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This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 17, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to a left foot fracture or left ankle tendinitis; (2) the appellant (claimant) reached maximum medical improvement (MMI) on December 16, 2020; (3) the claimant’s impairment rating (IR) is two percent; and (4) the first certification of MMI and assigned IR from (Dr. P) on February 4, 2021, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12). The claimant appealed the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded to the claimant’s appeal, urging affirmance of the ALJ’s determinations.  

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. P on February 4, 2021, did not become final under Section 408.123 and Rule 130.12 was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

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

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a left foot fracture or left ankle tendinitis is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on December 16, 2020, is supported by sufficient evidence and is affirmed.

IR

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

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

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

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

SUMMARY

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

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

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

The true corporate name of the insurance carrier is SAFETY NATIONAL CASUALTY CORPORATION and the name and address of its registered agent for service of process is

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 22, 2021, with the record closing on November 17, 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 appellant (claimant) did not have disability resulting from the compensable injury of (date of injury), beginning on January 17, 2021, and continuing through the date of the CCH; (2) the claimant reached maximum medical improvement (MMI) on August 19, 2020; (3) the claimant’s impairment rating (IR) is zero percent; (4) the first certification of MMI and assigned IR from (Dr. K) on January 21, 2021, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); and (5) the compensable injury of (date of injury), does not extend to lumbar facet arthropathy.

The claimant appealed the ALJ’s disability, MMI, IR, and extent-of-injury determinations. The appeal file contains no response from the respondent (carrier). The ALJ’s determination that the first certification of MMI and assigned IR from Dr. K on January 21, 2021, did not become final under Section 408.123 and Rule 130.12 was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record at the CCH. There is no audio recording or transcript in the appeal file of the CCH in this case. Consequently, we reverse and remand this case to the ALJ who presided over the September 22, 2021, CCH, if possible, for reconstruction of the record. See Appeals Panel Decision (APD) 201653, decided December 8, 2020.

Additionally, there are discrepancies between the claimant’s exhibit list and the claimant’s exhibits provided for review. The claimant’s exhibit list states claimant’s exhibit 3 contains 10 pages; however, page 1 of exhibit 3 is blank. The claimant’s exhibit list also states that claimant’s exhibit 4 contains 5 pages, but page 1 of exhibit 4 is blank. The claimant’s exhibit list states claimant’s exhibit 2 contains 10 pages, and we note that page 1 of that exhibit is not blank. It is unclear whether the record is complete; therefore, this case is also remanded for the ALJ to determine whether the record is complete. See APD 030543, decided April 18, 2003; and APD 210136, decided March 26, 2021.

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

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

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 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 compensable injury of (date of injury), does not extend to right hand post-traumatic osteoarthritis or a right hand degenerative cyst in the radial side of the second and third metacarpal; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. S) on February 1, 2021, became final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (3) the appellant (claimant) reached MMI on October 29, 2020; and (4) the claimant’s IR is one percent. The claimant appealed the ALJ’s determinations. The respondent (self-insured) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant was injured on (date of injury), when opening a door while carrying a coffee pot full of water in her right hand and an empty coffee pot in her left hand. At the CCH the parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and that the self-insured accepted sprains of the right hand, index finger, middle finger, and right wrist, a sprain of the metacarpal phalangeal joint of the right index finger, and a right index finger collateral radial ligament tear. We note the stipulation in Finding of Fact No. 1.E. of the ALJ’s decision regarding the conditions accepted by the self-insured does not include a right index finger collateral radial ligament tear. We therefore reform the decision and order by adding that condition to Finding of Fact No. 1.E. to conform to the stipulation made by the parties at the CCH.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to right hand post-traumatic osteoarthritis or a right hand degenerative cyst in the radial side of the second and third metacarpal is supported by sufficient evidence and is affirmed.

FINALITY

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

The ALJ found that Dr. S’s certification was the first certification of MMI and assigned IR in this case and is valid for the purposes of Rule 130.12(c), and that written notice of Dr. S’s certification was provided to the claimant by verifiable means on February 9, 2021. These findings are supported by the evidence.

The evidence established that the claimant filed a Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (DWC-45) on May 14, 2021, to dispute Dr. S’s certification. The ALJ found that none of the exceptions to 90-day finality in Section 408.123(f) apply in this case, and determined that Dr. S’s February 1, 2021, certification became final under Section 408.123.

The Governor of the State of Texas issued a disaster proclamation on February 12, 2021, in all 254 counties due to severe winter weather.  On February 23, 2021, the Commissioner of Workers’ Compensation issued Commissioner’s Bulletin # B-0008-21, which provides, in pertinent part:  

The Texas Department of Insurance, Division of Workers’ Compensation (Division) is tolling the following Texas workers’ compensation deadlines, effective February 12, 2021, through February 23, 2021:  

•  Medical and income benefit dispute deadlines.      

Commissioner’s Bulletin # B-0008-21 was in effect during the time the claimant had to dispute Dr. S’s certification. Pursuant to Commissioner’s Bulletin # B-0008-21, the 90-day deadlines found in Section 408.123 and Rule 130.12 were tolled effective February 12, 2021, through February 23, 2021. As previously noted, the ALJ’s finding that written notice of Dr. S’s certification was provided to the claimant by verifiable means on February 9, 2021, is supported by the evidence. Considering Commissioner’s Bulletin # B-0008-21, the 90th day after February 9, 2021, is May 24, 2021. The claimant filed her DWC-45 disputing Dr. S’s certification on May 14, 2021. Therefore, the claimant timely disputed Dr. S’s certification. We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. S on February 1, 2021, became final under Section 408.123 and Rule 130.12. We render a new decision that the first certification of MMI and assigned IR from Dr. S on February 1, 2021, did not become final under Section 408.123 and Rule 130.12.

MMI/IR

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

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

The ALJ based her determinations that the claimant reached MMI on October 29, 2020, with a one percent IR solely on her determination that Dr. S’s February 1, 2021, certification became final under Section 408.123 and Rule 130.12. However, we have reversed that determination and rendered a new decision that Dr. S’s February 1, 2021, certification did not become final under Section 408.123 and Rule 130.12.

Dr. S, the designated doctor appointed to determine MMI and IR, examined the claimant on January 21, 2021. Dr. S noted in her attached narrative report that she considered and rated a tear and sprain of the collateral ligament of the right index finger at the metacarpophalangeal joint and a sprain of the other part of the right hand. The parties stipulated, in part, that the compensable injury extends to a sprain of the right middle finger. Dr. S’s report reflects she did not consider and rate the claimant’s right middle finger. Dr. S did not consider and rate the entire compensable injury, and therefore her certification cannot be adopted. We reverse the ALJ’s determinations that the claimant reached MMI on October 29, 2020, and that the claimant’s IR is one percent.

There are two other certifications in evidence, both from (Dr. H), a doctor acting in place of the claimant’s treating doctor. Dr. H initially examined the claimant on January 28, 2020, and certified that the claimant had not reached MMI but was expected to do so on March 13, 2020. Dr. H next examined the claimant on February 2, 2021, and certified the claimant reached MMI on September 16, 2020, with a three percent IR. Dr. H’s three percent IR is based on range of motion measurements of the claimant’s right wrist, index, and middle fingers and was made in accordance with the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). As previously discussed, the compensable injury in this case is sprains of the right hand, index finger, middle finger, and right wrist, a sprain of the metacarpal phalangeal joint of the right index finger, and a right index finger collateral radial ligament tear. Dr. H’s narrative report reflects she considered and rated the compensable injury and her assigned IR complies with the AMA Guides. We therefore render a new decision that the claimant reached MMI on September 16, 2020, with a three percent IR as certified by Dr. H.

SUMMARY

We reform Finding of Fact No. 1.E. to add a right index finger collateral radial ligament tear as a condition accepted by the self-insured to conform to the stipulation made by the parties at the CCH.

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to right hand post-traumatic osteoarthritis or a right hand degenerative cyst in the radial side of the second and third metacarpal.

We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. S on February 1, 2021, became final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and assigned IR from Dr. S on February 1, 2021, did not become final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determination that the claimant reached MMI on October 29, 2020, and we render a new decision that the claimant reached MMI on September 16, 2020.

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

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

For service in person the address is:            

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR
300 W. 15TH STREET
WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR
AUSTIN, TEXAS 78701.             

For service by mail the address is:            

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR
P.O. BOX 13777
AUSTIN, TEXAS 78711-3777.

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 23, 2021, with the record closing on September 27, 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 first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. S) on September 3, 2020, became final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); and (2) the respondent’s (claimant) IR is 24%. The appellant (carrier) appealed the ALJ’s determinations. There is no response in the appeal file from the claimant to the carrier’s appeal.

DECISION

Reversed and rendered.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of at least a lumbar sprain/strain, right hip sprain/strain, and right hip labral tear; Dr. S was properly appointed as the designated doctor on the issues of MMI, IR, and extent of injury; and the correct date of MMI is March 4, 2020, the statutory date in this case, as certified by Dr. S and (Dr. H).  The evidence indicates that the claimant was injured on (date of injury), while working as a stocker. He was injured after going down a stepladder carrying a heavy case and felt pain in his right hip, groin, and lower back.

FINALITY

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

Section 408.123(f) provides in part:      

(f) An employee’s first certification of [MMI] or assignment of an [IR] may be disputed after the period described by Subsection (e) if:

(1) compelling medical evidence exists of:

(A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the [IR];

(B) a clearly mistaken diagnosis or a previously undiagnosed medical condition; or

(C) improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid.

The ALJ found, in part, that the certification of MMI and assigned IR from Dr. S on September 3, 2020, was the first valid certification in this case that was subject to finality. He also found that the carrier received written notice by verifiable means of the September 3, 2020, certification but did not file a timely dispute. Those findings are supported by sufficient evidence. The ALJ also found that the carrier did not prove that any of the exceptions under Section 408.123 and Rule 130.12 to the 90-day finality rule apply in this case.

Dr. S examined the claimant on August 25, 2020, and certified on September 3, 2020, that the claimant reached MMI on March 4, 2020. 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), she assigned a 24% IR for the compensable conditions of a lumbar sprain/strain, right hip sprain/strain, and a right hip labral tear. Dr. S’s 24% IR is comprised of a 5% impairment under Diagnosis-Related Estimate (DRE) Lumbosacral Category II for the lumbar sprain/strain and 20% impairment for range of motion (ROM) measurements of the right hip.  Dr. S then combined the impairments for the lumbar and right hip which resulted in a 24% whole person impairment (WPI).    

Dr. S’s corresponding narrative report noted the following ROM measurements for the claimant’s right hip: 32° flexion, 12° extension; 8° internal rotation, 10° external rotation; 15° abduction, and 10° adduction.  In a response to a letter of clarification dated July 5, 2021, Dr. S explained that using Table 40 on page 3/78 of the AMA Guides, she assigned 8% WPI for flexion, 0% WPI for extension, 4% WPI for internal rotation, 4% WPI for external rotation, 2% WPI for abduction, and 2% WPI for adduction, resulting in 20% impairment for the right hip. However, Table 40 provides that 12° of extension results in 2% WPI, not 0% WPI as indicated by Dr. S. Using these calculations, Dr. S assigned 20% impairment for the claimant’s right hip, instead of 22%. Combining the 22% right hip impairment with the 5% lumbar impairment results in a WPI of 26%, instead of 24% as certified by Dr. S.

Dr. S’s narrative report shows that she erred in assigning 0% WPI for right hip extension rather than 2% WPI. We hold that this is compelling medical evidence in this case of a significant error by Dr. S in calculating her 24% IR, and that the exception found in Section 408.123(f)(1)(A) applies. Accordingly, we reverse the ALJ’s determination that the first certification of MMI and IR from Dr. S on September 3, 2020, became final under Section 408.123 and Rule 130.12. We render a new decision that the first certification of MMI and IR from Dr. S on September 3, 2020, did not become final under Section 408.123 and Rule 130.12.

IR

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

The ALJ found that Dr. S’s certification dated September 3, 2020, is not contrary to the preponderance of the evidence and determined that the claimant’s IR is 24%. As discussed above, Dr. S assigned 5% impairment under DRE Lumbosacral Category II for the lumbar sprain/strain and 20% impairment for ROM measurements of the right hip. Dr. S explained in a response to a July 5, 2021, letter of clarification that she used Table 40, page 3/78 of the AMA Guides and assessed 8% WPI for flexion, 0% WPI for extension, 4% WPI for internal rotation, 4% WPI for external rotation, 2% WPI for abduction, and 2% WPI for adduction, resulting in 20% impairment for the right hip. Combining the hip impairments resulted in a total of 20% impairment for the right hip. Dr. S then combined 20% impairment for the right hip with 5% impairment for lumbar spine which results in 24% IR for the claimant’s compensable injury.

In Section 3.2, “The Lower Extremity,” page 3/75, the AMA Guides provide, in part, that:

If the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and a toe, the whole-person [WP] estimates for the impairments are combined [emphasis in original] (Combined Values Chart, p. 322). If both extremities are impaired, the impairment of each should be evaluated and expressed in terms of the [WP], and the two percents should be combined [emphasis in original] (Combined Values Chart, p. 322).

In Section 3.2e, “[ROM],” on page 3/77, the AMA Guides provide, in part, that “[e]valuating permanent impairment of the lower extremity according to [ROM] is a suitable method.” Section 3.2e does not require that a certifying doctor must only use the most severe impairment for an individual direction of motion within the same table [Tables 40 through 43]. See also Appeals Panel Decision (APD) 110741, decided July 25, 2011.

However, as explained previously, Dr. S mistakenly assigned 0% WPI for 12° of extension of the right hip. Table 40, page 3/78 provides mild impairment, 2% WPI, for a ROM measured 10°-19°.

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR.  See APD 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011. Under the facts of this case, the certifying doctor’s assigned IR can be mathematically corrected based on the documented measurements for the right hip.  

Combining 2% WPI for loss of ROM based on 12° of extension with the previous impairments assigned based on Table 40 results in 22% impairment for the right hip rather than 20% as assigned by Dr. S. Combining 22% impairment for the right hip with 5% impairment for the lumbar spine results in a WPI for the compensable injury of 26%, rather than 24%.

The ALJ found that the preponderance of the other medical evidence is not contrary to Dr. S’s assigned IR, and after a mathematical correction, that finding is supported by the evidence.  Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 24%, and we render a new decision that the claimant’s IR is 26%, as mathematically corrected.

SUMMARY

We reverse the ALJ’s determination that the certification of MMI and IR from Dr. S on September 3, 2020, became final under Section 408.123 and Rule 130.12, and we render a new decision that the certification of MMI and IR from Dr. S on September 3, 2020, did not become final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determination that the claimant’s IR is 24%, and we render a new decision that the claimant’s IR is 26%, as mathematically corrected.

The true corporate name of the insurance carrier is SAFETY NATIONAL CASUALTY CORPORATION and the name and address of its registered agent for service of process is

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 12, 2021, with the record closing on July 22, 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 sustained on (date of injury), does not extend to the right shoulder labrum tear, right shoulder partial rotator cuff tear, or lumbar degeneration; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. L) on March 12, 2019, became final under Section 410.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (3) the appellant (claimant) reached MMI on March 12, 2019; and (4) the claimant does not have any permanent impairment. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, IR, and finality. The respondent (carrier) responded, urging affirmance of the disputed determinations.

DECISION

Reversed and remanded for reconstruction of the record.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a lumbar strain and right shoulder strain and (Dr. K) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor to address the issues of extent of injury, MMI, and IR. The claimant testified that he was injured on (date of injury), when he was lifting brick planters.

The ALJ’s decision states that carrier’s exhibits A through T were admitted into evidence. The decision and order notes some discrepancies in the carrier’s exhibits were corrected. However, further errors in the carrier’s exhibits were found after review. The carrier’s exhibit list states that exhibit D contains 3 pages; however, the file forwarded to us only contains 2 pages, with page 1 missing. The carrier’s exhibit list states that exhibit F contains 7 pages; however, the file forwarded to us only contains 6 pages, with page 3 missing. The carrier’s exhibit list states that exhibit M contains 11 pages; however, the file forwarded to us only contains 10 pages, with page 11 missing. The carrier’s exhibit list states that exhibit O contains 13 pages; however, the file forwarded to us only contains 12 pages, with page 13 missing. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibits. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

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

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 27, 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), does not extend to aggravation of cervical degenerative disc disease, cervicalgia, cervical radiculopathy, cervical spondylosis, right shoulder impingement syndrome, right shoulder bicipital tendinitis, right shoulder bursitis, or right shoulder acromioclavicular (AC) joint sprain; (2) the appellant (claimant) reached maximum medical improvement (MMI) on January 31, 2020; (3) the claimant’s impairment rating (IR) is zero percent; and (4) the claimant had disability from November 2, 2019, through January 31, 2020, but did not have disability from February 1, 2020, through the date of the CCH.

The claimant appealed that portion of the ALJ’s disability determination that was against her, as well as the ALJ’s MMI, IR, and extent-of-injury determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

The ALJ’s determination that the claimant had disability from November 2, 2019, through January 31, 2020, 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), at least in the form of a thoracic sprain; and (Dr. H) was properly appointed as designated doctor on the issues of MMI and IR. The claimant, a fleet service clerk, was injured on (date of injury), when she pulled a heavy bag to place on a conveyor belt. She testified that, later the same day, she felt pain in her neck when the tug she was riding in jerked and pushed her forward.

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 aggravation of cervical degenerative disc disease, cervicalgia, cervical radiculopathy, cervical spondylosis, right shoulder impingement syndrome, right shoulder bicipital tendinitis, right shoulder bursitis, or right shoulder AC joint sprain is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from February 1, 2020, through the date of the CCH is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on January 31, 2020, is supported by sufficient evidence and is affirmed.

IR

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

The ALJ determined that the claimant reached MMI on January 31, 2020, with a zero percent IR, in accordance with the opinion of Dr. H, the designated doctor. Dr. H examined the claimant on March 13, 2020, and considered and rated a thoracic sprain. As reflected in his narrative report, Dr. H used 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) and placed the claimant in Diagnosis-Related Estimate Thoracolumbar Category I for a zero percent IR; however, on his corresponding Report of Medical Evaluation (DWC-69), Dr. H marked that the claimant did not have any permanent impairment as a result of the compensable injury. We note that the Appeals Panel has recognized that a certification of no impairment is different and distinct from a zero percent IR. See Appeals Panel Decision (APD) 182223, decided November 14, 2018.Because there is an internal inconsistency between the IR in Dr. H’s narrative report and the corresponding DWC-69, his assignment of IR is not adoptable. See APD 152290, decided January 21, 2016, and APD 211351, decided October 7, 2021. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is zero percent.

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

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to aggravation of cervical degenerative disc disease, cervicalgia, cervical radiculopathy, cervical spondylosis, right shoulder impingement syndrome, right shoulder bicipital tendinitis, right shoulder bursitis, or right shoulder AC joint sprain.

We affirm the ALJ’s determination that the claimant did not have disability from February 1, 2020, through the date of the CCH.

We affirm the ALJ’s determination that the claimant reached MMI on January 31, 2020.

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

REMAND INSTRUCTIONS

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

The ALJ is to inform the designated doctor that the date of MMI is January 31, 2020, and the (date of injury), compensable injury is a thoracic sprain. The ALJ is also to inform the designated doctor that the (date of injury), compensable injury does not extend to aggravation of cervical degenerative disc disease, cervicalgia, cervical radiculopathy, cervical spondylosis, right shoulder impingement syndrome, right shoulder bicipital tendinitis, right shoulder bursitis, or right shoulder AC joint sprain.

Finally, the ALJ is to inform the designated doctor about the internal inconsistency in his prior certification.

The ALJ is to request the designated doctor to give an opinion on the claimant’s IR by rating the entire compensable injury in accordance with the AMA Guides and considering the medical record and the certifying examination.

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

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

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

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 1, 2021, with the record closing on June 16, 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 right hip sprain and right knee sprain; (2) the compensable injury of (date of injury), does not extend to aggravation of right knee osteoarthritis; (3) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. H) on January 3, 2020, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (4) the date of MMI is November 23, 2018; and (5) appellant’s (claimant) IR is 0%.

The claimant appealed that portion of the ALJ’s extent-of-injury determination that was adverse to her, as well as the ALJ’s determinations regarding finality, MMI, and IR. Respondent 1 (self-insured) responded, urging affirmance of the ALJ’s determinations. There was no response in the file from respondent 2 (subclaimant) to the claimant’s appeal. The ALJ’s determination that the compensable injury of (date of injury), extends to right hip sprain and right knee sprain was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), at least in the form of a right hip contusion and right knee contusion; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed Dr. H as designated doctor to determine extent of injury, MMI, and IR; and the Division appointed (Dr. Hm) as designated doctor to determine MMI and IR. The claimant was injured while working on (date of injury), when she tripped over a box in the freezer and fell onto her right side.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to aggravation of right knee osteoarthritis is supported by sufficient evidence and is affirmed.

FINALITY

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

Section 408.123(f) provides in part:

(f) An employee’s first certification of [MMI] or assignment of an [IR] may be disputed after the period described by Subsection (e) if:

(1) compelling medical evidence exists of:

(A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the [IR];

(B) a clearly mistaken diagnosis or a previously undiagnosed medical condition; or

(C) improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid.

Dr. H examined the claimant on January 3, 2020, and issued two certifications. In the first one, Dr. H certified the claimant reached MMI on January 3, 2020, and, using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides), assigned a 20% IR. Dr. H’s second certification found that the claimant had not reached MMI and did not assign an IR. Therefore, as the ALJ correctly noted in her decision, Dr. H’s first certification is the only valid certification subject to finality. See Appeals Panel Decision (APD) 190180, decided March 28, 2019.

Dr. H’s 20% IR is comprised of range of motion (ROM) measurements for the claimant’s right hip and right knee. Dr. H noted that in the claimant’s right hip, the flexion measurement resulted in a 4% impairment and the external rotation measurement resulted in a 2% impairment. Dr. H then combined these for a 6% IR for the hip. Dr. H noted that in the claimant’s right knee, the flexion measurement resulted in an 8% impairment and the flexion contracture measurement also resulted in an 8% IR. Dr. H combined the knee measurements for a total 15% IR for the right knee. She then combined the 6% IR for the right hip with the 15% IR for the right knee for a total 20% IR.

The ALJ found that Dr. H’s assigned IR was the first valid rating and the self-insured disputed Dr. H’s IR on February 1, 2021, after the 90-day deadline. Those findings are supported by sufficient evidence. The ALJ also found that compelling medical evidence exists of a significant error in applying the appropriate AMA Guides or in calculating the IR. The ALJ stated in her decision, “[s]pecifically, the designated doctor miscalculated the [IR] by combining instead of adding the [ROM] measurements for the right knee.”

However, in Section 3.2, The Lower Extremity, on page 3/75 of the AMA Guides, it states, “[i]f the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and toe, the whole-person estimates for the impairments are combined [emphasis in original] (Combined Values Chart, p. 322).” Accordingly, Dr. H correctly combined the impairments from the right knee. The ALJ’s finding that there was compelling medical evidence of a significant error in applying the appropriate AMA Guides or in calculating the IR was legal error. Therefore, we reverse the ALJ’s determination that the first certification of MMI and IR from Dr. H on January 3, 2020, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and IR from Dr. H on January 3, 2020, did become final under Section 408.123 and Rule 130.12.

To the extent that prior Appeals Panel decisions can be read as allowing impairments in the same lower extremity part to be added rather than combined, those decisions are now overruled. See APD 110741, decided July 25, 2011.

MMI/IR

As we have rendered a new decision that the first certification of MMI and IR from Dr. H on January 3, 2020, did become final under Section 408.123 and Rule 130.12, we also must reverse the ALJ’s determinations that the date of MMI is November 23, 2018, and the claimant’s IR is 0%. We render a new decision that the claimant reached MMI on January 3, 2020, with a 20% IR in accordance with Dr. H’s certification that became final.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to aggravation of right knee osteoarthritis.

We reverse the ALJ’s determination that the first certification of MMI and IR from Dr. H on January 3, 2020, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and IR from Dr. H on January 3, 2020, did become final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determinations that the date of MMI is November 23, 2018, and the claimant’s IR is 0%, and we render a new decision that the claimant reached MMI on January 3, 2020, with a 20% IR.

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

NAME
ADDRESS
CITY, TEXAS ZIP CODE.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on February 10, 2021, and concluded on April 22, 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 (date of injury), compensable injury extends to bilateral articular recess stenosis at L3-4 and L4-5; (2) the compensable injury of (date of injury), does not extend to lumbar radiculopathy at L4; (3) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. E) on June 24, 2019, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (4) the respondent (claimant) reached MMI on September 22, 2020; (5) the claimant’s IR is 10%; and (6) the claimant had disability resulting from the compensable injury sustained on (date of injury), from October 3, 2019, through September 22, 2020. The appellant (carrier) appeals the ALJ’s determinations of finality of the first certification, disability, MMI, IR, and that portion of the extent-of-injury determination that was favorable to the claimant. The appeal file does not contain a response from the claimant. The ALJ’s determination that the compensable injury does not extend to lumbar radiculopathy at L4 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: (1) the claimant sustained a compensable injury on (date of injury), which extends to a lumbar strain; (2) Dr. E was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor to determine MMI, IR, and extent of injury; and (3) the date of statutory MMI is September 22, 2020. The claimant testified that he was injured on (date of injury), when he was unloading a box of food from the back of a truck onto a dolly.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), extends to bilateral articular recess stenosis at L3-4 and L4-5 is supported by sufficient evidence and is affirmed.

FINALITY OF THE FIRST CERTIFICATION

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. E on June 24, 2019, did not become final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed. The fact that another fact finder may have drawn different inferences from the evidence which would have supported a different result does not provide a basis for us to disturb the challenged determination. Salazar v. Hill, 551 S.W.2d 518 (Tex. Civ. App.—Corpus Christi 1977, writ ref’d n.r.e.).

DISABILITY

The ALJ’s determination that the claimant had disability, resulting from the compensable injury of (date of injury), from October 3, 2019, through September 22, 2020, is supported by sufficient evidence and is affirmed.

MMI/IR

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

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

Dr. E, the designated doctor, examined the claimant on November 20, 2020, and provided two certifications of MMI and IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). In one of the certifications, Dr. E only rated a lumbar strain. This certification did not rate the entire compensable injury and cannot be adopted. In the second certification, Dr. E considered and rated a lumbar strain as well as bilateral articular recess stenosis at L3-4 and L4-5. In the second certification, Dr. E opined that the claimant did not reach clinical MMI but reached statutory MMI on September 22, 2020. The ALJ found that the second certification from Dr. E certifying that the claimant reached MMI on September 22, 2020, with an IR of 10% is not contrary to the preponderance of the other medical evidence. Dr. E placed the claimant in Diagnosis Related Estimate (DRE) Lumbosacral Category III: Radiculopathy of the AMA Guides. Dr. E cited treatment notes from (Dr. Z) stating the claimant’s left L4 reflex is noted to be hyperactive when compared to the opposite side. Dr. E then went on to state that along with the right decreased reflex, it is noted throughout the records and on the designated doctor’s examination that the claimant has decreased strength in the right lower extremity which is also consistent with a right L4 radiculopathy. As previously noted, the ALJ’s determination that the compensable injury of (date of injury), does not extend to lumbar radiculopathy at L4 became final. In the certification of MMI and assigned IR adopted by the ALJ, Dr. E specifically rated L4 radiculopathy. Accordingly, the ALJ’s determination that the claimant reached MMI on September 22, 2020, with an IR of 10% is reversed.

None of the other certifications provided by Dr. E based on examinations of July 30, 2020, or June 14, 2019, can be adopted because they either do not consider the entire compensable injury or opine that the claimant has not yet reached MMI. As previously noted, the statutory date of MMI for this claim is September 22, 2020.

The only other doctor to provide certifications of MMI and assigned IR is (Dr. Er), the carrier-selected required medical examination doctor. Dr. Er examined the claimant on January 18, 2021, and provided three certifications of MMI and assigned IR. In two of the certifications, Dr. Er opined that the claimant reached MMI on April 11, 2019, with a 0% IR, considering only a lumbar strain. However, neither certification rates the entire compensable injury. In the third certification, Dr. Er opines that the claimant reached MMI on September 22, 2020, with a 0% IR. In that certification, Dr. Er considered and rated conditions that have not been determined to be part of the compensable injury, including retrolisthesis at L4-5, multi-level lumbar spondylosis, moderate central canal stenosis at L3-4, and mild central spinal canal stenosis at L4-5. Therefore, Dr. Er’s certifications cannot be adopted. There are no other certifications in evidence. Accordingly, the issues of MMI and IR are remanded to the ALJ for further action consistent with this opinion.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), extends to bilateral articular recess stenosis at L3-4 and L4-5.

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. E on June 24, 2019, did not become final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that the claimant had disability, resulting from the compensable injury of (date of injury), from October 3, 2019, through September 22, 2020.

We reverse the ALJ’s determination that the claimant reached MMI on September 22, 2020, and remand the MMI issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant’s IR is 10% and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The ALJ is to advise the designated doctor of the date of statutory MMI and request that the designated doctor give an opinion on the claimant’s date of MMI and rate the entire compensable injury which includes a lumbar strain and bilateral articular recess stenosis at L3-4 and L4-5 but does not extend to lumbar radiculopathy at L4 in accordance with the AMA Guides considering the medical record and the certifying examination. The date of MMI cannot be after the date of statutory MMI.

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

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

The true corporate name of the insurance carrier is SENTRY INSURANCE A MUTUAL 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.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 24, 2021, with the record closing on March 30, 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), does not extend to neuropathy of the left upper extremity (UE); (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. M) on February 10, 2018, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (3) the respondent/cross-appellant (claimant) reached MMI on November 13, 2017; (4) the claimant’s IR is 8%; and (5) the claimant had disability resulting from the compensable injury sustained on (date of injury), from November 14, 2017, and continuing to April 12, 2018. The appellant/cross-respondent (carrier) appeals the ALJ’s determination of finality. The claimant responded to the carrier’s appeal, urging affirmance of the ALJ’s determination of finality. The claimant cross-appealed the ALJ’s determinations of extent of injury, MMI, IR, and disability. The carrier responded to the claimant’s cross-appeal, urging affirmance of the ALJ’s determinations of extent of injury, MMI, and IR.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury; (2) the compensable injury of (date of injury), extends to a laceration of the extensor muscle, fascia, and tendon of the left thumb; (3) Dr. M was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor to address MMI and IR; (4) the designated doctor, Dr. M, evaluated the claimant and certified that the claimant reached MMI on November 13, 2017, with an IR of 8%; and (5) the claimant reached statutory MMI on April 12, 2018. The evidence reflected that the claimant was injured on (date of injury), when he was using a cutting tool and it lacerated his left thumb.  

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 neuropathy of the left UE is supported by sufficient evidence and is affirmed.

FINALITY

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. M on February 10, 2018, did not become final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant had disability resulting from the compensable injury sustained on (date of injury), from November 14, 2017, and continuing to April 12, 2018, is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on November 13, 2017, is supported by sufficient evidence and is affirmed.

IR

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

The ALJ determined that the claimant reached MMI on November 13, 2017, with an 8% IR in accordance with the certification of Dr. M, the designated doctor. The record indicates that the designated doctor examined the claimant on February 10, 2018, and assigned the 8% IR based on the compensable condition of a laceration of the extensor muscle, fascia, and tendon of the left thumb 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. M assessed 21% digit impairment for the claimant’s left thumb based on the following range of motion (ROM) measurements: IP flexion 50° (2% impairment); IP extension 20° (0% impairment); MP flexion 35° (2% impairment); MP extension 10° (0% impairment); radial abduction angle 40° (0% impairment); adduction of 4 centimeters (4% impairment); and opposition of 3 centimeters (13% impairment).  Dr. M then added these for a 21% digit impairment. However, we note that Table 6 on page 3/28 of the AMA Guides indicates that 40° of radial abduction results in 1% impairment, not 0% as calculated by Dr. M. Therefore, the total digit impairment is 22%, not 21% as indicated by Dr. M.

Dr. M further assessed 25% impairment for the claimant’s left thumb sensory loss. He then combined the 25% for sensory loss with the 21% digit impairment for a total 41% digit impairment. Converting the digit impairment to hand impairment results in 16% hand impairment. Dr. M then converted the 16% hand impairment to 14% UE impairment which results in a total whole person impairment (WPI) of 8%.

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

In this case, Dr. M mistakenly indicated that 40° of radial abduction in the thumb results in 0% impairment, instead of 1% impairment, as shown in Table 6, page 3/28 of the AMA Guides, to arrive at the WPI for the left thumb. Adding 1% impairment to Dr. M’s other thumb ROM measurements results in a 22% digit impairment for loss of motion in the left thumb. Combining the 22% impairment with 25% impairment for sensory loss results in 42% thumb impairment. Converting the 42% thumb impairment to hand impairment results in 17% hand impairment. Converting 17% hand impairment to UE impairment results in 15% UE impairment. The 15% UE impairment results in a WPI of 9%, instead of 8% as assessed by Dr. M.

The ALJ found that the preponderance of the other medical evidence is not contrary to the certification of IR by Dr. M. After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 8%, and we render a new decision that the claimant’s IR is 9% as mathematically corrected.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to neuropathy of the left UE.

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. M on February 10, 2018, did not become final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that the claimant had disability resulting from the compensable injury sustained on (date of injury), from November 14, 2017, and continuing to April 12, 2018.

We affirm the ALJ’s determination that the claimant reached MMI on November 13, 2017.

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

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

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on February 4, 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), does not extend to a right-sided disc extrusion at L3-4 with inferior disc fragment and compression of the right L4 nerve spinal canal, a prominent L5-S1 central disc bulge and mild annular tear, lumbar arthritis/endplate formation, lumbar disc disease, or lumbar radiculopathy/radiculitis; and (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. R) on April 22, 2019, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12).

The appellant/cross-respondent (self-insured) appealed the ALJ’s determination that the first certification of MMI/IR from Dr. R on April 22, 2019, did not become final. The appeal file does not contain a response from the cross-appellant/respondent (claimant) to the self-insured’s appeal. The claimant appealed the ALJ’s extent-of-injury determination. The claimant additionally appeals the ALJ’s finding that none of the exceptions to Section 408.123(f) were established. The self-insured responded to the claimant’s appeal urging affirmance of the issues appealed by the claimant.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a low back strain. The claimant testified that he was injured when a tent came loose and landed on him causing him to fall while he was carrying a table.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to a right-sided disc extrusion at L3-4 with inferior disc fragment and compression of the right L4 nerve spinal canal, a prominent L5-S1 central disc bulge and mild annular tear, lumbar arthritis/endplate formation, lumbar disc disease, or lumbar radiculopathy/radiculitis is supported by sufficient evidence and is affirmed.

FINALITY

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

Section 408.123(f) provides, in part:

(f) An employee’s first certification of [MMI] or assignment of an [IR] may be disputed after the period described by Subsection (e) if:

(1) compelling medical evidence exists of:

(A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the [IR];

(B) a clearly mistaken diagnosis or a previously undiagnosed medical condition; or

(C) improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid.

The ALJ found that the certification of MMI on April 22, 2019, with no permanent impairment from the treating doctor, Dr. R, was the first certification of MMI and assignment of impairment on this claim and was valid for purposes of Rule 130.12(c). Those findings are supported by sufficient evidence.

The ALJ also found that the claimant failed to establish that an exception to the 90-day finality rule would apply. This finding is supported by sufficient evidence. Additionally, the ALJ found that the claimant disputed the certification of Dr. R on January 4, 2021, by requesting a benefit review conference. This finding is also supported by the evidence. However, the ALJ determined that Dr. R’s certification of MMI and assigned IR on April 22, 2019, did not become final because it was not provided to the claimant by verifiable means.

In evidence is a Notice of [MMI] and No Permanent Impairment (PLN-3a) from the self-insured addressed to the claimant. The claimant verified that the address contained on the PLN-3a was his correct address. The PLN-3a states that the certification of MMI/IR from Dr. R was attached. The PLN-3a contains a United States Postal Service (USPS) tracking number. Further, in evidence is a USPS printout that confirms the same tracking number was delivered on May 15, 2019. We note that Dr. R’s certification considered a low back strain.

In her discussion of the evidence the ALJ stated: “. . . although the PLN-3a itself correctly outlined [the] [c]laimant’s name and address as verified by [the] [c]laimant, the tracking page did not have any address whatsoever to properly identify that the notice had been delivered to the same address as outlined in the notice. This presented an ambiguous interpretation.” We disagree.

In Appeals Panel Decision (APD) 041985-s, decided September 28, 2004, we noted that the preamble to Rule 130.12 stated that written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party, and that this may include acknowledged receipt by the injured employee or insurance carrier, a statement of personal delivery, confirmed delivery by e-mail, confirmed delivery by facsimile transmission, or some other confirmed delivery to the home or business address. The goal of this requirement is not to regulate how a system participant makes delivery of a report or other information to another system participant, but to ensure that the system participant filing the report or providing the information has verifiable proof that it was delivered. 29 Tex. Reg. 2331, March 5, 2004. See also APD 091106, decided September 17, 2009, and APD 070533-s, decided May 21, 2007.

According to the facts presented in this case, Dr. R’s certification of MMI and assignment of IR was delivered to the claimant on May 15, 2019, as evidenced by the PLN-3a addressed to the claimant’s correct address in (city), Texas, stating that Dr. R’s certification of MMI and assigned IR is attached with a (tracking number), and the printout from USPS bearing the same tracking number confirming delivery to (city), Texas. We therefore reverse the ALJ’s determination that the first certification of MMI and assignment of IR from Dr. R was not delivered to the claimant through verifiable means. We hold that the first certification of MMI and assignment of IR from Dr. R was delivered to the claimant through verifiable means on May 15, 2019, a date more than 90 days prior to the claimant filing his dispute of such certification of MMI and assignment of IR on January 4, 2021, as found by the ALJ. We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. R on April 22, 2019, did not become final under Section 408.123 and Rule 130.12 as being against the great weight and preponderance of the evidence. We render a new decision that the first certification of MMI and assigned IR from Dr. R on April 22, 2019, did become final pursuant to Section 408.123 and Rule 130.12.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to a right-sided disc extrusion at L3-4 with inferior disc fragment and compression of the right L4 nerve spinal canal, a prominent L5-S1 central disc bulge and mild annular tear, lumbar arthritis/endplate formation, lumbar disc disease, or lumbar radiculopathy/radiculitis.

We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. R on April 22, 2019, did not become final under Section 408.123 and Rule 130.12 and render a new decision that the first certification of MMI and assigned IR from Dr. R on April 22, 2019, did become final pursuant to Section 408.123 and Rule 130.12.

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

MAYOR GILBERT GOMEZ
101 EAST MAIN
ROBSTOWN, TEXAS 78380-3347.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

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