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, 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. M) on December 18, 2019, became final under Section 408.123 and 28 TEX. ADMIN CODE §130.12 (Rule 130.12); (2) the appellant (claimant) reached MMI on November 22, 2019; and (3) the claimant’s IR is zero percent.  The claimant appealed, disputing the ALJ’s determinations of finality, MMI, and IR. The respondent (carrier) responded, urging affirmance of the finality, MMI, and IR determinations.

DECISION

Affirmed as reformed.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and the compensable injury extends to left knee grade 1 MCL sprain. The claimant testified that he was injured when moving a refrigerator.

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).  

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).

The ALJ noted in her discussion of the evidence that the DWC-69 along with the Plain Language Notice (PLN-3) was sent to the claimant’s correct address via the United States Postal Service, certified mail. In evidence was confirmation from the Postal Service that the letter was returned to sender after being unclaimed. There are notes from the adjuster in evidence that state the PLN-3/DWC-69 was mailed to the claimant both by certified and regular mail. The claimant testified that he received the DWC-69 by regular mail.

In Finding of Fact No. 4, the ALJ found that: “On December 26, 2019, [the] [c]laimant sent by certified mail the DWC-69 as signed and certified by Dr. [M]. The certified mail was returned to the sender on January 16, 2020. [The] [c]laimant had 90 days from January 15, 2020, to dispute the certification of [MMI] and assigned [IR].” The ALJ inadvertently indicated in her finding that the claimant was the person who sent the DWC-69. We reform Finding of Fact No. 4 to read as follows to conform to the evidence: On December 26, 2019, the claimant received a notice of certified mail, which included the DWC-69 as signed and certified by Dr. M. The certified mail was returned to the sender on January 16, 2020. The claimant had 90 days from January 15, 2020, to dispute the certification of MMI and assigned IR.

The ALJ’s finding that the claimant failed to dispute the MMI/IR certification from Dr. M within 90 days after January 15, 2020, is supported by sufficient evidence.

The ALJ’s finding that the claimant failed to establish that an exception to finality applies is also supported by sufficient evidence.

Accordingly, the ALJ’s determination that the first certification of MMI and assigned IR from Dr. M on December 18, 2019, became final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed as reformed.

The ALJ’s determination that the claimant reached MMI on November 22, 2019, is supported by sufficient evidence and is affirmed.

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

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 July 12, 2018, with the record closing on July 30, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to sleep apnea, shortness of breath, anxiety disorder, or segmental and somatic dysfunction of the lumbar spine; (2) the appellant (claimant) reached maximum medical improvement (MMI) on September 27, 2017; (3) the claimant’s impairment rating (IR) is 10%; and (4) the first certification of MMI and assigned IR from (Dr. M) on October 9, 2017, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12). The claimant appealed, disputing the ALJ’s determinations of the extent of the compensable injury, MMI, IR, and finality. The respondent (carrier) responded, urging affirmance of the disputed extent of injury, MMI, IR, and finality determinations.

DECISION

Reversed and remanded.

The carrier agreed at the CCH that the claimant sustained a compensable injury in the form of a left lower extremity crush injury, left knee dislocation with ligament injury, left tibial plateau fracture, left medial malleolus fracture, and an open wound of the right thigh on (date of injury). The claimant did not attend the CCH. In her discussion of the evidence, the ALJ stated that: “[a] letter advising that the hearing had convened and that the record would be held open for [10] days to afford [the] claimant the opportunity to respond and request that the hearing be rescheduled to permit him to present evidence on the disputed issues was mailed to [the] claimant on July 13, 2018. [The] [c]laimant failed to respond and the record was closed on July 30, 2018.”

TIMELINESS OF APPEAL

The carrier contends that the claimant did not timely file his appeal.

Section 410.202(a) provides that to appeal the decision of an ALJ, a party shall file a written request for appeal with the Appeals Panel not later than the 15th day after the date on which the decision of the ALJ is received from the Texas Department of Insurance, Division of Workers’ Compensation (Division) and shall on the same date serve a copy of the request for appeal on the other party. Section 410.202(d) provides that Saturdays and Sundays and holidays listed in Texas Government Code Section 662.003 are not included in the computation of the time in which to file an appeal or a response.  Rule 143.3(d), effective December 13, 2009, provides that a request for review shall be presumed to be timely filed if it is: (1) mailed on or before the 15th day after the date of deemed receipt of the ALJ’s decision; and (2) received by the Division not later than the 20th day after the date of deemed receipt of the ALJ’s decision.  The Appeals Panel has held that both portions of Rule 143.3(d) must be complied with for an appeal to be timely. Appeals Panel Decision (APD) 042688, decided December 1, 2004.

Division records reflect that the claimant called the Division on July 12, 2018, to state that he could not attend the CCH and to provide a change of address. As previously mentioned the record of the CCH closed on July 30, 2018. However, Division records reflect that the decision and order mailed on August 2, 2018, was not sent to the address provided by the claimant on July 12, 2018, but, rather, was mailed to a previous address. Rule 102.5(a) provides, in part, that all written communications from the Division to the claimant will be sent to the most recent address. In his appeal, the claimant attached an envelope from the Division that was mailed to the address the claimant provided to the Division on July 12, 2018. The envelope is postmarked August 16, 2018. The claimant stated in his appeal that the envelope included a copy of the decision and order dated August 2, 2018. The claimant’s appeal was received by the Division on August 31, 2018. Accordingly, the claimant’s appeal is considered timely.

EXTENT OF INJURY, MMI, IR, AND FINALITY

The claimant contends that he did not attend the CCH or respond to the 10-day letter because he was admitted into a rehabilitation treatment program on May 29, 2018. Attached to his appeal is a letter dated July 20, 2018, from the Department of Veterans Affairs which stated its purpose was to verify that the claimant was admitted into a “Domiciliary Residential Rehabilitation Treatment Program” on June 7, 2018, and that his projected discharge date is on August 6, 2018.

In APD 042634, decided November 29, 2004, the Appeals Panel noted that the purpose of the 10-day letter process is to give the nonappearing party the opportunity to meaningfully participate in the dispute resolution process.  In APD 020273, decided March 29, 2002, the claimant made a number of factual allegations in her appeal regarding good cause for failing to attend the CCH and her attempts to respond to the 10-day letter, and the Appeals Panel stated that it was not in a position to evaluate the credibility of the claimant in regard to those matters and, thus, remanded the case to the ALJ to take evidence concerning the claimant’s allegations and to permit the claimant to present evidence on the merits of her claim at the CCH on remand.

In the instant case, the claimant makes factual allegations that, if true, could constitute a basis for good cause for the claimant’s failure to attend the CCH on July 12, 2018, or respond to the 10-day letter.  The letter from the Department of Veterans Affairs attached to the claimant’s appeal constitutes newly discovered evidence pertaining to why the claimant did not attend the CCH on July 12, 2018, or respond to the 10-day letter.  See Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ).

In this case, the letter from the Department of Veterans Affairs was not available at the time of the CCH on July 12, 2018; it is not cumulative of other evidence in the record; it is not due to lack of diligence that it was not offered at the CCH; and it is so material that it would probably result in a different decision.  The claimant has provided newly discovered evidence on appeal where a remand is warranted based on that evidence.  See APD 100457, decided June 25, 2010.  As in APD 020273, supra, the case is remanded to the ALJ to take evidence concerning the claimant’s allegations and to permit the parties to present evidence on the merits of the claim at the CCH on remand.

Accordingly, we reverse the ALJ’s determinations that:  (1) the compensable injury of (date of injury), does not extend to sleep apnea, shortness of breath, anxiety disorder, or segmental and somatic dysfunction of the lumbar spine; (2) the claimant reached MMI on September 27, 2017; (3) the claimant’s IR is 10%; and (4) the first certification of MMI and assigned IR from Dr. M on October 9, 2017, did become final pursuant to Section 408.123 and Rule 130.12, and we remand this case to the ALJ to allow the claimant an opportunity to participate in the dispute resolution process, and present evidence if he wishes to do so.

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, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 2, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) reached maximum medical improvement (MMI) on February 27, 2017; (2) the claimant’s impairment rating (IR) is 10%; and (3) the first certification of MMI and assigned IR from (Dr. M) on March 3, 2017, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12). 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 remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and that the compensable injury of (date of injury), extends to at least a left shoulder injury. The evidence reflects that the claimant was injured when handling luggage.

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

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.

In evidence are two Notification(s) of [MMI]/First Impairment Income Benefit Payment (PLN-3) from the carrier addressed to the claimant. The first PLN-3 is dated March 16, 2017, and was sent to the claimant at his correct mailing address at that time. The second PLN-3 is dated March 24, 2017, and was also sent to the claimant at his correct mailing address at that time. The second PLN-3 was sent as a corrected form because the first PLN-3 contained an incorrect MMI date and impairment income benefits calculation. We note that both the March 16, 2017, and March 24, 2017, PLN-3s state that Dr. M’s March 3, 2017, DWC-69 was attached to each PLN-3, and both DWC-69s contained the same MMI date of February 27, 2017.

The ALJ notes in her discussion that the PLN-3 and Dr. M’s MMI/IR certification were sent to the claimant and received on March 21, 2017, and April 3, 2017, as evidenced by the signed receipt printout from the United States Postal Service (USPS). Her discussion indicates that she found the claimant signed for and received Dr. M’s MMI/IR certification on March 27, 2017, and he had 90 days to dispute Dr. M’s MMI/IR certification.^[1]

However, a March 27, 2017, date of receipt is not supported by the evidence. In evidence is the USPS track and confirm information for both the March 16, 2017, and March 24, 2017, PLN-3s, as well as signed notifications from USPS “produced” on March 27, 2017, and April 3, 2017. While the notifications from USPS denote that they were “produced” on March 27, 2017, and April 3, 2017, those notifications do not support that the PLN-3s in question were signed for or delivered on those dates.

The track and confirm information regarding the March 16, 2017, PLN-3 reflects that it was delivered to the claimant’s address on March 21, 2017. The notification from USPS with the “produced” date of March 27, 2017, also reflects that particular PLN-3 was delivered to the claimant’s address on March 21, 2017. The track and confirm information regarding the March 24, 2017, PLN-3 reflects that PLN-3 was in transit from (city), (state), to (city), Texas, on March 27, 2017, and was delivered to the claimant’s address in (city), Texas, on March 30, 2017. The notification from USPS with the “produced” date of April 3, 2017, reflects the March 24, 2017, PLN-3 was delivered to the claimant’s address on March 30, 2017.

The ALJ’s finding that on March 27, 2017, the claimant received Dr. M’s MMI/IR certification and had 90 days to dispute that MMI/IR certification is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Accordingly, we reverse the ALJ’s finding.

Based on the evidence presented, there are different dates on which the claimant could have received Dr. M’s MMI/IR certification; therefore, we do not find it appropriate to render a decision as to when, or if, the claimant received Dr. M’s MMI/IR certification by verifiable means. Accordingly, we remand the issue of whether the first MMI/IR certification by Dr. M on March 3, 2017, became final under Section 408.123 and Rule 130.12.

MMI/IR

Given that we have reversed the ALJ’s determination that Dr. M’s March 3, 2017, MMI/IR certification has become final under Section 408.123 and Rule 130.12 and have remanded that issue to the ALJ, we also reverse the ALJ’s determinations that the claimant reached MMI on February 27, 2017, with a 10% IR, and we 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. M on March 3, 2017, became final under Section 408.123 and Rule 130.12, and we remand the issue of whether the first certification of MMI and assigned IR from Dr. M on March 3, 2017, became final under Section 408.123 and Rule 130.12 for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant reached MMI on February 27, 2017, and we remand the issue of the claimant’s date 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 we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

We note that the decision contains inconsistent findings of fact, specifically Findings of Fact Nos. 8 and 9. On remand the ALJ is to resolve the inconsistencies contained in the identified findings of fact.

On remand the ALJ is to determine whether the claimant received Dr. M’s March 3, 2017, MMI/IR certification by verifiable means, and if so to make findings of fact and conclusions of law as to the date the claimant received Dr. M’s March 3, 2017, MMI/IR certification, and the date the claimant disputed that MMI/IR certification that is consistent with the evidence. The ALJ is to then make findings of fact, conclusions of law, and a decision whether Dr. M’s March 3, 2017, MMI/IR certification became final under Section 408.123 and Rule 130.12. The ALJ is then to make findings of fact, conclusions of law, and a decision regarding the claimant’s MMI and IR.

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 Appeals Panel Decision 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that the ALJ incorrectly identified Dr. M as a designated doctor in a finding of fact and in a portion of her discussion. Dr. M is a doctor referred by the treating doctor to act in the treating doctor’s place.

   ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 11, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to subluxation of the extensor tendon of the 5th metacarpal joint of the right hand; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. T) on February 8, 2017, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (3) the respondent/cross-appellant (claimant) reached MMI on January 11, 2017; (4) the claimant’s IR is six percent; and (5) the claimant had disability, resulting from the compensable injury sustained on (date of injury), throughout the period from April 12, 2017, through the CCH.

The appellant/cross-respondent (self-insured) appealed, arguing that the ALJ erroneously stated the parties stipulated that the accepted compensable injury was “bilateral thumb metacarpophalangeal joint arthritis” and further mistakenly referenced the wrong condition in his discussion. The appeal file does not contain a response from the claimant to the self-insured’s appeal.

The claimant cross-appealed, disputing the ALJ’s determinations of the extent of injury, finality, MMI, and IR. The self-insured responded, urging affirmance of the issues disputed by the claimant.

The ALJ’s determination that the claimant had disability, resulting from the compensable injury sustained on (date of injury), from April 12, 2017, through the date of the CCH was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

The parties stipulated that on (date of injury), the claimant sustained a compensable injury. The ALJ mistakenly referenced a bilateral thumb metacarpophalangeal joint as part of the compensable injury. However, the self-insured correctly notes in its appeal that on the record the parties agreed that the compensable injury extends to bilateral thumb carpometacarpal (CMC) joint arthritis. Accordingly, we reform stipulation 1.E. as follows: The compensable injury extends to bilateral thumb CMC joint arthritis.

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 subluxation of the extensor tendon of the 5th metacarpal joint of the right hand is supported by sufficient evidence and is affirmed.

FINALITY

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. T on February 8, 2017, 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 11, 2017, is supported by sufficient evidence and is affirmed.

IR

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

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

DEBORAH WATKINS

1500 MARILLA, 5D SOUTH

DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on February 1, 2016, and continued on May 18, 2016, and concluded on November 29, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to right shoulder supraspinatus and infraspinatus partial tears; (2) the compensable injury of (date of injury), does not extend to L1-2 disc herniation with mild stenosis, L3-4 disc bulge, L4-5 stenosis, L4-5 annular tear, L4-5 disc bulge, L5-S1 posterior disc bulge, or recurrent right shoulder supraspinatus and infraspinatus partial tears; (3) the appellant (claimant) reached maximum medical improvement (MMI) on October 9, 2013; and (4) the claimant’s impairment rating (IR) is one percent.

The claimant appealed, disputing the hearing officer’s determinations of MMI and IR as well as that portion of the extent-of-injury determination that is not favorable to him. The claimant contends that the hearing officer’s decision was contrary to the preponderance of the medical evidence and was in error because the designated doctor’s opinion on the extent of the injury and MMI and IR was not adopted.  The respondent (carrier) responded, urging affirmance of the disputed extent of injury, MMI, and IR determinations.

That portion of the hearing officer’s determination that the compensable injury of (date of injury), extends to right shoulder supraspinatus and infraspinatus partial tears 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 that the claimant sustained a compensable injury on (date of injury), at least in the form of a lumbar strain and right shoulder contusion/strain and that the Texas Department of Insurance, Division of Workers’ Compensation (Division) properly appointed (Dr. T) as designated doctor to address MMI, IR, and extent of injury. The claimant testified that he was injured when he slipped and fell backwards and a tire weighing about 60 pounds struck him in the chest.

EXTENT OF INJURY

That portion of the hearing officer’s determination that the compensable injury of (date of injury), does not extend to L1-2 disc herniation with mild stenosis, L3-4 disc bulge, L4-5 stenosis, L4-5 annular tear, L4-5 disc bulge, L5-S1 posterior disc bulge, or recurrent right shoulder supraspinatus and infraspinatus partial tears is supported by sufficient evidence and is affirmed.

MMI

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. The hearing officer found that the preponderance of the other medical evidence is contrary to Dr. T’s certifications concerning MMI and IR.

(Dr. H), a carrier-selected required medical examination doctor, examined the claimant on May 10, 2016, and provided multiple certifications of MMI and IR. Dr. H certified that the claimant reached MMI on November 21, 2014, with a one percent IR considering strain injuries to the lumbar spine and right shoulder, as well as contusion to the right shoulder, and partial tears of the supraspinatus and infraspinatus tendon.

Dr. H provided alternate certifications. Dr. H certified that the claimant reached MMI on October 9, 2013, with a zero percent IR considering only the lumbar strain, right shoulder strain, and right shoulder contusion. This certification did not consider the entire compensable injury. Dr. H provided two other alternate certifications in which he certified that the claimant reached MMI statutorily on June 28, 2015, and assessed a one percent and six percent IR respectively. However, both of these alternate certifications consider conditions which have been determined not to be part of the compensable injury and cannot be adopted.

The hearing officer found that Dr. H examined the claimant on May 10, 2016, and certified that the claimant reached MMI on October 9, 2013, with a one percent IR for the compensable injury. However, there is not a certification in evidence from Dr. H or any other doctor that assigns a date of MMI of October 9, 2013, and assigns a one percent IR. The hearing officer determined that the certification from Dr. H that considered the compensable injury (strain injuries to the lumbar spine and right shoulder, as well as contusion to the right shoulder, and partial tears of the supraspinatus and infraspinatus tendon) is supported by the preponderance of the evidence. However, the hearing officer mistakenly listed the date of MMI for that certification as October 9, 2013, rather than the date of November 21, 2014. Accordingly, we reverse the hearing officer’s determination that the claimant reached MMI on October 9, 2013, and render a new decision that the claimant reached MMI on November 21, 2014, to conform to the evidence.

IR

The hearing officer’s determination that the claimant’s IR is one percent is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm that portion of the hearing officer’s determination that the compensable injury of (date of injury), does not extend to L1-2 disc herniation with mild stenosis, L3-4 disc bulge, L4-5 stenosis, L4-5 annular tear, L4-5 disc bulge, L5-S1 posterior disc bulge, or recurrent right shoulder supraspinatus and infraspinatus partial tears.

We affirm the hearing officer’s determination that the claimant’s IR is one percent.

We reverse the hearing officer’s determination that the claimant reached MMI on October 9, 2013, and render a new decision that the claimant reached MMI on November 21, 2014, to conform to the evidence.

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

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3232.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
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 28, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (claimant) reached maximum medical improvement (MMI) on January 21, 2016; and (2) the claimant does not have any permanent impairment as a result of the compensable injury. The hearing officer noted in his decision and order that although properly notified, the claimant failed to appear for the CCH and failed to respond to the Texas Department of Insurance, Division of Workers’ Compensation (Division) 10-day letter.

The claimant appealed, disputing the hearing officer’s determinations of MMI and no permanent impairment. The respondent (carrier) responded, urging affirmance of the disputed MMI and impairment rating (IR) determinations.

DECISION

Reversed and remanded.

A decision and order from a prior CCH reflects the claimant sustained a compensable injury on (date of injury), when he fell and fractured his right 8th and 9th ribs. A CCH was convened on July 28, 2016, to resolve the issues of MMI and IR. The claimant did not attend the CCH. The claimant was sent a letter dated July 28, 2016, giving the claimant 10 days to contact the Division to request the hearing be reconvened to give him an opportunity to present evidence and/or to show good cause for his failure to appear at the CCH. On August 15, 2016, the hearing officer entered a decision adverse to the claimant which was sent to the parties under a cover letter dated August 17, 2016.

The claimant contends on appeal that he did not attend his initial appointment with the designated doctor because he was in the hospital and it was not until he recovered from his illness that he was aware he had missed the CCH and the time period to respond to the 10-day letter. The claimant additionally states in his appeal that he has since attended an appointment with the designated doctor appointed by the Division to address MMI and IR. The claimant makes factual allegations in his appeal that, if true, could constitute a basis for good cause for his failure to attend the CCH. We are not in a position to evaluate the credibility of the claimant in regard to these matters. Accordingly, we reverse the hearing officer’s finding that the claimant did not have good cause for failing to appear at the CCH and remand the good cause issue to the hearing officer for further action consistent with this decision. To provide a complete record, the hearing officer should permit the claimant to present evidence on the merits of his claim at the hearing on remand. We therefore reverse the hearing officer’s determinations that the claimant reached MMI on January 21, 2016, and that the claimant does not have any permanent impairment as a result of the compensable injury and remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

We note the Appeals Panel has 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.” See Appeals Panel Decision (APD) 020385, decided March 18, 2002. See also APD 142008, decided November 5, 2014, and APD 132423, decided December 19, 2013, in which the issues of MMI and IR were in dispute, and a designated doctor had not been appointed to opine on the issues of MMI and IR. In both APD 142008 and APD 132423, the Appeals Panel reversed the hearing officer’s decision and remanded for a designated doctor to be appointed on the issues of MMI and IR.

SUMMARY

We reverse the hearing officer’s determination that the claimant reached MMI on January 21, 2016, and remand the issue of MMI to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determination that the claimant does not have any permanent impairment as a result of the compensable injury and remand the issue of IR to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s finding that the claimant did not have good cause for failing to appear at the CCH and remand the good cause issue to the hearing officer for further action consistent with this decision.

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

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 22, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that the compensable injury of (date of injury), extends to left ulnar nerve entrapment but does not extend to a left wrist ligament tear or left wrist tendinitis; the first certification of maximum medical improvement (MMI) and assignment of impairment rating (IR) from (Dr. W), on August 26, 2014, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); the respondent (claimant) was not at MMI as of August 26, 2014; that because the claimant had not reached MMI as of August 26, 2014, an IR cannot be assigned; and the claimant had disability resulting from the compensable injury from February 3 through October 13, 2015.

The appellant (carrier) appealed the hearing officer’s determinations that the compensable injury of (date of injury), extends to left ulnar nerve entrapment; that the first certification of MMI and assignment of IR did not become final; that the claimant was not at MMI as of August 26, 2014; that because the claimant had not reached MMI as of August 26, 2014, an IR cannot be assigned; and that the claimant had disability from February 3 through October 13, 2015, arguing that such determinations are contrary to the evidence.

The appeal file does not contain a response from the claimant to the carrier’s appeal.

The hearing officer’s determination that the compensable injury of (date of injury), does not extend to a left wrist ligament tear or left wrist tendinitis has not been appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant, a flight attendant, was injured on (date of injury), when the airplane on which she was working encountered turbulence, causing the claimant to strike her left wrist, hand and forearm against the galley wall.

The parties stipulated that the claimant sustained a compensable injury on (date of injury), that consisted of a left wrist sprain and that Dr. W, the treating doctor, determined that the claimant reached MMI on August 26, 2014, with no permanent impairment.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury of (date of injury), extends to left ulnar nerve entrapment 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 hearing officer’s determination that the claimant had disability resulting from the compensable injury from February 3 through October 13, 2015, is supported by sufficient evidence and is affirmed.

FINALITY

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

Section 408.123 also 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 hearing officer found that Dr. W’s August 26, 2014, MMI/IR certification was the first valid certification for purposes of Rule 130.12(c); that Dr. W’s August 26, 2014, MMI/IR certification was provided to the claimant by verifiable means on September 9, 2014; and that the claimant did not dispute the first valid certification by Dr. W within 90 days following the date such certification was provided the claimant by verifiable means. These findings of fact are supported by sufficient evidence.

The hearing officer determined that the first MMI/IR certification from Dr. W on August 26, 2014, did not become final under Section 408.123(f)(1)(B) and Rule 130.12 because “the medical information is compelling enough to equate [to] a finding of an undiagnosed condition of the left ulnar entrapment.” We disagree that this case presents compelling medical evidence of a previously undiagnosed medical condition. The claimant sought medical attention at several urgent care clinics between June 17, 2014, and July 8, 2014, where she was diagnosed with left wrist pain, a hand contusion and ulnar nerve radicular pain. On July 21, 2014, she came under the care of Dr. W, her treating doctor, whose records diagnose a left ulnar injury through March 20, 2015, the date of Dr. W’s last record in evidence. On March 10, 2015 and April 10, 2015, the claimant was seen by (Dr. C) who diagnosed injury of the ulnar nerve and who recommended decompression of the nerve. On June 5, 2015, the claimant underwent left ulnar nerve decompression surgery performed by (Dr. We).

We hold that under the facts of this case which reflect consistent diagnosis by the claimant’s medical providers of injury to the left ulnar nerve, including Dr. W in his DWC-69 dated August 26, 2014, ulnar nerve entrapment is not a previously undiagnosed condition and that no exception applies which would allow the claimant’s first valid certification of MMI/IR to be disputed after expiration of the period described in Section 408.123(e). Accordingly, we reverse the hearing officer’s decision that the first certification of MMI and assigned IR from Dr. W on August 26, 2014, 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. W on August 26, 2014, did become final under Section 408.123 and Rule 130.12.

MMI/IR

Because we have reversed the hearing officer’s decision that the first certification of MMI and assigned IR from Dr. W on August 26, 2014, did not become final under Section 408.123 and Rule 130.12 and have rendered a new decision that the first certification of MMI and assigned IR from Dr. W on August 26, 2014, did become final under Section 408.123 and Rule 130.12, we also reverse the hearing officer’s decision that the claimant was not at MMI as of August 26, 2014, and render a new decision that the claimant reached MMI on August 26, 2014, as certified by Dr. W on August 26, 2014. We further reverse the hearing officer’s determination that because the claimant was not at MMI as of August 26, 2014, an IR cannot be assigned and render a new decision that the claimant has no permanent impairment as certified by Dr. W on August 26, 2014.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of (date of injury), extends to left ulnar nerve entrapment.

We affirm the hearing officer’s determination that the claimant had disability resulting from the compensable injury from February 3 through October 13, 2015.

We reverse the hearing officer’s decision that the first certification of MMI and assigned IR from Dr. W on August 26, 2014, 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. W on August 26, 2014, did become final under Section 408.123 and Rule 130.12.

We reverse the hearing officer’s decision that the claimant was not at MMI as of August 26, 2014, and render a new decision that the claimant reached MMI on August 26, 2014, as certified by Dr. W on August 26, 2014.

We reverse the hearing officer’s determination that because the claimant was not at MMI as of August 26, 2014, an IR cannot be assigned and render a new decision that the claimant has no permanent impairment as certified by Dr. W on August 26, 2014.

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.

K. Eugene Kraft
Appeals Judge

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 April 30, 2015, and August 13, 2015, with the record closing on April 6, 2016, in San Antonio, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury does not extend to a C6-7 disc bulge with disc extrusion, aggravation of the cervical spondylotic degenerative changes, aggravation of the lumbar spondylotic degenerative changes, aggravation of the L3-4 facet arthrosis, and aggravation of the L4-5 facet hypertrophy; (2) the respondent/cross-appellant (claimant) reached maximum medical improvement (MMI) on September 11, 2014; and (3) the claimant’s impairment rating (IR) is zero percent.

The appellant/cross-respondent (carrier) appealed, arguing that the hearing officer erred by failing to determine whether the compensable injury of (date of injury), extends to a C5-6 disc bulge or L4-5 posterior disc bulging. The claimant responded, agreeing that the hearing officer failed to make a determination of whether the compensable injury of (date of injury), extends to a C5-6 disc bulge or L4-5 posterior disc bulging. The claimant cross-appealed disputing the hearing officer’s determinations that the compensable injury does not extend to a C6-7 disc bulge with disc extrusion, aggravation of the cervical spondylotic degenerative changes, aggravation of the lumbar spondylotic degenerative changes, aggravation of the L3-4 facet arthrosis, and aggravation of the L4-5 facet hypertrophy; that the claimant reached MMI on September 11, 2014; and that the claimant’s IR is zero percent. The carrier responded, urging affirmance of the determinations of extent of injury, MMI, and IR made by the hearing officer.

DECISION

Affirmed in part as reformed and reversed and remanded in part.

The parties stipulated, in part, that the required medical examination post-designated doctor, (Dr. H) determined that the claimant reached MMI on February 15, 2014, with an IR of five percent. However, the hearing officer mistakenly referenced the date Dr. H determined the claimant reached MMI as July 8, 2014, which was the date of the certification. We reform stipulation 1.G. to reflect the date Dr. H determined the claimant reached MMI as February 15, 2014, to conform to the actual stipulation of the parties and the evidence.

The claimant testified he was injured when he slipped and fell down some stairs while at work on (date of injury). The parties stipulated that on (date of injury), the claimant sustained a compensable injury in the form of a left ankle contusion, a left ankle sprain, a lumbar sprain, and a cervical sprain.

EXTENT OF INJURY

That portion of the hearing officer’s determination that the compensable injury of (date of injury), does not extend to C6-7 disc bulge with disc extrusion, aggravation of the cervical spondylotic degenerative changes, aggravation of the lumbar spondylotic degenerative changes, aggravation of the L3-4 facet arthrosis, and aggravation of the L4-5 facet hypertrophy is supported by sufficient evidence and is affirmed.

The extent-of-injury issue reported in the Benefit Review Conference Report in evidence listed a C5-6 disc bulge and L4-5 posterior disc bulging as part of the extent-of-injury conditions to be determined at the CCH. The parties agreed at the CCH that the conditions of C5-6 disc bulge and L4-5 posterior disc bulging were part of the extent-of-injury issue to be determined at the CCH. As previously noted both the carrier and the claimant on appeal agree that the hearing officer erred in failing to resolve whether the compensable injury of (date of injury), extends to a C5-6 disc bulge and L4-5 posterior disc bulging. Accordingly, we reverse the hearing officer’s extent-of-injury determination as incomplete and remand that portion of the extent-of-injury issue of whether the compensable injury of (date of injury), extends to a C5-6 disc bulge and L4-5 posterior disc bulging to the hearing officer for further action consistent with this decision.

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 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.  28 TEX. ADMIN. CODE § 130.1(c)(3) (Rule 130.1(c)(3)) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

The hearing officer determined that the claimant reached MMI on September 11, 2014, and that the claimant’s IR is zero percent. However, given that we have reversed the hearing officer’s extent-of-injury determination as being incomplete because he failed to determine whether the compensable injury of (date of injury), extends to a C5-6 disc bulge and L4-5 posterior disc bulging, we reverse the hearing officer’s determinations that the claimant reached MMI on September 11, 2014, and that the claimant’s IR is zero percent and remand the MMI and IR issues to the hearing officer for further action consistent with this decision.

SUMMARY

We reform stipulation 1.G. as follows: The required medical examination post-designated doctor, Dr. H determined that the claimant reached MMI on February 15, 2014, with an IR of five percent.

We affirm that portion of the hearing officer’s determination that the compensable injury of (date of injury), does not extend to C6-7 disc bulge with disc extrusion, aggravation of the cervical spondylotic degenerative changes, aggravation of the lumbar spondylotic degenerative changes, aggravation of the L3-4 facet arthrosis, and aggravation of the L4-5 facet hypertrophy.

We reverse the hearing officer’s extent-of-injury determination as being incomplete and remand the issue of whether the compensable injury of (date of injury), extends to a C5-6 disc bulge and L4-5 posterior disc bulging to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determination that the claimant reached MMI on September 11, 2014, and remand the issue of MMI to the hearing officer for further action consistent with this decision.

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

REMAND INSTRUCTIONS

On remand the hearing officer is to make a determination of whether the compensable injury of (date of injury), extends to a C5-6 disc bulge and L4-5 posterior disc bulging. After making a determination of whether the compensable injury of (date of injury), extends to a C5-6 disc bulge and L4-5 posterior disc bulging, the hearing officer is then to make a determination of MMI and IR that considers the entire compensable injury.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 22, 2015, with the record closing on January 25, 2016, in Fort Worth, Texas, with (hearing officer) presiding as hearing officer. The hearing officer 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 June 23, 2014, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (2) the appellant (claimant) reached MMI on June 23, 2014; (3) the claimant’s IR is 10%; and (4) the claimant did not have disability resulting from the (date of injury), compensable injury beginning on June 24, 2014, and continuing through the September 22, 2015, CCH.

The hearing officer noted in the Discussion portion of the decision that the claimant died from an unrelated illness prior to attending the designated doctor examination scheduled subsequent to the September 22, 2015, CCH. The claimant’s attorney appealed the hearing officer’s MMI, IR, and disability determinations, contending those determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Although the claimant’s attorney did not appeal the hearing officer’s finality determination, she did specifically appeal the hearing officer’s Finding of Fact No. 4 that Dr. S’s June 23, 2014, MMI/IR certification was valid for the purposes of Rule 130.12(c), contending that finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The respondent (carrier) responded, urging affirmance of the appealed determinations and finding of fact.

The hearing officer’s determination that the first MMI/IR certification from Dr. S on June 23, 2014, did not become final under Section 408.123 and Rule 130.12 was not appealed by the parties and has become final pursuant to Section 410.169.

DECISION

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

The parties stipulated that the claimant sustained a compensable injury on (date of injury), that includes a left shoulder rotator cuff strain, and left shoulder sprain/strain, and that the date of statutory MMI is September 5, 2015. The claimant testified he was injured when a large tractor tire he tossed into the bed of a pickup truck bounced back and struck him. The claimant testified he attempted to block the tire with his right arm and break his fall with his left arm but fell onto his left arm.

DISABILITY

The hearing officer’s determination that the claimant did not have disability resulting from the (date of injury), compensable injury, beginning on June 24, 2014, and continuing through the September 22, 2015, is supported by sufficient evidence and is affirmed.

VALIDITY OF DR. S’s JUNE 23, 2014, MMI/IR CERTIFICATION

As noted above the hearing officer’s determination that the first MMI/IR certification from Dr. S on June 23, 2014, did not become final under Section 408.123 and Rule 130.12 was not appealed and has become final pursuant to Section 410.169. However, the claimant’s attorney specifically appealed Finding of Fact No. 4, in which the hearing officer found that Dr. S’s June 23, 2014, MMI/IR certification was valid for the purposes of Rule 130.12(c).

The Appeals Panel has held that “initially, a hearing officer should determine whether there is a first valid certification of MMI/IR before determining whether that first valid certification of MMI/IR has or has not become final.”  See generally Appeals Panel Decision (APD) 061569-s, decided October 2, 2006.  A finality determination is contingent on there being a first “valid” certification of MMI and first “valid” assignment of IR as provided in Section 408.123 and Rule 130.12.  Rule 130.12(c) provides that the certification on the Report of Medical Evaluation (DWC-69) is valid if:  (1) there is an MMI date that is not prospective; (2) there is an impairment determination of either no impairment or a percentage [IR] assigned; and (3) there is the signature of the certifying doctor who is authorized by the [Texas Department of Insurance, Division of Workers’ Compensation (Division)] under Rule 130.1(a) to make the assigned impairment determination.  See also APD 100636-s, decided July 16, 2010.

Dr. S’s MMI/IR certification is the only certification in evidence. All copies of Dr. S’s DWC-69s in evidence reveal that he did not provide a date of MMI on his DWC-69. As noted above, Rule 130.12(c) requires that for an MMI/IR certification on a DWC-69 to be valid there must be an MMI date that is not prospective. Because none of Dr. S’s DWC-69s in evidence contain a date of MMI, his MMI/IR certification failed to meet the requirements of a valid certification. Accordingly, we reverse Finding of Fact No. 4 finding that Dr. S’s June 23, 2014, MMI/IR certification was valid for purposes of Rule 130.12(c) as being legally incorrect, and we render a new Finding of Fact No. 4 that Dr. S’s June 23, 2014, MMI/IR certification was not valid for purposes of Rule 130.12(c).

MMI/IR

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 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 only MMI/IR certification in evidence is from Dr. S, and as previously noted there is no DWC-69 from Dr. S in evidence that provides the date that Dr. S placed the claimant at MMI. In his attached narrative report Dr. S did not specify a date of MMI; rather, Dr. S opined that “[the claimant] is, by definition, at clinical MMI.” In evidence is an EES-60 Request for Statistical Information Regarding an Incomplete DWC Form-069 signed by Dr. S in July 2014. In this document the Division notified Dr. S that he had indicated in his DWC-69 that MMI was reached but failed to provide a specific date of MMI. Dr. S indicated on the form that the date of MMI was June 23, 2014. We note that the form also specifically states that the “completing of this information does not modify, amend, or perfect any deficiencies in the above-referenced report.” The EES-60 cannot be used to determine the date of MMI. See generally Rule 130.12.

There is no valid MMI/IR certification in evidence that can be adopted. Accordingly, we reverse the hearing officer’s determinations that the claimant reached MMI on June 23, 2014, with a 10% IR, and we remand the issues of MMI and IR to the hearing officer to determine the claimant’s MMI and IR.

SUMMARY

We affirm the hearing officer’s determination that the claimant did not have disability resulting from the (date of injury), compensable injury beginning on June 24, 2014, and continuing through the September 22, 2015, CCH.

We reverse Finding of Fact No. 4 finding that Dr. S’s June 23, 2014, MMI/IR certification was valid for purposes of Rule 130.12(c), and we render a new Finding of Fact No. 4 that Dr. S’s June 23, 2014, MMI/IR certification was not valid for purposes of Rule 130.12(c).

We reverse the hearing officer’s determination that the claimant reached MMI on June 23, 2014, and we remand the issue of MMI to the hearing officer for further action.

We reverse the hearing officer’s determination that the claimant’s IR is 10%, and we remand the issue of IR to the hearing officer for further action.

REMAND INSTRUCTIONS

On remand the hearing officer is to make a determination of the claimant’s MMI and IR. The hearing officer is to keep the record open for the parties to submit any necessary exhibits regarding the issues of MMI and IR.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 TPCIGA for Freestone Insurance Co, an impaired carrier and the name and address of its registered agent for service of process is

MARVIN KELLY

9120 BURNET ROAD

AUSTIN, TEXAS 78758.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
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 25, 2014, with the record closing on March 17, 2015, in Lubbock, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the [date of injury], compensable injury does not extend to the right shoulder diagnoses of reflex sympathetic dystrophy (RSD), SLAP tear, rotator cuff tear, and impingement; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. C), the treating doctor, on October 10, 2012, 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 September 26, 2012; (4) the claimant’s IR is six percent; and (5) the claimant had disability resulting from the compensable injury from [date of injury], and not thereafter through the date of the CCH.

The claimant appealed all of the hearing officer’s extent of injury, MMI, and IR determinations, arguing that they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.  The claimant also appealed that portion of the hearing officer’s disability determination that was not favorable to her. The respondent (carrier) responded, urging affirmance of all the disputed determinations.

The hearing officer’s determinations that: (1) the first certification of MMI and assigned IR from Dr. C, the treating doctor, on October 10, 2012, did not become final under Section 408.123 and Rule 130.12, and (2) the claimant had disability resulting from the compensable injury from January 23 through September 26, 2012, were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The claimant testified that she injured herself when her pant leg got caught on a buffer machine and she caught herself before falling to the floor injuring her right shoulder on [date of injury]. The hearing officer states in the Discussion portion of the decision that the carrier has accepted as compensable a right shoulder sprain/strain and a right foot contusion. On May 3, 2012, the claimant underwent right shoulder surgery in the form of an excision of the distal clavicle, acromioplasty, and rotator cuff repair. The post-operative diagnoses were right shoulder hypertrophy distal clavicle, impingement syndrome, and rotator cuff tear. The hearing officer determined that the impingement and rotator cuff tear were not part of the compensable injury, and a distal clavicle condition was not actually litigated or administratively determined to be part of the compensable injury.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury does not extend to the right shoulder diagnoses of RSD, SLAP tear, rotator cuff tear, and impingement is supported by sufficient evidence and is affirmed.

DISABILITY

That portion of the hearing officer’s determination that the claimant did not have disability resulting from the compensable injury from September 27, 2012, through the date of the CCH 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 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 that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

As previously mentioned, the hearing officer determined that the first certification of MMI and assigned IR from Dr. C, the treating doctor, on October 10, 2012, did not become final under Section 408.123 and Rule 130.12, and that determination was not appealed and became final pursuant to Section 410.169.

At the CCH held on November 25, 2014, Dr. C’s certification of MMI/IR was the only certification in evidence for the hearing officer to consider in making a determination on the issues of MMI and IR. The hearing officer determined that Dr. C’s certification of MMI is supported by the evidence; however, Dr. C’s assignment of IR did not include contusion of the right foot, a condition accepted by the carrier as part of the compensable injury. Given that the issue of IR was in dispute and there was no other certification of MMI/IR in evidence, the hearing officer requested that a designated doctor be assigned to determine IR as of the date of MMI of September 26, 2012.

With regard to the hearing officer’s MMI determination, the hearing officer relied on Dr. C’s certification of MMI/IR. Dr. C examined the claimant on October 10, 2012, and certified on that same date, that the claimant reached MMI on September 26, 2012, with a six percent IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000).

Dr. C states in his narrative report dated October 10, 2012, that the claimant reached MMI on September 26, 2012, which is the date of a functional evaluation examination (FCE) revealing she had met her physical demand level. In evidence is an FCE dated September 26, 2012, from Dr. C in which he notes that the claimant underwent right shoulder surgery on May 3, 2012, with excision of distal clavicle, acromioplasty, and rotator cuff repair, and that the claimant had completed 26 sessions of post-surgical rehabilitation. The hearing officer determined, and we have affirmed in this decision, that the [date of injury], compensable injury does not extend to the right shoulder diagnoses of RSD, SLAP tear, rotator cuff tear, and impingement. As previously mentioned, the hearing officer states that the claimant’s compensable injury is a right shoulder sprain/strain and right foot contusion. Dr. C considered conditions that were not part of the compensable injury in determining the claimant’s date of MMI.

In reviewing a “great weight” challenge, we must examine the entire record to determine if:  (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence. See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

In applying this standard to the facts of this case, the hearing officer’s determination that the claimant reached MMI on September 26, 2012, based on Dr. C’s certification of MMI, is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust because Dr. C considered conditions that are not part of the compensable injury. Accordingly, we reverse the hearing officer’s determination that the claimant reached MMI on September 26, 2012.

With regard to the hearing officer’s IR determination, the hearing officer relied on the designated doctor’s certification dated January 28, 2015. In this case the hearing officer requested that the Division appoint a designated doctor to determine only the claimant’s IR. The hearing officer’s request stated that the IR should be based on an MMI date of September 26, 2012. Subsequently, the Division appointed a designated doctor for purposes of IR only, the designated doctor examined the claimant, the designated doctor provided a certification of MMI/IR, and the parties had an opportunity to respond to the designated doctor’s certification at a CCH held on March 17, 2015.

At the request of the hearing officer, the Division appointed (Dr. K) as designated doctor to determine the claimant’s IR based on an MMI date of September 26, 2012. Dr. K examined the claimant on January 28, 2015, and certified that the claimant reached MMI on September 26, 2012, and assigned a six percent IR. Dr. K states in his narrative report dated January 28, 2015, that the clinical date of MMI has been determined by the Division. Dr. K states that the claimant’s compensable injury is a right shoulder sprain/strain and right foot contusion. Dr. K assessed a zero percent whole person impairment (WPI) for a right ankle contusion, rather than a right foot contusion. Also, Dr. K assessed a six percent WPI based on Table 27, page 3/61, for a distal clavicle arthroplasty. As previously discussed, a distal clavicle condition was not actually litigated or administratively determined to be part of the compensable injury. The compensable injury is to a right shoulder sprain/strain and right ankle contusion. Dr. K’s certification cannot be adopted given that we have reversed the hearing officer’s determination that the claimant reached MMI on September 26, 2012, and also the six percent IR is based on a condition that is not compensable. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is six percent.

Since there is no other certification of MMI and IR that we can adopt, we remand the issues of MMI and IR to the hearing officer to make a determination that is consistent with this decision.

Furthermore, we note that there is no evidence that a designated doctor was appointed to opine on the disputed issue of MMI. Section 408.1225(c) which 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.   Although the issue of MMI was in dispute, the hearing officer requested that a designated doctor be appointed only for the dispute issue of IR. The Appeals Panel has 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.” See Appeals Panel Decision (APD) 020385, decided March 18, 2002. See also APD 142008, decided November 5, 2014, and APD 132423, decided December 19, 2013, in which the issues of MMI and IR were in dispute, and a designated doctor had not been appointed to opine on the issues of MMI and IR. In both APD 142008 and APD 132423, the Appeals Panel reversed the hearing officer’s decision and remanded for a designated doctor to be appointed on the issues of MMI and IR.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury does not extend to the right shoulder diagnoses of RSD, SLAP tear, rotator cuff tear, and impingement.

We affirm the hearing officer’s determination that the claimant did not have disability resulting from the compensable injury from September 27, 2012, through the date of the CCH.

We reverse the hearing officer’s determination that the claimant reached MMI on September 26, 2012, with a six percent IR and we remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the hearing officer is to determine whether a designated doctor has been appointed to determine both issues of MMI and IR. If a designated doctor has not been appointed, then the hearing officer is to appoint a designated doctor to determine whether the claimant reached MMI, and if so, assign the claimant’s IR for the compensable injury of [date of injury].

The hearing officer is to advise the designated doctor that the compensable injury of [date of injury], extends to: (1) a right shoulder sprain/strain, and (2) a right foot contusion.

The hearing officer is to advise the designated doctor that the compensable injury of [date of injury], does not extend to the right shoulder diagnoses of: (1) RSD; (2) SLAP tear; (3) rotator cuff tear; and (4) impingement.

The hearing officer is then to request that the designated doctor determine whether the claimant reached MMI, and if so, assign an IR for the claimant’s compensable injury of [date of injury], based on the claimant’s condition as of the MMI date, considering the claimant’s medical record and the certifying examination in accordance with Rule 130.1(c)(3).

The parties are to be provided with the hearing officer’s letter to the designated doctor and the designated doctor’s response.  The parties are to be allowed an opportunity to respond.  The hearing officer is then to make a determination on MMI and IR supported by the evidence and consistent with this decision.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 HOSPITAL INSURANCE EXCHANGE and the name and address of its registered agent for service of process is

TESS FRAZIER, PRESIDENT/CEO/CFO

8310-1 N. CAPITAL OF TEXAS HIGHWAY,

BUILDING 1, SUITE 250

AUSTIN, TEXAS 78731.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge