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 November 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 (date of injury), compensable injury does not extend to a left shoulder rotator cuff tear; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. F) on November 24, 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 5, 2021; and (4) the claimant’s IR is 11%. The claimant appealed all the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part, reversed and rendered in part, and reversed and remanded in part.

The parties stipulated, in part, that the carrier accepted a (date of injury), compensable injury in the nature of a dislocation of the left shoulder girdle, left shoulder impingement syndrome, and a sprain of the left wrist and hand and on November 16, 2021, and November 24, 2021, Dr. F was authorized to perform IR evaluations in accordance with Rule 130.1.  The evidence indicates that the claimant, a custodian, was injured on (date of injury), when she blacked out while walking and fell to the ground, injuring her left shoulder, wrist, and hand.

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

EXTENT OF INJURY

The ALJ’s determination that the (date of injury), compensable injury does not extend to a left shoulder rotator cuff tear 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:

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 Dr. F’s November 24, 2021, certification that the claimant reached MMI on October 5, 2021, with an IR of 11% was the first valid certification of MMI and IR for the purposes of Rule 130.12(c). She further found that the claimant was provided written notice of the certification by verifiable means on December 9, 2021, but did not file a timely dispute. Those findings are supported by sufficient evidence. The ALJ also found none of the exceptions to 90-day finality under Section 408.123(f) apply in this case.

Dr. F examined the claimant on November 16, 2021, and certified on November 24, 2021, that the claimant reached MMI on October 5, 2021. 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), he assigned an 11% IR for the compensable conditions of a dislocation of the left shoulder girdle, left shoulder impingement syndrome, and left wrist and hand sprain. Dr. F’s 11% IR is based on range of motion (ROM) deficits in the left shoulder and left wrist.

Dr. F correctly calculated a 4% upper extremity (UE) impairment based on the ROM measurements he provided for the left wrist. Dr. F’s corresponding narrative report noted the following ROM measurements and their UE impairments for the claimant’s left shoulder (rounded to the nearest 10°): 100° flexion (5%), 40° extension (0%), 80° abduction (5%), 0° adduction (2%), 40° internal rotation (3%), and 50° external rotation (1%).  Dr. F added the left shoulder UE impairments for a total 16% UE impairment for the left shoulder. He then combined the UE impairments for the left wrist and left shoulder which resulted in a 19% UE impairment and converted that to an 11% whole person impairment (WPI). However, Dr. F made a mistake in his calculation of the left shoulder impairment. Figure 38 on page 3/43 of the AMA Guides provides that 40° of extension results in 1% UE impairment, not 0% UE impairment as indicated by Dr. F. Using these calculations, Dr. F assigned a 16% UE impairment for the claimant’s left shoulder, instead of a 17% UE impairment. Combining the 17% left shoulder UE impairment with the 4% left wrist UE impairment results in a total 20% UE impairment, which converts to a WPI of 12%, instead of 11% as certified by Dr. F.

Dr. F’s narrative report shows that he erred in assigning 0% UE impairment for left shoulder extension rather than 1% UE impairment. We hold that this is compelling medical evidence in this case of a significant error by Dr. F in calculating the 11% 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. F on November 24, 2021, 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. F on November 24, 2021, did not become final under Section 408.123 and Rule 130.12.

We note that the evidence indicates that the claimant underwent left shoulder surgery on March 16, 2021, which included a distal clavicle resection. We further note that in Appeals Panel Decision (APD) 151158-s, decided August 4, 2015, the Appeals Panel held that impairment for a distal clavicle resection arthroplasty that was received as treatment for the compensable injury results in 10% UE impairment under Table 27 on page 3/61 of the AMA Guides.

MMI AND 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 Texas Department of Insurance, Division of Workers’ Compensation (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 evidence in the record indicates that there has not been a designated doctor appointed in this case to address MMI and IR.  The ALJ adopted the certification from Dr. F, a referral doctor, in which he certified that the claimant reached MMI on October 5, 2021, and assigned an 11% IR.

Section 408.125(a) provides if an IR is disputed, the commissioner shall direct the employee to the next available doctor on the Division’s list of designated doctors, as provided by Section 408.0041.  In APD 020385, decided March 18, 2002, the Appeals Panel stated that “[u]nder the provisions of Section 408.125, no determination can be made regarding the claimant’s IR because there is no report from a designated doctor.”  In APD 132423, decided December 19, 2013, the ALJ mistakenly found that the treating doctor was the designated doctor appointed on the issues for MMI and IR; however, there was no designated doctor appointed on the issues of MMI/IR.  In that case, the Appeals Panel reversed the ALJ’s MMI and IR determinations and remanded the issues of MMI and IR.  In this case, there was no designated doctor appointed on the issues of MMI and IR because of the finality issue. However, we have rendered a decision that the first certification of MMI and assigned IR from Dr. F on November 24, 2021, did not become final under Section 408.123 and Rule 130.12.  Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on October 5, 2021, with an 11% IR, and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the (date of injury), compensable injury does not extend to a left shoulder rotator cuff tear.

We reverse the ALJ’s determination that the certification of MMI and IR from Dr. F on November 24, 2021, 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. F on November 24, 2021, did not become final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determinations that the claimant reached MMI on October 5, 2021, with an 11% IR, and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to request the appointment of a designated doctor for the issues of MMI and IR.  The ALJ is to advise the designated doctor that the claimant sustained a compensable injury on (date of injury), which includes a dislocation of the left shoulder girdle, left shoulder impingement syndrome, and a sprain of the left wrist and hand, but does not extend to a left shoulder rotator cuff tear. The parties did not stipulate to or discuss a date of statutory MMI and there was no finding of the date of statutory MMI by the ALJ.  Based on the evidence in this case the date of statutory MMI may have passed.  The ALJ is to take a stipulation from the parties regarding the date of statutory MMI.  If the parties are unable to stipulate to the date of statutory MMI, the ALJ is to make a determination of the date of statutory MMI in order to inform the designated doctor of the date of statutory MMI. The ALJ is to request the designated doctor to give an opinion on MMI and IR in accordance with the AMA Guides considering the medical record and the certifying examination.

The parties are to be provided with the designated doctor’s MMI and IR certification and are to be allowed an opportunity to respond.  The ALJ is to consider the evidence on MMI and IR.  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 APD 060721, decided June 12, 2006.

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

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 28, 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 right wrist carpal tunnel syndrome (CTS) or right triangular fibrocartilage complex (TFCC) tear; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. F) on June 19, 2019, became final pursuant to Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (3) the date of MMI is June 4, 2019; and (4) the appellant’s (claimant) IR is seven percent. The claimant appealed, disputing the ALJ’s determinations. The claimant additionally appeals an evidentiary ruling made by the ALJ excluding a letter of causation because it was not timely exchanged. The respondent (self-insured) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part, and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a right hand sprain and right wrist sprain; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed Dr. F as designated doctor to address MMI and IR; and the statutory date of MMI is April 6, 2021. The claimant was injured on (date of injury), while using a drill to assemble 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).

EVIDENTIARY RULING

At the CCH the self-insured objected to the admission of a letter of causation from (Dr. O), the claimant’s treating doctor, on the grounds that the report had not been timely exchanged. To obtain a reversal of a judgment based on the ALJ’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.—San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the ALJ acted without reference to any guiding rules or principles. Appeals Panel Decision (APD) 043000, decided January 12, 2005; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).

Rule 142.13(c)(1) provides, in part, that the parties exchange documentary evidence “no later than 15 days after the benefit review conference [BRC].” Rule 142.13(c)(2) further provides that “[t]hereafter, parties shall exchange additional documentary evidence as it becomes available.” Rule 142.13(c)(3) provides, in part, that the ALJ shall make a determination whether good cause exists for a party not having previously exchanged such information or documents to introduce such evidence at the hearing. A party who belatedly investigates the facts and then does not disclose known information in order to make further investigation and development runs the risk of having evidence excluded for failure of exchange. See APD 991744, decided October 1, 1999.

In this case, the BRC was held on February 16, 2022. The exhibit in question, a report from Dr. O, labeled “Causation Letter,” is dated May 30, 2022. The self-insured contended that the exhibit in question was not exchanged until the day of the CCH. The ALJ noted that there had been two prior settings for the CCH in April and June of 2022 that were rescheduled. The ALJ stated on the record that she did not find good cause for the late exchange of the exhibit. We find no abuse of discretion in the ALJ's application of the exchange of evidence rules and perceive no reversible error in the evidentiary ruling that the claimant did not have good cause for failing to timely exchange the report.

FINALITY

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. F on June 19, 2019, became final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

MMI/IR

The ALJ’s determinations that the claimant reached MMI on June 4, 2019, and the claimant’s IR is seven percent are supported by sufficient evidence and are affirmed.

EXTENT OF INJURY

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due, and if so, an award of benefits due.

The extent-of-injury issue as stated on the BRC Report and as agreed to by the parties at the CCH was whether the compensable injury of (date of injury), extends to right wrist CTS and right TFCC tear. Although Conclusion of Law No. 3 and the decision state that the compensable injury of (date of injury), does not extend to right wrist CTS and right TFCC tear, the ALJ made no specific finding of fact regarding the compensability of the disputed conditions as required by Section 410.168 and Rule 142.16. See APD 132339, decided December 12, 2013; APD 150510, decided April 21, 2015; APD 162262, decided January 10, 2017; and APD 181349, decided August 15, 2018.

Accordingly, we reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to right wrist CTS and right TFCC tear, and we remand the issue of whether the compensable injury of (date of injury), extends to right wrist CTS and right TFCC tear to the ALJ to make findings of fact on that issue.

SUMMARY

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. F on June 19, 2019, became final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that the claimant reached MMI on June 4, 2019.

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

We reverse the ALJ’s extent-of-injury determination as incomplete, and remand the issue of whether the (date of injury), compensable injury extends to right wrist CTS and right TFCC tear for further action consistent with this decision.

REMAND INSTRUCTIONS

The ALJ is to make findings of fact, conclusions of law, and a determination whether the compensable injury of (date of injury), extends to right wrist CTS and right TFCC tear that is supported by the evidence.

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 GENERAL MOTORS L.L.C. (a certified self-insured), and the name and address of its registered agent for service of process is

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 2, 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 first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) by (Dr. R), a referral doctor, on November 22, 2021, became final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (2) the appellant (claimant) reached MMI on October 11, 2021; and (3) the claimant’s IR is 10%.

The claimant appealed, disputing the ALJ’s determinations of finality, MMI, and IR. The respondent (carrier) responded, urging affirmance of the disputed finality, MMI, and IR determinations.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a left shoulder dislocation and a left shoulder type 2 acromion fracture; the date of statutory MMI is October 11, 2021; and on November 22, 2021, Dr. R, referral doctor, certified the claimant reached MMI on October 11, 2021, assigned a 10% IR, and he was the first doctor to certify MMI and assign an IR. The claimant testified that he was installing solar panels when he was injured on (date of injury).

FINALITY

Section 408.123(e) provides that except as otherwise provided by Section 408.123, an employee’s first valid certification of MMI and first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means; that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both.  Section 408.123(f) provides, in part, that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described in Subsection (e) if:  (1) compelling medical evidence exists of: (A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the IR.

The ALJ found that the evidence failed to establish that any of the exceptions to the 90-day rule were applicable. On November 10, 2021, Dr. R examined the claimant and certified the claimant reached MMI on October 11, 2021, and assigned a 10% IR, using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. R considered and rated a left shoulder displaced fracture of the acromion process, a left shoulder dislocation, and left shoulder sprain. We note that a left shoulder sprain has not yet been determined to be part of the compensable injury.

In his narrative report, Dr. R stated that the left shoulder should be rated using the range of motion (ROM) model of the AMA Guides. Dr. R noted that the ROM measurements were added for a total of a 17% upper extremity (UE) impairment which converts to a 10% whole person IR. Dr. R included two charts of ROM measurements in his narrative report. The chart which included prior ROM measurements from April 20, 2021, was labeled right shoulder motions. A second chart included in Dr. R’s narrative was labeled left shoulder motions and included current ROMs along with ROMs “rounded to the nearest 10th degree” and the corresponding assigned UE impairment. The amounts rounded to the nearest 10th degree corresponded to the measurements from the ROM measurements taken on April 20, 2021, from the chart labeled right shoulder. In the second chart in his narrative report, Dr. R gave the following ROM figures rounded for the “left shoulder” and the UE impairment assigned for each: flexion 100° (5%), extension 40° (4%), abduction 70° (5%), adduction 30° (1%), internal rotation 50° (2%), and external rotation 60° (0%) provided in Figures 38, 41, and 44, on pages 3/43, 3/44, and 3/45, respectively, of the AMA Guides. The impairments Dr. R assigned for ROM measurements for left shoulder flexion, abduction, adduction, internal rotation, and external rotation were all made in accordance with the AMA Guides. However, Dr. R also assigned 4% UE impairment for 40° of extension. Figure 38 on page 3/43 of the AMA Guides does not provide that 40° of extension results in 4% UE impairment. Dr. R incorrectly assigned 4% impairment for loss of ROM for extension of the left shoulder.

As previously noted, the ROM measurements Dr. R used to determine the measurements he rounded and assessed impairment for were labeled for the right shoulder rather than the left.

There is compelling medical evidence of a significant error by Dr. R in calculating the claimant’s IR, and therefore, the exception in Section 408.123(f)(1)(A) applies. Accordingly, we reverse the ALJ’s determination that the first MMI/IR certification from Dr. R on November 22, 2021, became final under Section 408.123 and Rule 130.12, and we render a new decision that the first MMI/IR certification from Dr. R on November 22, 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 evidence in the record indicates that there has not been a designated doctor appointed in this case to address MMI and IR. The ALJ adopted the certification from Dr. R, a referral doctor, in which he certified that the claimant reached MMI on October 11, 2021, and assigned a 10% IR.

Section 408.125(a) provides if an IR is disputed, the commissioner shall direct the employee to the next available doctor on the Division’s list of designated doctors, as provided by Section 408.0041. In Appeals Panel Decision (APD) 020385, decided March 18, 2002, the Appeals Panel stated that “[u]nder the provisions of Section 408.125, no determination can be made regarding the claimant’s IR because there is no report from a designated doctor.” In APD 132423, decided December 19, 2013, the ALJ mistakenly found that the treating doctor was the designated doctor appointed on the issues for MMI and IR; however, there was no designated doctor appointed on the issues of MMI/IR. In that case, the Appeals Panel reversed the ALJ’s MMI and IR determinations and remanded the issues of MMI and IR. In this case, there was no designated doctor appointed on the issues of MMI and IR because of the finality issue. However, we have rendered a decision that the first certification of MMI and assigned IR from Dr. R on November 22, 2021, did not become final under Section 408.123 and Rule 130.12. Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on October 11, 2021, with a 10% IR, and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the first certification of MMI and assigned IR by Dr. R on November 22, 2021, became final under Section 408.123 and Rule 130.12 and render a new decision that the first certification of MMI and assigned IR by Dr. R on November 22, 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 11, 2021, and remand the MMI issue to the ALJ for further consideration based on the evidence.

We reverse the ALJ’s determination that the claimant’s IR is 10% and remand the IR issue to the ALJ for further consideration based on the evidence.

REMAND INSTRUCTIONS

On remand, the ALJ is to request the appointment of a designated doctor for the issues of MMI and IR.  The ALJ is to advise the designated doctor that the claimant sustained a compensable injury on (date of injury), in the form of a left shoulder dislocation and a left shoulder type 2 acromion fracture.  The ALJ is to advise the designated doctor that the date of statutory MMI on this claim is October 11, 2021, and that the date of MMI cannot be later than the statutory date. The ALJ is to request the designated doctor to give an opinion on MMI and IR in accordance with the AMA Guides considering the medical record and the certifying examination.  

The parties are to be provided with the designated doctor’s MMI and IR certification and are to be allowed an opportunity to respond.  The ALJ is to consider the evidence on MMI and IR. 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 administrative law judge, 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, PRESIDENT
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 consolidated contested case hearing was held on August 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 first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. S) on January 19, 2022, became final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (2) the appellant (claimant) reached MMI on January 19, 2021; (3) the claimant’s IR is zero percent; and (4) (Dr. V) was not appointed to serve as designated doctor on the issues of MMI, IR, and extent of injury in accordance with Section 408.0041 and Texas Department of Insurance, Division of Workers’ Compensation (Division) rules.  The claimant appealed, disputing the ALJ’s determinations of finality, MMI, IR, and the proper appointment of Dr. V as designated doctor for MMI, IR, and extent of injury. The respondent (carrier) responded, urging affirmance of the disputed determinations.  

DECISION

Affirmed in part and reversed by striking in part.

The parties stipulated, in part, that the claimant sustained a compensable injury in the form of bilateral Achilles tendon ruptures. The claimant testified that he was injured when he was going down the stairs.

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).  

FINALITY

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. S on January 19, 2022, became final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on January 19, 2021, 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.

PROPER APPOINTMENT OF DESIGNATED DOCTOR

The ALJ’s finding that because the certification of MMI and assigned IR from Dr. S became final, Dr. V was not appointed as designated doctor on the issues of MMI and IR in accordance with the “Texas Labor Code and [Division] rules” is supported by sufficient evidence. However, in Conclusion of Law No. 4 and the Decision section the ALJ determined that Dr. V was not appointed to serve as designated doctor on the issues of MMI, IR, and extent of injury in accordance with Section 408.0041 and Division rules. The issue before the ALJ was as follows: Was Dr. V properly appointed to serve as designated doctor on the issues of MMI and IR in accordance with Section 408.0041 and Division rules? That portion of the ALJ’s determination that Dr. V was not appointed to serve as designated doctor on the issues of MMI and IR in accordance with Section 408.0041 and Division rules is affirmed. Whether or not Dr. V was properly appointed as designated doctor on the issue of extent of injury was not an issue before the ALJ to decide nor was it litigated. Accordingly, we strike that portion of the ALJ’s determination that Dr. V was not appointed to serve as designated doctor on the issue of extent of injury in accordance with Section 408.0041 and Division rules as exceeding the scope of the issue.

SUMMARY

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. S on January 19, 2022, became final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that the claimant reached MMI on January 19, 2021.

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

We affirm that portion of the ALJ’s determination that Dr. V was not appointed to serve as designated doctor on the issues of MMI and IR in accordance with Section 408.0041 and Division rules.

We reverse by striking that portion of the ALJ’s determination that Dr. V was not appointed to serve as designated doctor on the issue of extent of injury in accordance with Section 408.0041 and Division rules as exceeding the scope of the issue before her.

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

CHRISTOPHER MCCLELLAN
13215 BEE CAVE PARKWAY, SUITE B150
AUSTIN, TEXAS 78738-0059.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 18, 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 intraosseous ganglion in the third metacarpal head or triggering right ring finger; (2) the appellant (claimant) did not have disability from March 18, 2022, through the present from an injury sustained on (date of injury); (3) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. G) on March 31, 2020, became final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (4) the claimant reached MMI on February 10, 2020; and (5) the claimant’s IR is zero percent. The claimant appealed the ALJ’s determinations of extent of injury, disability, finality, MMI, and IR. The respondent (carrier) responded to the claimant’s appeal, urging affirmance of the ALJ’s determinations.  

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury in the form of at least a grade 1 sprain of ulnar collateral ligament MCP joint right middle finger and grade 1-2 sprain of radial collateral ligament MCP joint. The claimant testified that she was injured on (date of injury), while working as a supervisor and cleaning buildings for the employer. The claimant further testified that she was taking out the trash when her right hand got jammed by the door between her right middle and ring fingers.  

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 intraosseous ganglion in the third metacarpal head or triggering right ring finger is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from March 18, 2022, through the present from an injury sustained on (date of injury), is supported by sufficient evidence and is affirmed.

FINALITY

Section 408.123(e) provides that, except as otherwise provided by Section 408.123, an employee’s first valid certification of MMI and first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means.  Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means, 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).      

In Appeals Panel Decision (APD) 042163-s, decided October 21, 2004, the Appeals Panel discussed whether the deemed receipt provision of Rule 102.4 was applicable and what is meant by “verifiable means.”  APD 041985-s, decided September 28, 2004, and APD 042163-s, supra, both reference the preamble to Rule 130.12.  The preamble provides that the 90-day period “begins when that party receives verifiable written notice of the MMI/IR certification.”    

The preamble goes on to state:    

Written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party.  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, 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.    

The ALJ found that the March 31, 2020, certification by Dr. G, a doctor selected by the treating doctor to act in his place, was the first valid certification of MMI and assigned IR for the purposes of Section 408.123 and Rule 130.12. This finding is supported by sufficient evidence. The ALJ further found that Dr. G’s certification was delivered to the claimant by verifiable means on August 24, 2021. In the ALJ’s decision, the ALJ explains that in evidence is a Dispute Resolution Information System (DRIS) note that indicates the claimant contacted the Texas Department of Insurance, Division of Workers’ Compensation (Division) to dispute Dr. G’s certification on August 24, 2021. While a review of the record reflects conflicting evidence concerning the date the claimant may have received Dr. G’s certification, the ALJ relied on DRIS notes to find that Dr. G’s certification was delivered to the claimant by verifiable means on or before August 24, 2021.

In APD 152374, decided February 3, 2016, the ALJ similarly relied on a DRIS note that indicated the claimant called the Division regarding the dispute of a certification to find that the claimant was provided with written notice by verifiable means. In that case, the Appeals Panel disagreed that the DRIS note in question was sufficient to establish delivery by verifiable means and noted “[t]he DRIS note, which indicates only that the claimant’s attorney and doctor are disputing [the] report, does not constitute reasonable confirmation of delivery of written notice to the claimant on that date.” Likewise in the present case, the DRIS note dated August 24, 2021, is insufficient to establish that Dr. G’s report was delivered to the claimant by verifiable means. Therefore, we reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12.

A review of the record indicates that there were several other dates put forth by the carrier as dates the claimant may have received Dr. G’s certification. The ALJ did not make further findings regarding the alternate dates. Therefore, we remand the issue of finality to the ALJ for further action consistent with this decision.

MMI AND IR

As we have reversed and remanded the issue of whether the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12, we also reverse the ALJ’s determinations that the claimant reached MMI on February 10, 2020, with a zero percent IR and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to intraosseous ganglion in the third metacarpal head or triggering right ring finger.

We affirm the ALJ’s determination that the claimant did not have disability from March 18, 2022, through the present from an injury sustained on (date of injury).

We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12, and we remand the issue of finality to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determinations that the claimant reached MMI on February 10, 2020, with a zero percent IR and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to make findings of fact regarding whether the claimant received Dr. G’s certification by verifiable means and, if so, on what date.  The ALJ is to make a determination of whether the first certification of MMI and assigned IR from Dr. G on March 31, 2020, became final under Section 408.123 and Rule 130.12 that is consistent with the evidence and this decision. If the ALJ determines that Dr. G’s March 31, 2020, certification did not become final, he is to request a designated doctor on the issues of MMI and IR.

The ALJ is then to make a determination of MMI and IR that is consistent with the evidence and 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 ACCIDENT FUND INSURANCE COMPANY OF AMERICA and the name and address of its registered agent for service of process is

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

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 June 29, 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 first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. A) on November 7, 2018, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (2) the respondent (claimant) reached MMI on August 16, 2019; and (3) the claimant’s IR is 30%. The appellant (self-insured) appealed the ALJ’s determinations of finality, MMI, and IR. The claimant responded to the self-insured’s appeal, urging affirmance of the ALJ’s determinations.  

DECISION

Reversed and remanded.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury; (2) the claimant’s compensable injury extends to right foot calcaneal fracture and right ankle calcaneofibular ligament sprain; (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed Dr. A as designated doctor to address MMI and IR; and (4) Dr. A evaluated the claimant on November 7, 2018, and certified that she reached MMI on November 7, 2018, with an IR of 6%. The claimant testified that she was injured on (date of injury), while working as a bus attendant for the employer. The claimant further testified that she was participating in a training exercise on the bus when she accidentally fell out of the back of the bus and landed on her right foot, resulting in a right foot injury.

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.

In her discussion of the evidence, the ALJ noted that Dr. A’s certification was the first valid certification of MMI and IR. This is supported by sufficient evidence. She further noted that the self-insured provided evidence of the tracking history of a package, but there was a lack of evidence that established a connection between the tracked package and the DWC-69 from Dr. A. The ALJ then found that the self-insured did not provide evidence that established the claimant received Dr. A’s DWC-69 on a certain date.

In Appeals Panel Decision (APD) 042163-s, decided October 21, 2004, the Appeals Panel discussed whether the deemed receipt provision of Rule 102.4 was applicable and what is meant by “verifiable means.”  APD 041985-s, decided September 28, 2004, and APD 042163-s, supra, both reference the preamble to Rule 130.12.  The preamble provides that the 90-day period “begins when that party receives verifiable written notice of the MMI/IR certification.”    

The preamble goes on to state:

Written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party. 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, 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.

A review of the record indicates that the claimant testified she did not receive Dr. A’s report from the self-insured with a notice that she has the right to dispute it. However, she did testify that she received Dr. A’s certification from Dr. A directly on November 18, 2018. Therefore, we find that the claimant did receive Dr. A’s certification by verifiable means on November 18, 2018. Accordingly, the ALJ’s determination that the first certification of MMI and assigned IR from Dr. A on November 7, 2018, did not become final under Section 408.123 and Rule 130.12 is reversed.

Because the ALJ found that there was insufficient evidence to establish delivery to the claimant by verifiable means, the ALJ made no further findings regarding the date of the dispute of the first certification or the applicability of any exceptions to finality as provided in Section 408.123(f).  We remand the issue of whether the first certification of MMI and assigned IR from Dr. A on November 7, 2018, became final under Section 408.123 and Rule 130.12 for further consideration consistent with this decision.  

MMI AND IR

As we have reversed and remanded the issue of whether the first certification of MMI and assigned IR from Dr. A on November 7, 2018, became final under Section 408.123 and Rule 130.12, we also reverse the ALJ’s determinations that the claimant reached MMI on August 16, 2019, with a 30% IR and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. A on November 7, 2018, did not become final under Section 408.123 and Rule 130.12, and we remand the issue of finality to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determinations that the claimant reached MMI on August 16, 2019, with a 30% IR and remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to make findings of fact regarding the date of the claimant’s dispute of the first certification as well as any applicable exceptions to finality as provided in Section 408.123.  The ALJ is to then make a determination of whether the first certification of MMI and assigned IR from Dr. A on November 7, 2018, became final under Section 408.123 and Rule 130.12 consistent with the evidence and this decision.    

The ALJ is to then to make a determination of MMI and IR consistent with the evidence and 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 (a self-insured governmental entity) and the name and address of its registered agent for service of process is

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 10, 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 right shoulder supraspinatus moderate grade articular surface partial thickness tearing; right shoulder infraspinatus blended fibers tearing; right shoulder glenoid labral derangement, favor type IIB SLAP lesion; left shoulder articular surface supraspinatus critical zone fraying and fibrillation; left shoulder tearing of supraspinatus and infraspinatus tendons at blended insertion; or left shoulder glenoid derangement, SLAP type II lesion; (2) the appellant/cross-respondent (claimant) reached maximum medical improvement (MMI) on September 18, 2019; (3) the claimant’s impairment rating (IR) is 10%; and (4) the first certification of MMI and assigned IR from (Dr. G) on March 6, 2020, 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/cross-appellant (carrier) cross-appealed the determinations of finality, MMI, and IR. The carrier responded to the claimant’s appeal, urging affirmance of the extent-of-injury issue. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated in part that: (1) the claimant sustained a compensable injury on (date of injury); (2) the compensable injury of (date of injury), extends to bilateral shoulder sprain/strains; (3) (Dr. T) was properly appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor to determine MMI, IR, and the extent of the claimant’s injury; (4) the date of statutory MMI is July 23, 2021; and (5) the claimant first disputed the first certification of MMI and assigned IR from Dr. G by filing a Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (DWC-45) on October 12, 2021. The claimant testified that he was injured on (date of injury), when he was pulling on a pipe that got stuck.

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 the compensable injury of (date of injury), does not extend to right shoulder supraspinatus moderate grade articular surface partial thickness tearing; right shoulder infraspinatus blended fibers tearing; right shoulder glenoid labral derangement, favor type IIB SLAP lesion; left shoulder articular surface supraspinatus critical zone fraying and fibrillation; left shoulder tearing of supraspinatus and infraspinatus tendons at blended insertion; or left shoulder glenoid derangement, SLAP type II lesion 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:  

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 evidence reflects that, on March 6, 2020, Dr. G, the claimant's treating doctor, examined the claimant and certified on that same date that the claimant reached MMI on March 6, 2020, with an assigned IR of 9%.  The ALJ found that Dr. G’s March 6, 2020, certification was the first valid certification that the claimant reached MMI with an assigned IR. That finding is supported by sufficient evidence.  

The ALJ also found that there is no compelling medical evidence of any previously undiagnosed condition or any improper or inadequate treatment of the injury before the date of certification. That finding is supported by sufficient evidence. As noted above, the parties stipulated that the claimant first disputed the first certification of MMI and assigned IR from Dr. G by filing a DWC-45 on October 12, 2021. However, the ALJ determined that Dr. G’s certification of MMI and assigned IR on March 6, 2020, did not become final because it was not provided to the claimant by verifiable means.    

In evidence is a Notice of [MMI] and Permanent Impairment (PLN-3b) from the carrier addressed to the claimant.  The claimant verified that the address contained on the PLN-3b was his correct address.  The PLN-3b states that the certification of MMI/IR from Dr. G was attached.  In evidence is a certified mail/return receipt requested (“green card”) that contains a tracking number from the United States Postal Service (USPS) which notes the DWC-69, the PLN-3b, and the report from Dr. G were all included. Further, in evidence is a USPS printout that confirms the same tracking number was delivered on March 31, 2020.  Also in evidence is an affidavit from a claims adjuster who is employed by the carrier which states that on March 27, 2020, “[the] [c]arrier mailed the PLN-3 with the attached DWC-69 and [the] report of Dr. [G]” to the claimant at his correct address. The claimant acknowledged that the green card contained his correct address. The green card in evidence contains a signature and the claimant’s printed name as a recipient.  We note that Dr. G’s certification considered bilateral shoulder sprain/strains.  

In his discussion of the evidence the ALJ stated:  “[t]he ALJ finds that a layman could examine the signature on the green card and that of [the] [c]laimant’s on his DWC Form-045 and see that the signatures are not the same. The ALJ examined the documents and finds that the [c]laimant did not sign the green card (CR-F pg. 4). The ALJ finds that the notice with Dr. [G]’s report was not delivered to [the] [c]laimant, rather it was delivered to some unknown person.” We disagree.  

In Appeals Panel Decision (APD) 042163-s, decided October 21, 2004, the Appeals Panel discussed whether the deemed receipt provision of Rule 102.4 was applicable and what is meant by “verifiable means.”  APD 041985-s, decided September 28, 2004, and APD 042163-s, supra, both reference the preamble to Rule 130.12.  The preamble provides that the 90-day period “begins when that party receives verifiable written notice of the MMI/IR certification.”    

The preamble goes on to state:    

Written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party. 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, 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.

The preamble further states that a party may not prevent verifiable delivery and specifically provides that a party who refuses to take personal delivery or certified mail has still been given verifiable written notice. 

According to the facts presented in this case, Dr. G’s certification of MMI and assignment of IR was delivered to the claimant on March 31, 2020, as evidenced by the PLN-3b addressed to the claimant’s correct address and the green card stating that the PLN-3b, DWC-69, and the narrative from Dr. G are enclosed with a tracking number and the printout from USPS bearing the same tracking number confirming delivery to Cleveland, Texas.  The affidavit from the claims adjuster additionally confirms the carrier mailed the PLN-3b, with the attached DWC-69, and report of Dr. G to the address the claimant confirmed at the CCH was his correct address. We reverse the ALJ’s finding that the first certification of MMI and assignment of IR from Dr. G was not delivered to the claimant through verifiable means as being against the great weight and preponderance of the evidence. We hold that the first certification of MMI and assignment of IR from Dr. G was delivered to the claimant through verifiable means on March 31, 2020, a date more than 90 days prior to the claimant filing his dispute of such certification of MMI and assignment of IR on October 12, 2021, as stipulated by the parties.  We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. G on March 6, 2020, 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. G on March 6, 2020, did become final pursuant to Section 408.123 and Rule 130.12.

MMI/IR

Given that we have reversed the ALJ’s decision that the first certification of MMI and IR assigned by Dr. G did not become final and rendered a new decision that it became final pursuant to Section 408.123, we reverse the ALJ’s determinations of MMI and IR.  The ALJ determined that the claimant’s MMI date was September 18, 2019, and that the claimant’s IR was 10% as certified by the Division-appointed designated doctor, Dr. T.  We reverse the ALJ’s decision that the claimant reached MMI on September 18, 2019, and render a new decision that the claimant reached MMI on March 6, 2020.  We reverse the ALJ’s decision that the claimant’s IR is 10% and render a new decision that the claimant’s IR is 9%.  

SUMMARY

We affirm the ALJ’s determination the compensable injury of (date of injury), does not extend to right shoulder supraspinatus moderate grade articular surface partial thickness tearing; right shoulder infraspinatus blended fibers tearing; right shoulder glenoid labral derangement, favor type IIB SLAP lesion; left shoulder articular surface supraspinatus critical zone fraying and fibrillation; left shoulder tearing of supraspinatus and infraspinatus tendons at blended insertion; or left shoulder glenoid derangement, SLAP type II lesion.

We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. G on March 6, 2020, 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. G on March 6, 2020, did become final pursuant to Section 408.123 and Rule 130.12.

We reverse the ALJ’s decision that the claimant reached MMI on September 18, 2019, and render a new decision that the claimant reached MMI on March 6, 2020.  

We reverse the ALJ’s decision that the claimant’s IR is 10% and render a new decision that the claimant’s IR is 9%.

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 1, 2022, and April 4, 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 herniated nucleus pulposus/bulge at C4-5, C5-6, C6-7, L1-2, L2-3, L4-5, or L5-S1, or aggravation of lumbar spondylosis at L3-5; (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 2, 2021; (3) the claimant’s impairment rating (IR) is five percent; and (4) the first certification of MMI and assigned IR from (Dr. F), designated doctor, on March 31, 2021, became 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, IR, and finality. The respondent (self-insured) responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded for reconstruction of the record.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; Claimant’s Exhibits 1 through 8; and Self-Insured’s Exhibits A through E. Claimant’s Exhibits 7 and 8 are missing from the record.  Because the record at the CCH was incomplete, it must be remanded back to the ALJ who presided over the March 1, 2022, and April 4, 2022, CCHs, if possible, 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 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 (a self-insured governmental entity) and the name and address of its registered agent for service of process is

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

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

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

DECISION

Affirmed in part and reversed and rendered in part.

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

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

EXTENT OF INJURY

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

MMI

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

IR

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

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

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

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

SUMMARY

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

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

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

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

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 29, 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 L5-S1 disc protrusion or L5-S1 lumbar radiculopathy; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. H) on February 25, 2019, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (3) the appellant (claimant) reached MMI on February 5, 2019; and (4) the claimant’s IR is 10%.

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

DECISION

Affirmed in part, and reversed and remanded in part.

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 parties stipulated, in part, that: the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. C) as designated doctor to address MMI and IR; the Division appointed (Dr. Hb) as designated doctor to address MMI, IR, and extent of injury; the carrier has accepted a lumbar strain as a component of the compensable injury; and the date of statutory MMI is February 5, 2019. The claimant testified he was injured on (date of injury), when he tripped and fell on pipes that were behind him.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to an L5-S1 disc protrusion or L5-S1 lumbar radiculopathy is supported by sufficient evidence and is affirmed.

FINALITY

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. H, on February 25, 2019, did not become final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.    

MMI/IR

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

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. H’s certification that the claimant reached MMI on February 5, 2019, with a 10% IR for the compensable injury is supported by the preponderance of the evidence and is adopted. Dr. H, a referral from the treating doctor acting in the treating doctor’s place, examined the claimant on February 14, 2019, and certified the claimant reached MMI on February 5, 2019, assigning a 10% 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) for a lumbar strain. Dr. H stated that statutory MMI was assigned as the claimant is pending lumbar spine operative intervention. Dr. H placed the claimant in Diagnosis-Related Estimate (DRE) Lumbosacral Category III:  Radiculopathy of the AMA Guides.  In his narrative report, Dr. H noted that he placed the claimant in Category III based upon clinically significant signs of radiculopathy that include loss of relevant reflexes (left S1 reflex).  The AMA Guides provide that to be placed in DRE Lumbosacral Category III:  Radiculopathy the patient has significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of greater than 2 cm above or below the knee, compared to measurements on the contralateral side at the same location. The Appeals Panel has held that, to receive a rating for radiculopathy under DRE Lumbosacral Category III:  Radiculopathy, the claimant must have significant signs of radiculopathy, such as loss of relevant reflex(es), or measured unilateral atrophy of 2 cm or more above or below the knee, compared to measurements on the contralateral side at the same location. See Appeals Panel Decision (APD) 072220-s, decided February 5, 2008.  

However, as noted above the ALJ’s determination that the compensable injury does not extend to L5-S1 lumbar radiculopathy was affirmed.  Under the facts of this case, the IR includes a condition that has specifically been determined to not be part of the compensable injury.  There was no evidence in the record to indicate that any pending lumbar surgery was due to a lumbar strain. See APD 210843, decided July 28, 2021.

Dr. H provided an alternate certification, but it also rates radiculopathy and considers another condition which has been determined to not be part of the compensable injury, namely an L5-S1 disc protrusion, as well as other conditions that have not yet been determined to be part of the compensable injury, including L2-3 and L4-5 disc bulges and headaches.

There are four other certifications of MMI/IR in evidence. One is from the initial designated doctor, Dr. C, and three are from Dr. Hb. All of these certifications certify that the claimant is not at MMI. As noted above, the parties stipulated that the date of statutory MMI is February 5, 2019. Accordingly, none of these certifications can be adopted. See APD 131554, decided September 3, 2013.

There are no other certifications in evidence.  Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on February 5, 2019, and that the claimant’s IR is 10% and remand the MMI and IR issues 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 L5-S1 disc protrusion or L5-S1 lumbar radiculopathy.

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. H on February 25, 2019, did not become final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determination that the claimant reached MMI on February 5, 2019, and remand the issue of MMI to the ALJ for further action consistent with this decision.

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

REMAND INSTRUCTIONS

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

On remand the ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a lumbar strain but does not extend to an L5-S1 disc protrusion or L5-S1 lumbar radiculopathy.  The ALJ is then to request that the designated doctor certify MMI and assign an IR for the compensable injury based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination. The ALJ is to inform the designated doctor that the date of statutory MMI is February 5, 2019. The date of MMI cannot be after the date of statutory MMI.  

The parties are to be provided with the ALJ’s letter to the designated doctor, the designated doctor’s response, and are to be allowed an opportunity to respond.  If another designated doctor is appointed, the parties are to be provided with the Presiding Officer’s Directive to Order Designated Doctor Examination, the designated doctor’s report, and are to be allowed an opportunity to respond.  The ALJ is to make determinations which are supported by the evidence on the MMI and IR issues 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 XL SPECIALTY INSURANCE COMPANY and the name and address of its registered agent for service of process is

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge