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 29, 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 compensable injury of (date of injury), does not extend to closed concussive mild traumatic brain injury (TBI), post-concussion syndrome, vestibular disorder, headache, or visual changes; (2) the appellant (claimant) reached maximum medical improvement (MMI) on January 10, 2019, with a 13% impairment rating (IR); and (3) the eighth day of disability is May 7, 2018.

The claimant appealed the ALJ’s extent of injury, MMI, and IR determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s extent of injury, MMI, and IR determinations. The ALJ’s determination that the eighth day of disability is May 7, 2018, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; claimant’s Exhibits 1 through 6, and carrier’s Exhibits A through R. The carrier’s exhibit list states that Exhibit B contains 1 page and contains the carrier information form; however, the case file sent for review does not contain a carrier Exhibit B. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibit. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

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

According to the ALJ’s decision, the true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO, PRESIDENT
2200 ALDRICH ST.
AUSTIN, TEXAS 78723.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 29, 2020, with the record closing February 13, 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 appellant’s (claimant) average weekly wage (AWW) is $575.95; (2) benefits began to accrue on May 17, 2016; (3) the claimant had disability from February 8, 2016, through July 20, 2017, but did not have disability from July 21 through December 4, 2017, or from December 5, 2017, through February 20, 2018; (4) the claimant was not a seasonal employee; and (5) the claimant’s injury protection payments under his Collective Bargaining Agreement for the 2016-2017 NFL season do not constitute post-injury earnings.

The claimant appealed the ALJ’s determinations on AWW, benefits accrual date, and the periods of disability that were not favorable to him. The respondent (carrier) responded, urging affirmance. The ALJ’s determinations that the claimant was not a seasonal employee and that the claimant’s injury protection payments under his Collective Bargaining Agreement for the 2016-2017 NFL season do not constitute post-injury earnings were resolved by stipulation of the parties at the CCH, were not appealed, and have become final pursuant to Section 410.169.

DECISION

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

The parties stipulated, in part, that on (date of injury), the claimant was the employee of (employee), and that the claimant sustained a compensable injury on that date. The claimant testified he injured his left knee during training camp.

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).

AWW

The ALJ’s determination that the claimant’s AWW is $575.95 is supported by sufficient evidence and is affirmed.

DISABILITY

It was undisputed that prior CCHs in this case with a different ALJ were held on December 4, 2017, and January 30, 2018, with the record closing on February 13, 2018, over the issue of disability, among other issues. The ALJ issued a decision signed on February 20, 2018, in which she determined, in pertinent part, that the claimant did not have disability from (date of injury), through the date of the CCH. The claimant timely appealed the ALJ’s decision to the Appeals Panel. A written decision by the Appeals Panel on the claimant’s appeal was not issued by the 45th day after the response was due or filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division); therefore, the ALJ’s decision that the claimant did not have disability from (date of injury), through the date of the CCH became final and is the final decision of the Appeals Panel pursuant to Section 410.204(c) and 28 TEX. ADMIN. CODE § 143.5(b) (Rule 143.5(b)).

The Appeals Panel decision was then appealed to district court. In evidence is a district court final judgment filed December 5, 2019, in which it was ordered, adjudged, and decreed by the court, in pertinent part, that the claimant had disability from February 8, 2016, through July 20, 2017. The record reflects the carrier has appealed the district court judgment.

Section 410.205(b) provides that the decision of the Appeals Panel regarding benefits is binding during the pendency of an appeal under Subchapter F or G (relating to Judicial Review). In Lopez v. Texas Workers’ Comp. Ins. Fund, 11 S.W.3d 490 (Tex. App.–Austin 2000, pet. denied), the court held that Section 410.205(b) clearly provides that the ultimate administrative ruling, whether granting or denying benefits, remains in effect until overturned by a final and enforceable judicial decision. The claimant in Lopez argued that the decision of the Appeals Panel denying benefits remains in effect only until the district court renders a decision, but that the trial court’s decision awarding benefits then becomes effective without regard to further appellate review. The court disagreed, noting that the text of the Labor Code did not support the claimant’s interpretation. The court noted that the claimant would have the district court’s decision enforced even though it is not yet final and still on appeal, and that “[n]owhere does the statute expressly provide for such an outcome.” The court in Lopez stated “[w]e believe the statute as written reflects the State’s policy that benefits should be payable or not in accordance with the [A]ppeals [P]anel’s decision until a final judicial decision rules otherwise.”

The Appeals Panel’s prior decision that the claimant did not have disability from (date of injury), through the date of the CCH is binding until there is a final, non-appealable judgment in this case. See Appeals Panel Decision 142336, decided December 5, 2014.

In the case on appeal the carrier contended at the CCH that the Appeals Panel’s decision that the claimant did not have disability from (date of injury), through the date of the prior CCH is binding on the ALJ. The carrier is correct. Pursuant to Section 410.205(b), the decision that the claimant did not have disability from (date of injury), through the date of the CCH is binding, and the Division does not have jurisdiction to reconsider the issue of disability from (date of injury), through February 13, 2018, the date the record closed in the prior CCH. Given that the Division does not have jurisdiction to make a new determination on disability from (date of injury), through February 13, 2018, the ALJ erred in making some of his disability determinations.

The ALJ found that pursuant to the judgment in this case, the claimant had disability from February 8, 2016, through July 20, 2017, and therefore determined that the claimant had disability for that period. Because the Division does not have jurisdiction to reconsider this period of disability, we reverse the ALJ’s decision by striking the determination that the claimant had disability from February 8, 2016, through July 20, 2017.

The ALJ also determined that the claimant did not have disability from July 21 through December 4, 2017. Because the Division does not have jurisdiction to reconsider this period of disability, we reverse the ALJ’s decision by striking the determination that the claimant did not have disability from July 21 through December 4, 2017.

The ALJ also determined that the claimant did not have disability from December 5, 2017, through February 20, 2018. The Division does not have jurisdiction to reconsider disability from (date of injury), through February 13, 2018. We therefore reverse the ALJ’s decision by striking that portion of the determination that the claimant did not have disability from December 5, 2017, through February 13, 2018.

Section 410.207 provides that during judicial review of an Appeals Panel decision on any disputed issue relating to a workers’ compensation claim, the Division retains jurisdiction of all other issues related to the claim. The issue of disability from February 14 through February 20, 2018, has not been litigated or determined by the Division prior to this CCH. Therefore, the Division does have jurisdiction to determine disability for that period. That portion of the ALJ’s determination that the claimant did not have disability from February 14 through February 20, 2018, is supported by sufficient evidence and is affirmed.

ACCRUAL DATE

The ALJ found that the claimant’s first day of disability was May 9, 2016, which was the day after his termination, and that the eighth day of disability was May 17, 2016. The ALJ therefore determined that benefits began to accrue on May 17, 2016. We note the evidence reflects the claimant was terminated on May 9, 2016, not May 8, 2016, as indicated by the ALJ in his finding of fact.

Section 408.082(a) provides that income benefits may not be paid for an injury that does not result in disability for at least one week. Rule 124.7(a) provides in part that “accrual date” means the day an injured worker’s income benefits begin to accrue, and that “day of disability” means a day when the worker is unable to obtain and retain employment at wages equivalent to the pre-injury wage because of a compensable injury. Rule 124.7(b) provides that an injured worker’s accrual date is the worker’s eighth day of disability.

The Appeals Panel’s decision that the claimant did not have disability from (date of injury), through February 13, 2018, is binding pursuant to Section 410.205(b), and we have affirmed that portion of the ALJ’s determination that the claimant did not have disability from February 14 through February 20, 2018. The claimant has not sustained disability for at least one week. Pursuant to Section 408.082(a), the claimant is not entitled to be paid temporary income benefits (TIBs) for the compensable injury; therefore, there is no accrual date for TIBs in this case. Accordingly, we reverse the ALJ’s determination that benefits began to accrue on May 17, 2016, and we render a new decision that there is no accrual date for TIBs in this case.

SUMMARY

We affirm the ALJ’s determination that the claimant’s AWW is $575.95.

We reverse the ALJ’s decision by striking the determination that the claimant had disability from February 8, 2016, through July 20, 2017.

We reverse the ALJ’s decision by striking the determination that the claimant did not have disability from July 21 through December 4, 2017.

We reverse the ALJ’s decision by striking that portion of the determination that the claimant did not have disability from December 5, 2017, through February 13, 2018.

We affirm that portion of the ALJ’s determination that the claimant did not have disability from February 14 through February 20, 2018.

We reverse the ALJ’s determination that benefits began to accrue on May 17, 2016, and we render a new decision that there is no accrual date for TIBs in this case.

The true corporate name of the insurance carrier is GREAT DIVIDE 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 (CCH) was held on October 26, 2015, in Lufkin, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the Texas Department of Insurance, Division of Workers’ Compensation (Division) does not have jurisdiction at the time of the CCH to adjudicate the issues of maximum medical improvement (MMI) and impairment rating (IR); (2) the appellant (claimant) had disability resulting from the compensable injury beginning on August 17, 2012, and continuing through August 27, 2012; and again beginning on April 2, 2015, and continuing through the date of the CCH; and (3) income benefits for the compensable injury began to accrue on August 24, 2012.

The claimant appealed the hearing officer’s determinations regarding jurisdiction to determine MMI/IR; that the claimant had disability in August 2012; and that income benefits began to accrue on August 24, 2012.

The respondent (carrier) responded, urging affirmance of the hearing officer’s determinations.

That portion of the hearing officer’s determination that the claimant had disability beginning on April 2, 2015, and continuing through the date of the CCH 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); that the carrier has accepted as compensable a lumbar sprain/strain; and that the Division has determined that the compensable injury extends to a disc bulge/herniation at L4-5.

The claimant sustained a compensable low back injury on (date of injury). Following a previous CCH, a Division hearing officer issued a decision dated November 20, 2014, determining that the compensable injury included a disc bulge/herniation at L4-5; that the claimant had not reached MMI and that no IR could be assigned. The decision of the hearing officer became the final decision of the Appeals Panel pursuant to Section 410.204(c) and the carrier appealed such decision to the district court where it is pending trial pursuant to Section 410.251 et seq.

JURISDICTION

Section 410.205(b) provides that a decision of the Appeals Panel is binding during the pendency of an appeal under Subchapter F or G of the 1989 Act (pertaining to judicial review). Section 410.207 provides that during judicial review of an Appeals Panel decision, the Division retains jurisdiction of all other issues related to the claim. See Appeals Panel Decision 001126, decided June 30, 2000.

Because the carrier sought judicial review of the decision dated November 20, 2014, on the issues of MMI and IR, we affirm the hearing officer’s decision that the Division did not have jurisdiction at the time of the CCH on October 26, 2015, to determine the issues of MMI and IR.

DATE OF ACCRUAL OF INCOME BENEFITS

The hearing officer’s determination that income benefits for the compensable injury began to accrue on August 24, 2012, is supported by sufficient evidence and is affirmed.

DISABILITY

It is not disputed that the claimant took vacation time and did not work from August 17, 2012, the day following the injury, until August 27, 2012, when he returned to work with restrictions at wages equivalent to his pre-injury wage. The evidence reflects that the claimant continued working after August 27, 2012, with no loss of income, until he was taken off work by his physician on April 2, 2015.

That portion of the hearing officer’s determination that the claimant had disability beginning on August 17, 2012, is supported by sufficient evidence; however, in Finding of Fact No. 7, the hearing officer determined that as a result of the compensable injury the claimant was unable to obtain and retain employment at wages equivalent to his pre-injury wage from August 17, 2012, through August 27, 2012, and again from April 2, 2015, through the date of the CCH. In Conclusion of Law No. 4 and the Decision, the hearing officer determined that the claimant had disability beginning on August 17, 2012, and continuing through August 27, 2012, and again beginning on April 2, 2015, and continuing through the date of the CCH. Since it is not disputed that the claimant worked and had no lost wages on August 27, 2012, the hearing officer’s Finding of Fact No. 7, Conclusion of Law No. 4, and decision concerning disability on such date are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Therefore, we reverse and render a new decision that the claimant had disability resulting from the compensable injury beginning on August 17, 2012, and continuing through August 26, 2012.

SUMMARY

We affirm the hearing officer’s determination that the Division did not have jurisdiction at the time of the CCH on October 26, 2015, to determine the issues of MMI and IR.

We affirm the hearing officer’s determination that income benefits for the compensable injury began to accrue on August 24, 2012.

We reverse that portion of the hearing officer’s disability determination that the claimant had disability beginning on August 17, 2012, and continuing through August 27, 2012, and render a new decision that the claimant had disability resulting from the compensable injury beginning on August 17, 2012, and continuing through August 26, 2012.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

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 (CCH) was held on March 2, 2012, and concluded on April 17, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by determining that: (1) income benefits began to accrue on February 10, 2010; (2) the respondent (claimant) has not reached maximum medical improvement (MMI); and (3) because the claimant has not reached MMI, an impairment rating (IR) is premature.

The appellant (self-insured) appealed the hearing officer’s MMI and IR determinations, contending that: (1) it was legal error for the hearing officer to determine that the claimant is not yet at MMI when the date of statutory MMI is a date that occurred prior to the CCH; (2) the initial certification of MMI/IR by [Dr. C], the designated doctor most recently appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division), should have been given presumptive weight and adopted (that the claimant reached MMI on June 15, 2006, with either 5% or 10% IR);^[1] (3) that the letter of clarification (LOC) sent by the hearing officer to Dr. C was misleading and incorrect; (4) Dr. C’s response to the LOC should not be considered because it was requested after the record closed and was based on incorrect medical information and incomplete medical records; and (5) Dr. C’s amended MMI date of May 12, 2011, done without a re-examination, is invalid and in violation of 28 TEX. ADMIN. CODE § 130.1(b)(4)(B) (Rule 130.1(b)(4)(B)).^[2]

The claimant responded, urging affirmance.^[3]

The hearing officer’s determination that income benefits began to accrue on February 10, 2010, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The parties stipulated that: (1) the claimant sustained a compensable injury to her low back, in the form of a low back sprain/strain, on [date of injury]; (2) the Division has determined after a prior CCH that the compensable injury includes L5-S1 spondylolisthesis and S1 bilateral radiculopathy; (3) Dr. C is the Division-appointed designated doctor for MMI/IR; (4) Dr. C assigned the claimant 10% IR; and (5) Dr. C certified that the claimant reached MMI on June 15, 2006.

The claimant testified that she injured her low back in a lifting incident at work and first missed time because of her injury in February of 2010. The hearing officer found that the claimant’s eighth day of disability was February 10, 2010. In the Background Information section of his decision, the hearing officer stated that “[b]ased on an accrual of disability date of February 10, 2010, . . . the claimant reached statutory [MMI] on February 8, 2012.”

The claimant also testified that she has not yet had lumbar fusion surgery first recommended in 2006 by her surgeon and repeatedly denied by the self-insured. The claimant stated that because of this her condition has worsened.

In evidence is the decision and order of the CCH held on September 15, 2010, in which the hearing officer determined that the compensable injury of [date of injury], extends to L5-S1 spondylolisthesis and S1 bilateral radiculopathy but does not extend to L4-5 spondylolisthesis.

There are five certifications of MMI/IR in evidence:

1. 1.[Dr. P], who was appointed initially by the Division to address MMI/IR and extent of injury, examined the claimant on August 25, 2010, and certified that the claimant has not yet reached MMI but is expected to reach MMI on or about November 25, 2010;

2. 2.Dr. C, the subsequent designated doctor for MMI/IR, examined the claimant on May 12, 2011, and certified (if the compensable injury is limited to a lumbar sprain/strain) that the claimant reached clinical MMI on June 15, 2006, with 5% IR;

3. 3.Dr. C, in the alternative (based on the May 12, 2011, exam) certified (if the lumbar injury includes S1 radiculopathy resulting from spondylolithesis) that the claimant reached clinical MMI on June 15, 2006, with 10% IR (Dr. C’s three certifications are discussed in more detail in subsequent paragraphs);

4. 4.Dr. C, in a response to a LOC dated March 20, 2012, provided an amended DWC-69 certifying that the claimant reached MMI on May 12, 2011, with 10% IR; and

5. 5.[Dr. F], the claimant’s treating doctor, examined the claimant on February 20, 2012, and certified that the claimant has not yet reached MMI but is expected to reach MMI on August 24, 2012.

   It is undisputed that Dr. C examined the claimant on May 12, 2011, to determine MMI/IR. Dr. C stated that he provided alternative certifications of MMI/IR because there was a dispute as to the extent of the [date of injury], compensable injury. In his narrative report dated May 12, 2011, Dr. C noted that the self-insured had accepted only a lumbar sprain/strain, and certified that the claimant reached clinical MMI on January 20, 2006, with 5% IR; however, his DWC-69 certified that the claimant reached clinical MMI on June 15, 2006, with 5% IR.

   In that same narrative, based on the May 15, 2011, exam, Dr. C provided an alternative certification for a lumbar injury including S1 radiculopathy resulting from spondylolisthesis. Dr. C certified that the claimant reached clinical MMI on June 15, 2006, with 10% IR. The 10% IR was based on placement of the claimant in Diagnosis-Related Estimate (DRE) Category III: Radiculopathy (with his narrative detailing the claimant’s loss of relevant reflexes) 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).

   Following the CCH held on March 2, 2012, the hearing officer re-opened the record in order to send a LOC to Dr. C. The specific question addressed to Dr. C by the hearing officer is as follows:

   The medical history in this case shows that beginning as far back as August, 2006, and continuing through the present, several doctors have recommended back surgery for the claimant and opined that such surgery would materially approve [sic] her condition. In fact, the [self-insured’s] utilization reviewer [UR] as recently as February, 2012, has said that such surgery is reasonable and necessary care for the claimant’s work-related injury. However, you placed the claimant at MMI in June, 2006, prior to the medical reports stating, in one instance, that there was an 85% chance of improvement in the claimant’s condition with back surgery. It appears that your decision was based on three physical therapy reports from January, 2006, only three months following the compensable injury. Even though you noted in your report that the claimant was pending surgery at the time of your examination [May 12, 2011], you had difficulty accepting that the claimant had more than a lumbar sprain/strain despite the decision of a hearing officer at a [CCH] that the extent of the injury went beyond a sprain/strain.

   The Appeals Panel has ruled that MMI is to be based upon whether, in reasonable medical probability, material recovery or lasting improvement could reasonably be anticipated. The Appeals Panel has further held ‘it is of no moment that the treatment did not ultimately prove successful in providing material recovery or lasting improvement in the [c]laimant’s condition, where . . . the recovery and improvement could reasonably be anticipated . . . .’

   It is my determination as a [h]earing [o]fficer that the record in this case, including the opinion of the prior designated doctor [Dr. P], establishes that lumbar surgery for the claimant, which has been proposed and sought for years, can reasonably be anticipated to result in her recovery and the improvement of her condition.

   Statutory [MMI] in this case is February 8, 2012. In light of, and based on, the above discussion I would appreciate your revisiting your previously determined date of MMI to determine if a different date would be more consistent with the facts and medical record in this case.

   In a response, dated March 21, 2012, to the LOC, Dr. C stated:

   I saw [the claimant] on [May 12, 2011]. There was some confusion in the records regarding the extent of injury. There were clearly differing opinions on this case. Subsequently, I have been informed that the statutory [MMI] date in this case is [February 8, 2012]. In view of the correspondence from . . . the hearing officer at the [Division], in a [LOC] on [March 20, 2012], and in view of my review of the medical records I have revised the MMI date to [May 12, 2011]. The [designated doctor] may not provide a prospective MMI date.

   The whole person [IR] remains 10% under DRE [C]ategory III for lumbosacral impairment according to the [AMA Guides].

   Dr. C attached an amended DWC-69 to his response certifying that the claimant reached clinical MMI on May 12, 2011, with 10% IR. The LOC, the response to the LOC, and the amended DWC-69 are in evidence as Hearing Officer’s Exhibit No. 3.

   On March 22, 2012, the hearing officer sent a letter to the parties’ attorneys, attaching Dr. C’s response to the LOC sent and informing them that he would accept written responses and comments in regards to Dr. C’s amended DWC-69 through the close of the business day, March 30, 2012. After that, he would close the record and issue a decision. This correspondence is in evidence as Hearing Officer’s Exhibit No. 4.

   In a letter dated March 28, 2012 (Hearing Officer’s Exhibit No. 5), the self-insured states that Dr. C’s amended MMI date is invalid because Dr. C was not provided with complete medical records and Dr. C did not perform a complete medical examination prior to amending his certification of MMI. The self-insured also argues that the LOC was sent without an opportunity for the self-insured to correct a misstatement concerning the determination by the UR, which had made an adverse determination when reviewing the request for a lumbar fusion. The self-insured also stated that “[i]t is the [Independent Review Organization’s (IRO)] opinion that surgery at the L5-S1 level would not address the pathology at the L4-5 level. However, the pathology at L4-5 has been finally determined to not be part of the compensable injury.”

   In a letter dated March 30, 2012, the claimant states to the hearing officer that Dr. C “never acknowledges or reveals that he understands or appreciates that the ‘extent of injury’ was not a question he had (or has) before him.” The claimant also contends:

   Based on the rather awkward statement that ‘the [designated doctor] may not provide a prospective MMI date’ which immediately follows his revision, it is wholly unclear as to whether or not [Dr. C] understands or even appreciates that a re-examination of the claimant may in fact be necessary based on his otherwise obvious desire to change the claimant’s MMI date and/or that a re-examination of the claimant is even an option/possibility for him. [Emphasis in the original.] The claimant believes that a second [LOC] should be sent to [Dr. C] advising him there is a legally binding [decision and order] from a [hearing officer] that is in place relative to the extent of the claimant’s injuries . . . . Likewise, the claimant believes that this additional [LOC] should make it totally clear that a re-examination of the claimant may in fact be necessary based on his indication to change the claimant’s MMI date.

   Also in that letter, the claimant states that the logic in the adverse determination by the UR and the upholding in the IRO are that both the L4-5 and compensable L5-S1 levels are symptomatic and the most appropriate surgical intervention would consist of a L4-S1 fusion regardless of the fact they are not both compensable body parts. This letter is admitted as Hearing Officer’s Exhibit No. 6.

   The hearing officer found that: (1) [t]he [IR] and date of [MMI] assigned by [the] designated doctor [Dr. C] are contrary to the preponderance of the other medical evidence; (2) [a]s of the date of examination [May 12, 2011] by [Dr. C], medical and surgical procedures had been recommended for the claimant and were pending that could reasonably and likely result in an improvement in the claimant’s condition; and (3) [t]he preponderance of the other medical evidence is contrary to the determination by [Dr. C] that the claimant had reached [MMI] as of the date of his designated doctor examination.

LOC

Rule 127.20(a) provides in part that the Division may contact the designated doctor if it determines that clarification is necessary to resolve an issue regarding the designated doctor’s report. Rule 127.20(b) provides in pertinent part that requests for clarification must:

(3)include questions for the designated doctor to answer that are neither inflammatory nor leading; and

(4)provide any medical records that were not previously provided to the designated doctor and explain why these records are necessary for the designated doctor to respond to the request for clarification.

In this case, as stated above, the hearing officer stated in his March 20, 2012, LOC that “[i]t is my determination as a [h]earing [o]fficer that the record in this case, including the opinion of the prior designated doctor [Dr. P], establishes that lumbar surgery for the claimant, which has been proposed and sought for years, can reasonably be anticipated to result in her recovery and the improvement of her condition.” We hold that the March 20, 2012, LOC was worded in a manner that could potentially mislead the designated doctor in violation of Rule 127.20(b)(3). Additionally, the hearing officer failed to provide the claimant’s complete medical records to Dr. C, including the UR determination itself, which is a violation of Rule 127.20(b)(4).

Consequently, the hearing officer’s determinations that the claimant has not reached MMI and because the claimant has not reached MMI, an IR is premature is based on a LOC that does not meet the requirements of Rule 127.20(b). Therefore, we reverse the hearing officer’s determination that the claimant has not reached MMI. We reverse the hearing officer’s determination that because the claimant has not reached MMI, an IR is premature. We remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. C is the designated doctor in this case. On remand, the hearing officer is to determine whether Dr. C is still qualified and available to be the designated doctor. If Dr. C is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine MMI/IR for the compensable injury of [date of injury].

The hearing officer is to provide any of the claimant’s medical records that were not previously provided to the designated doctor, including the UR determination and the IRO decision, so that the designated doctor has the claimant’s complete medical records.

The hearing officer is to advise the designated doctor that the date of statutory MMI is February 8, 2012. The hearing officer is to advise the designated doctor that he may re-examine the claimant in order to determine MMI/IR.

The hearing officer is to advise the designated doctor that the compensable injury of [date of injury], a lumbar sprain/strain (as stipulated to by the parties) has been administratively determined by the Division to extend to L5-S1 spondylolisthesis and S1 bilateral radiculopathy, but does not extend to L4-5 spondylolisthesis.

The hearing officer is not to advise the designated doctor that it is his determination, or the opinion a prior designated doctor, that as of the date of Dr. C’s examination on May 12, 2011, medical and surgical procedures had been recommended for the claimant and were pending that could reasonably and likely result in an improvement in the claimant’s condition.

The designated doctor is then to be requested to give a certification of MMI/IR for the claimant’s compensable injury of [date of injury], based on the injured employee’s condition as of the MMI date, which can be no later than the date of statutory MMI (February 8, 2012), considering the claimant’s medical record and the certifying examination.

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 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 (a self-insured governmental entity) and the name and address of its registered agent for service of process is

[JG]

[ADDRESS]

[CITY], TEXAS [ZIP CODE].

Cynthia A. Brown
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

1. The self-insured contended that the correct IR is 5%, but in the alternative, because the Division in a prior CCH determined that the compensable injury extends to L5-S1 spondylolisthesis and S1 bilateral radiculopathy, these conditions are included in Dr. C’s alternative IR of 10%. The self-insured stated in their appeal that “[t]his extent of injury finding is currently in disputed [sic] in a judicial review proceeding.”

   ↑

2. The self-insured relies on Appeals Panel Decision (APD) 010297-s, decided March 29, 2001. The facts in this case are distinguishable from the case before us. In APD 010297-s, the Appeals Panel reversed the hearing officer’s MMI determination and remanded the issue of MMI to the hearing officer because the hearing officer adopted a prospective date of MMI. The certifying doctor conducted only one examination of the injured employee and later amended his certified MMI date subsequent to the date of his sole examination without a re-examination of the claimant. In this case before us, in response to a LOC, Dr. C did not amend the MMI date to a prospective date of MMI because he placed the claimant at MMI on the date of his examination.

   ↑

3. The claimant relies on APD 111393, decided November 23, 2011. The facts in this case are distinguishable from the case before us. In APD 111393, a written decision was issued to clarify that a hearing officer can determine that the claimant is not at MMI in the absence of a Report of Medical Evaluation (DWC-69) when the only DWC-69 in evidence certifying a date specific for MMI is contrary to the preponderance of the other medical evidence.

   ↑

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 February 6, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the sole disputed issue by deciding that lifetime income benefits (LIBs) began to accrue on October 28, 2010.

The appellant/cross-respondent (self-insured) appealed the hearing officer’s determination of the date LIBs began to accrue, arguing that the question of entitlement to LIBs is pending before a district court and therefore has not been resolved. The self-insured alternatively argues that the accrual date for LIBs entitlement will be the date the respondent/cross-appellant (claimant) was judicially found to be entitled to LIBs and not before. The claimant responded to the self-insured’s appeal. The claimant also cross-appealed the hearing officer’s determination of the date LIBs began to accrue, arguing that the accrual date is when the medical records indicate the claimant had difficulty walking because she had numbness from her hips to her toes. The self-insured responded to the claimant’s cross-appeal.

DECISION

Reversed and remanded.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH.  The CCH was recorded on a single compact disc (CD).   However, the CD is blank.  The file indicates that there was no court reporter and the file does not contain a transcript or a tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the CCH record.  See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

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 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 [SELF-INSURED] and the name and address of its registered agent for service of process is

[AK]

[ADDRESS]

[CITY], TEXAS [ZIP CODE].

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 5, 2007. The two disputed issues were:

(1) Is the respondent (clamant) entitled to lifetime income benefits (LIBs) as of this date based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility?; and

(2) If the claimant is entitled to LIBs, on what date did those benefits begin to accrue?

The hearing officer resolved the disputed issues by deciding that: (1) the claimant is entitled to LIBs as of this date based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility; and (2) the claimant’s LIBs began to accrue on _________. The hearing officer also determined that good cause did not exist to add the issue of LIBs based on loss of use of both feet at or above the ankles. The appellant (carrier) appealed the hearing officer’s determination that the claimant’s LIBs began to accrue on _________. The claimant responded, urging affirmance.

The hearing officer’s finding of no good cause to add the issue of LIBs based on loss of use of both feet at or above the ankles and the determination that the claimant is entitled to LIBs as of this date based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility, have not been appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The CCH was recorded on one compact disc (CD). The CD indicated that it contained 1 track, which was 47 minutes and 6 seconds long. The entire CD had no sound at all. The file indicates that there was no court reporter and the file does not contain a transcript. Consequently, we must remand the case to the hearing officer for reconstruction of the CCH record.

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 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 92642, decided January 20, 1993.

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

RUSSELL OLIVER, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 29, 2003. The hearing officer decided that appellant (claimant) had disability commencing on November 8, 1999, and ending on November 11, 1999, and that income benefits have not accrued. Claimant requests a determination that his disability is ongoing through the date of the hearing with an accrual date of July 10, 2001. The file does not contain a response from respondent (carrier).

DECISION

We affirm.

Claimant attached notes to his appeal from his treating doctor relating that he is disabled until he has lumbar surgery and duplicates of medical records already admitted at the hearing. In determining whether the hearing officer's decision is sufficiently supported by the evidence, we will generally not consider evidence that was not submitted into the record at the hearing. Texas Workers' Compensation Commission Appeal No. 92255, decided July 27, 1992. To determine whether evidence offered for the first time on appeal requires that the case be remanded for further consideration, we consider whether it came to the appellant's knowledge after the hearing, whether it is cumulative, whether it was through lack of diligence that it was not offered at the hearing, and whether it is so material that it would probably produce a different result. Texas Workers' Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Willis, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). We do not find that to be the case with the notes attached to the claimant’s request for review and, consequently, we decline to consider them on appeal.

We have reviewed the complained-of determinations and conclude that the issues involved fact questions for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude that the hearing officer's determinations are supported by the record and are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Claimant complains of the assistance of the ombudsman in this case. We note that it was claimant's responsibility to be sure that all exhibits he wanted in evidence were offered into evidence and to make any necessary objections. Claimant has not demonstrated grounds for reversal.

We affirm the hearing officer’s decision and order.

The true corporate name of the insurance carrier is TEXAS PROPERTY & CASUALTY INSURANCE GUARANTY ASSOCIATION for Reliance Insurance Company, an impaired carrier and the name and address of its registered agent for service of process is

MARVIN KELLY, EXECUTIVE DIRECTOR

9120 BURNET ROAD

AUSTIN, TEXAS 78758.

Judy L. S. Barnes

CONCUR:

Elaine M. Chaney
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 10, 2002, but reconvened on October 3, 2002. The hearing officer determined that the respondent’s (claimant) income benefits began to accrue on April 16, 2001. The appellant (carrier) appeals, contending that the hearing officer’s determination is against the great weight of the evidence and that the claimant’s income benefits began to accrue on December 10, 1999. The claimant responds urging affirmance.

DECISION

We affirm the hearing officer’s decision.

Essentially, the carrier quarrels with the manner in which the hearing officer gave weight and credibility to the evidence. The hearing officer is the sole judge of the relevance, materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). An appeals-level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied); American Motorists Insurance Co. v. Volentine, 867 S.W.2d 170 (Tex. App.-Beaumont 1993, no writ).

The record in this case presented conflicting evidence for the hearing officer to resolve. In considering all the evidence in the record, we cannot agree that the findings of the hearing officer are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We therefore affirm the decision and order.

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

CT CORPORATION

350 NORTH ST. PAUL

DALLAS, TEXAS 75201.

Susan M. Kelley
Appeals Judge

CONCUR:

Judy L. S. Barnes
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 19, 2002. The hearing officer resolved the disputed issue by deciding that the appellant (claimant) is not entitled to lifetime income benefits (LIBs) either based on an injury to the spine that resulted in the permanent and complete paralysis of both arms, or as a result of the combination of the ____________, compensable injury along with the effects of the previous (previous date of injury), injury; and that since the claimant is not entitled to LIBs, there is no accrual date. The claimant appeals, arguing that she proved beyond a preponderance of the medical evidence that she has total inability to obtain and retain employment and that she met her burden of proving that she meets the requirements for LIBs as set forth by Section 408.161. The carrier responded, urging affirmance.

DECISION

Affirmed.

At issue is whether the claimant is entitled to LIBs. The hearing officer found the claimant was not entitled to LIBs. Section 408.161(a)(3) provides that LIBs are paid until the death of the employee for the loss of both hands at or above the wrist. Section 408.161(a)(5) provides that LIBs will be paid for an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg. Section 408.161(b) provides that the loss of use of a body part is the loss of that body part for purposes of subsection (a). In Texas Workers' Compensation Commission Appeal No. 94689, decided July 8, 1994, citing Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex. 1962), we noted that the test for total loss of use is whether the member possesses any substantial utility as a member of the body or whether the condition of the injured member is such that it keeps the claimant from getting and keeping employment requiring the use of the member. In Texas Workers' Compensation Commission Appeal No. 952100, decided January 23, 1996, we noted that the Seabolt test is disjunctive and that a claimant need only satisfy one prong of the test in order to establish entitlement to LIBs.

The claimant acknowledged at the hearing that she was not paralyzed but maintained she lost use of her hands primarily because of constant pain. The hearing officer noted that the claimant’s assertion that she was unable to use her hands and that she was in constant pain was neither persuasive nor credible, citing the surveillance video, medical records which recommended the claimant to the Texas Rehabilitation Commission, the results of a functional capacity evaluation, and the MRI results.

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

We affirm the decision and order of the hearing officer.

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

CORPORATION SERVICE COMPANY

CINDY HARRIS

800 BRAZOS

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Judy L. S. Barnes
Appeals Judge

Gary L. Kilgore
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). Following a contested case hearing held on January 11, 2002, the hearing officer determined that the respondent’s (claimant) income benefits began to accrue on August 23, 2000. The appellant (self-insured) has filed a request for review, urging that the evidence established that the accrual date was May 9, 1997. The claimant’s response urges the sufficiency of the evidence to support the challenged determination.

DECISION

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

Section 410.202(a) provides in part that to appeal the decision of a hearing officer, a party shall file a written request for appeal not later than the 15th day after the date on which the decision of the hearing officer is received from the Hearings Division. And see Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3 (Rule 143.3). Rule 143.3(c) provides that a request shall be presumed to be timely filed if it is mailed not later than the 15th day after the date of receipt of the hearing officer’s decision and is received by the Texas Workers' Compensation Commission (Commission) not later than the 20th day after the date of receipt of the hearing officer’s decision. Both portions of Rule 143.3(c) must be complied with in order for an appeal to be timely filed. Texas Workers’ Compensation Commission Appeal No. 94065, decided March 1, 1994.

Records of the Commission reflect that a representative of the self-insured signed for a copy of the hearing officer’s decision on January 16, 2002. The Commission’s cover letter of that date advises that an appeal is to be mailed to the following address:

Appeals Clerk

Texas Workers’ Compensation Commission

Post Office Box 40669

Austin, Texas 78704-0012.

For filing by mail pursuant to Rule 143.3(c), the last day for the self-insured’s appeal to have been timely mailed was February 7, 2002, and the last day for the appeal to have been timely received was February 14, 2002. The self-insured’s certificate of service reflects that the appeal was mailed to the Commission, by certified mail, on February 5, 2002. However, the appeal was not received by the Commission through the mail. The self-insured hand delivered the appeal to the Commission on February 12, 2002, with a cover letter explaining that the appeal had been originally mailed by certified mail on February 5, 2002, but that the postal service “green card” returned to the self-insured was signed by a person from the (TBPE), not the Commission. The self-insured provided a copy of the envelope it had mailed which reflects the certified mail receipt number, a post-mark date of February 5, 2002, the Commission address as “PO Box 17848, Austin TX 78760-7848,” the Commission’s old address, and a label indicating that the envelope was apparently returned by the postal service to the TBPE. Since the self-insured’s appeal was not filed by mail, the filing by hand delivery on February 12, 2002, was untimely.

The hearing officer’s decision and order have become final under Section 410.169.

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:

RON JOSSELET, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

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

AUSTIN, TEXAS 78701.

For service by mail the address is:

RON JOSSELET, EXECUTIVE DIRECTOR

THE STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Philip F. O’Neill
Appeals Judge

CONCUR:

Chris Cowan
Appeals Judge

Michael B. McShane
Appeals Judge