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 April 21, 2021, and July 20, 2021, with the record closing on October 25, 2021, in (city), Texas, with (administrative law judge) presiding as the Administrative Law Judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to stroke, post-concussive syndrome, short-term memory loss, adjustment syndrome, anxiety, bilateral blurred/loss of vision, left side jaw injury, left shoulder rotator cuff tear, intracranial hemorrhage, lumbar spine injury, or thoracic spine injury beyond a thoracic sprain; (2) the appellant (claimant) reached maximum medical improvement (MMI) on December 4, 2019; (3) the impairment rating (IR) is zero percent; and (4) (Dr. T) was not appointed as the designated doctor in accordance with Section 408.0041 and 28 Tex. Admin. Code § 127.5 (Rule 127.5).

The claimant appealed all the ALJ’s determinations.  The respondent (self-insured) responded, urging affirmance of the determinations.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that: (1) Dr. T was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to address the issues of extent of injury, MMI, and IR; (2) the self-insured has accepted the compensable injury extends to head contusion, left shoulder contusion, cervical sprain, thoracic sprain, and left ankle sprain; and (3) the date of statutory MMI is February 23, 2021. The claimant, a juvenile supervision officer, sustained a compensable injury on (date of injury), while restraining a resident who had been involved in a fight. He testified that he slipped on food and slid into a brick wall, hitting his head and left shoulder.

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).

DESIGNATED DOCTOR APPOINTMENT

Rule 127.130(b)(9)(A) provides, in part, that to examine traumatic brain injuries, including concussion and post-concussion syndrome, a designated doctor must be board certified in neurological surgery, neurology, physical medicine and rehabilitation, or psychiatry. Rule 127.130(b)(9)(H) provides, in part, that to examine heart or cardiovascular conditions, a designated doctor must be board certified in internal medicine, emergency medicine, occupational medicine, thoracic and cardiac surgery, family medicine, preventive medicine/occupational-environmental medicine, preventive medicine/occupational, thoracic and cardiovascular surgery, or family practice and osteopathic manipulative treatment.

The ALJ states in his decision that the record reflects that Dr. T is not board certified in any of these specialties. The ALJ found in Finding of Fact No. 6 that Dr. T was not properly qualified to address post-concussive syndrome pursuant to Rule 127.130(b)(9)(A) because he did not have the appropriate board certification. In Finding of Fact No. 7, the ALJ found that Dr. T was not properly qualified to address stroke pursuant to Rule 127.130(b)(9)(H) because he did not have the appropriate board certification. The ALJ’s determination that Dr. T was not properly appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.5 is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

Section 408.0041 provides, in part, that an employee may request and the Division may order a medical examination to resolve questions regarding the extent of the employee’s compensable injury. We hold that under the facts of this case, the parties should receive the benefit of an impartial examination by a qualified designated doctor as contemplated by Section 408.0041, Rule 127.130(b)(9)(A), and Rule 127.130(b)(9)(H).  See Appeals Panel Decision (APD) 170849, decided June 6, 2017.  Accordingly, we reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to stroke, post-concussive syndrome, short-term memory loss, adjustment syndrome, anxiety, bilateral blurred/loss of vision, left side jaw injury, left shoulder rotator cuff tear, intracranial hemorrhage, lumbar spine injury, or thoracic spine injury beyond a thoracic sprain, and we remand the issue of extent of injury to the ALJ for the appointment of a qualified designated doctor.

MMI AND IR

As we have reversed and remanded the ALJ’s determination regarding extent of injury, we also reverse the ALJ’s determinations that the claimant reached MMI on December 4, 2019, and the claimant’s IR is zero percent. We 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 Dr. T was not properly appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.5.

We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to stroke, post-concussive syndrome, short-term memory loss, adjustment syndrome, anxiety, bilateral blurred/loss of vision, left side jaw injury, left shoulder rotator cuff tear, intracranial hemorrhage, lumbar spine injury, or thoracic spine injury beyond a thoracic sprain, and we remand the issue of extent of injury to the ALJ for the appointment of a qualified designated doctor.  

We reverse the ALJ’s determinations that the claimant reached MMI on December 4, 2019, and the claimant’s IR is zero percent, and we 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 a designated doctor qualified to examine traumatic brain injuries and heart or cardiovascular conditions to be appointed to address the issues of extent of injury, MMI, and IR.

The ALJ is to advise the newly appointed designated doctor that the compensable injury of (date of injury), includes a head contusion, left shoulder contusion, cervical sprain, thoracic sprain, and left ankle sprain. The ALJ is then to request that the designated doctor examine the claimant and opine regarding whether the compensable injury of (date of injury), extends to stroke, post-concussive syndrome, short-term memory loss, adjustment syndrome, anxiety, bilateral blurred/loss of vision, left side jaw injury, left shoulder rotator cuff tear, intracranial hemorrhage, lumbar spine injury, or thoracic spine injury beyond a thoracic sprain.

The ALJ is to request from the designated doctor a certification of MMI and IR with regard to the accepted compensable injury and alternate certifications of MMI/IR with regard to the accepted compensable injury and the disputed extent-of-injury conditions. The ALJ is to inform the designated doctor that the date of statutory MMI is February 23, 2021. The ALJ is to ensure that the designated doctor has all the pertinent medical records to determine extent of injury, MMI, and IR.  After the designated doctor examines the claimant and submits the reports, the parties are to be provided with the Designated Doctor Examination Data Report (DWC-68), the Reports of Medical Evaluation (DWC-69s) and narratives and are to be allowed an opportunity to respond.  The ALJ is to make determinations regarding extent of injury, MMI, and IR that are 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 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 was held on March 2, 2021, in (city), Texas, with (administrative law judge). presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that (1) the compensable injury of (date of injury), does not extend to concussion with loss of consciousness, post-traumatic headaches, bilateral temporomandibular disorders (TMD), bilateral vestibular dysfunction, right ear hearing loss, right ear tinnitus, anxiety and depression, cognitive dysfunction, chronic pain syndrome, fracture of tooth #30, cervical sprain and strain, right shoulder sprain and strain, rotator cuff tear, labral tear, right biceps strain and tendinitis, left middle finger sprain, right thigh sprain and strain, left thigh sprain and strain, right knee sprain and strain, left lower leg contusion, right foot strain, or lumbar sprain and strain; (2) (Dr. Sk) was properly appointed as a second designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.5 (Rule 127.5); (3) the appellant (claimant) reached maximum medical improvement (MMI) on August 30, 2019; (4) the claimant’s impairment rating (IR) is six percent; and (5) the claimant did not have disability from August 31, 2019, through September 22, 2020, as a result of the compensable injury of (date of injury).

The claimant appealed the ALJ’s determinations of extent of injury, Dr. Sk’s designated doctor appointment, MMI, IR, and disability. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded for reconstruction of the record.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of at least the carrier-accepted conditions of contusions of the right lower leg, right chest, right ribs, and dislocation of the right shoulder; (Dr. Sm) was properly appointed as designated doctor on the issues of MMI, IR, extent of injury, return to work, and disability; Dr. Sk was appointed as successor designated doctor on the issue of extent of injury; and the date of statutory MMI in this case is September 22, 2020. The claimant, a retail assistant, was injured on (date of injury), when she tripped on a box in the lunchroom and was thrown across a barstool.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; Claimant’s Exhibits 1 through 25; and Carrier’s Exhibits A through N. The claimant’s Exhibit 5 contains 52 pages of medical records from (Dr. K); however, the case file sent for review does not contain a claimant’s Exhibit 5, page 22 or 32. Additionally, the claimant’s Exhibit 15 contains 65 pages of medical records from (Dr. A); however, the case file sent for review does not contain a claimant’s Exhibit 15, page 63. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibits. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

In that the Appeals Panel is allowed only one remand (see Section 410.203(c)) we have reviewed the documentary evidence, recording of the CCH, the ALJ’s decision, the appeal, and the response. The ALJ determined that the claimant reached MMI on August 30, 2019, with a six percent IR in accordance with the certification of Dr. Sm examined the claimant on November 25, 2019, and issued three alternate certifications. The first certification, which was adopted by the ALJ, rated what Dr. Sm described as the carrier-defined compensable injuries. This certification considered and rated a right shoulder dislocation, head contusion, right lower leg contusion, right chest contusion, and right ribs contusion. Dr. Sm assigned six percent impairment for range-of-motion (ROM) deficits in the right shoulder, zero percent impairment for the head contusion, zero percent impairment for the right lower leg contusion, zero percent impairment for the right chest contusion, and zero percent impairment for the right ribs contusion. As this certification considers and rates a head contusion, a condition that has not been accepted and has not yet been determined to be part of the compensable injury, it cannot be adopted.

We remand the case to the ALJ for a reconstruction of the record and to make a determination on the claimant’s MMI and IR that is 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 ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.    

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

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on February 9, 2021, with the record closing on March 4, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to urinary incontinence, fecal incontinence, depression, or anxiety; (2) the appellant’s (claimant) impairment rating (IR) is 10%; and (3) (Dr. K) was not appointed as the designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.5 (Rule 127.5). The claimant appealed, disputing the ALJ’s determinations on IR, appointment of Dr. K as the designated doctor, and that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to urinary incontinence, depression, or anxiety. The appeal file does not contain a response from the respondent (carrier) to the claimant’s appeal. That portion of the ALJ’s determination that the (date of injury), compensable injury does not extend to fecal incontinence was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the compensable injury of (date of injury), extends to a lumbar sprain, lumbar radiculopathy, lumbar radiculitis, lumbar contusion, lumbar spinal stenosis, aggravation of lumbar spinal stenosis, L1-2 3mm posterocentral disc herniation indenting the ventral thecal sac, L2-3 3mm posterocentral disc herniation indenting the ventral thecal sac, L3-4 6mm posterocentral disc herniation indenting the ventral thecal sac with severe foraminal stenosis and severe central spinal stenosis, L4-5 6mm posterocentral disc herniation indenting the ventral thecal sac with severe foraminal stenosis and severe impingement of exiting nerves, severe central spinal stenosis, L5-S1 6mm posterocentral disc herniation indenting the ventral thecal sac with severe bilateral foraminal stenosis and impingement of traversing and exiting nerve roots, and moderate central spinal stenosis; the compensable injury of (date of injury), does not extend to fecal incontinence; and the claimant reached MMI on August 1, 2019. The evidence reflects that the claimant was injured on (date of injury), when a piece of machinery weighing approximately 170 pounds fell on top of him.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; claimant’s Exhibits 1 through 22, and carrier’s Exhibits A through O. The claimant’s exhibit list states that claimant’s Exhibit 3 contains 17 pages; however, the case file provided to us for review contains pages 1 through 16. Additionally, the claimant’s exhibit list states that claimant’s Exhibit 11 contains 13 pages; however, the case file contains pages 1 through 12. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibits. See Appeals Panel Decision (APD) 210136, decided March 26, 2021.

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

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

CORPORATION SERVICE COMPANY
D/B/A CSC-LAWYERS INCORPORATING SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 14, 2020, with the record closing on January 11, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury sustained on (date of injury), does not extend to left subacromial compression, left shoulder impingement, left rotator cuff impingement, left supraspinatus high grade partial tear, left inferior lateral acromial spur, left possible bicep tendon tear at groove, left infraspinatus tendinosis with low grade fissuring, and left shoulder sprain; and (2) (Dr. K) was improperly appointed as the designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.1 (Rule 127.1). The claimant (appellant) appealed, disputing the ALJ’s determinations of extent of injury. The respondent (carrier) responded, urging affirmance of the disputed extent-of-injury conditions. The ALJ’s determination that Dr. K was improperly appointed as a designated doctor in accordance with Section 408.0041 and Rule 127.1 was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury and that the accepted compensable injury is distal clavicle osteolysis, left shoulder strain, left acromioclavicular joint condition, and left bicep impingement. The claimant testified he felt a pop in his left shoulder while pulling “pyramid” pieces out of a “jig.” We note the decision and order contains a typographical error regarding the registered agent’s name.

The ALJ’s decision and order states, in part, that the following exhibits were admitted into evidence: claimant’s Exhibits 1 through 33 noting that there was no exhibit 31 or 32. There are numerous discrepancies between the pages of the exhibits listed on the claimant’s exhibit sheet and the pages contained in the appeal file. Some of the following discrepancies include but are not limited to: exhibit number 1 lists 35 pages as “List and Covers” but the 35 pages were not included; exhibit “A2” lists 219 pages but only 189 pages were included in the appeal file; exhibit 9 lists 106 pages but only 45 pages were included in the appeal file; exhibit 11 lists 93 pages but only 25 pages were included in the appeal file. Additionally, exhibit 14 lists 55 pages but only 41 pages were included in the appeal file; exhibit 17 lists 216 pages but only 192 pages were included in the appeal file; and exhibit 18 lists 292 pages but only 143 pages were included in the appeal file. There were numerous other discrepancies between the exhibit list and the documents contained in the appeal file. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibits. See Appeals Panel Decision (APD) 030543, decided April 18, 2003. On remand, the ALJ should ensure that the exhibits offered into evidence correspond to the number of pages listed as offered on the exhibit list for each individual exhibit.

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 SUNZ INSURANCE COMPANY and the name and address of its registered agent for service of process is

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

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). An expedited contested case hearing (CCH) was held on February 18, 2020, 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. H) on March 28, 2019, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (2) (Dr. Q) was not appointed to serve as designated doctor in accordance with Rule 127.1. The appellant (claimant) appealed the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed as reformed.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury). The record established the claimant, a sandblaster for the employer, underwent a left thumb amputation as a result of the injury he sustained at work on (date of injury). The evidence reflected that Dr. H, a doctor referred by the treating doctor, examined the claimant on March 21, 2019, and certified on March 28, 2019, that the claimant reached MMI on February 18, 2019, with a 14% IR.

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 at the CCH that on (date of injury), the claimant was the employee of (employer). However, the decision incorrectly states in Finding of Fact No. 1.B. that on (date of injury), the claimant was the employee of (employer). We reform Finding of Fact No. 1.B. to state that on (date of injury), the claimant was the employee of (employer), to conform to the stipulation made by the parties at the CCH.

The ALJ found that the MMI/IR certification from Dr. H on March 28, 2019, was the first valid certification of MMI and IR for the injury of (date of injury). The ALJ also found that the claimant received written notice of Dr. H’s MMI/IR certification by verifiable means on April 12, 2019. In evidence is a Notice of MMI and Permanent Impairment dated April 10, 2019, from the carrier addressed to the claimant, which notes Dr. H’s March 28, 2019, MMI/IR certification was attached. Also, in evidence is tracking documentation from the United States Postal Service reflecting that the Notice of MMI and Permanent Impairment and Dr. H’s March 28, 2019, MMI/IR certification were delivered to the claimant’s correct address on April 12, 2019. The ALJ’s findings are supported by sufficient evidence and are affirmed.

The ALJ found in Finding of Fact No. 6 that “the 90th day after April 13, 2019, was July 11, 2019.” As previously noted, we have affirmed the ALJ’s finding that the claimant received written notice of Dr. H’s MMI/IR certification by verifiable means on April 12, 2019.

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 pertinent part that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means, 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 the case on appeal, the claimant received Dr. H’s MMI/IR certification by verifiable means on April 12, 2019, the 90-day period to dispute began on April 13, 2019, and the claimant must have disputed Dr. H’s MMI/IR certification by July 12, 2019, not July 11, 2019. We reform Finding of Fact No. 6 to state that the 90th day after April 13, 2019, was July 12, 2019.

The ALJ found in Finding of Fact No. 7 that the claimant did not submit a Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC), or to Proceed Directly to CCH (DWC-45) or a Request for Designated Doctor Examination (DWC-32) to dispute Dr. H’s March 28, 2019, MMI/IR certification on or before July 11, 2019. However, as noted above the 90-day period to dispute ran from April 13, 2019, through July 12, 2019. Accordingly, we reform Finding of Fact No. 7 to reflect that the claimant did not submit a DWC-45 or a DWC-32 to dispute Dr. H’s March 28, 2019, MMI/IR certification on or before July 12, 2019.

The ALJ found in an unappealed finding of fact that the claimant filed a DWC-32 on January 7, 2020, and it is undisputed by the parties that the claimant did not dispute Dr. H’s MMI/IR certification within the 90-day period. The ALJ also found that there was no compelling medical evidence of a significant error by Dr. H in applying the appropriate 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) or in calculating the IR, a clearly mistaken diagnosis or a previously undiagnosed medical condition, or improper or inadequate treatment of the injury before the date of Dr. H’s MMI/IR certification. These findings are supported by sufficient evidence and are affirmed.

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. H on March 28, 2019, became final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

The ALJ’s determination that Dr. Q was not appointed to serve as designated doctor in accordance with Rule 127.1 is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. H on March 28, 2019, became final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that Dr. Q was not appointed to serve as designated doctor in accordance with Rule 127.1.

We reform Finding of Fact No. 1.B to read as follows: On (date of injury), the claimant was the employee of (employer).

We reform Finding of Fact No. 6 to read as follows: The 90th day after April 13, 2019, was July 12, 2019.

We reform Finding of Fact No. 7 to reflect that the claimant did not submit a DWC-45 or a DWC-32 to dispute Dr. H’s March 28, 2019, MMI/IR certification on or before July 12, 2019.

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

Carisa Space-Beam
Appeals Judge

CONCUR:
Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 11, 2017, with the record closing on March 28, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury sustained on (date of injury), extends to mild to moderate spinal canal stenosis, circumferential disc bulge, ligamentum flavum thickening and facet arthropathy at L1-2 and L2-3, severe spinal canal stenosis, moderate to severe left thickening, facet hypertrophy and total effacement of the thecal sac at L3-4, severe spinal canal stenosis, severe bilateral neural foraminal stenosis, complete total effacement of the thecal sac, profound circumferential disc bulge and advanced ligamentum flavum thickening at L4-5, bilateral foraminal narrowing at exit of the nerve roots at L3-4 and L4-5, acute right-sided sciatica, right foot drop, and lumbar radiculopathy; (2) the respondent (claimant) has not reached maximum medical improvement (MMI); and (3) (Dr. C) was not properly appointed as the designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.5 (Rule 127.5). The appellant (self-insured) appeals the ALJ’s determinations of extent of injury and MMI. The self-insured contends that the claimant did not present sufficient evidence of a causal connection to establish the disputed conditions were part of the compensable injury. The self-insured further contends that the claimant reached MMI on January 18, 2017, with an impairment rating (IR) of five percent. The claimant responded, urging affirmance of the disputed extent of injury and MMI determinations. The ALJ’s determination that Dr. C was not properly appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.5 was not appealed and has become final pursuant to Section 410.169.

DECISION

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

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury, at least in the form of a lumbar sprain and strain. The claimant testified that he injured his back while loading a table and chairs onto a flatbed trailer.

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

The ALJ finds in Finding of Fact No. 5 that a Presiding Officer’s Directive was issued by the ALJ and a new designated doctor was requested to address the date of MMI and IR. The Presiding Officer’s Directive to Order Designated Doctor Exam was in evidence and reflects that a new designated doctor was requested to address extent of injury in addition to MMI and IR. We reform Finding of Fact No. 5 to state that a Presiding Officer’s Directive was issued by the ALJ and a new designated doctor was requested to address the date of MMI, IR, and extent of injury to conform to the evidence.

The evidence reflects that after the ALJ’s Presiding Officer’s Directive was issued, (Dr. D) was appointed as designated doctor. The ALJ finds in Finding of Fact No. 8 that for only the disputed conditions, Dr. D certified the claimant reached MMI on January 18, 2017, with an assigned IR of five percent. However, the evidence reflects that Dr. D certified that the claimant reached MMI on January 18, 2017, with an assigned IR of five percent when only the accepted conditions of lumbar sprain/strain were considered. Accordingly, we reform Finding of Fact No. 8 to state that for only the undisputed conditions, Dr. D certified that the claimant reached MMI on January 18, 2017, with an assigned IR of five percent to conform to the evidence.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury sustained on (date of injury), extends to mild to moderate spinal canal stenosis, circumferential disc bulge, ligamentum flavum thickening and facet arthropathy at L1-2 and L2-3, severe spinal canal stenosis, moderate to severe left thickening, facet hypertrophy and total effacement of the thecal sac at L3-4, severe spinal canal stenosis, severe bilateral neural foraminal stenosis, complete total effacement of the thecal sac, profound circumferential disc bulge and advanced ligamentum flavum thickening at L4-5, bilateral foraminal narrowing at exit of the nerve roots at L3-4 and L4-5, acute right-sided sciatica, right foot drop, and lumbar radiculopathy is supported by sufficient evidence and is affirmed.

MMI/IR

The ALJ’s determination that the claimant has not reached MMI as certified by Dr. D is supported by sufficient evidence and is affirmed.

The ALJ found that Dr. D’s certification that the claimant has not reached MMI is not contrary to the preponderance of the other medical evidence.  That finding is supported by sufficient evidence and is affirmed.  However, the ALJ failed to make a conclusion of law and decision on the IR issue.  Accordingly, we reverse the ALJ’s decision as being incomplete and render a new decision that because the claimant has not reached MMI, an IR cannot be assigned.

SUMMARY

We reform Finding of Fact No. 5 to state that a Presiding Officer’s Directive was issued by the ALJ and a new designated doctor was requested to address the date of MMI, IR, and extent of injury to conform to the evidence.

We reform Finding of Fact No. 8 to state that for only the undisputed conditions, Dr. D certified that the claimant reached MMI on January 18, 2017, with an assigned IR of five percent to conform to the evidence.

We affirm the ALJ’s determination that the compensable injury sustained on (date of injury), extends to mild to moderate spinal canal stenosis, circumferential disc bulge, ligamentum flavum thickening and facet arthropathy at L1-2 and L2-3, severe spinal canal stenosis, moderate to severe left thickening, facet hypertrophy and total effacement of the thecal sac at L3-4, severe spinal canal stenosis, severe bilateral neural foraminal stenosis, complete total effacement of the thecal sac, profound circumferential disc bulge and advanced ligamentum flavum thickening at L4-5, bilateral foraminal narrowing at exit of the nerve roots at L3-4 and L4-5, acute right-sided sciatica, right foot drop, and lumbar radiculopathy.

We affirm the ALJ’s determination that the claimant has not reached MMI as certified by Dr. D.

We reverse the ALJ’s decision as being incomplete and render a new decision that because the claimant has not reached MMI, an IR cannot be assigned.

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

For service in person the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR      

300 W. 15TH STREET      

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR      

AUSTIN, TEXAS 78701.      

 

For service by mail the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR      

P.O. BOX 13777      

AUSTIN, TEXAS 78711-3777.

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). An expedited contested case hearing (CCH) was held on March 6, 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 first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. DG) on July 24, 2017, that the appellant (claimant) reached MMI on May 18, 2017, with a 13% IR, has become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (2) (Dr. M) appointment as the designated doctor to address the date of MMI and IR was not made in accordance with Section 408.0041 and Rule 127.

The claimant appealed, disputing the ALJ’s determinations of finality and appointment of a designated doctor. The claimant contends that the evidence established she timely disputed the first certification of MMI and IR in accordance with Section 408.123 and Rule 130.12. Additionally, the claimant contends that the appointment of Dr. M as the designated doctor to address the date of MMI and IR was made in accordance with Section 408.0041 and Rule 127. The respondent (carrier) responded, urging affirmance of the ALJ’s determination on the disputed issues of finality and appointment of a designated doctor.

DECISION

Reversed and rendered.

The parties stipulated, in part, that the carrier accepted a compensable injury in the form of a crushing injury to the left middle finger and left hand contracture. The evidence reflects that the claimant was examined by Dr. DG, the referral doctor, on July 24, 2017, and he certified on July 24, 2017, that the claimant reached MMI on that same date, July 24, 2017, with a 13% 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). It is undisputed that Dr. DG’s certification dated July 24, 2017, is the first valid certification of MMI and IR, and that the claimant received Dr. DG’s certification of MMI and IR on August 10, 2017. Pursuant to Section 408.123 and Rule 130.12, the 90th day after the claimant’s receipt of the written notification of Dr. DG’s certification of MMI and IR is calculated to be November 8, 2017, rather than November 7, 2017, as indicated by the parties at the CCH.

In evidence is the claimant’s Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC) (DWC-45) dated October 31, 2017, and Texas Department of Insurance, Division of Workers’ Compensation (Division) notice dated November 14, 2017, setting a BRC for December 8, 2017. We note that the ALJ did not discuss or make any findings regarding the DWC-45 dated October 31, 2017, that was filed by the claimant. Also, in evidence is the claimant’s Request for Designated Doctor Examination (DWC-32) dated November 3, 2017, and a Commissioner’s Order dated November 7, 2017, denying the claimant’s request for a designated doctor because the required information on the DWC-32 was incomplete. The evidence reflects that the claimant resubmitted the DWC-32, and Dr. M was appointed as designated doctor to address the issues of MMI and IR. The carrier requested an expedited CCH and a stay of the scheduled designated doctor’s examination asserting that the claimant did not timely dispute Dr. DG’s certification of MMI and IR.

FINALITY

Section 408.123(e) provides that except as otherwise provided by this section, an employee’s first valid certification of MMI and the 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.  Rule 130.12(b)(1) provides, in part, that only an insurance carrier, an injured employee, or an injured employee’s attorney or employee representative under Rule 150.3(a) may dispute a first certification of MMI and IR under Rule 141.1 (related to Requesting and Setting a BRC) or by requesting the appointment of a designated doctor, if one has not been appointed.

In this case, Dr. DG’s certification of MMI and IR dated July 24, 2017, was the first certification of MMI and IR, and a designated doctor had not been appointed to address MMI and IR. Pursuant to Rule 130.12(b)(1), the claimant could dispute Dr. DG’s certification of MMI and IR, by either filing a DWC-45 or a DWC-32 prior to the expiration of the 90-day period to file a dispute. The claimant’s attorney filed a DWC-45, requesting a BRC to dispute MMI and IR on October 31, 2017, and subsequently filed a DWC-32, requesting a designated doctor examination on November 3, 2017. Both the DWC-45 and the DWC-32 were filed prior to the expiration of the 90-day period, November 8, 2017, disputing the first certification of MMI and IR.

With regard to the DWC-45 filed October 31, 2017, the claimant states on the form that she is disputing the certification of MMI and IR by “the designated doctor.” Attached to the DWC-45 was a document entitled “Efforts to Resolve Dispute” stating that the claimant disputes the “treating doctor’s” determination of MMI and that the carrier stood by the “[d]esignated [d]octor’s” certification. The Division granted the claimant’s request for a BRC to dispute the designated doctor’s MMI and IR, and scheduled a BRC for December 8, 2017.

The preamble to Rule 141.1, in pertinent part, provides that “[a]fter a complete request is submitted, approved, and a BRC scheduled, the party has established a dispute of the first certification of MMI and/or IR in accordance with [Section] 408.123(e), effective as of the date the request was filed.”  (35 Tex. Reg. 7430, 2010). See Appeals Panel Decision (APD) 111006-s, decided September 15, 2011. In this case, the claimant filed a DWC-45 disputing MMI and IR, the Division approved the request, and the Division scheduled a BRC for December 8, 2017. The evidence reflects that the claimant’s dispute was effective as of the date the DWC-45 was filed on October 31, 2017, which is a date within the 90-day period to dispute the first certification of MMI and IR. We further note that although the claimant’s attorney rescheduled the BRC to January 25, 2018, there is no evidence that the claimant withdrew her finality dispute as provided in Rule 130.12(b)(3). Accordingly, the evidence is sufficient to establish that the first certification of MMI and IR assigned by Dr. DG was disputed within 90 days after the date the certification was provided.

With regard to the DWC-32 filed on November 3, 2017, the ALJ found that the claimant filed a DWC-32 requesting the appointment of a designated doctor on November 7, 2017, and that the Division acted within its administrative regularity in denying the claimant’s request for a designated doctor examination on November 7, 2017. The ALJ states in her discussion of the Division determination that it was necessary, at the very least, to provide correct information on the DWC-32 and that the claimant failed to do so. The ALJ concluded that the DWC-32 was not timely and the first certification of MMI and IR became final.

As previously mentioned, Rule 130.12(b)(1) provides, in part, that a party may dispute a first certification of MMI and IR by requesting the appointment of a designated doctor, if one has not been appointed. As previously mentioned, a designated doctor had not been appointed to address the issues of MMI and IR. The Appeals Panel has held 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 APD 020385, decided March 18, 2002.  In evidence is the Division’s Commissioner Order dated November 7, 2017, that states the request for a designated doctor examination was reviewed and considered and it determined that all the required information on the DWC-32 was not complete as required by Rule 127.1(b). Specifically, the Commissioner’s Order dated November 7, 2017, denying the request states the DWC-32 was incomplete and missing the following information: “CITY, STATE & ZIP CODE,” “[(date of injury)],” and Notice of Representation (DWC-150).”

In APD 043023-s, decided January 6, 2005, the carrier filed a DWC-32 requesting the appointment of a designated doctor to “dispute an assigned date of [MMI] and [IR];” however, the DWC-32 was returned to the carrier by the Division as incomplete because it did not complete Section III of the form. In that case, the Appeals Panel affirmed the ALJ’s determination that the filing of the DWC-32 requesting a designated doctor was sufficient to dispute the first valid certification of MMI and IR pursuant to Rule 130.12(b)(1). In this case, as in APD 043023-s, the claimant filed a DWC-32 requesting the appointment of a designated doctor to address MMI and IR on November 3, 2017, which was timely and sufficient to dispute the first certification of MMI and IR.

Under the facts of this case, the evidence establishes that the claimant timely disputed the first certification of MMI and assigned IR by Dr. DG dated July 24, 2017, by filing a DWC-45 on October 31, 2017. Also, the evidence establishes that the claimant timely disputed the first certification of MMI and IR assigned by Dr. DG on July 24, 2017, by filing a DWC-32 on November 3, 2017. The ALJ found that no exceptions to 90-day finality per Section 408.123(f) apply. That finding is supported by sufficient evidence.

Accordingly, we reverse the ALJ’s decision that the first certification of MMI and IR from Dr. DG on July 24, 2017, that the claimant reached MMI on May 18, 2017, with a 13% IR, has become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and assigned IR by Dr. DG on July 24, 2017, did not become final under Section 408.123 and Rule 130.12.

APPOINTMENT OF DESIGNATED DOCTOR

The ALJ found that because the issues of MMI and assigned IR have become final, the appointment of Dr. M to address the date of MMI and IR was not necessary and was not made in accordance with Section 408.0041 and Rule 127. Given that we have reversed the ALJ’s finality determination, we reverse the ALJ’s determination on the designated doctor appointment issue.

As previously mentioned, the Appeals Panel has held 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 APD 020385, supra.   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 ALJ’s decision and remanded for a designated doctor to be appointed on the issues of MMI and IR.

The evidence reflects that the Division appointed Dr. M as designated doctor to address the issues of MMI and IR. Accordingly, we reverse the ALJ’s determination that Dr. M’s appointment as the designated doctor to address the date of MMI and IR was not made in accordance with Section 408.0041 and Rule 127, and we render a new decision that Dr. M’s appointment as the designated doctor to address the date of MMI and IR was made in accordance with Section 408.0041 and Rule 127.

SUMMARY  

We reverse the ALJ’s decision that the first certification of MMI and IR from Dr. DG on July 24, 2017, that the claimant reached MMI on May 18, 2017, with a 13% IR, has become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and assigned IR by Dr. DG on July 24, 2017, did not become final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determination that Dr. M’s appointment as the designated doctor to address the date of MMI and IR was not made in accordance with Section 408.0041 and Rule 127, and we render a new decision that Dr. M’s appointment as the designated doctor to address the date of MMI and IR was made in accordance with Section 408.0041 and Rule 127.

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 GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto
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 December 11, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to a right shoulder rotator cuff tear and bursitis; (2) the respondent (claimant) has not reached maximum medical improvement (MMI); (3) because the claimant has not reached MMI, an impairment rating (IR) cannot be determined; and (4) (Dr. K) was appointed as a second designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.1 (Rule 127.1).

The appellant (carrier) appealed the ALJ’s determinations regarding extent of the compensable injury, MMI, IR and that Dr. K was appointed as a second designated doctor in accordance with the 1989 Act and Rule 127.1 and argued further that the ALJ erred in refusing to admit Carrier’s Exhibit L into evidence and abused his discretion in refusing to add the issue of finality of the first valid certification of MMI and assignment of IR.

The claimant responded, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part by striking.

It is undisputed that the claimant sustained a compensable injury to his right shoulder on (date of injury). The parties stipulated, in part, that the compensable injury includes at least a right shoulder sprain/contusion.

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 extends to a right shoulder rotator cuff tear and bursitis is supported by sufficient evidence and is affirmed.

EXCLUSION OF CARRIER’S EXHIBIT L

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 051705, decided September 1, 2005; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). Because the evidence established neither that Carrier’s Exhibit L was timely exchanged, nor that there was good cause for the carrier’s untimely exchange, we hold the ALJ did not err in excluding such exhibit.

REFUSAL TO ADD ISSUE

Included in the appeal file, although not admitted into evidence, is a response to the benefit review officer’s report and Motion to Add Issue filed by the carrier on Friday, December 8, 2017, three days prior to the CCH, requesting addition of an issue concerning whether the first certification of MMI and assignment of IR by (Dr. M) dated February 23, 2017, had become final under Section 408.123 and Rule 130.12(a). The carrier also urged the motion at the CCH; however, the ALJ denied the carrier’s motion to add the issue.

Rule 142.7(a) provides, in part, that a dispute not expressly included in the statement of disputes will not be considered by the ALJ.  In accordance with Rule 142.7(b), the statement of disputes for a hearing held after a benefit review conference (BRC) includes the benefit review officer's report, identifying the disputes remaining unresolved at the close of the BRC; the parties' responses, if any; additional disputes by unanimous consent, as provided by Rule 142.7(c); and additional disputes presented by a party, as provided by Rule 142.7(d) and (e), if the ALJ determines that the party has good cause. Under Rule 142.7(c), a party may submit a response to the disputes identified as unresolved in the BRC report, and that response shall be in writing; describe and explain the party's position on the unresolved dispute or disputes; be sent to the Texas Department of Insurance, Division of Workers’ Compensation no later than 20 days after receiving the BRC report; and be delivered to all other parties, as provided by Rule 142.4 of this title (relating to Delivery of Copies to All Parties).Rule 142.7(e) provides, in part, that a party may request the ALJ to include in the statement of disputes one or more disputes not identified as unresolved in the BRC report, and the ALJ will allow such amendment only on a determination of good cause. Also in accordance with Rule 142.7(e), that request must be filed no later than 15 days prior to the hearing.The second BRC in this case was conducted on June 26, 2017.As mentioned above, the carrier’s request to add the finality issue under Rule 142.7(e) was filed on December 8, 2017, more than five months following the second BRC.

The carrier argues that the issue of finality of the first MMI/IR certification from Dr. M was not ripe for adjudication at the time of the first BRC on April 26, 2017. However, the carrier’s Notification of [MMI]/First Impairment Income Benefit Payment (PLN-3) sent to the claimant based upon Dr. M’s certification is dated March 1, 2017. The second BRC was held on June 26, 2017, and the carrier did not file its response to the BRC report until December 8, 2017. Under the facts of this case, we find no error in the ALJ’s denial of the carrier’s motion to add the requested finality issue and we hold that the ALJ did not abuse his discretion in so ruling.

MMI/IR

The ALJ’s determinations that the claimant has not reached MMI and that, for such reason, an IR cannot be assigned are supported by sufficient evidence and are affirmed.

APPOINTMENT OF DR. K AS DESIGNATED DOCTOR

Among the issues certified at the BRC for resolution and as stated in the ALJ’s decision is:

4. Was [Dr. K] appointed as a second designated doctor in accordance with [Section 408.0041] and Rule 127.1?

As noted by the ALJ in the Discussion section of his decision, the issue of whether Dr. K was appointed to serve as designated doctor in accordance with Section 408.0041 and Rule 127 was previously litigated at a CCH in this claim on July 12, 2017, resulting in a Decision and Order signed by the ALJ on July 24, 2017, determining that Dr. K was appointed to serve as designated doctor in accordance with the 1989 Act and Rules, which Decision and Order has become final.

The ALJ noted further in the Discussion section that “an element of res judicata” applies to the case because the issue had been previously litigated, in most respects, and involved, essentially, the same arguments and contentions as those propounded in this case. Indeed, it appears the only difference in the issue as litigated at the December 11, 2017, CCH is the addition of the word “second” prior to the words “designated doctor” in the issue as stated in the July 12, 2017, CCH. We hold the ALJ did not have jurisdiction over the issue of whether Dr. K was appointed as a second designated doctor in accordance with Section 408.0041 and Rule 127.1 at the December 11, 2017, CCH because the issue of whether Dr. K was appointed to serve as designated doctor in accordance with Section 408.0041 and Rule 127 had previously been determined at the July 12, 2017, CCH. That determination had become res judicata and the issue should not have been relitigated at the December 11, 2017, CCH.  We accordingly render a new decision by striking the determination that Dr. K was appointed as a second designated doctor in accordance with Section 408.0041 and Rule 127.1 because the ALJ did not have jurisdiction over that issue at the December 11, 2017, CCH.

SUMMARY

We affirm the ALJ’s determination that the compensable injury extends to a right shoulder rotator cuff tear and bursitis.

We affirm the ALJ’s determinations that the claimant has not reached MMI and that the claimant’s IR cannot be determined.

We reverse the ALJ’s determination that Dr. K was appointed as a second designated doctor in accordance with Section 408.0041 and Rule 127.1 because the ALJ did not have jurisdiction to render a decision on that issue at the December 11, 2017, CCH.  We render a new decision by striking the determination that Dr. K was appointed as a second designated doctor in accordance with Section 408.0041 and Rule 127.1 because the ALJ did not have jurisdiction over that issue at the December 11, 2017, CCH.

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

K. Eugene Kraft
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 May 26, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the Texas Department of Insurance, Division of Workers’ Compensation (Division) should not appoint a subsequent designated doctor to address extent of injury and disability. The appellant (claimant) appealed, disputing the hearing officer’s determination.  The claimant contends that the designated doctor’s communication with the employer was improper and created a bias against the claimant and requires the appointment of a subsequent designated doctor to address extent of injury and disability. The respondent (carrier) responded, urging affirmance of the disputed determination.

DECISION

Reversed and rendered.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury). It is undisputed that on January 18, 2017, the Division appointed (Dr. S) as designated doctor to opine on the extent of the compensable injury and disability. The evidence reflects that Dr. S examined the claimant on February 6, 2017. In his narrative report, in a section titled analysis of clinical findings and timeline, Dr. S stated that he telephoned the claimant’s employer. As a result of that telephone call, the employer submitted two statements from co-workers who were eyewitnesses to the claimant’s work-related incident. Dr. S uses information from the co-workers’ statements in part to justify his opinion that the compensable injury does not extend to several of the disputed extent-of-injury conditions.

Section 408.125(d) provides, in part, that to avoid undue influence on a person selected as a designated doctor, only the injured employee or an appropriate member of the staff of the Division may communicate with the designated doctor about the case regarding the injured employee’s medical condition or history before the examination of the injured employee by the designated doctor. After that examination is completed, communication with the designated doctor regarding the injured employee’s medical condition or history may be made only through appropriate Division staff members. 28 TEX. ADMIN. CODE § 127.15(a)(2) (Rule 127.15(a)(2)) provides that to avoid undue influence on the designated doctor after the examination is completed, communication with the designated doctor regarding the injured employee’s medical condition or history may be made only through appropriate Division staff. See also Rule 127.15 (a)(3).

We hold that under the facts of this case, Dr. S’ contact with the claimant’s employer after he examined the claimant was improper and contrary to Section 408.125(d) and Rule 127.15(a)(2).  Accordingly, we reverse the hearing officer’s determination that the Division should not appoint a subsequent designated doctor to address extent of injury and disability and render a new decision that the Division should appoint a subsequent designated doctor to address extent of injury and disability.

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:

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 April 10, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) (Dr. O) was not appointed as the designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.130 (Rule 127.130); (2) the appellant (claimant) reached maximum medical improvement (MMI) on March 1, 2016; and (3) the claimant’s impairment rating (IR) is five percent.

The claimant appealed, disputing the hearing officer’s determinations of MMI and IR as well as the hearing officer’s determination that Dr. O was not appointed in accordance with Section 408.0041 and Rule 127.130.  The respondent (carrier) responded, urging affirmance of the disputed determinations.

DECISION

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

The parties stipulated in part that: (1) the claimant sustained a compensable injury on (date of injury); (2) the carrier has accepted a head injury, bilateral shoulder contusions, right shoulder rotator cuff tear, right shoulder labrum tear, and a right bicep injury as the compensable injury; (3) Dr. O was appointed as designated doctor on the issues of MMI and IR; and (4) the statutory MMI date is November 10, 2016. The claimant testified that he was injured when he fell at work.

APPOINTMENT OF DESIGNATED DOCTOR

Rule 127.130(b)(7) provides, in part, that for examinations performed on or after January 1, 2013, a designated doctor must be a licensed medical doctor or doctor of osteopathy to perform an examination of an injured employee who has tendon lacerations. Dr. O was appointed as designated doctor to examine the claimant for purposes of MMI and IR. It is undisputed that Dr. O is a chiropractor. The carrier contends that Dr. O was improperly appointed to examine the claimant to give an opinion of MMI and IR because the claimant’s injuries included a tendon laceration. The hearing officer found that the claimant’s injuries include tendon lacerations or tears, which injuries require a medical doctor or doctor of osteopathy to examine or treat them. However, Rule 127.130(b) only requires a medical doctor or doctor of osteopathy for tendon lacerations, not tears. Rule 127.130(b) does not prohibit a chiropractor from being appointed as a designated doctor to examine a claimant who has suffered a tendon tear. No medical records in evidence reflect that the claimant suffered a tendon laceration.

The carrier argued based on dictionary definitions admitted into evidence that a laceration is a tear. We disagree. The dictionary definitions admitted into evidence contain conflicting descriptions of the meaning of laceration. For example, one of the definitions describes a laceration as a torn or jagged wound, or an accidental cut wound while another definition describes a laceration as a torn or jagged wound caused by blunt trauma, incorrectly used when describing a cut. We note that the MDGuidelines (MDG), the current edition of the Medical Disability Advisor, Workplace Guidelines for Disability Duration, excluding all sections and tables relating to rehabilitation published by the Reed Group, Ltd. referenced in Rule 137.10, defines laceration, in part, as a disruption of the skin, commonly called a cut. The MDG goes on to state that lacerations can be shallow cuts or deep gashes that penetrate through the muscle layer to internal organs and bone.

An order of administrative body is presumed to be valid and the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action. Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref’d). It is undisputed, and the hearing officer noted in her decision that the carrier in this case raised the issue that the Texas Department of Insurance, Division of Workers’ Compensation (Division) should not have appointed Dr. O as designated doctor on the issues of MMI and IR. The Division’s appointment of Dr. O for the issues of MMI and IR is presumed to be valid, and the carrier had the burden of proof to establish that the Division’s appointment of Dr. O was invalid.

The carrier did not meet its burden of proof to establish that the Division should not have appointed Dr. O for the issues of MMI and IR. Therefore, the hearing officer’s determination that Dr. O was not appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.130, for the issues of MMI and IR, is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the hearing officer’s determination, and we render a new decision that Dr. O was appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.130.

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 pertinent part, that the assignment of an IR shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.

Given that the hearing officer’s determination that Dr. O was not appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.130 is reversed and a new decision rendered that Dr. O was appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.130, we reverse the hearing officer’s determinations that the claimant reached MMI on March 1, 2016, and the claimant’s IR is five percent and remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

SUMMARY

We reverse the hearing officer’s determination that Dr. O was not appointed as designated doctor in accordance with Section 408.0041 and Rule 127.130, and render a new decision that Dr. O was appointed as designated doctor in accordance with Section 408.0041 and Rule 127.130.

We reverse the hearing officer’s determination that the claimant reached MMI on March 1, 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’s IR is five percent and remand the IR issue to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

The certification of MMI/IR should rate the entire compensable injury. The certification of MMI should be 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 considering the physical examination and the claimant’s medical records. The parties stipulated that the statutory MMI date is November 10, 2016. The MMI date can be no later than the statutory date of MMI. The assignment of an IR is required to be based on the claimant’s condition as of the MMI date considering the medical records and the certifying examination and according to the rating criteria of the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides), and the provisions of Rule 130.1(c)(3). The hearing officer is to give presumptive weight to the certification of MMI/IR from Dr. O and make a determination of 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 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, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge