was “by the day the examination was originally scheduled to occur” within the meaning of Rule 130.6(c)(1) but the request was improperly refused. The carrier argues that no evidence supports the hearing officer’s finding that the claimant asked the designated doctor to reschedule the appointment on the date of the examination. However, the carrier acknowledges the claimant testified at the CCH that he got there late and “told them if they could reset it for a later date….” There is sufficient evidence to support the findings of the hearing officer.

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS STREET, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701-2554.

Margaret L. Turner

CONCUR:

Gary L. Kilgore
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 7, 2004. The hearing officer determined that the _______________, compensable injury of appellant (claimant) “does not include or extend to include degenerative changes or spondylosis at C4-C5, C5-C6, and C6-C7, disc herniations at C4-C5, C5-C6, C6-C7, and spinal stenosis at C4-C5, C5-C6, and C6-C7.” The hearing officer also determined that claimant failed to submit to a required medical examination (RME) on February 12, 2004, and that she did not have good cause for failing to do so; that she is not entitled to temporary income benefits (TIBs) from February 12, 2004, through the date of the hearing; and that claimant did not have disability from February 12, 2004, through the date of the hearing. Claimant appealed these determinations on sufficiency grounds. Respondent (carrier) responded that the hearing officer did not err in making her determinations.

DECISION

We affirm.

We have reviewed the complained-of determinations regarding extent of injury and disability and conclude that the issues involved fact questions for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude that the hearing officer’s determinations are supported by the record and are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Claimant contends the hearing officer erred in determining that she failed to submit to the RME exam with Dr. L on February 12, 2004. She asserts that she submitted to the examination, but was told that the doctor could not see her because of her surgery. Claimant’s cervical discectomy and fusion surgery took place in December 2003. In his February 12, 2004, report, Dr. L stated that claimant came to the examination appointment, but that she was very upset because she thought he had given her a “0 percent on the rating.” Dr. L said, “because of [combative] nature of patient we have not evaluated her. You should have [somebody] else evaluate her.” The hearing officer stated that claimant was hostile and created conflict with Dr. L “amounting to a failure to be compliant with the order for evaluation.” The hearing officer determined that claimant failed to submit to the RME exam, that she did not have good cause for such failure, and that she is not entitled to TIBs from February 12, 2004, through the date of the hearing. The hearing officer heard claimant’s evidence regarding what happened at the appointment with Dr. L and made her determinations based on the evidence before her. We perceive no reversible error. See Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 126.6(h) (Rule 126.6(h)); Section 408.004(e); Texas Workers' Compensation Commission Appeal No. 010407, decided April 5, 2001.

We affirm the hearing officer’s decision and order.

According to information provided by carrier, 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.

Judy L. S. Barnes

CONCUR:

Gary L. Kilgore
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 21, 2004. The hearing officer determined that the compensable injury of _____________, extends to and includes the diagnoses of disc bulge at L4-5 and at L5-S1, but not the diagnoses of degenerative changes at L4-5 and L5-S1 or herniated disc at L5-S1. The hearing officer also determined that appellant (claimant) did not establish good cause for failing to submit to the required medical examination (RME) of January 31, 2004, and that claimant is not entitled to temporary income benefits (TIBs) from March 15 through April 24, 2004. Claimant appealed only the adverse determinations regarding extent of injury, citing evidentiary sufficiency grounds and urged the Appeals Panel to reverse the decision in “reference to the denied conditions.” Respondent (carrier) responded, urging affirmance. The determination that there was no good cause for failure to attend the RME appointment and the TIBs determination were not appealed and have become final. Section 410.169.

DECISION

We affirm.

The hearing officer did not err in determining that claimant’s compensable injury does not extend to and include the diagnoses of degenerative changes at L4-5 and L5-S1 or a herniated disc at L5-S1. Conflicting evidence was presented on the disputed issues. Extent of injury is a question of fact for the hearing officer to resolve. It was for the hearing officer to consider the evidence and determine what facts have been established. Nothing in our review of the record indicates that the hearing officer’s determination regarding extent of injury 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).

We affirm the hearing officer’s decision and order.

According to information provided by carrier, the true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is

ROBIN M. MOUNTAIN

6600 CAMPUS CIRCLE DRIVE EAST, SUITE 300

IRVING, TEXAS 75063.

Judy L. S. Barnes

CONCUR:

Chris Cowan
Appeals Judge

Thomas A. Knapp
Appeals Judge