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 June 7, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does extend to intervertebral disc disruption at L5-S1, lumbosacral spondylosis without myelopathy, and cervical spondylosis with myelopathy after July 6, 2015; and (2) as a result of the decision and order of the CCH in DA-00-185806-05-CC-DA46, the Texas Department of Insurance, Division of Workers’ Compensation (Division) does have jurisdiction to determine whether the compensable injury of (date of injury), extends to intervertebral disc disruption at L5-S1, lumbosacral spondylosis without myelopathy, and cervical spondylosis with myelopathy. The appellant (carrier) appeals the hearing officer’s determinations of the extent of the compensable injury and jurisdiction to decide the extent of the compensable injury. The appeal file does not contain a response from the respondent (claimant).

DECISION

Affirmed as reformed.

The parties stipulated that the venue is proper in the Tyler field office of the Division, that on the date of injury the claimant was the employee of employer, and that on the date of injury the employer provided workers’ compensation insurance with the carrier. A review of the record reflects that the fourth stipulation made by the parties was: “the Division-appointed designated doctor, (Dr. H) in his impairment certification of September 26, 2002, included in his rating and rated lumbosacral spondylosis without myelopathy and cervical spondylosis with myelopathy.” However, in the decision and order the hearing officer included the following as stipulation 1.D. “In DA-00-185806-05-CC-DA46, heard on November 4, 2003, it was determined that the compensable injury of (date of injury), extends to and includes intervertebral disc disruption at L5-S1, lumbosacral spondylosis without myelopathy, and cervical spondylosis with myelopathy.” The parties did not stipulate to stipulation 1.D. as stated in the decision and order. A copy of the decision and order in docket number DA-00-185806-05-CC-DA46 was in evidence. The decision and order for the referenced docket number reflects that the CCH was held on December 11, 2003, and the benefit review conference was held on November 4, 2003. Further, the decision and order reflects that the two disputed issues in that CCH were: 1. Has the claimant reached maximum medical improvement, and, if so, on what date? and 2. What is the claimant’s impairment rating? Extent of injury was not an issue in dispute at the referenced CCH and no findings of fact, conclusions of law, or decision were made regarding the extent of the compensable injury. Accordingly, we strike stipulation 1.D. from the hearing officer’s decision and order to conform to the evidence and the actual stipulation made by the parties. We reform stipulation 1.D. to conform to the actual stipulation made by the parties at the CCH: the Division-appointed designated doctor, Dr. H who, in his impairment certification of September 26, 2002, included in his rating and rated lumbosacral spondylosis without myelopathy and cervical spondylosis with myelopathy.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury of (date of injury), extends to intervertebral disc disruption at L5-S1, lumbosacral spondylosis without myelopathy, and cervical spondylosis with myelopathy after July 6, 2015, is supported by sufficient evidence and is affirmed.

JURISDICTION

The hearing officer’s determination that as a result of the decision and order of the CCH in DA-00-185806-05-CC-DA46, the Division does have jurisdiction to determine whether the compensable injury of (date of injury), extends to intervertebral disc disruption at L5-S1, lumbosacral spondylosis without myelopathy, and cervical spondylosis with myelopathy is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of (date of injury), extends to intervertebral disc disruption at L5-S1, lumbosacral spondylosis without myelopathy, and cervical spondylosis with myelopathy after July 6, 2015.

We affirm the hearing officer’s determination that as a result of the decision and order of the CCH in DA-00-185806-05-CC-DA46, the Division does have jurisdiction to determine whether the compensable injury of (date of injury), extends to intervertebral disc disruption at L5-S1, lumbosacral spondylosis without myelopathy, and cervical spondylosis with myelopathy.

We reform stipulation 1.D. by striking in DA-00-185806-05-CC-DA46, heard on November 4, 2003, it was determined that the compensable injury of (date of injury), extends to and includes intervertebral disc disruption at L5-S1, lumbosacral spondylosis without myelopathy, and cervical spondylosis with myelopathy and adding the stipulation actually made by the parties at the CCH: the Division-appointed designated doctor, Dr. H who, in his impairment certification of September 26, 2002, included in his rating and rated lumbosacral spondylosis without myelopathy and cervical spondylosis with myelopathy.

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 (CCH) was held on November 12, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury extends to bilateral carpal tunnel syndrome (CTS), bilateral trigger finger, and tendonitis of both hands; (2) the respondent/cross-appellant (claimant) reached maximum medical improvement (MMI) on April 3, 2012; (3) the claimant’s impairment rating (IR) is 12%; and (4) as a result of the decision and order of the CCH in [Docket No. 1] and affirmation by Appeals Panel Decision (APD) 120295, decided April 16, 2012, the Texas Department of Insurance, Division of Workers’ Compensation (Division) does not have jurisdiction to determine the extent of injury to the bilateral CTS, bilateral trigger finger, and tendonitis in both hands at this hearing.

The appellant/cross-respondent (carrier) appealed the hearing officer’s determinations of the extent of the compensable injury and that the Division does not have jurisdiction to determine the extent of injury to the bilateral CTS, bilateral trigger finger, and tendonitis in both hands at this hearing. The carrier argued that no evidence supports the claimant’s claim that the extent-of-injury conditions in dispute were caused by his work activities. Additionally, the carrier argues that the prior CCH included no conclusion of law addressing the disputed conditions so it was error for the hearing officer to conclude the Division did not have jurisdiction to address the extent-of-injury conditions in dispute at the present CCH. The appeal file did not contain a response from the claimant to the carrier’s appeal.

The claimant cross-appealed disputing the hearing officer’s determinations of MMI and IR. In his cross-appeal the claimant also provided arguments to support the hearing officer’s determinations on the issues of extent of injury and jurisdiction. The claimant argues that the greater weight of the evidence proves the correct certification of MMI and IR came from the designated doctor, [Dr. W]. The carrier responded, urging affirmance of the MMI and IR determinations, arguing [Dr. D] is the only examining doctor who rated the entire compensable injury.

DECISION

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

The parties stipulated that: (1) the claimant’s duties were repetitive and traumatic; (2) the claimant sustained a compensable injury in the form of a repetitive trauma occupational disease with a [date of injury], date of injury; and (3) the claimant has been diagnosed with bilateral CTS, bilateral trigger finger, and tendonitis of both hands.

EXTENT OF INJURY

The hearing officer determined that the Division did not have jurisdiction to determine the extent of the injury to include bilateral CTS, bilateral trigger finger, and tendonitis of both hands but then made an alternative determination on the extent of injury to the disputed conditions on the merits. The hearing officer’s alternative determination that the compensable injury of [date of injury], extends to bilateral CTS, bilateral trigger finger, and tendonitis of both hands is supported by sufficient evidence and is affirmed.

RES JUDICATA

In Barr v. Resolution Trust Corp., 837 S.W.2d 627 (Tex. 1992), the Texas Supreme Court noted that, broadly speaking, res judicata is the generic term for a group of related concepts concerning the conclusive effects given final judgments, and that within this general doctrine, there are two principal categories:  (1) claim preclusion (also known as res judicata); and (2) issue preclusion (also known as collateral estoppel).  The Supreme Court further noted that res judicata, or claim preclusion, prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit, and that issue preclusion, or collateral estoppel, prevents relitigation of particular issues already resolved in a prior suit.  In Barr, the Supreme Court reaffirmed the “transactional” approach to res judicata, stating that a subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of due diligence, could have been litigated in a prior suit.  The doctrine of res judicata has been applied to administrative action that has been characterized by the courts as adjudicatory, judicial, or quasi-judicial.  Bryant v. L.H. Moore Canning Co., 509 S.W.2d 432 (Tex. Civ. App.-Corpus Christi, 1974), cert. denied 419 U.S. 845.

A CCH was held on January 19, 2012, to determine if the claimant sustained a compensable repetitive trauma injury with a date of injury of [date of injury], and whether the claimant had disability resulting from an injury sustained on [date of injury]. The following Findings of Fact were included in the decision and order of the January 19, 2012, CCH: (3) A June 23, 2011, nerve conduction study reflected that [the] [c]laimant had severe [CTS] on the right hand and moderate [CTS] on the left hand; (4) [Dr. B], [the] [c]laimant’s treating doctor, diagnosed bilateral CTS and triggering fingers and his opinion was that those injuries were the result of [the] [c]laimant’s job activities; and (5) [the] [c]laimant sustained damage or harm to the physical structure of his body in the form of bilateral upper extremity repetitive trauma injuries due to repetitious and physically traumatic activities that occurred over time and arose out of and in the course and scope of his employment.

The extent-of-injury issue certified for resolution in the present CCH was: “Does the compensable injury extend to include bilateral [CTS], bilateral trigger finger, and tendonitis of the fourth finger of both hands?” The parties agreed at the CCH to revise the issue to read as follows: “Does the compensable injury extend to include bilateral [CTS], bilateral trigger finger and tendonitis of both hands?”

In the present CCH, the hearing officer found that the substance of the extent of injury issue listed at the CCH was actually litigated during a prior CCH on January 19, 2012, and that decision and order was appealed and has become final as per APD 120295, supra.

That portion of the hearing officer’s determination that as a result of the decision and order of the CCH in [Docket No. 1] and affirmation by APD 120295, supra, the Division does not have jurisdiction to determine the extent of the injury to include bilateral CTS and bilateral trigger finger is supported by sufficient evidence and is affirmed.

However, the evidence does not reflect that the condition of tendonitis of both hands was specifically addressed at the January 19, 2012, CCH. In the January 19, 2012, CCH, the hearing officer made a specific finding regarding the bilateral CTS and bilateral trigger finger but did not make a finding regarding tendonitis in both hands. Under these circumstances, we cannot agree that the issue of extent of injury as to the alleged condition of tendonitis in both hands is barred under the doctrine of res judicata. For the above stated reasons, we reverse that portion of the hearing officer’s determination that as a result of the decision and order of the CCH in [Docket No. 1] and affirmation by APD 120295, supra, the Division does not have jurisdiction to determine the extent of the injury to include tendonitis in both hands at this hearing and render a new decision that the Division does have jurisdiction to determine whether the claimant’s compensable injury of [date of injury], extends to tendonitis of both hands.  As previously noted, we affirm the hearing officer’s determination that the claimant’s compensable injury of [date of injury], extends to tendonitis of both hands on the merits.

MMI/IR

The hearing officer determined that the claimant reached MMI on April 3, 2012, and the claimant’s IR is 12% as found by Dr. D. Dr. D, the post-designated doctor required medical examination doctor, examined the claimant on September 26, 2013. Dr. D provided alternative certifications. Dr. D provided a certification placing the claimant at MMI on April 3, 2012, with a 0% IR considering nonspecific myofascial soft tissue wrist hand sprain/strain, noting “[a]ll measureable parameters are normal which accrues 0% impairment.”

Dr. D provided an alternative rating considering bilateral CTS, certifying the claimant reached MMI on April 3, 2012, with a 12% IR. Dr. D subsequently provided an addendum dated November 8, 2013, providing an alternative certification for the sole diagnosis of bilateral tendonitis. For that diagnosis, Dr. D opined that the claimant reached MMI on December 5, 2011, with a 0% IR. The hearing officer notes in the Background Information section of his decision and order that Dr. D’s certification is the only rating that complies with the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides).  However, none of the narratives and alternative ratings provided by Dr. D consider and rate the entire compensable injury.

The hearing officer adopted the certification by Dr. D that the claimant reached MMI on April 3, 2012, with a 12% IR. However, that certification from Dr. D only considered and rated the claimant’s bilateral CTS. The certification adopted by the hearing officer did not consider or rate the bilateral tendonitis or bilateral trigger finger. Accordingly, the hearing officer’s determinations that the claimant reached MMI on April 3, 2012, and the claimant’s IR is 12% are reversed.

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

[Dr. P] was initially appointed as the designated doctor for purposes of MMI and IR. Dr. P examined the claimant on July 6, 2012, and certified that the claimant was not at MMI but was expected to reach MMI on April 15, 2013. Dr. P’s initial report only considered bilateral CTS. Dr. P provided an amendment to his report and noted that the compensable injury based on the Request for Designated Doctor Examination (DWC-32) included bilateral CTS and tendonitis to bilateral 4th finger and certified that the claimant had not reached MMI. Dr. P did not consider and rate bilateral trigger finger and therefore his certification cannot be adopted.

Dr. W was subsequently appointed as designated doctor for purposes of MMI and IR. Dr. W examined the claimant on May 15, 2013, and certified that the claimant reached MMI on that date with a 29% IR. However, the only diagnosis Dr. W considered was CTS, although he noted that “the numbness and trigger finger concerns have resolved for the most part.” Dr. W measured the claimant’s range of motion in both the right and left wrist resulting in no impairment.

Dr. W then assessed impairment for strength and sensation for the right wrist. Dr. W placed the claimant in Grade 3 for sensory deficits using Table 11 on page 3/48 of the AMA Guides for 60% impairment. Dr. W then multiplied 60% assessed for sensory deficit with 38% using Table 15, on page 3/54 of the AMA Guides for the median nerve below the midforearm. Dr. W placed the claimant in Grade 4 for motor deficits using Table 12 on page 3/49 of the AMA Guides for 25%. Dr. W then multipled 25% assessed for motor deficit by 10% from Table 15 for the median nerve below the midforearm. Dr. combined the motor and sensory deficit impairments for 25% upper extremity impairment which he then converted to 15% whole person impairment using Table 3, on page 3/20 of the AMA Guides.

Dr. W then assessed impairment for strength and sensation for the left wrist. We note that the narrative mistakenly refers to the right wrist when discussing the impairment assessed under the heading left wrist/hand. Dr. W again placed the claimant in Grade 3 using Table 11 for 60% impairment which he then multiplied by 38% using Table 15 for the median nerve below the midforearm. For motor strength, Dr. W placed the claimant in Grade 4 for 50% impairment. However, we note that the maximum value using Table 12 for Grade 4 is 25% rather than 50%. Dr. W then multiplied 50% by 10% using Table 15 for the median nerve below the forearm. Dr. W combined the motor and sensory deficits for 27% upper extremity impairment of 27% which he converted to 16% whole person.

Dr. W then combined the 15% impairment assessed with the right wrist with 16% impairment assessed for the left wrist for a total whole person impairment of 29%. However, as previously noted Dr. W only considered and rated the bilateral CTS and did not consider or rate bilateral tendonitis or bilateral trigger finger. We also note that Dr. W used the wrong impairment for his assessment in Grade 4 motor deficit for the claimant’s left wrist. Accordingly, Dr. W’s certification of MMI and IR cannot be adopted.

The only other certification in evidence is from [Dr. We], a doctor selected by the treating doctor to act in his place. Dr. We examined the claimant on May 13, 2013, and certified that the claimant reached MMI on that date with a 28% IR. The only diagnosis discussed and considered by Dr. We in certifying the claimant’s MMI and IR was bilateral CTS. Dr. We did not consider and rate the entire compensable injury and therefore his certification cannot be adopted.

Since no certification can be adopted, we reverse the hearing officer’s determination that the claimant reached MMI on April 3, 2012, and that the claimant’s IR is 12% and remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of [date of injury], extends to tendonitis in both hands as well as his alternative determination that the compensable injury of [date of injury], extends to bilateral CTS and bilateral trigger finger.

We affirm that portion of the hearing officer’s determination that as a result of the decision and order of the CCH in [Docket No. 1] and affirmation by APD 120295, supra, the Division does not have jurisdiction to determine the extent of the injury to include bilateral CTS and bilateral trigger finger.

We reverse that portion of the hearing officer’s determination that as a result of the decision and order of the CCH in [Docket No. 1] and affirmation by APD 120295, supra, the Division does not have jurisdiction to determine the extent of the injury to include tendonitis in both hands at this hearing and render a new decision that the Division does have jurisdiction to determine whether the claimant’s compensable injury of [date of injury], extends to tendonitis of both hands.

We reverse the hearing officer’s determination that the claimant reached MMI on April 3, 2012, and that the claimant’s IR is 12% and remand the issues of MMI and IR to the hearing officer.

REMAND INSTRUCTIONS

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

The hearing officer is to advise the designated doctor that the compensable injury of [date of injury], includes bilateral CTS, bilateral trigger finger, and tendonitis of both hands. The hearing officer is to request the designated doctor to give an opinion on the claimant’s date of MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination.

The parties are to be provided with the designated doctor’s new MMI/IR certification and 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 ZENITH INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH SAINT PAUL STREET, SUITE 2900

DALLAS, TEXAS 75201-4234.

Margaret L. Turner
Appeals Judge

CONCUR:

Tracey T. Guerra
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on June 10, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [date of injury], does not extend to post-traumatic arthritis of the left knee; (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) does not have jurisdiction to again consider whether the compensable injury of [date of injury], extends to post-traumatic arthritis of the left knee; (3) the date of maximum medical improvement (MMI) is June 23, 2011; and (4) the appellant’s (claimant) impairment rating (IR) is 4%.

The claimant appealed all of the hearing officer’s determinations. The claimant contends in his appeal that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. The claimant also specifically contends that the hearing officer erred in basing his determination that the claimant reached MMI on June 23, 2011, with a 4% IR on [Dr. F] MMI/IR certification because the hearing officer previously decided in a Decision and Order dated December 1, 2011, that the claimant had not reached MMI. The respondent (carrier) responded, urging affirmance.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated at the CCH that the claimant sustained a compensable injury on [date of injury]. There was no stipulation by the parties as to what conditions comprise the compensable injury, although in evidence is a Request for Designated Doctor Examination (DWC-32) dated April 2, 2012, submitted by the carrier that states the injuries determined to be compensable by the Division or accepted as compensable by the carrier is a “left knee strain/sprain/contusion.” The claimant testified he was struck on the left knee and back by an unsecured steel concrete chute.

EXTENT OF INJURY AND JURISDICTION OVER THE EXTENT-OF-INJURY DETERMINATION

The hearing officer’s determinations that the compensable injury does not extend to post-traumatic arthritis of the left knee and that the Division does not have jurisdiction to again consider whether the compensable injury extends to post-traumatic arthritis of the left knee are supported by sufficient evidence and are affirmed.

MMI/IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.”  Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Division shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.  Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.

The hearing officer determined that the claimant reached MMI on June 23, 2011, with a 4% IR based on the certification of Dr. F, the post-designated doctor required medical examination doctor.

In a previous CCH held on November 29, 2011, the issues to be decided were MMI, IR, and disability. In a Decision and Order dated December 1, 2011, the hearing officer found in Finding of Fact No. 5 that “[o]n July 7, 2011 [the] [c]laimant’s treating doctor [Dr. B], MD, stated that [the] [c]laimant has not reached [MMI] because he is a surgical candidate.” The hearing officer determined that the claimant had not reached MMI and therefore IR could not yet be determined, and that the claimant had disability from June 23, 2011, to the date of the November 29, 2011, CCH resulting from the [date of injury], compensable injury. We note that there was no extent-of-injury dispute before the hearing officer at the November 29, 2011, CCH, and that the decision and order does not contain a stipulation from the parties regarding what conditions comprise the [date of injury], compensable injury. The carrier appealed the hearing officer’s determinations; however, the Appeals Panel did not issue a written decision after the response was filed with the Division; therefore, the hearing officer’s decision of December 1, 2011, constitutes the decision of the Appeals Panel. See 28 TEX. ADMIN. CODE § 143.5(b) (Rule 143.5(b)).

The claimant contended at the CCH and on appeal that the June 23, 2011, date of MMI cannot be adopted because the hearing officer previously determined in the decision dated December 1, 2011, referenced above that the claimant had not reached MMI. Under the facts of this case we agree. The issue of MMI was previously litigated on November 29, 2011, and a decision was rendered on December 1, 2011, that the claimant has not reached MMI. The hearing officer specifically found in Finding of Fact No. 5 in that decision that on July 7, 2011, Dr. B stated the claimant has not reached MMI because he is a surgical candidate, and as discussed above that finding of fact has become final. Any date prior to July 7, 2011, is included in the December 1, 2011, determination that the claimant had not reached MMI. Therefore, a date of MMI that is prior to July 7, 2011, cannot be adopted. Accordingly, we reverse the hearing officer’s determinations that the date of MMI is June 23, 2011, and that the claimant’s IR is 4%.

The record contains multiple MMI/IR certifications. The first is from [Dr. S], the designated doctor appointed by the Division to determine in part MMI and IR. Dr. S initially examined the claimant on March 29, 2011, and certified that the claimant had not reached MMI but was expected to do so on or about September 11, 2012. Dr. S next examined the claimant on June 23, 2011, and certified that the claimant reached MMI on June 23, 2011, with a 17% IR based on 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). However, this certification cannot be adopted for the same reason Dr. F’s MMI/IR certification could not be adopted; that is, Dr. S certified that the claimant reached MMI on a date prior to July 7, 2011.

Dr. S examined the claimant a third time on May 11, 2012, and certified that the claimant reached MMI on May 11, 2012, with a 30% IR. The hearing officer found the following in his decision:

Finding of Fact No. 4: [Dr. S’] determination of [the] [c]laimant’s [IR] was based upon a total knee replacement and the results of that surgery.

Finding of Fact No. 5: [The] [c]laimant underwent the total knee replacement for the treatment of osteoarthritis of the left knee.

Finding of Fact No. 6: In a Decision and Order dated March 23, 2012, the Division held that [the] [c]laimant’s osteoarthritis of the left knee was not part of the compensable injury.

Finding of Fact No. 7: The Decision and Order of March 23, 2012, was not appealed and that decision became final by operation of law.

The hearing officer’s Findings of Fact Nos. 4, 5, 6, and 7 are supported by sufficient evidence. Accordingly, Dr. S’ MMI/IR certification that the claimant reached MMI on May 5, 2012, with a 30% IR considers and rates a condition determined not to be a part of the compensable injury; that is, osteoarthritis of the left knee, and as such it cannot be adopted. See Appeals Panel Decision (APD) 110463, decided June 13, 2011; and APD 101567, decided December 20, 2010.

The final MMI/IR certification in evidence is from [Dr. M], a doctor selected by the treating doctor to act in place of the treating doctor. Dr. M examined the claimant on April 3, 2012, and certified that the claimant reached MMI on April 3, 2012, with a 20% IR. However, Dr. M explains in his narrative report that his 20% IR includes a 50% impairment for a “[t]otal knee replacement including unicondylar replacement, [f]air result, 50 to 84 points yielding a 50% impairment.” Dr. M’s MMI/IR certification considers and rates a condition determined not to be a part of the compensable injury and as such it cannot be adopted. APD 110463, supra; and APD 101567, supra.

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

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of [date of injury], does not extend to post-traumatic arthritis of the left knee.

We affirm the hearing officer’s determination that the Division does not have jurisdiction to again consider whether the compensable injury of [date of injury], extends to post-traumatic arthritis of the left knee.

We reverse the hearing officer’s determinations that the date of MMI is June 23, 2011, and that the claimant’s IR is 4%, and we remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

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

The hearing officer is to take stipulations from the parties as to what conditions comprise the [date of injury], compensable injury. If the parties are not willing to make stipulations regarding the extent of the compensable injury, the hearing officer is to make a determination on the extent of the [date of injury], compensable injury, considering the evidence, including the April 2, 2012, DWC-32 submitted by the carrier. The hearing officer is also to take a stipulation from the parties on the date of statutory MMI.

Once the hearing officer makes a determination of the extent of the [date of injury], compensable injury, the hearing officer is to advise the designated doctor what conditions are included in the [date of injury], compensable injury. The hearing officer is also to advise the designated doctor that the compensable injury does not extend to osteoarthritis or post-traumatic arthritis of the left knee as administratively determined. The hearing officer is further to advise the designated doctor the date of statutory MMI.

The hearing officer is to request the designated doctor to give an opinion on the claimant’s date of MMI and rate the entire compensable injury in accordance with the AMA Guides considering the medical record and the certifying examination. The date of MMI cannot be prior to July 7, 2011, or after the date of statutory MMI.

The parties are to be provided with the designated doctor’s new MMI/IR certification and are to be allowed an opportunity to respond.  The 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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 12, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the issues before him, the hearing officer determined that: (1) the appellant (claimant) reached maximum medical improvement (MMI) on November 10, 2011; (2) the claimant had disability from November 11 through December 11, 2011; and (3) “[i]f not timely appealed to the Appeals Panel, the decision and order on issues 1 [the date of MMI] and 2 [disability] signed by the hearing officer, dated July 28, 2012, and mailed to the claimant on August 16, 2012, became final.”

The claimant appealed the hearing officer’s determination of the MMI date, contending that the designated doctor’s report and opinion on MMI was flawed. The respondent (self-insured) responded that: the MMI date was correct; the claimant had not timely appealed a prior CCH decision of the hearing officer; and therefore the issues of MMI and disability became final.

DECISION

Reversed and rendered.

The evidence reflects that a prior CCH [Docket No.] was scheduled and held on July 12, 2012. It is undisputed the claimant did not attend the CCH. Because the claimant had not attended the CCH, the hearing officer wrote the claimant a “10-day letter” dated July 12, 2012, advising the claimant that she could contact the Texas Department of Insurance, Division of Workers’ Compensation (Division) field office within 10 days of the date of the letter to request that the matter be reconvened to permit her to present evidence on the disputed issues and to show good cause why the claimant had failed to attend the July 12, 2012, CCH. The letter also advised the claimant that if she failed to respond to the 10-day letter a decision would be written which would likely be adverse to the claimant.

There is evidence that in the days following July 12, 2012, there was a failure of communication between the claimant and her ombudsman. Not having heard from the claimant, the hearing officer closed the record on July 28, 2012, CCH, and wrote his decision on July 28, 2012, and sent the decision to the Division’s central office in Austin, Texas. The hearing officer’s decision from the July 12, 2012, CCH was sent to the claimant on August 16, 2012.

The issues at the July 12, 2012, CCH were: (1) the date of MMI; and (2) did the claimant have disability from November 11 through December 11, 2011, as a result of the injury sustained on [date of injury]. The hearing officer, in that CCH, determined that the claimant reached MMI on November 10, 2011, and that the claimant did not have disability beginning November 11 and continuing through December 11, 2011. That decision and order was never appealed and therefore, the hearing officer’s decision and order became final pursuant to Section 410.169.

The hearing officer did not have jurisdiction on the issues of MMI and disability from November 11 through December 11, 2011, at the September 12, 2012, CCH because those issues had previously been determined at the July 12, 2012, CCH and had not timely been appealed. Those determinations had become res judicata and the issues should not have been relitigated at the September 12, 2012, CCH. The hearing officer correctly found that the decision and order dated July 28, 2012, is final (as it was not timely appealed). The hearing officer was without jurisdiction to decide the issues of MMI and disability at the September 12, 2012, CCH as those issues were not timely appealed following receipt of the July 12, 2012, decision and order of the hearing officer.

We reverse the hearing officer’s determination that for the time frame from November 11 through December 11, 2011, the claimant had disability and that the claimant reached MMI on November 10, 2011, from the September 12, 2012, CCH because the hearing officer did not have jurisdiction of those issues at the September 12, 2012, CCH. We render a new decision by striking the disability and MMI determinations because the hearing officer did not have jurisdiction of those issues at the September 12, 2012, CCH.

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

[CORPORATION]

[ADDRESS]

[CITY, TEXAS ZIP].

Thomas A. Knapp
Appeals Judge

CONCUR:

Cynthia A. Brown
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 February 7, 2012, reconvened on April 3, 2012, June 13, 2012, with the record closing on August 21, 2012,^[1] in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) as a result of a prior decision and order, the Texas Department of Insurance, Division of Workers’ Compensation (Division) does not have jurisdiction to determine the date of maximum medical improvement (MMI); (2) as a result of a prior Division determination, the respondent/cross-appellant’s (claimant) date of MMI is May 7, 2003; (3) the claimant is entitled to supplemental income benefits (SIBs) for the 5th through 23rd quarters by virtue of appellant/cross-respondent’s (carrier) waiver; (4) the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters; (5) the claimant is not entitled to lifetime income benefits (LIBs); (6) the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104; (7) the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding; (8) the carrier is not entitled to reduce/suspend temporary income benefits (TIBs) to offset Social Security payments; and (9) the carrier is not entitled to reduce/suspend impairment income benefits (IIBs) to offset Social Security payments.

The carrier appealed, disputing the hearing officer’s determinations that the claimant is entitled to SIBs for the 5th through 23rd quarters by virtue of carrier waiver and that the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters. The claimant responded, urging affirmance.

The claimant cross-appealed, disputing the hearing officer’s determinations that the claimant is not entitled to LIBs; that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104; and that the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding. The carrier responded, urging affirmance of the determinations disputed by the claimant.

The hearing officer’s determinations that the carrier is not entitled to reduce/suspend TIBs to offset Social Security payments and that the carrier is not entitled to reduce/suspend IIBs to offset Social Security payments were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

It was undisputed that the claimant sustained a compensable injury. The claimant testified that he was injured on [date of injury], when he fell down a flight of stairs.

LIBs

The claimant contended that he is entitled to LIBs based on an aggravation of a personality disorder that resulted in an inability to obtain or retain employment. Section 408.161 specifies the criteria for which entitlement to LIBs can be established. The aggravation of a personality disorder is not one of the specified conditions for which LIBs is payable. The hearing officer’s determination that the claimant is not entitled to LIBs is supported by sufficient evidence and is affirmed.

EXTENSION OF STATUTORY MMI FOR SPINAL SURGERY

Section 408.104(a) provides in part, that on application by either the claimant or the carrier, the Commissioner may extend the 104-week period described by Section 401.011(30)(B) (date of statutory MMI) if the claimant had spinal surgery, or has been approved for spinal surgery under Section 408.026 and the Commissioner rules within 12 weeks before the expiration of the 104-week period. The parties stipulated that the date of statutory MMI is July 26, 2004. In evidence is a Request for Extension of [MMI] for Spinal Surgery (DWC-57), dated February 19, 2011, and date stamped as received by the Division on March 7, 2011. The DWC-57 requests an extension of statutory MMI based on a cervical spine surgery performed on February 2, 2005. The hearing officer’s determination that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104 is supported by sufficient evidence and is affirmed.

REIMBURSEMENT FOR MEDICAL EXPENSES

The hearing officer’s determination that the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding is supported by sufficient evidence and is affirmed.

JURISDICTION TO DECIDE MMI

The disputed issue before the hearing officer regarding jurisdiction to determine the date of MMI was as follows: “As a result of the decision and order of the [CCH] and affirmation by [the] Appeals Panel in [Appeals Panel Decision (APD)] 080435 [decided May 27, 2008], does the Division have jurisdiction to determine the date of [MMI]?” Although not discussed specifically in its appeal, the carrier appealed Conclusion of Law No. 4, which was “[t]he Division does not have jurisdiction to determine the date of [MMI].” The carrier appealed Conclusion of Law No. 5, which was “[t]he date of [MMI] is May 7, 2003.”

In evidence was a decision and order dated February 23, 2008, which determined in part that the claimant’s date of MMI is May 7, 2003, and the claimant’s impairment rating (IR) is 21%. Division records indicate that the hearing officer’s decision was allowed to become final. See Section 410.205. Because a prior determination of MMI had been made, the hearing officer in the instant case determined that the Division does not have jurisdiction to determine the date of MMI. The hearing officer additionally made a conclusion of law recognizing the prior determination that the claimant’s MMI date is May 7, 2003. The hearing officer’s determinations that the Division does not have jurisdiction to determine the date of MMI and recognizing the prior determination that the date of the claimant’s MMI is May 7, 2003, is supported by sufficient evidence and is affirmed.

SIBS AND CARRIER WAIVER

In evidence was a Decision and Order dated September 14, 2006, which determined that the claimant is not entitled to SIBs for the 2nd, 3rd, and 4th quarters. At that CCH, the parties stipulated that the claimant’s IR is 15% or more but did not stipulate to the MMI date. The parties did stipulate to the qualifying periods and quarter dates for the SIBs quarters at issue. Division records indicate that decision was appealed to the Appeals Panel and the hearing officer’s decision and order was allowed to become final. The claimant sought judicial review on the determination of non-entitlement to SIBs for the 2nd, 3rd, and 4th quarters. In evidence is an Order granting the carrier’s motion for no-evidence summary judgment on the determination of non-entitlement to SIBs for the 2nd, 3rd, and 4th quarters. The claimant requested a motion for new trial but it was denied. The evidence indicates that the qualifying periods and quarter dates for the first 4 quarters of SIBs were based on a certification of a different MMI date and a 15% IR. In evidence is a Benefit Dispute Agreement (DWC-24) that states the parties agree the Division does not have jurisdiction to re-determine entitlement to SIBs for the 1st, 2nd, 3rd, and 4th quarters.

In evidence was a Decision and Order dated February 23, 2008, in which the following issues were in dispute: (1) Did the IR and date of MMI assigned by [Dr. L] on October 1, 2005, become final under 28 TEX. ADMIN. CODE § 130.102(g) (Rule 130.102(g))?; (2) What is the date of MMI?; and (3) What is the claimant’s IR? In that decision, it was determined that the IR and MMI assigned by Dr. L on October 1, 2005, did not become final under Rule 130.102(g); that the claimant’s date of MMI is May 7, 2003; and that the claimant’s IR is 21%. Division records indicate that decision was appealed to the Appeals Panel and the hearing officer’s decision and order was allowed to become final.

At issue in the instant case, was the claimant’s entitlement to SIBs for the 5th through 23rd quarters and whether the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters. The parties stipulated that 401 weeks expired for this claim on March 29, 2010.

There is evidence that the claimant filed two sets of Applications for [SIBs] (DWC-52) for the 5th through 11th quarters. There is some evidence in the record that the claimant filed the first set of SIBs applications for the 5th through 11th quarters for qualifying periods and quarter dates based on the earlier certification of a different date of MMI with a 15% IR, and that the carrier disputed entitlement to SIBs for those quarters. These applications are dated prior to the subsequent CCH held in 2008, which determined that the claimant reached MMI on May 7, 2003, with a 21% IR. However, there is insufficient evidence to establish the date the carrier received those applications. Some of the SIBs applications for the 5th through 11th quarters filed, which were based on the earlier certification of MMI and IR, contain a stamp of a date received but the stamp is illegible and it is not clear that the date receipt stamp is that of the carrier. The hearing officer failed to discuss and make findings on these SIBs applications. However, the claimant failed to provide evidence to establish the date the carrier received these SIBs applications. The claimant had the burden of proof on this issue. See APD 031326, decided July 8, 2003.

The claimant’s second set of DWC-52s for the 5th through 11th quarters was based on the MMI date of May 7, 2003, with a 21% IR. As previously noted, in the decision and order decided February 23, 2008, it was determined that the claimant’s date of MMI is May 7, 2003, with a 21% IR. In evidence are SIBs applications dated April 14, 2010, for the 5th through 23rd quarters based on the certification of MMI of May 7, 2003, with a 21% IR. The claimant testified that he filed all of these applications at the same time after the resolution in district court of the 2nd, 3rd, and 4th quarters of SIBs. The claimant argued that the carrier waived its right to contest entitlement to these quarters because it failed to timely request a benefit review conference (BRC) for these SIBs applications. The carrier argued that the claimant failed to timely file his applications for the 5th through 23rd quarters.

The hearing officer based her determination that the carrier waived the right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters on the carrier’s failure to deny the SIBs applications for the 5th through 23rd quarters dated April 14, 2010. The hearing officer noted that there was no evidence in the record to indicate that the claimant mailed these applications in April of 2010. In evidence are two United States Postal Service (USPS) Delivery Confirmation Receipts, one dated April 22, 2010, and one with an illegible date. A certified mail receipt dated May 13, 2011, is also in evidence but there is no evidence of delivery. None of the receipts from the USPS in evidence indicate what documents were being delivered or to whom the documents were delivered. We note that the dates of these postal receipts would not relate to the earlier filing of the SIBs applications detailed above. The hearing officer found that the carrier received the claimant’s applications for SIBs for the 5th through 23rd quarters in the claimant’s BRC exchange in May of 2010.

Section 408.143 provides:

1. (a)After the [C]ommissioner’s initial determination of [SIBs], the employee must file a statement with the insurance carrier stating:

2. (2)that the employee has earned less than 80 [%] of the employee’s average weekly wage as a direct result of the employee’s impairment;

3. (3)the amount of wages the employee earned in the filing period provided by Subsection (b); and

4. (4)that the employee has complied with the requirements adopted under Section 408.1415.

5. (e)The statement required under this section must be filed quarterly on a form and in the manner provided by the commissioner. The commissioner may modify the filing period as appropriate to an individual case.

6. (f)Failure to file a statement under this section relieves the insurance carrier of liability for [SIBs] for the period during which a statement is not filed.

Rule 130.104(c) provides in part that except as otherwise provided in this section, a DWC-52 shall be filed no later than 7 days before, and no earlier than 20 days before, the beginning of the quarter for which the injured employee is applying for SIBs.

Rule 130.105(a) provides in part that: An injured employee who does not timely file a DWC-52 with the insurance carrier shall not receive SIBs for the period of time between the beginning date of the quarter and the date on which the form was received by the insurance carrier, unless the following apply:

(3)a finding of an [IR] of 15% or greater in an administrative or judicial proceeding when the previous [IR] was less than 15%.

The hearing officer states in her decision that: “Subsection (3) [of Rule 130.105] is an exception to the general rule that would normally apply when a person fails to timely file a [DWC-52]. Because [the] [c]laimant’s case falls within one of the exceptions, the consequences for failing to timely file do not apply to this case. [The] [c]laimant’s [DWC-52s] were timely.”

However, as previously noted a CCH was held in 2006, to determine the claimant’s entitlement to SIBs for the 2nd, 3rd, and 4th quarters. During that CCH the parties stipulated that the claimant’s IR is 15% or greater. There was no evidence that the “previous IR was less than 15%.” See Old Republic Insurance Company v. Rodriguez, 2004 Tex. App. LEXIS 3785 (Tex. App.-El Paso, April 29, 2004). Subsection (3) is not an exception that applies to the facts of this case and the hearing officer erred in its application to the facts of this case.

The parties stipulated that 401 weeks expired on March 29, 2010. Section 408.083 provides that an employee’s eligibility for TIBs, IIBs, and SIBs terminates on the expiration of 401 weeks after the date of injury.

The hearing officer specifically found that the carrier received the claimant’s DWC-52s for the 5th through 23rd quarters in the claimant’s BRC exchange in May of 2010. In evidence is a SIBs calculation sheet, which reflects that the dates of the SIBs quarters are based on the 21% IR with the May 7, 2003, MMI date. The SIBs calculation sheet identifies the 23rd quarter period as beginning January 14, 2010, and ending on April 14, 2010. Any day in May of 2010 would be later than 7 days before the beginning of the quarter for which the claimant was applying for SIBs. Accordingly, the claimant would not have timely filed DWC-52s for any of the quarters at issue.

For the reasons discussed above, we reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters and render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters.

The hearing officer’s findings that the claimant is not entitled to SIBs on the merits for the 5th through 23rd quarters are supported by sufficient evidence. The hearing officer’s determination that the claimant is entitled to SIBs for the 5th through 23rd quarters was premised on her determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the disputed quarters. Given that we have reversed the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the disputed quarters, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 5th through 23rd quarters and render a new decision that the claimant is not entitled to SIBs for the 5th through 23rd quarters.

SUMMARY

We affirm the hearing officer’s determination that as a result of a prior decision and order, the Division does not have jurisdiction to determine the date of MMI.

We affirm the hearing officer’s determination that as a result of a prior Division determination, the claimant’s date of MMI is May 7, 2003.

We affirm the hearing officer’s determination that the claimant is not entitled to LIBs.

We affirm the hearing officer’s determination that the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104.

We affirm the hearing officer’s determination that the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding.

We reverse the hearing officer’s determination that the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters and render a new decision that the carrier did not waive its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters.

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 5th through 23rd quarters by virtue of carrier waiver and render a new decision that the claimant is not entitled to SIBs for the 5th through 23rd quarters.

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 SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

1. The dates of May 4, 2012, and June 20, 2012, referenced as dates the CCH was reconvened in the hearing officer’s decision and order are incorrect.

   ↑

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 8, 2010, with the record closing on December 17, 2010.

The issues before the hearing officer were:

1. 1.As a result of the decision and order of the CCH in (prior CCH), does the Texas Department of Insurance, Division of Workers’ Compensation (Division) have jurisdiction to determine compensability of the conditions claimed in the extent-of-injury (EOI) issue below?

2. 2.Has respondent 1/cross-appellant (claimant) reached maximum medical improvement (MMI), and if so, on what date?

3. 3.If the claimant has reached MMI, what is the impairment rating (IR)?

4. 4.Did the claimant have disability from January 13, 2009, through December 8, 2010, resulting from an injury of _____________?

5. 5.Does the compensable injury of _____________, extend to and include:

   RIGHT KNEE: sprain/strain (RK#1); joint effusion with soft tissue swelling around the knee (RK#2); prominent bone bruising involving the proximal tibia (RK#3); posterior cruciate ligament tear/complete disruption of the anterior and posterior cruciate ligaments (RK#4); large tear of the lateral meniscus with displacement of meniscal fragment into intercondylar space (RK#5); end stage arthritis/degenerative arthritis/osteoarthritis (RK#6); severe crepitus (RK#7); edema in the prepatellar subcutaneous tissue (RK#8); internal derangement (RK#9); osteochondral defect of the medial femoral condyle and patella (RK#10); osteophytes superior aspect of patella (RK#11); tricompartmental osteophyte formation (RK#12); narrowing of the lateral joint space (RK#13); narrowing of the articular cartilage with spurring at the articular margins (RK#14); severe degenerative joint disease (RK#15); degenerative changes at the tibial-fibular joint with bony eburnation and sclerosis (RK#16); degenerative changes of the lateral femoral compartment (RK#17); subchondral erosions throughout the distal lateral femoral condyle and lateral tibial plateau suggestive of Grade IV chondromalacia as well as probable Grade IV chondromalacia of the patella femoral compartment (RK#18); subchondral sclerosis and subtle erosive changes involving the medial femoral compartment (RK#19); prominent subchondral erosive changes underneath the central and posterior tibial spine (RK#20); and a tiny 1-2 millimeter (mm) free bone fragment adjacent to the fulcrum of the patella resulting in a total knee replacement (RK#21);

   LEFT SHOULDER: strain (LS#1); tendinopathy (LS#2); partial tear of the rotator cuff at the level of the supraspinatus tendon (LS#3); rotator cuff syndrome (LS#4); osteoarthritis (LS#5); full thickness tear of the distal fibers of the anterior supraspinatus rotator cuff measuring 8 mm x 8 mm (LS#6); acromioclavicular joint arthrosis (LS#7); abnormal AC joint with inferior spurring causing impingement on the rotator cuff at the level of the supraspinatus tendon (LS#8); subacromial/subdeltiod bursal effusion (LS#9); mild osteoarthritic changes (LS#10); bicep tendon longitudinal split tear resulting in a rotator cuff repair with a Biomet Metal Anchor & acromioplasty (LS#11); and distal clavicle resection (LS#12);

   BILATERAL HIPS: right hip contusion (BH#1); and osteoarthritis of bilateral hips (BH#2);

   LUMBAR SPINE: sprain/strain (L-Sp#1); multiple bone fragments at L3-4 facet and foramen (L-Sp#2); bilateral facet sclerosis and hypertrophy at L3-S1 (L-Sp#3); and huge osteophytes at L2-4 (L-Sp#4);

   CERVICAL SPINE: sprain/strain (CS#1); degenerative disc disease (CS#2); osteoarthritis (CS#3); radiculitis (CS#4); severe spondylosis at C5-7 with narrowing of the disc space (CS#5); osteophyte formation (CS#6); loss of vertebral disc height (CS#7); C2-3 mild annular bulge (CS#8); C3-4 and C4-5 central 3 mm annular protrusion causing slight impingement of the cord with C4-5 slightly milder in severity (CS#9); C5-6 right paracentral 4 mm annular protrusion causing slight cord impingement and mild left foraminal stenosis (CS#10); C6-7 right paracentral 5 mm disc herniation with uncinate osteophytes that cause mild cord impingement and right sided foraminal stenosis (CS#11); mild but definite T2 hyperintensity in spinal cord at lower C6 level that likely represents mild myelomalacia as a result of cord impingement (CS#12); and C7-T1 mild central annular protrusion that causes slight indentation of spinal cord (CS#13);

   THORACIC SPINE: injury to the thoracic spine (TS#1);

   LEFT ARM: carpal tunnel syndrome (CTS) (LA#1); distal ulnar entrapment (LA#2); and radial sensory neuropathy (LA#3)?

The hearing officer determined that the Division does not have jurisdiction to determine the EOI conditions in dispute with the exception of some lumbar spine conditions (L-Sp#2-4) and the left arm conditions (LA#1-3); and alternatively, if the Division does have jurisdiction of all the claimed EOI conditions in dispute, none of the following EOI conditions are part of the compensable injury of _____________ (RK#1-21; LS#1-12; BH#1-2; L-Sp#1-4; CS#1-13; TS#1; and LA#1-3). Further, the hearing officer determined that the claimant reached MMI on June 22, 2009, with a one percent IR and that the claimant had disability from January 13, 2009, through December 8, 2010.

Appellant/cross-respondent (self-insured) appealed the hearing officer’s IR determination, contending that the IR adopted included non-compensable body parts and arguing that the hearing officer erred in failing to admit Self-Insured Exhibits P and Q. The claimant filed a response to the self-insured’s appeal within his cross-appeal.

The claimant cross-appealed the hearing officer’s determinations on jurisdiction, EOI, MMI, IR, and the dates of disability. The self-insured responded, urging affirmance of the hearing officer’s determinations cross-appealed by the claimant.

The appeal file does not contain a response from respondent 2 (subclaimant) to the self-insured’s appeal or to the claimant’s cross-appeal.

DECISION

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

FACTUAL BACKGROUND

The claimant testified that on _____________, he slipped and fell on his right knee and left shoulder at work, injuring his right knee, low and mid back, neck, left arm, hip, and left shoulder.

It is undisputed that the first designated doctor appointed by the Division to determine MMI/IR and the claimant’s ability to return to work was (Dr. M), who examined the claimant on November 18, 2008; the second designated doctor appointed to determine MMI/IR was (Dr. H), who examined the claimant on June 22, 2009; and the third designated doctor appointed to determine EOI was (Dr. L), who examined the claimant on September 18, 2009.

EVIDENTIARY RULING

After the CCH, but prior to the closing of the record, the self-insured offered into evidence Self-Insured’s Exhibit P, a report dated December 11, 2010, from (Dr. Bk), peer review doctor, and Exhibit Q, documents regarding a former attorney of the claimant and dispute resolution and letter of clarification (LOC). The claimant objected to the admission of Self-Insured’s Exhibits P and Q into evidence and the hearing officer did not admit the exhibits into evidence.

To obtain reversal of a decision based upon error in the admission or exclusion of evidence, it must be shown that the evidentiary ruling was in fact error, and that the error was reasonably calculated to cause, and probably did cause the rendition of an improper decision.  See Appeals Panel Decision (APD) 051705, decided September 1, 2005.  Even if the exclusion of these documents could be considered error under the facts of this case, any error was harmless, because the hearing officer did not render a decision based on these documents, and it does not amount to reversible error.

DISABILITY

The hearing officer’s determination that the claimant had disability from January 13, 2009, through December 8, 2010, is supported by sufficient evidence and is affirmed.

RES JUDICATA

The doctrine of res judicata “prevents the re-litigation of a claim or cause of action that has been finally adjudicated as well as related matters that, with the use of due diligence, should have been litigated in the prior suit.” Barr v. Resolution Trust Corporation, ex rel. Sunbelt Federal Savings, 837 S.W.2d 627, 628 (Tex. 1992). See also City of Seabrook v. Port of Houston Auth., 199 S.W.3d 403, 404 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d) and APD 061381-s, decided August 16, 2006.

Pursuant to Section 410.002 and Rule 140.1 the Hearings Division is given the authority to resolve benefit disputes, which are defined as a dispute regarding compensability or eligibility for, or the amount of, income or death benefits.  Section 401.011(5) defines “[b]enefit” to mean a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury. The issue before the hearing officer in the instant case that was in fact litigated is: Does the doctrine of res judicata preclude the Division from determining the compensability of the conditions claimed in the EOI issue below based on the decision and order of the prior CCH?

The decision and order of the prior CCH was in evidence and states that the compensable injury of _____________, includes the following four conditions:

RIGHT KNEE: joint effusion with soft tissue swelling around the right knee (RK#2); prominent bone bruising involving the proximal tibia of the right knee (RK#3); and complete disruption of the posterior cruciate ligament of the right knee (a portion of RK#4); and

BILATERAL HIP: right hip contusion (BH#1);

but the compensable injury of _____________, does not include the following:

RIGHT KNEE:  complete disruption of the anterior cruciate ligament/anterior cruciate ligament tear (a portion of RK#4); large tear of the lateral meniscus with displacement of meniscal fragment into the intercondylar space of the right knee (RK#5); advanced osteoarthritis (RK#6); or

LEFT SHOULDER: tendinopathy (LS#2); partial tear of the left shoulder rotator cuff at the level of the supraspinatus tendon (LS#3); rotator cuff syndrome (LS#4); or osteoarthritis (LS#5); or

LUMBAR SPINE: sprain/strain (L-Sp#1); or

CERVICAL SPINE:  degenerative disc disease (CS#2); cervical osteoarthritis (CS#3); or

THORACIC SPINE: injury to the thoracic spine (TS#1).

The decision and order of the prior CCH, signed on January 27, 2009, was appealed by the claimant; however, it became final pursuant to Section 410.204(c) on April 23, 2009. The parties represented at the CCH that there was no subsequent lawsuit filed in district court regarding the EOI issue in dispute at that prior CCH.

EOI-Res Judicata

Because the hearing officer made a determination on disputed EOI conditions (RK#2-6; LS#2-5; BH#1; L-Sp#1; CS#2-3; and TS#1) at the prior CCH, that portion of the hearing officer’s determination in effect based on the doctrine of res judicata the Division is precluded from determining the compensability of the following conditions (RK#2-6; LS#2-5; BH#1; L-Sp#1; CS#2-3; and TS#1), which were previously litigated at the prior CCH, is supported by sufficient evidence and is affirmed. We note any EOI determination by the hearing officer in Conclusion of Law No. 5 and decision as to these specific conditions is resolved by the determination on res judicata as set out above.

EOI-Not Res Judicata

However, the hearing officer erred in determining other claimed EOI conditions in dispute were litigated at the prior CCH. The evidence reflects that the EOI conditions listed below were not litigated or subsumed in the EOI issue at the prior CCH. Therefore, that portion of the hearing officer’s determination that based on the doctrine of res judicata the Division is precluded from determining the compensability of the following conditions (RK#1; RK#7-21; LS#1; LS#6-12; BH#2; CS#1; and CS#4-13) is reversed and a new decision is rendered that based on the doctrine of res judicata the Division is not precluded from determining the compensability of the following conditions:

RIGHT KNEE: sprain/strain (RK#1); and severe crepitus (RK#7); edema in the prepatellar subcutaneous tissue (RK#8); internal derangement (RK#9); osteochondral defect of the medial femoral condyle and patella (RK#10); osteophytes superior aspect of patella (RK#11); tricompartmental osteophyte formation (RK#12); narrowing of the lateral joint space (RK#13); narrowing of the articular cartilage with spurring at the articular margins (RK#14); severe degenerative joint disease (RK#15); degenerative changes at the tibial-fibular joint with bony eburnation and sclerosis (RK#16); degenerative changes of the lateral femoral compartment (RK#17); subchondral erosions throughout the distal lateral femoral condyle and lateral tibial plateau suggestive of Grade IV chondromalacia as well as probable Grade IV chondromalacia of the patella femoral compartment (RK#18); subchondral sclerosis and subtle erosive changes involving the medial femoral compartment (RK#19); prominent subchondral erosive changes underneath the central and posterior tibial spine (RK#20); and a tiny 1-2 mm free bone fragment adjacent to the fulcrum of the patella resulting in a total knee replacement (RK#21);

LEFT SHOULDER: strain (LS#1); full thickness tear of the distal fibers of the anterior supraspinatus rotator cuff measuring 8 mm x 8 mm (LS#6); acromioclavicular joint arthrosis (LS#7); abnormal AC joint with inferior spurring causing impingement on the rotator cuff at the level of the supraspinatus tendon (LS#8); subacromial/subdeltiod bursal effusion (LS#9); mild osteoarthritic changes (LS#10); bicep tendon longitudinal split tear resulting in a rotator cuff repair with a Biomet Metal Anchor & acromioplasty (LS#11); and distal clavicle resection (LS#12);

BILATERAL HIPS: osteoarthritis of bilateral hips (BH#2);

CERVICAL SPINE: sprain/strain (CS#1); radiculitis (CS#4); severe spondylosis at C5-7 with narrowing of the disc space (CS#5); osteophyte formation (CS#6); loss of vertebral disc height (CS#7); C2-3 mild annular bulge (CS#8); C3-4 and C4-5 central 3 mm annular protrusion causing slight impingement of the cord with C4-5 slightly milder in severity (CS#9); C5-6 right paracentral 4 mm annular protrusion causing slight cord impingement and mild left foraminal stenosis (CS#10); C6-7 right paracentral 5 mm disc herniation with uncinate osteophytes that cause mild cord impingement and right sided foraminal stenosis (CS#11); mild but definite T2 hyperintensity in spinal cord at lower C6 level that likely represents mild myelomalacia as a result of cord impingement (CS#12); and C7-T1 mild central annular protrusion that causes slight indentation of spinal cord (CS#13).

EOI

Not EOI

That portion of the hearing officer’s determination that the compensable injury of _____________, does not extend to the following conditions (RK#8-21; LS#6-12; BH#2; L-Sp#2-4; CS#4-13; and LA#1-3) is supported by sufficient evidence and is affirmed.

EOI-Great Weight

Section 408.0041(a) provides in pertinent part that at the request of an insurance carrier or an employee, or on the commissioner’s own order, the commissioner may order a medical examination to resolve any question about the extent of the employee’s compensable injury. 28 TEX. ADMIN. CODE § 126.7(c) (Rule 126.7(c))^[1] provides in pertinent part that a designated doctor examination shall be used to resolve questions about the extent of the employee’s compensable injury. Rule 126.7(d) provides that the report of the designated doctor is given presumptive weight regarding the issue(s) in question and/or dispute, unless the preponderance of the evidence is to the contrary.The Appeals Panel has previously held that proof of causation must be established to a reasonable medical probability by expert medical evidence where the subject is so complex that a fact finder lacks the ability from common knowledge to find a causal connection. APD 022301, decided October 23, 2002.  See also Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007).  Also, the court held that “an exception to the general rule whereby causation findings linking events and physical conditions could, under certain circumstances, be sufficiently supported by non-expert evidence.” See Guevara, at 666.

The medical records reflect that the claimant was initially treated at the (Healthcare Provider) on _____________, the date of injury. The medical record dated that same day reflects that the claimant had complaints of pain to his neck and left shoulder and there was a diagnosis of acute neck pain. The claimant was subsequently seen on August 28, 2008, by (Dr. C) who diagnosed knee pain and shoulder pain, and who related the claimant’s problems to work activities. On August 29, 2008, the claimant was examined by (Dr. W), who initially was the claimant’s treating doctor. The report of that first visit reflects initial diagnoses including cervical sprain and strain. Dr. W prescribed physical therapy for the left shoulder, right knee, and cervical area.

In evidence is a carrier-selected peer review report by (Dr. B) performed in October of 2008, in which Dr. B opined that based on the mechanism of injury and documentation reviewed, the compensable injury would include contusion to the left shoulder, cervical sprain/strain, right knee sprain/strain, and right thigh contusion. Dr. B examined the claimant on November 2, 2009, for a required medical examination (RME) and in his report stated that the self-insured accepted a cervical sprain/strain, left shoulder strain, right hip contusion, and right knee sprain/strain as compensable and noted the claimant had complaints of pain in his neck, shoulder, hip, arm, and right knee.

Consistent with Dr. B’s peer review and RME reports, dated October 2008, and November 2, 2009, respectively, is a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) dated October 24, 2008, which is in evidence and states “[self-insured] accepts cervical sprain/strain, left shoulder strain, right hip contusion, and a right knee sprain/strain as the only compensable injuries that occurred on [_____________].” A subsequent PLN-11 dated February 17, 2009, reflects that the self-insured does not waive any foregoing disputes but cites the hearing officer’s EOI determination at the prior CCH, contending that the injury does not extend to or include any other body parts, diagnoses or conditions not addressed on this PLN-11.

As previously discussed, Dr. M was initially appointed by the Division to determine MMI/IR as well as the claimant’s ability to return to work and he additionally opined that the compensable injury included a left shoulder strain and cervical strain. Subsequently, the Division appointed Dr. L as a designated doctor to address EOI. Dr. L examined the claimant on September 18, 2009, and opined that the compensable injury of _____________, extends to “1) [r]ight knee posterior cruciate ligament and lateral meniscus tear s/p repair with severe crepitus 2) [r]ight hip contusion 3) [l]umbar strain 4) [l]eft shoulder strain.” The decision and order at the prior CCH determined EOI as to right knee posterior cruciate ligament and lateral meniscus tear s/p repair, right hip contusion, lumbar strain but not as to right knee severe crepitus and left shoulder strain.

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

The medical reports in evidence for the claimant’s compensable injury indicate that the claimant was initially diagnosed with RK#1; RK#7; LS#1; and CS#1. Dr. B, the carrier-selected peer review and RME doctor, opined in his report dated October 11, 2008, showing that RK#1; LS#1; and CS#1 were part of the compensable injury. Dr. L, the designated doctor appointed to determine EOI, opined that the compensable injury included right knee severe crepitus and a left shoulder strain. The preponderance of the evidence establishes that the compensable injury extends to RK#1; RK#7; LS#1; and CS#1. See Guevara, supra, at 666.

Accordingly, we reverse the hearing officer’s determination that the compensable injury of _____________, does not extend to the following conditions (RK#1; RK#7; LS#1; and CS#1) and render a new decision that the compensable injury of _____________, extends to a right knee sprain/strain (RK#1); right knee severe crepitus (RK#7); left shoulder strain (LS#1); and cervical sprain/strain (CS#1).

MMI AND IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.”  Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the 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.

As previously discussed, Dr. H was appointed by the Division to determine MMI and IR. Dr. H examined the claimant on June 22, 2009. Dr. H certified a date of MMI^[2] and assigned an IR based on the work injury to include the claimant’s right knee and hip but did not consider any injury to the cervical spine or left shoulder. Given that we have reversed the hearing officer’s determination that the compensable injury of _____________, did not extend to a right knee sprain/strain (RK#1); right knee severe crepitus (RK#7); cervical sprain/strain (CS#1); and left shoulder strain (LS#1) and rendered a new decision that the compensable injury of _____________, does extend to a right knee sprain/strain (RK#1); right knee severe crepitus (RK#7); cervical sprain/strain (CS#1); and left shoulder strain (LS#1), we hold that Dr. H, the designated doctor, did not certify a MMI date or assign an IR as to the claimant’s entire compensable injury considering the medical record and the certifying examination. There are no other certifications of MMI/IR in evidence that can be adopted. Accordingly, we reverse the hearing officer’s determination that the claimant reached MMI on June 22, 2009, with a one percent IR.^[3] We remand the MMI and IR issues to the hearing officer.

REMAND INSTRUCTIONS

On remand the hearing officer should allow the parties an opportunity to stipulate to the date of statutory MMI.  If the parties are unable to stipulate, the hearing officer should take additional evidence to determine the date of statutory MMI in order to inform the designated doctor of the date of statutory MMI.

Dr. H is the most recent appointed designated doctor to determine MMI and IR. See APD 101676-s, decided January 14, 2011. On remand the hearing officer is to determine if Dr. H is still qualified and available to serve as the designated doctor and if so, the hearing officer is to advise the designated doctor that it has been administratively determined that the compensable injury:

As to the RIGHT KNEE:

1. (1)Includes RIGHT KNEE: sprain/strain (RK#1); joint effusion with soft tissue swelling around the knee (RK#2); prominent bone bruising involving the proximal tibia (RK#3); and right knee posterior cruciate ligament tear/complete disruption of the posterior cruciate ligament of the right knee (a portion of RK#4); severe crepitus (RK#7); but

2. (2)Does not include RIGHT KNEE:complete disruption of the anterior cruciate ligament/anterior cruciate ligament tear (portion of RK#4); large tear of the lateral meniscus with displacement of meniscal fragment into intercondylar space (RK#5); end stage arthritis/degenerative arthritis/osteoarthritis (RK#6); edema in the prepatellar subcutaneous tissue (RK#8); internal derangement (RK#9); osteochondral defect of the medial femoral condyle and patella (RK#10); osteophytes superior aspect of patella (RK#11); tricompartmental osteophyte formation (RK#12); narrowing of the lateral joint space (RK#13); narrowing of the articular cartilage with spurring at the articular margins (RK#14); severe degenerative joint disease (RK#15); degenerative changes at the tibial-fibular joint with bony eburnation and sclerosis (RK#16); degenerative changes of the lateral femoral compartment (RK#17); subchondral erosions throughout the distal lateral femoral condyle and lateral tibial plateau suggestive of Grade IV chondromalacia as well as probable Grade IV chondromalacia of the patella femoral compartment (RK#18); subchondral sclerosis and subtle erosive changes involving the medial femoral compartment (RK#19); prominent subchondral erosive changes underneath the central and posterior tibial spine (RK#20); or a tiny 1-2 mm free bone fragment adjacent to the fulcrum of the patella resulting in a total knee replacement (RK#21);

As to the LEFT SHOULDER:

1. (1)Includes LEFT SHOULDER: strain (LS#1); but

2. (2)Does not include LEFT SHOULDER: tendinopathy (LS#2); partial tear of the rotator cuff at the level of the supraspinatus tendon (LS#3); rotator cuff syndrome (LS#4); osteoarthritis (LS#5); full thickness tear of the distal fibers of the anterior supraspinatus rotator cuff measuring 8 mm x 8 mm (LS#6); acromioclavicular joint arthrosis (LS#7); abnormal AC joint with inferior spurring causing impingement on the rotator cuff at the level of the supraspinatus tendon (LS#8); subacromial/subdeltiod bursal effusion (LS#9); mild osteoarthritic changes (LS#10); bicep tendon longitudinal split tear resulting in a rotator cuff repair with a Biomet Metal Anchor & acromioplasty (LS#11); or a distal clavicle resection (LS#12);

As to the BILATERAL HIPS:

1. (1)Includes a right hip contusion (BH#1); but

2. (2)Does not include osteoarthritis of bilateral hips (BH#2);

As to the LUMBAR SPINE:

1. (1)Does not include a lumbar sprain/strain (L-Sp#1); multiple bone fragments at L3-4 facet and foramen (L-Sp#2); bilateral facet sclerosis and hypertrophy at L3-S1 (L-Sp#3); or huge osteophytes at L2-4 (L-Sp#4);

As to the CERVICAL SPINE:

1. (1)Includes a cervical sprain/strain (CS#1); but

2. (2) Does not include degenerative disc disease (CS#2); osteoarthritis (CS#3); radiculitis (CS#4); severe spondylosis at C5-7 with narrowing of the disc space (CS#5); osteophyte formation (CS#6); loss of vertebral disc height (CS#7); C2-3 mild annular bulge (CS#8); C3-4 and C4-5 central 3 mm annular protrusion causing slight impingement of the cord with C4-5 slightly milder in severity (CS#9); C5-6 right paracentral 4 mm annular protrusion causing slight cord impingement and mild left foraminal stenosis (CS#10); C6-7 right paracentral 5 mm disc herniation with uncinate osteophytes that cause mild cord impingement and right sided foraminal stenosis (CS#11); mild but definite T2 hyperintensity in spinal cord at lower C6 level that likely represents mild myelomalacia as a result of cord impingement (CS#12); and C7-T1 mild central annular protrusion that causes slight indentation of spinal cord (CS#13);

As to the THORACIC SPINE:

1. (1)Does not include an injury to the thoracic spine (TS#1);

As to the LEFT ARM:

(1) Does not include CTS (LA#1); distal ulnar entrapment (LA#2); or radial sensory neuropathy (LA#3).

The designated doctor is then to be requested to give an opinion on MMI (which cannot be after the statutory MMI date) and IR of the entire compensable injury. If Dr. H is no longer qualified or available to serve as the designated doctor, another designated doctor is to be appointed pursuant to Rule 126.7(h) to determine MMI and IR for the compensable injury. The parties are to be provided with the hearing officer’s letter to the designated doctor, the designated doctor’s response and are to be allowed an opportunity to present evidence and respond.

SUMMARY

We affirm the hearing officer’s determination that the claimant had disability from January 13, 2009, through December 8, 2010.

We affirm that portion of the hearing officer’s determination that based on the doctrine of res judicata the Division is precluded from determining the compensability of the following conditions:

right knee joint effusion with soft tissue swelling around the knee (RK#2); right knee prominent bone bruising involving the proximal tibia (RK#3); right knee posterior cruciate ligament tear/complete disruption of the anterior and posterior cruciate ligaments (RK#4); right knee large tear of the lateral meniscus with displacement of meniscal fragment into intercondylar space (RK#5); right knee end stage arthritis/degenerative arthritis/osteoarthritis (RK#6); left shoulder tendinopathy (LS#2); left shoulder partial tear of the rotator cuff at the level of the supraspinatus tendon (LS#3); left shoulder rotator cuff syndrome (LS#4); left shoulder osteoarthritis (LS#5); right hip contusion (BH#1); lumbar sprain/strain (L-Sp#1); degenerative disc disease (CS#2); osteoarthritis (CS#3); and injury to the thoracic spine (TS#1).

We reverse that portion of the hearing officer’s determination that based on the doctrine of res judicata the Division is precluded from determining the compensability of the following conditions (RK#1; RK#7-21; LS#1; LS#6-12; BH#2; CS#1; and CS#4-13) and we render a new decision that based on the doctrine of res judicata the Division is not precluded from determining the compensability of the following conditions:

RIGHT KNEE: sprain/strain (RK#1); severe crepitus (RK#7); edema in the prepatellar subcutaneous tissue (RK#8); internal derangement (RK#9); osteochondral defect of the medial femoral condyle and patella (RK#10); osteophytes superior aspect of patella (RK#11); tricompartmental osteophyte formation (RK#12); narrowing of the lateral joint space (RK#13); narrowing of the articular cartilage with spurring at the articular margins (RK#14); severe degenerative joint disease (RK#15); degenerative changes at the tibial-fibular joint with bony eburnation and sclerosis (RK#16); degenerative changes of the lateral femoral compartment (RK#17); subchondral erosions throughout the distal lateral femoral condyle and lateral tibial plateau suggestive of Grade IV chondromalacia as well as probable Grade IV chondromalacia of the patella femoral compartment (RK#18); subchondral sclerosis and subtle erosive changes involving the medial femoral compartment (RK#19); prominent subchondral erosive changes underneath the central and posterior tibial spine (RK#20); and a tiny 1-2 mm free bone fragment adjacent to the fulcrum of the patella resulting in a total knee replacement (RK#21);

LEFT SHOULDER: strain (LS#1); full thickness tear of the distal fibers of the anterior supraspinatus rotator cuff measuring 8 mm x 8 mm (LS#6); acromioclavicular joint arthrosis (LS#7); abnormal AC joint with inferior spurring causing impingement on the rotator cuff at the level of the supraspinatus tendon (LS#8); subacromial/subdeltiod bursal effusion (LS#9); mild osteoarthritic changes (LS#10); bicep tendon longitudinal split tear resulting in a rotator cuff repair with a Biomet Metal Anchor & acromioplasty (LS#11); and distal clavicle resection (LS#12);

BILATERAL HIPS: osteoarthritis of bilateral hips (BH#2);

CERVICAL SPINE: sprain/strain (CS#1); radiculitis (CS#4); severe spondylosis at C5-7 with narrowing of the disc space (CS#5); osteophyte formation (CS#6); loss of vertebral disc height (CS#7); C2-3 mild annular bulge (CS#8); C3-4 and C4-5 central 3 mm annular protrusion causing slight impingement of the cord with C4-5 slightly milder in severity (CS#9); C5-6 right paracentral 4 mm annular protrusion causing slight cord impingement and mild left foraminal stenosis (CS#10); C6-7 right paracentral 5 mm disc herniation with uncinate osteophytes that cause mild cord impingement and right sided foraminal stenosis (CS#11); mild but definite T2 hyperintensity in spinal cord at lower C6 level that likely represents mild myelomalacia as a result of cord impingement (CS#12); and C7-T1 mild central annular protrusion that causes slight indentation of spinal cord (CS#13).

We affirm that portion of the hearing officer’s determination that the compensable injury of _____________, does not extend to the following conditions:

RIGHT KNEE: edema in the prepatellar subcutaneous tissue (RK#8); internal derangement (RK#9); osteochondral defect of the medial femoral condyle and patella (RK#10); osteophytes superior aspect of patella (RK#11); tricompartmental osteophyte formation (RK#12); narrowing of the lateral joint space (RK#13); narrowing of the articular cartilage with spurring at the articular margins (RK#14); severe degenerative joint disease (RK#15); degenerative changes at the tibial-fibular joint with bony eburnation and sclerosis (RK#16); degenerative changes of the lateral femoral compartment (RK#17); subchondral erosions throughout the distal lateral femoral condyle and lateral tibial plateau suggestive of Grade IV chondromalacia as well as probable Grade IV chondromalacia of the patella femoral compartment (RK#18); subchondral sclerosis and subtle erosive changes involving the medial femoral compartment (RK#19); prominent subchondral erosive changes underneath the central and posterior tibial spine (RK#20); and a tiny 1-2 mm free bone fragment adjacent to the fulcrum of the patella resulting in a total knee replacement (RK#21);

LEFT SHOULDER: full thickness tear of the distal fibers of the anterior supraspinatus rotator cuff measuring 8 mm x 8 mm (LS#6); acromioclavicular joint arthrosis (LS#7); abnormal AC joint with inferior spurring causing impingement on the rotator cuff at the level of the supraspinatus tendon (LS#8); subacromial/subdeltiod bursal effusion (LS#9); mild osteoarthritic changes (LS#10); bicep tendon longitudinal split tear resulting in a rotator cuff repair with a Biomet Metal Anchor & acromioplasty (LS#11); and distal clavicle resection (LS#12);

BILATERAL HIPS: osteoarthritis of bilateral hips (BH#2);

LUMBAR SPINE: multiple bone fragments at L3-4 facet and foramen (L-Sp#2); bilateral facet sclerosis and hypertrophy at L3-S1 (L-Sp#3); and huge osteophytes at L2-4 (L-Sp#4);

CERVICAL SPINE: radiculitis (CS#4); severe spondylosis at C5-7 with narrowing of the disc space (CS#5); osteophyte formation (CS#6); loss of vertebral disc height (CS#7); C2-3 mild annular bulge (CS#8); C3-4 and C4-5 central 3 mm annular protrusion causing slight impingement of the cord with C4-5 slightly milder in severity (CS#9); C5-6 right paracentral 4 mm annular protrusion causing slight cord impingement and mild left foraminal stenosis (CS#10); C6-7 right paracentral 5 mm disc herniation with uncinate osteophytes that cause mild cord impingement and right sided foraminal stenosis (CS#11); mild but definite T2 hyperintensity in spinal cord at lower C6 level that likely represents mild myelomalacia as a result of cord impingement (CS#12); and C7-T1 mild central annular protrusion that causes slight indentation of spinal cord (CS#13);

LEFT ARM: CTS (LA#1); distal ulnar entrapment (LA#2); and radial sensory neuropathy (LA#3).

We reverse the hearing officer’s determination that the compensable injury of _____________, does not extend to the following conditions: right knee sprain/strain (RK#1); right knee severe crepitus (RK#7); left shoulder strain (LS#1); or cervical sprain/strain (CS#1) and render a new decision that the compensable injury of _____________, extends to a right knee sprain/strain (RK#1); right knee severe crepitus (RK#7); left shoulder strain (LS#1); and cervical sprain/strain (CS#1).

We reverse the hearing officer’s determination that the claimant reached MMI on June 22, 2009, with a one percent IR and we remand the MMI and IR issues to the hearing officer.

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

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

Cynthia A. Brown
Appeals Judge

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 (CCH) was held on January 30, 2009. The disputed issue reported out of the benefit review conference (BRC) was:

1.Was (Dr. R) or (Dr. B) properly appointed as the designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 126.7 (Rule 126.7)?

After the CCH, and without consulting the parties, the hearing officer added an issue “upon a finding of good cause” as follows:

2.Does the Texas Department of Insurance, Division of Workers’ Compensation (Division) have jurisdiction to decide, “[w]as [Dr. R] or [Dr. B] properly appointed as the designated doctor in accordance with [Section] 408.0041 and Rule 126.7?”

The hearing officer found that no income or medical benefits are in dispute and determined that the Division does not have jurisdiction to hear the case and therefore made no further findings or determinations regarding whether Dr. R or Dr. B was the properly appointed designated doctor.

The appellant (claimant) appealed, objecting to the hearing officer “sua sponte” adding the jurisdiction issue, contending that physicians appointed as designated doctors pursuant to Rule 126.7 directly impact the claimant’s benefits. The claimant argues that the designated doctor’s opinion will impact the termination, continuation, or initiation of temporary income benefits (TIBs) or assess an impairment rating (IR) which translates to impairment income benefits (IIBs). The appeal file does not contain a response from the respondent (carrier).

DECISION

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

BACKGROUND INFORMATION

It is undisputed that the claimant sustained a compensable abdominal hernia injury on __________, picking up heavy totes. An operative report dated August 22, 2007, reflects a laparoscopy was performed to repair an incisional hernia on that date.

In evidence is a Request for Designated Doctor (DWC-32) which reflects that the claimant requested a designated doctor examination to determine maximum medical improvement (MMI) and IR. The treatment matrix attached to the DWC-32 listed the digestive system as the injured area and notes that surgery and prescriptive medication had been provided.^[1] In evidence is a Dispute Resolution Information System (DRIS) note dated December 13, 2007, which reflects that Dr. R was appointed as the designated doctor.^[2] Dr. R examined the claimant on January 8, 2008, certified the claimant was not at MMI and recommended that the claimant see a pain management doctor. Dr. R re-examined the claimant on April 29, 2008, and again certified that the claimant was not at MMI, stating that nothing had been done since he saw her last and the claimant’s complaints were exactly the same. Dr. R again noted that the claimant needs to see a pain management doctor or another surgeon to get help with her ongoing pain. Dr. R commented that the claimant “may have nerve entrapment or some other problem with the incision.”

In evidence is a second DWC-32 which shows that the carrier requested a designated doctor examination to determine MMI and IR. The treatment matrix attached to the DWC-32 listed lower extremities and feet as the injured area, and noted that surgery, prescription medication and physical medicine had been provided. A DRIS note dated September 19, 2008, states “Previous [designated doctor] [Dr. R] no longer meets [treatment] requirements. Assign new [designated doctor].” A DRIS note dated September 26, 2008, states Dr. B was appointed. The “Health Care Provider Detail” indicates that Dr. B is a certified general surgeon. Dr. B, in a report dated October 14, 2008, certified that the claimant reached clinical MMI on that date with a zero percent IR.

JURISDICTION

Pursuant to Section 402.001(b) the Division was established to “administer and operate the workers’ compensation system of this state as provided by this title.” Pursuant to Section 410.002 and Rule 140.1 the Hearings Division is given the authority to resolve benefits disputes, which are defined as a dispute regarding compensability or eligibility for, or the amount of, income or death benefits. Section 401.011(5) defines benefit to mean a medical benefit, an income benefit, a death benefit, or a burial benefit on a compensable injury.

In the Background Information the hearing officer commented:

The jurisdiction of a [CCH] Officer extends to making findings of fact and conclusions of law and awarding benefits due. Resolution of the issue in this case will not involve a determination of whether any benefits are due. Thus, the Division lacks jurisdiction to decide the issue.

The hearing officer found “[n]o income or medical benefits are in dispute,” and determined that the Division does not have jurisdiction to hear this case. We disagree.

If an employee has disability under Section 408.101, pursuant to Section 408.102(a), TIBs continue until the employee reaches MMI. Section 408.121(a) provides in part that an employee’s entitlement to IIBs begins on the day after the date the employee reaches MMI and ends on the earlier of: (1) the date of expiration of a period computed at the rate of three weeks for each percentage point of impairment; or (2) the date of the employee’s death. Section 408.0041(a) provides in part that at the request of an insurance carrier or an employee, or on the commissioner’s own order, the commissioner may order a medical examination to resolve questions about MMI, IR and other matters. Section 408.0041(f) provides in part that unless otherwise ordered by the commissioner, the insurance carrier shall pay benefits based on the opinion of the designated doctor during the pendency of any dispute. Section 408.0041(h)(1) provides that the insurance carrier shall pay for an examination required under Subsection (a) or (f).

In this case, whether the claimant is not at MMI as certified by Dr. R, or whether the claimant reached MMI on October 14, 2008, as certified by Dr. B, impacts the claimant’s entitlement to TIBs. Further, Dr. R leaves open the matter of an IR, while Dr. B found a zero percent IR, which impacts whether or not the claimant might receive IIBs. Designated doctors selected to determine, or give an opinion on MMI and IR, directly impacts TIBs and possibly IIBs. See also Appeals Panel Decision (APD) 090135, decided April 6, 2009.

We reverse the hearing officer’s determination that the Division does not have jurisdiction to hear this case, and we render a new decision that the Division does have jurisdiction to determine who the properly appointed designated doctor is.

PROPERLY APPOINTED DESIGNATED DOCTOR

Because of the hearing officer’s determination on the jurisdiction issue, the hearing officer did not make findings of fact, conclusions of law, or a decision on the merits of the disputed issue reported out of the BRC. The issue of whether Dr. R or Dr. B was properly appointed as the designated doctor in accordance with Section 408.0041 and Rule 126.7 remains to be resolved.

Because we have rendered a new decision that the Division does have jurisdiction to resolve the issue of whether Dr. R or Dr. B was properly appointed as the designated doctor to determine MMI and IR, we remand this case to the hearing officer to make a determination of who the properly appointed designated doctor is.

SUMMARY

We reverse the hearing officer’s determination that the Division does not have jurisdiction in this case because no income or medical benefits are in dispute and we render a new decision that the Division does have jurisdiction in this case.

Because we have rendered a new decision that the Division does have jurisdiction to resolve the issue of whether Dr. R or Dr. B is the properly appointed designated doctor to determine MMI and IR, we remand the case to the hearing officer to make a determination on the issue of whether Dr. R or Dr. B is the properly appointed designated doctor to determine MMI and IR.

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

The true corporate name of the insurance carrier is MITSUI SUMITOMO INSURANCE USA and the name and address of its registered agent for service of process is

PRENTICE-HALL CORPORATION SYSTEM, INC.

800 BRAZOS

AUSTIN, TEXAS 78701.

Thomas A. Knapp

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

1. The treatment matrix form does not have a category for hernias.

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2. Neither Dr. R’s report nor the “Health Care Provider Detail” shows Dr. R was certified in any specialty.

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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 9, 2008. At the CCH the parties agreed to add the 19th quarter of supplemental income benefits (SIBs) to the two issues in dispute. The issues before the hearing officer were:

1. (1)As a result of the Decision and Order of the [prior] CCH, affirmation by the Appeals Panel in Appeals Panel Decision (APD) 052815 and Judicial Review No. 017-216786-06 and pending appeal, does the Texas Department of Insurance, Division of Workers’ Compensation (Division) have jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters?

2. (2)Is the appellant/cross-respondent (claimant) entitled to SIBs for the 9th through 19th quarters?

The hearing officer determined that as a result of the Decision and Order of the prior CCH, affirmation by the Appeals Panel in APD 052815, and Judicial Review No. 017-216786-06 and pending appeal, the Division does not have jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters. Although the hearing officer determined that the Division did not have jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters, the hearing officer made findings of fact on the merits of entitlement to SIBs for the 9th through 19th quarters. The hearing officer determined that during the qualifying periods for the 9th through 19th quarters of SIBs the claimant: (1) was unemployed or underemployed as a direct result of the impairment from the compensable injury; and (2) made a good faith effort to find employment commensurate with her ability to work.

The claimant appealed the hearing officer’s decision that the Division does not have jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters, and the respondent/cross-appellant (carrier) responded, urging affirmance. Also, the carrier cross-appealed the hearing officer’s findings of fact on the direct result and good faith criteria for SIBs entitlement, and the hearing officer’s Conclusion of Law No. 1, which states that the Division “has jurisdiction to hear this case.” The carrier states that Conclusion of Law No. 1 conflicts with Conclusion of Law No. 3, in which the hearing officer determined that the Division did not have jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters.

DECISION

Reversed and rendered.

BACKGROUND INFORMATION

The parties stipulated that: (1) the claimant sustained a compensable injury on __________; (2) the date of maximum medical improvement is October 4, 2002; (3) the claimant has an impairment rating of 17%; and (4) the claimant did not commute any portion of her impairment income benefits. It is undisputed that the qualifying periods for the 9th through 19th quarters of SIBs are from June 12, 2005, through March 8, 2008, as reflected on the SIBs applications for each quarter from the 9th through 19th.

At a prior CCH held on November 4, 2005, the same hearing officer determined that the claimant was not entitled to SIBs for the 1st through 8th quarters. The claimant timely appealed the hearing officer’s SIBs 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 Division; therefore, the hearing officer’s decision that the claimant was not entitled to SIBs for the 1st through 8th quarters became final and is the final decision of the Appeals Panel effective on February 21, 2006, pursuant to Section 410.204(c). The claimant appealed the Appeals Panel decision to district court. In evidence is a district court final judgment dated February 4, 2008, in which a jury determined that the claimant was not entitled to SIBs for the 1st through 3rd quarters, but the claimant was entitled to SIBs for the 4th through 8th quarters. The evidence reflects that the carrier filed a Motion for New Trial on February 29, 2008.

At the CCH held on April 9, 2008, the issues in dispute were jurisdiction to determine SIBs entitlement and entitlement to SIBs for the 9th through 19th quarters. At the CCH the carrier informed the hearing officer that a Motion for New Trial was pending, and that it also contemplated filing an appeal to the Court of Appeals, therefore the Division did not have jurisdiction to determine whether the claimant was entitled to SIBs for the 9th through 19th quarters. The carrier states in its appeal that “[c]urrently, Carrier’s defense counsel has filed a Motion for New Trial based on various errors associated with the jury’s verdict.” Although the carrier did not provide with its appeal a notice of appeal of the district court’s final judgment which was issued on February 4, 2008, the carrier does state in its response that “[c]urrently, Carrier is pursuing an appeal of that verdict based on various errors associated with the jury’s findings.” No evidence was presented that the district court’s judgment has become final.

JURISDICTION TO DETERMINE ENTITLEMENT TO

SIBS FOR THE 9TH THROUGH 19TH QUARTERS

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. Section 410.207 provides that during judicial review of the 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. In APD 000512, decided April 24, 2000, the Appeals Panel noted that each compensable quarter stands alone and the determinations in one quarter are not necessarily binding on subsequent quarters.

In Conclusion of Law No. 1, the hearing officer determined that the Division has jurisdiction to hear this case, and that determination is supported by the evidence. However, in Conclusion of Law No. 3, the hearing officer determined that as a result of the prior hearing officer’s decision, the Appeals Panel decision, and pending appeal for judicial review, the Division does not have jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters. We disagree.

The hearing officer cites APD 990897, decided June 9, 1999, however the facts summarized by the hearing officer in his decision refer to APD 991177, decided July 14, 1999, which references APD 990897. In both APD 990897 and APD 991177, the claimant is the same person, but the disputed issues in each case regard different SIBs quarters. In APD 990897 the disputed issue was whether the claimant was entitled to SIBs for the 15th quarter. In that case the Appeals Panel noted the procedural history of nonentitlement to prior SIBs quarters (11th through 14th). The Appeals Panel reversed the hearing officer’s determination that the claimant was entitled to SIBs for the 15th quarter and rendered a new decision that the claimant was not entitled to SIBs for the 15th quarter because the claimant had not been entitled to SIBs for 12 consecutive months under Section 408.146(c) and therefore, ceased to be entitled to any additional income benefits for the compensable injury to include SIBs for the 15th quarter.

In APD 991177, supra, the disputed issue was whether the claimant was entitled to SIBs for the 16th quarter. The Appeals Panel noted the procedural history of nonentitlement to prior SIBs quarters (11th through 15th) and there was evidence that the claimant sought judicial review of the 14th quarter in district court. The Appeals Panel affirmed the hearing officer’s determination that the claimant was not entitled to SIBs for the 16th quarter. The Appeals Panel stated that “while the decision on the 14th quarter may be pending before a state district court, the Appeals Panel decision on that quarter is binding during the pendency of the appeal” and that “while claimant met the criteria for entitlement to SIBs for the 16th quarter under Section 408.142(a), claimant is no longer eligible for income benefits under Section 408.146(c) because she was not entitled to SIBs for 12 consecutive months.” In APD 991177, although there was a pending judicial appeal of a prior SIBs quarter, the Division made determinations on the subsequent SIBs quarter.

In the instant case, the current issue in dispute is whether the claimant is entitled to SIBs for the 9th through 19th quarters, these SIBs quarters were not determined in the prior CCH decision, which became the Appeals Panel decision and was appealed to court, therefore the Division retains jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters pursuant to Section 410.207. Accordingly, the hearing officer erred in determining that as a result of the Decision and Order of the prior CCH, affirmation by the Appeals Panel in APD 052815 and Judicial Review No. 017-216786-06 and pending appeal, the Division does not have jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters. We reverse the hearing officer’s jurisdiction determination and we render a new decision that the Division has jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters.

SIBS QUARTERS

9TH THROUGH 19TH

In APD 992177, decided November 19, 1999, the claimant contended that the Appeals Panel should not decide the issue of permanent loss of entitlement to additional income benefits under Section 408.146(c) until there has been a final adjudication of the issues of entitlement to prior SIBs quarters in the court system. In that case the Appeals Panel stated that “[w]hile the [Division’s] decisions regarding prior quarters may or may not be pending before [sic] state court, the Appeals Panel’s decisions on the prior quarters are binding during the pendency of the appeal” and concluded that the Appeals Panel “may properly address the issue of permanent loss of SIBs entitlement under Section 408.146(c) regardless of whether there has been an appeal of any decisions regarding prior [SIBs] quarters.”

In the instant case, the prior Appeals Panel decision that the claimant is not entitled to SIBs for the 1st through 8th quarters is binding during the pendency of judicial review pursuant to Section 410.205(b). The hearing officer’s findings on the merits of entitlement to SIBs for the 9th through 19th quarters under Section 408.142(a) are supported by the evidence. Although the claimant met the criteria for entitlement to SIBs for the 9th through 19th quarters, the claimant is no longer entitled to income benefits under Section 408.146(c) because she was not entitled to SIBs for 12 consecutive months (nonentitlement to SIBs for the 1st through 8th quarters). Accordingly, we render a decision that the claimant is not entitled to SIBs for the 9th through 19th quarters, because the claimant has permanent loss of SIBs entitlement under Section 408.146(c).

SUMMARY

We reverse the hearing officer’s determination that as a result of the Decision and Order of the prior CCH, affirmation by the Appeals Panel in APD 052815 and Judicial Review No. 017-216786-06 and pending appeal, the Division does not have jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters, and we render a new decision that the Division has jurisdiction to determine entitlement to SIBs for the 9th through 19th quarters.

We render a decision that the claimant is not entitled to SIBs for the 9th through 19th quarters, because the claimant has permanent loss of SIBs entitlement under Section 408.146(c).

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

MR. RUSSELL RAY OLIVER, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 2, 2008. The issues before the hearing officer were:

1. (1)Did the respondent 2 (claimant) sustain a compensable injury?

2. (1)What is the date of injury?

3. (1)Is the respondent 1/cross-appellant (self-insured) relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001?

4. (1)Is the self-insured relieved from liability under Section 409.004 because of the claimant’s failure without good cause to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003?

5. (1)Is the appellant/cross-respondent (subclaimant) the proper subclaimant under Section 409.0091?

6. (1)Does the subclaimant have legal standing to seek adjudication of this dispute pursuant to Section 409.0091?

The hearing officer determined that: (1) the claimant sustained a work-related injury, which was not a compensable injury because she failed without good cause to file a claim for compensation with the Division, within one year of the date of injury; (2) the date of injury is ___________; (3) the self-insured is not relieved of liability under Section 409.002 because the claimant gave timely notice of her injury to her employer pursuant to Section 409.001; (4) the self-insured is relieved of liability to the claimant and to the subclaimant for benefits for the claimant’s work-related injury of ___________, because the claimant failed to timely file a claim for compensation with the Division as required by Section 409.003; (5) the subclaimant is a proper subclaimant under Section 409.0091 (resolved by agreement of the parties); and (6) the subclaimant has legal standing to seek adjudication of this dispute pursuant to Section 409.0091.

The subclaimant appeals “the decision on the issues of compensability of reimbursement sought by [s]ubclaimant, and relief from liability of [the self-insured] pursuant to [Section] 409.004.” We read the subclaimant’s appeal as appealing the hearing officer’s compensability and timely claim filing determinations. Additionally, the subclaimant states in its appeal that Section 409.0091 does not apply to this subclaim, rather it “is expressly controlled by [Section] 409.009, the law applicable to this subclaim.” The self-insured cross-appealed the hearing officer’s determinations on the issues of the date of injury, timely notice to the employer, and standing of the subclaimant under Section 409.0091, and also appealed the determination that the claimant sustained a work-related injury. Both the subclaimant and the self-insured filed responses to the other party’s appeal. The appeal file does not contain a response to either appeal from the claimant. The hearing officer’s determination that CFHP is a proper subclaimant under Section 409.0091 was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

FACTUAL SUMMARY

The claimant testified that she fell down some stairs at work and injured her left knee on ___________,^[1] and she reported her injury to her employer on January 13, 2005. The claimant received medical treatment for her left knee injury, which was paid for by the subclaimant, a health care insurer. In evidence is a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) from the self-insured dated January 24, 2005, denying “compensability of the entire claim” and asserting that the claimant did not timely report the injury to the employer. The claimant testified that she did not file, and does not intend to pursue, a workers’ compensation claim for her work-related injury because her injury has resolved and it has been paid for by the subclaimant.

The subclaimant’s attorney testified as a witness as the President of “Company” that the subclaimant received information about this claim from the Division under Section 402.084(c-3) after January 1, 2007. The subclaimant requested reimbursement of medical expenses from the self-insured on August 28, 2007, and subsequently in September 2007; and the self-insured denied the request for reimbursement on November 20, 2007. The subclaimant requested a benefit review conference (BRC) on December 24, 2007.

COMPENSABILITY, DATE OF INJURY,

TIMELY NOTICE AND TIMELY CLAIM FILING

The hearing officer’s determinations on the issues of compensability, date of injury, timely notice to the employer, and timely claim filing are supported by sufficient evidence and are affirmed. We agree with and affirm the hearing officer’s determination that under Section 409.004 the self-insured is relieved of liability to the claimant and to the subclaimant for benefits for the claimant’s work-related injury of ___________, because the claimant failed without good cause to timely file a claim for compensation with the Division as required by Section 409.003. In Krueger v. Atascosa County, 155 S.W.3d 614 (Tex. App.-San Antonio 2004, no pet.), the court held that the claimant’s failure without good cause to timely file her claim for compensation time-barred her claim and thus she did not have a compensable injury. In Tex. Mut. Ins. Co. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 469 (Tex. App. Houston [14th Dist.] 2007, pet. denied), the court held that where a claimant is barred from recovering benefits under the 1989 Act, it follows that a subclaimant is similarly barred.^[2]

STANDING

The hearing officer erred in determining that the subclaimant has legal standing to seek adjudication of this dispute pursuant to Section 409.0091. The parties agreed that the subclaimant is a proper subclaimant under Section 409.0091, and that determination was not appealed; however there was a separate issue on whether the subclaimant has legal standing under Section 409.0091.

Standing is defined as “a party’s right to make a legal claim or seek judicial enforcement of a duty or right.” (Black’s Law Dictionary, 7th edition). The general test for standing in Texas requires that there “(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.” See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993), citing Board of Water Engineers v. City of San Antonio, 283 S.W.2d 722, 724 (Tex. 1955). At issue in this case is whether the subclaimant has legal standing to seek adjudication of this dispute pursuant to Section 409.0091. We believe that what the parties wanted resolved under the standing issue is whether the subclaimant met the requirements of Section 409.0091 to seek adjudication of the compensability issue. We conclude that the subclaimant did not meet those requirements.

Section 8 of House Bill (HB) 724 amended Subchapter A, Chapter 409, Labor Code, by adding Section 409.0091 entitled Reimbursement Procedures for Certain Entities, to establish reimbursement procedures. (Acts 2007, 80th Leg., R.S., Ch. 1007 (HB 724) § 8 effective September 1, 2007 (presently codified at Tex. Labor Code § 409.0091)). Section 409.0091(m) provides as follows:

(m) In a dispute filed under Chapter 410 that arises from a subclaim under this section, a hearing officer may issue an order regarding compensability or eligibility for benefits and order the workers’ compensation insurance carrier to reimburse health care services paid by the health care insurer as appropriate under this subtitle. Any dispute over the amount of medical benefits owed under this section, including medical necessity issues, shall be determined by medical dispute resolution under Sections 413.031 and 413.032.

Section 11 of HB 724 states as follows:

Section 11. The change in law made by this Act applies only to a subclaim based on a compensable injury that occurred on or after September 1, 2007, and to reimbursement requests and subclaims pursuant to Section 409.0091(s), Labor Code, as added by this Act. The changes made by this Act apply only to subclaims based on an injury that has not been denied for compensability or that has been determined by the [D]ivision to be compensable. (Acts 2007, 80th Leg., R.S., Ch. 1007 (HB 724) § 11 effective September 1, 2007.)

In the instant case, Section 409.0091 does not apply because the date of injury was ___________, a date prior to September 1, 2007.

Next, Section 409.0091(s) does not apply because the subclaimant was provided with information after January 1, 2007, under Section 402.084(c-3). Section 409.0091(s) provides that:

On or after September 1, 2007, from information provided to a health care insurer before January 1, 2007, under Section 402.084(c-3), the health care insurer may file not later than March 1, 2008 (Emphasis added):

1. (1)a subclaim with the [D]ivision under Subsection (l) if a request for reimbursement has been presented and denied by a workers’ compensation insurance carrier; or

2. (2)a request for reimbursement under Subsection (f) if a request for reimbursement has not previously been presented and denied by the workers’ compensation insurance carrier.

In the instant case, the hearing officer erred in finding that (Company) received information about this claim from the Division under Section 402.084(c-3) before January 1, 2007. The hearing officer states in the Background Information of his Decision that in November 2006, (Company) (subclaimant’s agent/representative) became a partner with the subclaimant for sharing claims data pursuant to Section 402.084(b)(8).^[3] In evidence is a copy of a Division EDI Trading Partner Application and Profile (DWC-EDI-01) (signed by the subclaimant on November 6, 2006, and by the data collection agent (Company) on November 2, 2006) which shows that (Company) as the subclaimant’s agent/representative may receive data from the Division regarding information pursuant to Section 402.084 (Record Check; Release of Information). Section 402.084(c-3) provides, in part, that if a claims record exists for a listed person, the Division promptly shall provide information on each workers’ compensation claim filed by that person to the carrier or the carrier’s representative in an electronic format. The subclaimant’s attorney testified that on November 2, 2006, (Company) was approved as a “trading partner” by the Division (as evidenced by the DWC-EDI-01), and that the subclaimant received information about this claim from the Division under Section 402.084(c-3) after January 1, 2007. There was no evidence that either the subclaimant or its agent/representative, (Company), received information about this claim under Section 402.084(c-3) before January 1, 2007. The subclaimant’s attorney’s testimony is the only evidence regarding when the subclaimant received information about this claim from the Division under Section 402.084(c-3). Therefore, because the subclaimant was provided with information after January 1, 2007, under Section 402.084(c-3), Section 409.0091(s) does not apply to the facts of this case.

Furthermore, Section 409.0091 does not apply because the self-insured denied compensability of the injury and the Division determined that the claimant did not sustain a compensable injury. In evidence is a PLN-1 dated January 24, 2005, which shows that the self-insured denied “compensability of the entire claim” and asserted that the claimant did not timely report her injury to her employer. Subsequently, after the subclaimant was provided with information about the claim in late January 2007, it requested reimbursement from the self-insured. In evidence is a letter dated August 28, 2007, and an undated Reimbursement Request For Payment Made By Health Care Insurer (DWC-026) (testimony indicated it was sent in September 2007) from the subclaimant requesting reimbursement from the self-insured, and a response dated November 20, 2007, from the self-insured denying the subclaimant’s request for reimbursement because the “[c]laim is not compensable” and “[s]ervices were provided for body parts/conditions denied by an Extent of Injury dispute.” Additionally, the hearing officer determined that the claimant did not sustain a compensable injury, and we have affirmed that determination in this Decision. See Section 11 of HB 724 stating in part that the changes made by the Act apply only to subclaims based on an injury that has not been denied for compensability or that has been determined by the Division to be compensable.

Under the facts of this case, Section 409.0091 does not apply because: (1) the claimant’s date of injury is prior to September 1, 2007; (2) the subclaimant was provided information under Section 402.084(c-3) after January 1, 2007 (pertinent to the application of Section 409.0091(s)); (3) the self-insured has denied compensability of the claim; and (4) the Division has determined that the claimant does not have a compensable injury. Given that Section 409.0091 does not apply, the subclaimant does not have legal standing to seek adjudication of this dispute under Section 409.0091.

On appeal, the subclaimant states that Section 409.0091 does not apply to this case, rather Section 409.009 applies. We note that the subclaimant’s written request for reimbursement to the self-insured dated August 28, 2007, states that its request was pursuant to “Sections 409.009 and/or 409.0091,” and the DWC-026 is the Division form for a Reimbursement Request For Payment Made By Health Care Insurer. Review of the record shows that the parties did not litigate that Section 409.009 applied. Rather, the parties agreed that the subclaimant was a proper subclaimant under Section 409.0091, and agreed that the issue in dispute was whether the subclaimant has legal standing under Section 409.0091. During closing arguments at the CCH, the subclaimant’s position was that the “compensability issue” comes under Section 409.009 because of the date of injury and the application of Section 409.0091; and that once it is determined that the subclaimant paid a claim on a compensable injury, requested reimbursement from the self-insured and was denied reimbursement by the self-insured, then the subclaimant can come into this proceeding and file a subclaim under Section 409.0091. The subclaimant stated it followed the law and that it has standing. As previously mentioned the standing issue references Section 409.0091. There was no certified issue nor litigation at the CCH of whether the subclaimant had legal standing under Section 409.009. The Appeals Panel will generally not consider issues raised for the first time on appeal. Appeals Panel Decision 040259, decided March 18, 2004. We make no determination regarding whether the subclaimant has standing as a subclaimant under Section 409.009 because that was not an issue before the hearing officer and it was not litigated at the CCH.

Accordingly, we reverse the hearing officer’s determination that the subclaimant has legal standing to seek adjudication of this dispute under Section 409.0091 and we render a new decision that the subclaimant does not have legal standing to seek adjudication of this dispute under Section 409.0091.

SUMMARY

We affirm the hearing officer’s determinations on the issues of compensability, date of injury, timely notice to the employer, and timely claim filing, and that the self-insured is relieved of liability to the claimant and the subclaimant because the claimant failed without good cause to timely file her claim for compensation with the Division. We reverse the hearing officer’s determination that the subclaimant has legal standing to seek adjudication of this dispute under Section 409.0091 and we render a new decision that the subclaimant does not have legal standing to seek adjudication of this dispute under Section 409.0091.

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

SUPERINTENDENT

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Veronica L. Ruberto

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

1. Claimant had initially asserted a date of injury of (incorrect date of injury); however, at the BRC she asserted a date of injury of ___________, which was the day before the self-insured’s school winter/holiday break for Christmas.

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2. While we recognize that the Tex. Mut. Ins. Co. v. Sonic Sys. Int’l, Inc. case addressed an employer’s subclaim under Section 409.009 and that the claimant in that case was barred from recovery under the 1989 Act because of an election under Section 406.075, we believe the holding in that case that where a claimant is barred from recovering benefits under the 1989 Act, the subclaimant is similarly barred, applies to the subclaimant in the instant case.

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3. In unappealed Finding of Fact No. 7, the hearing officer determined that the subclaimant appointed TTG as its agent and representative to pursue reimbursement of expenses for medical care rendered to the claimant in connection with her injury of ___________.

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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 14, 2007. The disputed issues were:

(1)Does the compensable injury of ___________, include the progressive dementia that resulted in the Employee’s death on January 16, 2006?;

(2)Is VP entitled to reimbursement of burial benefits from the carrier, and if so, what is the amount?; and

(3)Does the approval of the Benefit Dispute Settlement (DWC-25) preclude the claimant from pursuing death benefits?

For good cause, the following issue was added by the hearing officer:

(4)Does the Texas Department of Insurance, Division of Workers’ Compensation (Division) have jurisdiction to render a decision on the merits concerning the above listed disputed issues?

The hearing officer resolved the disputed issues by deciding that: (1) the Division has jurisdiction to resolve the disputed issue concerning the extent of injury; (2) the compensable injury of ___________, included progressive dementia which resulted in the death of the deceased on January 16, 2006; and (3) due to the execution and approval of a DWC-25 the Division does not have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits.

The appellant/cross-respondent (claimant) appealed, disputing the hearing officer’s determination that the Division does not have jurisdiction to resolve the disputed issues concerning death and burial benefits. The claimant argues that both parties agreed that the Division has jurisdiction over the disputed issues. The respondent 1/cross-appellant (self-insured) also appealed, contending that the hearing officer added the issue of whether the Division has jurisdiction to resolve the disputed issues without notice to the parties and without opportunity for the parties to present position statements and arguments on this issue. The self-insured additionally appealed the determinations that the Division did not have jurisdiction to resolve the disputed issues concerning death and burial benefits and that the compensable injury included progressive dementia. The self-insured contends that the determination regarding the extent of injury and cause of death were precluded by the express terms and legal effect of the approved DWC-25. Although properly notified of the CCH, the respondent 2 (Subsequent Injury Fund (SIF)) did not appear. The SIF did not respond to either the appeal of the claimant or self-insured.

DECISION

Affirmed in part and reversed and rendered in part.

FACTUAL SUMMARY

The parties stipulated that the deceased sustained a compensable injury on ___________; that the deceased died on January 16, 2006; and that the claimant is the widow of the deceased. The death certificate of the deceased was in evidence and listed the cause of death as progressive dementia since a closed head injury on ___________. At issue was whether the compensable injury included the progressive dementia that resulted in the decedent’s death; whether the claimant was entitled to reimbursement of burial benefits from the self-insured; and whether the approval of the DWC-25 precluded the claimant from pursuing death benefits.

JURISDICTION

A court must notice, even sua sponte, the matter of its own jurisdiction, for jurisdiction is fundamental in nature and may not be ignored. Lamka v. Townes, 465 S.W.2d 386 (Tex.Civ.App.-Amarillo 1971, writ ref'd n.r.e.) The hearing officer found good cause for adding the jurisdiction issue. We have reviewed the record and we perceive no abuse of discretion on the part of the hearing officer adding the issue of whether the Division has jurisdiction to render a decision on the merits of the disputed issues on her own motion. Morrow v. H.E.B. Inc., 714 S.W.2d 297 (Tex. 1986).

The hearing officer noted that the disputed issues concerning death benefits, including burial benefits, do not involve the resolution of a medical benefit dispute or seek enforcement of the terms of the DWC-25 and therefore found she had no jurisdiction to decide the disputed issue regarding death benefits, including burial benefits. Section 401.011(40) defines “settlement” as a final resolution of all the issues in a workers’ compensation claim that are permitted to be resolved under the terms of this subtitle. Section 401.011(11) defines “compensation” as payment of a benefit.  Section 401.011(5) defines “benefit” as a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury. The determination of “benefit disputes” are adjudicated by the Division’s Hearings Division.

28 TEX. ADMIN. CODE § 140.1 (Rule 140.1) provides that:

1. Benefit dispute--A disputed issue arising under the Texas Workers’ Compensation Act (the Act) in a workers’ compensation claim regarding compensability or eligibility for, or the amount of, income or death benefits.

2. Benefit proceeding--A proceeding pursuant to the Act, Chapter 410, conducted by a presiding officer to resolve one or more benefit disputes. Benefit proceedings include benefit review conferences, benefit contested case hearings, appeals, and, after January 1, 1992, arbitration.

The issue of whether or not the compensable injury of ___________, included the progressive dementia that resulted in the death of the deceased was not an issue that was previously determined by the Division, nor was the entitlement to burial benefits or the right of the claimant to pursue death benefits. The Division has been given statutory authority to determine the liability of an insurance carrier for compensation for an injury or death. See Section 410.002 and Section 410.251. We reverse the hearing officer’s determination that due to the execution and approval of a DWC-25, the Division does not have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits. We render a new decision that the Division does have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits.

EXTENT OF INJURY

The hearing officer’s decision that the compensable injury of ___________, includes the progressive dementia that resulted in the claimant’s death on January 16, 2006, is supported by sufficient evidence and is affirmed.

SETTLEMENT

In evidence was a DWC-25, which was executed by the legal representatives of the self-insured and the deceased, on December 9 and December 10, 2004, respectively. The claimant signed the DWC-25 on behalf of the deceased, under the authority of a Statutory Durable Power of Attorney that had previously been executed by the deceased. The DWC-25 was approved by the Division on December 29, 2004. The claimant signed the DWC-25 as follows: [decedent’s name] by [claimant name] attorney in fact.

The DWC-25 provides in part:

“1. The compensable injury of ___________, includes a traumatic brain injury with cognitive impairment and cortical atrophy with effects on memory, cognitive functions and activities of daily living.

2. The need for assisted living care is related to the compensable injury and [s]elf-insured will bear the fair and reasonable cost of that care….

5. All income benefits will end on March 23, 2005, a date 401 weeks from the date of the injury. Except as provided in this agreement, [c]laimant and his beneficiaries are not entitled to any additional income benefits including lifetime income benefits and death benefits….

THIS SETTLEMENT IS THE FINAL RESOLUTION OF ALL ISSUES IN THIS CLAIM AND THE PARTIES WAIVE THEIR RIGHTS TO SUBSEQUENT [DIVISION] PROCEEDINGS, OTHER THAN THOSE NECESSARY TO RESOLVE MEDICAL BENEFIT DISPUTES OR TO ENFORCE COMPLIANCE WITH THE TERMS OF THIS SETTLEMENT.”

The self-insured contends that the terms of the approved DWC-25 and its legal effect preclude consideration of whether the compensable injury extended to include progressive dementia and whether the decedent’s death was a direct and natural result of the compensable injury. Further, the self-insured argues that the DWC-25 on its face indicates the intent of the parties by the settlement to preclude payment of death benefits.

Death benefits do not vest until the death of an employee which results from a compensable injury. See Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186, 190 (Tex. 1980); and Garrett v. Texas Employers Ins. Ass’n, 226 S.W.2d 663 (Tex.Civ.App.-San Antonio 1949, writ ref’d). There is no evidence that the claimant signed the DWC-25 on her own behalf. She signed the DWC-25 on behalf of the deceased pursuant to a Statutory Durable Power of Attorney. In Elizondo v. Tex. Natural Res. Conservation Comm’n, 974 S.W.2d 928, 931 (Tex.App.-Austin 1998, no pet.) the Court noted that an individual acting in an official or representative capacity is, in law, a distinctly separate individual from the same person acting as an individual.

The Eastland Court of Appeals stated in Maryland Casualty Co. v. Stevens, 55 S.W.2d 149 (Tex.Civ.App.-Eastland 1932, writ ref’d):

The Workmen’s Compensation Law, in no uncertain terms, creates a cause of action for compensation insurance in favor of the legal beneficiaries of a deceased employee for the death of the employee. That cause of action, for all practical purposes, is separate and distinct from the cause of action for compensation which the same statute just as certainly creates in favor of the injured employee [citations omitted]. These causes of action consist largely of common elements. They are each dependent upon the existence of the same accident, the same resulting injury, sustained in the course of employment. The only practical difference is that the employee’s individual cause of action covers the full extent of the injury except his death, and the cause of action of the beneficiaries is for the death only. Notwithstanding the near approach to identity of these two causes of action, they are so distinct that the employee can, by no act or deed, release or affect the cause of action belonging to the legal beneficiaries. [Emphasis added.],

In American Motorists Ins. Co. v. Villagomez, 398 S.W.2d 742 (Tex. 1966), the

Texas Supreme Court stated that:

It has long been settled in Texas that where death results from a compensable injury, a new cause of action for death benefits arises and vests in the legal beneficiaries of the decedent. This cause of action is separate and distinct from the cause of action for compensation belonging to the injured employee during his life and which will, upon his death, vest in his legal beneficiaries the right to claim all compensation payments which had accrued at the time of his death but had not been paid.

The Court went on to state “the obvious intent is that no action can be taken by the employee during the period between the injury and the resulting death that would influence in any way, either positively or negatively, the rights of his beneficiaries to collect benefits by reason of his death.”

The courts have recognized that the legal beneficiaries have an independent cause of action separate from the injured employee and have stated that the injured employee can take no action that would negatively effect the rights of his beneficiaries to collect benefits by reason of his death. The rights of the legal beneficiary are not derivative but rather are created directly by statute. Section 408.181(a). We hold that the settlement by the decedent does not bar the claim of the decedent’s legal beneficiaries. See Swain v. Standard Acc. Ins. Co., 81 S.W.2d 258, affirmed by the Texas Supreme Court 109 S.W.2d 750. We reverse the hearing officer’s determination that due to the execution and approval of a DWC-25, the Division does not have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits. We render a new decision that the approval of the DWC-25 does not preclude the claimant from pursuing death benefits.

BURIAL BENEFITS

As explained above, the hearing officer erred by finding that the Division lacked jurisdiction to resolve the claimant’s claim for death benefits including burial benefits. The Funeral Purchase Agreement for the burial of the decedent was in evidence and reflected that the claimant paid $7,238.00 for the burial of the decedent.

If the death of an employee results from a compensable injury that occurred before September 1, 1999, the carrier shall pay the lesser of the actual costs incurred for reasonable burial expenses or $2,500.00. Section 408.186; Rule 132.13(b). We render a new decision that the claimant is entitled to reimbursement of burial benefits from the self-insured in the amount of $2,500.00.

SUMMARY

We affirm the hearing officer’s determinations that the Division has jurisdiction to resolve the disputed issue concerning extent of injury and that the compensable injury extends to include progressive dementia that resulted in the employee’s death on January 16, 2006. We reverse the hearing officer’s decision that due to the execution and approval of a DWC-25, the Division does not have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits and render a new decision that the Division does have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits. We render a new decision that the approval of the DWC-25 does not preclude the claimant from pursuing death benefits. We render a new decision that the claimant is entitled to reimbursement of burial benefits from the self-insured in the amount of $2,500.00.

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

AW

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge