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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 March 21, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to a left knee sprain or aggravation of left knee medial compartment osteoarthritis; (2) the respondent (claimant) reached maximum medical improvement (MMI) on September 18, 2020; (3) the claimant’s impairment rating (IR) is zero percent; (4) the claimant had good cause for failing to go to the required medical examination (RME) on August 26, 2021; and (5) the claimant is entitled to temporary income benefits (TIBs) from August 26, 2021, through the date of the CCH.

The appellant (carrier) appealed the ALJ’s determinations that the claimant had good cause for failing to go to the RME on August 26, 2021, and that the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH. The claimant responded, urging affirmance of those determinations. The ALJ’s extent of injury, MMI, and IR determinations were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury in the form of at least a left knee contusion on (date of injury), and the statutory date of MMI is December 9, 2021. The claimant was injured on (date of injury), when she tripped over a hose and fell on her left leg.

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

The ALJ’s determination that the claimant had good cause for failing to go to the RME on August 26, 2021, is supported by sufficient evidence and is affirmed.

The carrier contends on appeal that the ALJ erred in determining the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH because the claimant reached MMI on September 18, 2020.  Section 408.101(a) provides that an employee is entitled to TIBs if the employee has a disability and has not attained MMI.  Section 408.102(a) provides TIBs continue until the employee reaches MMI.  As previously noted, the ALJ’s determination that the claimant reached MMI on September 18, 2020, was not appealed and has become final. Accordingly, it was error for the ALJ to determine that the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH. See Appeals Panel Decision 181731, decided September 10, 2018. We therefore reverse the ALJ’s determination that the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH, and render a new decision that the claimant is not entitled to TIBs from August 26, 2021, through the date of the CCH, because she was determined to have reached MMI on September 18, 2020.

SUMMARY

We affirm the ALJ’s determination that the claimant had good cause for failing to go to the RME on August 26, 2021.

We reverse the ALJ’s determination that the claimant is entitled to TIBs from August 26, 2021, through the date of the CCH, and render a new decision that the claimant is not entitled to TIBs from August 26, 2021, through the date of the CCH.

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

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 30, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant/cross-respondent (self-insured) is entitled to redesignate impairment income benefits (IIBs) paid after June 10, 2016, as lifetime income benefits (LIBs); and (2) the self-insured is not entitled to redesignate supplemental income benefits (SIBs) paid after June 10, 2016, as LIBs.

The self-insured appealed the ALJ’s determination that it is not entitled to redesignate supplemental income benefits (SIBs) paid after June 10, 2016, as LIBs. The respondent/cross-appellant (claimant) responded, urging affirmance of the determination disputed by the self-insured.

The claimant appealed the ALJ’s determination that the self-insured is entitled to redesignate IIBs paid after June 10, 2016, as LIBs. The self-insured responded, urging affirmance of the determination disputed by the claimant.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury; (2) the claimant is entitled to LIBs with an accrual date of June 10, 2016; and (3) the claimant was paid temporary income benefits (TIBs), IIBs, and SIBs through 401 weeks. The evidence reflected that the claimant was injured when his head was trapped between a three-point trailer hitch and the bottom of the cab of a tractor. The claimant was assessed an 81% impairment rating. At issue was whether the self-insured could redesignate previous payments of IIBs and SIBs as LIBs after June 10, 2016.

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

REDESIGNATION OF IIBS

The ALJ’s determination that the self-insured is entitled to redesignate IIBs paid after June 10, 2016, as LIBs is supported by sufficient evidence and is affirmed.

REDESIGNATION OF SIBS

Section 408.161(a)(6) provides that LIBs are paid until the death of the employee for a physically traumatic injury to the brain resulting in incurable insanity or imbecility. Section 408.161(c) provides that subject to Section 408.061 the amount of LIBs is equal to 75% of the employee’s average weekly wage and that benefits being paid shall be increased at a rate of 3% a year notwithstanding Section 408.061. LIBs is the greatest income benefit a worker can receive under the 1989 Act.

The Court of Appeals in Mid-Century Insurance Company v. Texas Workers’ Compensation Commission, 187 S.W.3d 754 (Tex. App.—Austin 2006, no pet.) held that:

An employee is eligible to receive LIBs on the date that employee suffers from one of the conditions specified in [S]ection 408.161. Section 408.161 does not permit payment of LIBs prior to that date. Once an employee is adjudicated eligible to receive LIBs, however, LIBs should be paid retroactively to the date the employee first became eligible.

See also Appeals Panel Decision (APD) 111515-s, decided December 8, 2011.

In her discussion of the evidence, the ALJ stated that LIBs are different from SIBs, which are payable for an inability to earn a pre-injury wage, noting that the claimant could return to work and still receive LIBs. The ALJ concluded that LIBs are paid for specifically listed medical conditions, and no express provision allows for a reduction or elimination of the benefits based on previous amounts paid for SIBs. The ALJ determined that the self-insured was not entitled to redesignate SIBs paid after June 10, 2016, as LIBs. We disagree.

In APD 000508, decided April 24, 2000, the Appeals Panel noted the ALJ’s determination that injured employees are not entitled to concurrently draw LIBs and IIBs appears to be a correct statement under the law and perceived no error with the ALJ’s general conclusion. The Appeals Panel further stated “[w]e note that if an injured worker who received a lump sum IIBs payment is later determined to be entitled to LIBs for the same injury, then the insurance carrier involved would generally be entitled to a credit and the IIBs already paid would likely be credited as an underpayment of accrued LIBs.” Although APD 000508 specifically applies to IIBs, we view the reasoning for the holding in this case to apply equally to the redesignation of SIBs.

Redesignation is not a recoupment of benefits; rather, redesignation is a recharacterization of the benefits paid. We see the instant case as it applies to the redesignation of SIBs payments as LIBs as analogous to the situation in which a carrier pays TIBs to the claimant after what is later determined to be the maximum medical improvement (MMI) date. Generally, under those facts, “TIBs payments made after the MMI date are redesignated as IIBs, and the carrier can take credit as IIBs those income benefits it paid to the claimant as TIBs after the MMI date.” See APD 110692, decided July 20, 2011.

Although it was initially determined at the administrative level that the claimant was not entitled to LIBs, a district court determined that the claimant was entitled to LIBs. It is undisputed that the accrual date of the claimant’s entitlement to LIBs was determined to be June 10, 2016. As previously noted, the parties stipulated that the claimant was paid TIBs, IIBs, and SIBs through 401 weeks. We hold that the self-insured can redesignate SIBs payments made to the claimant after June 10, 2016, as LIBs. Accordingly, we reverse the ALJ’s determination that the self-insured is not entitled to redesignate SIBs paid after June 10, 2016, as LIBs and render a new decision that the self-insured is entitled to redesignate SIBs paid after June 10, 2016, as LIBs.

SUMMARY

We affirm the ALJ’s determination that the self-insured is entitled to redesignate IIBs paid after June 10, 2016, as LIBs.

We reverse the ALJ’s determination that the self-insured is not entitled to redesignate SIBs paid after June 10, 2016, as LIBs and render a new decision that the self-insured is entitled to redesignate SIBs paid after June 10, 2016, as LIBs.

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).

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 29, 2020, with the record closing February 13, 2020, in (city), Texas, with (administrative law judge), presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant’s (claimant) average weekly wage (AWW) is $575.95; (2) benefits began to accrue on May 17, 2016; (3) the claimant had disability from February 8, 2016, through July 20, 2017, but did not have disability from July 21 through December 4, 2017, or from December 5, 2017, through February 20, 2018; (4) the claimant was not a seasonal employee; and (5) the claimant’s injury protection payments under his Collective Bargaining Agreement for the 2016-2017 NFL season do not constitute post-injury earnings.

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

DECISION

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

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

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

AWW

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

DISABILITY

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

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

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

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

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

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

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

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

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

ACCRUAL DATE

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

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

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

SUMMARY

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

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

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

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

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

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

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

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

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 27, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) is entitled to $7,037.55 in partial temporary income benefits (TIBs) from October 29, 2016, through June 16, 2017; (2) the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH; and (3) the employer did not make a bona fide offer of employment (BFOE) on May 18, 2017, to the claimant entitling the appellant (carrier) to adjust the post-injury weekly earnings from June 17, 2017, through the date of the CCH.

The carrier appealed the ALJ’s determinations. The carrier argues on appeal that the ALJ’s determinations are manifestly unjust and against the great weight of the evidence. The claimant responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the claimant is entitled to partial TIBs from October 29, 2016, through June 16, 2017; the claimant’s average weekly wage (AWW) is $495.18; and the claimant had disability from October 29, 2016, through the date of the CCH. The claimant testified she was injured when she slipped and fell at work.

TIBs FROM OCTOBER 29, 2016, THROUGH JUNE 16, 2017

It is undisputed that the employer made offers of employment to the claimant after the date of injury for light duty and that the claimant accepted those offers. It is also undisputed that the claimant worked for the employer in a light duty status after the date of injury and was terminated on June 16, 2017. It is further undisputed that the claimant requested the employer to reduce her hours so that her income would not impact her receipt of Social Security disability benefits for a condition unrelated to the compensable injury.

Section 408.103(a) provides, in part, that subject to Sections 408.061 and 408.062 (the maximum and minimum TIBs rates), the amount of a temporary income benefit is equal to 70% of the amount computed by subtracting the employee’s weekly earnings after the injury from the employee’s AWW, or for the first 26 weeks 75% of the amount computed by subtracting the employee’s weekly earnings after the injury from the employee’s AWW if the employee earns less than $10 an hour.  28 TEX. ADMIN. CODE § 129.3(d) (Rule 129.3(d)) provides that the carrier shall calculate the employee’s lost wages by subtracting post-injury earnings from the AWW.  Rule 129.4(a) provides that the insurance carrier shall adjust the weekly amount of TIBs paid to the injured employee as necessary to match the fluctuations in the employee’s weekly earnings after the injury.

In evidence is a calculation sheet offered by the claimant to establish the partial amount of TIBs for the disputed period. This calculation sheet estimates that the claimant is entitled to partial TIBs in the amount of $7,037.55. The claimant based this estimate on the following formula: AWW subtracted by the claimant’s post-injury earnings multiplied by 75% for the first 26 weeks, and AWW subtracted by the claimant’s post-injury earnings multiplied by 70% for the remaining weeks. The claimant based the value for post-injury earnings for each week on the number of hours she worked. The ALJ determined that the claimant is entitled to partial TIBs in the amount of $7,037.55 from October 29, 2016, through June 16, 2017.

The carrier argues that the value for post-injury earnings for each week as calculated by the claimant is incorrect because it does not consider that the claimant’s hours were reduced, in part, based on her own request to lower her hours so that her income would not impact her receipt of Social Security disability benefits for a condition unrelated to the compensable injury. The carrier contends that the correct amount for post-injury earnings for each week should be the amount of offered wages, which was $360 per week, rather than the wages earned for the number of hours she worked each week.

The claimant testified at the CCH that she did in fact request the employer to reduce the number of hours she worked each week so that her Social Security disability benefits would not be affected. As previously noted, the claimant’s Social Security disability benefits were for a condition unrelated to the compensable injury. The claimant also testified she missed time during the period at issue because of issues with her car, among other things. There was evidence presented that the claimant’s time missed was for causes not related to the compensable injury. See Appeals Panel Decision (APD) 091807, decided January 29, 2010. The ALJ made no findings of fact on the evidence presented regarding the claimant’s earnings based on reduced hours for reasons unrelated to the compensable injury, which impacts the amount of partial TIBs to which the claimant is entitled. Accordingly, we reverse the ALJ’s determination that the claimant is entitled to $7,037.55 in partial TIBs from October 29, 2016, through June 16, 2017, and we remand this issue to the ALJ for further action consistent with this decision.

BFOE AND TIBs FROM JUNE 17, 2017, THROUGH THE DATE OF THE CCH

The ALJ determined that the employer did not make a BFOE on May 18, 2017, to the claimant entitling the carrier to adjust the post-injury weekly earnings from June 17, 2017, through the date of the CCH, and that the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH. The ALJ noted that in evidence is a letter dated May 18, 2017, in which the employer offered the claimant a light duty position. Regarding that offer the ALJ stated the following:

Although the offer outlined the job activities and time requirements that the position would entail, the offer did not persuasively describe how she could perform those activities within her work restrictions.

Section 408.103(e) provides, in part, that if an employee is offered a BFOE that the employee is reasonably capable of performing, given the physical condition of the employee and the geographic accessibility of the position to the employee, the employee’s weekly earnings after the injury are equal to the weekly wage for the position offered to the employee.  Section 408.144(c) provides, in part, that if an employee is offered a BFOE that the employee is capable of performing, given the physical condition of the employee and the geographic accessibility of the position to the employee, the employee’s weekly wages are considered to be equal to the weekly wages for the position offered to the employee.

Rule 129.6 provides:

(a)  An employer or insurance carrier may request the treating doctor provide a Work Status Report [DWC-73] by providing the treating doctor a set of functional job descriptions which list modified duty positions which the employer has available for the injured employee to work.  The functional job descriptions must include descriptions of the physical and time requirements of the positions.

(b)  An employer may offer an employee a modified duty position which has restricted duties which are within the employee’s work abilities as determined by the employee’s treating doctor.  In the absence of a [DWC-73] by the treating doctor an offer of employment may be made based on another doctor’s assessment of the employee’s work status provided that the doctor made the assessment based on an actual physical examination of the employee performed by that doctor and provided that the treating doctor has not indicated disagreement with the restrictions identified by the other doctor.

(c) An employer's offer of modified duty shall be made to the employee in writing and in the form and manner prescribed by the [Texas Department of Insurance, Division of Workers’ Compensation (Division)].  A copy of the [DWC-73] on which the offer is being based shall be included with the offer as well as the following information:

(1) the location at which the employee will be working;

(2) the schedule the employee will be working;

(3) the wages that the employee will be paid;

(4) a description of the physical and time requirements that the position will entail; and

(5) a statement that the employer will only assign tasks consistent with the employee's physical abilities, knowledge, and skills and will provide training if necessary.

(d)  A carrier may deem an offer of modified duty to be a [BFOE] if:

(1) it has written copies of the [DWC-73] and the offer; and

(2) the offer:

(A)  is for a job at a location which is geographically accessible as provided in subsection (e) of this section;

(B)  is consistent with the doctor’s certification of the employee’s work abilities, as provided in subsection (f) of this section; and

(C)  was communicated to the employee in writing, in the form and manner prescribed by the [Division] and included all the information required by subsection (c) of this section.

(e)  In evaluating whether a work location is geographically accessible the carrier shall at minimum consider:

(1)  the affect that the employee’s physical limitations have on the employee’s ability to travel;

(2)  the distance that the employee will have to travel;

(3)  the availability of transportation; and

(4)  whether the offered work schedule is similar to the employee’s work schedule prior to the injury.

(f)  The following is the order of preference that shall be used by carriers evaluating an offer of employment:

(1) the opinion of a doctor selected by the [Division] to evaluate the employee’s work status;

(2) the opinion of the treating doctor;

(3) opinion of a doctor who is providing regular treatment as a referral doctor based on the treating doctor’s referral;

(4) opinion of a doctor who evaluated the employee as a consulting doctor based on the treating doctor's request; and

(5) the opinion of any other doctor based on an actual physical examination of the employee performed by that doctor.

(g)  A carrier may deem the wages offered by an employer through a [BFOE] to be [post-injury earnings], as outlined in [Rule] 129.2 of this title (relating to Entitlement to [TIBs]), on the earlier of the date the employee rejects the offer or the seventh day after the employee receives the offer of modified duty unless the employee’s treating doctor notifies the carrier that the offer made by the employer is not consistent with the employee’s work restrictions.  For the purposes of this section, if the offer of modified duty was made by mail, an employee is deemed to have received the offer from the employer five days after it was mailed. The wages the carrier may deem to be [post-injury earnings] are those that would have been paid on or after the date the carrier is permitted to deem the offered wages as [post-injury earnings].

(h)  Nothing in this section should be interpreted as limiting the right of an employee or a carrier to request a benefit review conference relating to an offer of employment.  The [Division] will find an offer to be bona fide if it is reasonable, geographically accessible, and meets the requirements of subsections (b) and (c) of this section.

Neither the Act nor Rule 129.6 require that the offer describe how an injured employee can perform the job activities within his or her work restrictions. The ALJ has used an incorrect standard of law in making her determination. Accordingly, we reverse the ALJ’s determination that the employer did not make a BFOE on May 18, 2017, to the claimant entitling the carrier to adjust the post-injury weekly earnings from June 17, 2017, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

Because we have reversed the ALJ’s determination that the employer did not make a BFOE on May 18, 2017, to the claimant, we also reverse the ALJ’s determination that the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the claimant is entitled to $7,037.55 in partial TIBs from October 29, 2016, through June 16, 2017, and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the employer did not make a BFOE on May 18, 2017, to the claimant entitling the carrier to adjust the post-injury weekly earnings from June 17, 2017, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH, and we remand this issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to consider the evidence regarding the claimant’s earnings based on reduced hours for reasons unrelated to the compensable injury and determine how this evidence impacts the amount of partial TIBs to which the claimant is entitled. The ALJ is then to determine the amount of partial TIBs to which the claimant is entitled from October 29, 2016, through June 16, 2017, based on the evidence. The ALJ is also to determine whether the employer tendered a BFOE to the claimant on May 18, 2017, using the correct standard of law. The ALJ is then to determine whether the claimant is entitled to full TIBs from June 17, 2017, through the date of the CCH.

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

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

A contested case hearing (CCH) was held on February 16, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), extends to a tear of the common extensor tendon of the right elbow and lateral epicondylitis of the right elbow; (2) the compensable injury of (date of injury), does not extend to a disc bulge at L3-4; (3) respondent 2 (claimant) has not reached maximum medical improvement (MMI); and (4) since the claimant has not reached MMI, an impairment rating (IR) cannot be assigned.

Although the appellant’s (employer) workers’ compensation insurance carrier, respondent 1 (carrier) and the claimant were parties at the CCH, neither the claimant nor the carrier have filed an appeal of the hearing officer’s decision. The employer appealed the hearing officer’s decision.

DECISION

The hearing officer’s decision has become final pursuant to Section 410.169 because the employer was not a party to the CCH and because no appeal was timely filed with the Texas Department of Insurance, Division of Workers’ Compensation by either the claimant or the carrier.

Section 409.011(b)(4) provides that an employer has the right to contest the compensability of an injury if the insurance carrier accepts liability for the payment of benefits. As noted above, the issues in this case were extent of the compensable injury, MMI, and IR. The employer does not have standing to appeal the issues in this case because the employer did not become a party to the CCH. See Appeals Panel Decision (APD) 93133, decided May 6, 1993, and cases cited therein; APD 960490, decided April 24, 1996.

Pursuant to Section 410.169, a decision of a hearing officer regarding benefits is final in the absence of a timely appeal. The hearing officer’s decision and order have become final under Section 410.169.

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. RICHARD GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 21, 2013, with the record closing on March 11, 2014,[1] in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the first certification of maximum medical improvement (MMI) and assigned impairment (IR) from [Dr. G] on February 4, 2013, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (2) the appellant/cross-respondent (self-insured) is entitled to reduce the respondent/cross-appellant’s (claimant) income benefits that were and are due and payable beginning on June 14, 2013; and (3) the claimant’s IR is 28%.

The self-insured appealed the hearing officer’s 28% IR determination, alleging that the impairment includes a rating for a non-compensable injury and the measurements used by the certifying doctor were not as of the date of MMI. Furthermore, the self-insured alleges that it was denied the opportunity to obtain a post-designated doctor required medical examination (RME) doctor pursuant to a letter of clarification (LOC) by the hearing officer. The claimant responded, urging affirmance of the hearing officer’s 28% IR.

The claimant cross-appealed the hearing officer’s determination that the self- insured is entitled to reduce the claimant’s income benefits that were and are due and payable beginning on June 14, 2013. Also, the claimant specifically appeals the hearing officer’s Finding of Fact No. 13 which states that “10/28th (36%) of [the] [c]laimant’s 28% [IR] for the compensable injury of [date of injury], is due to the compensable injury of [prior date of injury],” because the amount of contribution was not in dispute and was not actually litigated by the parties. The self-insured responded, urging affirmance of the hearing officer’s finding on the amount of contribution.

The hearing officer’s determination that the first certification of MMI and IR from Dr. G on February 4, 2013, did not become final under Section 408.123 and Rule 130.12 was not appealed and became final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a-1). Section 410.204(a) provides, in part, that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1). Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case: (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but do not affect the outcome of the hearing. This case is a situation that requires correction but does not affect the outcome of the hearing.

The claimant testified that she was injured while trying to break up a fight between two students on [date of injury]. The parties stipulated that: (1) the claimant sustained a compensable injury on [date of injury]; (2) the compensable injury of [date of injury], extends to a lumbar sprain/strain, a cervical sprain/strain, a right shoulder sprain/strain, a right shoulder rotator cuff tear, a chest contusion, a left wrist contusion, an ankle contusion, a groin sprain/strain, and a left shoulder sprain/strain; (3) the date of statutory MMI is December 9, 2012;[2] and (4) as of June 12, 2012, Dr. C was the Texas Department of Insurance, Division of Workers’ Compensation (Division)-appointed designated doctor on the issues of MMI and IR.

IR

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. Rule 130.1(c)(3) provides 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.

In this case Dr. G, the referral doctor, examined the claimant on February 4, 2013, and certified that the claimant reached MMI on December 9, 2012, with a 23% IR. Dr. C, the designated doctor, examined the claimant on May 9, 2013, and certified that the claimant reached MMI on December 9, 2012, with a 13% IR. The hearing officer’s Discussion states that “[b]ecause neither [Dr. G] nor [Dr. C] had rated the entire compensable injury, a [LOC] was sent to [Dr. C]. On October 28, 2013, [Dr. C] responded and requested a re-examination.” Dr. C examined the claimant on January 21, 2014, and certified that the claimant reached MMI on December 9, 2012, with a 28% IR. The hearing officer’s Finding of Fact No. 10 which states that Dr. C’s January 21, 2014, IR is the only IR that considers the entire compensable injury is supported by sufficient evidence. The hearing officer’s determinations that the claimant’s IR is 28% is supported by sufficient evidence and is affirmed.

On appeal, the self-insured contends that it was denied procedural due process because it was not granted additional time to be allowed to obtain an RME doctor to opine on the designated doctor’s amended report. The designated doctor, Dr. C, re-examined the claimant on January 21, 2014, and certified on that date that the claimant reached MMI on December 9, 2012, with a 28% IR. In a letter dated February 21, 2014, the hearing officer gave the parties the opportunity to respond to Dr. C’s report by March 3, 2014. On March 3, 2014, the self-insured responded and requested additional time so that an RME doctor may be obtained. On March 11, 2014, the hearing officer issued an order denying the carrier’s request to hold the record open for an RME report because the self-insured failed to exercise due diligence in seeking and obtaining an alternate IR although the self-insured was fully aware that the designated doctor had not rated the entire compensable injury prior to the CCH. An abuse of discretion occurs when a decision is made without reference to any guiding rules or principles. See Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). In Appeals Panel Decision (APD) 091437, decided November 20, 2009, the carrier did not request an RME until August 27, 2009, the date the hearing officer set for submitting closing arguments from the parties. The hearing officer closed the record on August 27, 2009. The Appeals Panel found no abuse of discretion in the hearing officer denying the carrier’s motion for continuance. In this case, we find no abuse of discretion by the hearing officer in denying the self-insured’s request to leave the record open to obtain an RME doctor.

DATE CONTRIBUTION BEGINS

In evidence is a Carrier’s Request for Reduction of Income Benefits Due to Contribution (DWC-33) dated and received by the Division on June 14, 2013. The self-insured requested a reduction of income benefits in the amount of 38% based on a 5% IR for a prior compensable injury and a 13% IR for the current compensable injury (5/13=38%). The Division approved a reduction of income benefits by 25% for the effects of contribution on June 18, 2013.

The disputed issue was “[o]n what date is [the self-insured] entitled to reduce the [c]laimant’s impairment income benefits [IIBs] based on the Division Order for Contribution dated June 18, 2013?” The hearing officer found that the self-insured filed a request to reduce the claimant’s IIBs and supplemental income benefits (SIBs) due to the contribution to the claimant’s impairment from the [prior date of injury], compensable injury on June 14, 2013. (See APD 002211-s, decided November 6, 2000, which held that the carrier may only recoup overpayments on IIBs and SIBs that accrue on or after the date the carrier files a request for contribution with the Division.) The hearing officer’s determination that the self-insured is entitled to reduce the claimant’s income benefits that were and are due and payable beginning on June 14, 2013, is supported by sufficient evidence and is affirmed.

However, as the claimant contends on appeal, the amount of contribution was not an issue before the hearing officer. A review of the record reflects that the parties did not agree to litigate the amount of contribution. The hearing officer assigned contribution in the amount of 10/28ths, or 36%, based on a 10% IR for a prior compensable injury, and the current 28% IR for the current compensable injury. Because the amount of contribution was not an issue before the hearing officer and it was not actually litigated by the parties, we reform the hearing officer’s decision by striking Finding of Fact No. 13 that “10/28th (36%) of [the] [c]laimant’s 28% IR for the compensable injury of [date of injury], is due to the compensable injury of [prior date of injury].”

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
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the hearing officer misidentified the date the record closed as March 11, 2013, rather than March 11, 2014.

  2. We note that although the parties stipulated that the date of statutory MMI is December 9, 2012, the parties did not stipulate that the claimant reached statutory MMI on December 9, 2012. However, the benefit review conference report dated September 27, 2013, states that the parties agreed the date of MMI is December 9, 2012, as certified by Dr. G and [Dr. C]. Also, the hearing officer determined that the claimant reached MMI on December 9, 2012.

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 was held on April 14, 2011, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the sole disputed issue before her, the hearing officer determined that Dr. J should not be disqualified as the designated doctor due to a disqualifying association as described in 28 TEX. ADMIN. CODE § 180.21 (Rule 180.21).[1]

The appellant (claimant) appealed, contending that Dr. J had a disqualifying association pursuant to Rule 180.21(a)(2)(F). The respondent (self-insured) responded, contending that there was no contract or other disqualifying association which would disqualify Dr. J from serving as a designated doctor in this case.

DECISION

Reversed and a new decision rendered.

The facts in this case are not in dispute. The parties stipulated that the claimant sustained a compensable injury on _____________. The parties also stipulated that the Political Subdivision Workers’ Compensation (Alliance) is the trade name for a group of five Texas intergovernmental risk pools (Pools) that have joined together to exercise the option to directly contract with health care providers for the provision of workers’ compensation medical benefits to the injured employees of the member Alliance of each Pool. The claimant is an employee of the self-insured, which is a member of one of the Alliance’s member Pools. The parties further stipulated that the Alliance is not a Texas Workers’ Compensation Network as provided for under Chapter 1305 of the Texas Insurance Code but rather is an entity created in accordance with Section 504.053; whereby the Alliance directly contracts with health care providers. The parties also stipulated that the Alliance has a contract with (CN) (which the claimant contends is a health care provider as defined in Section 401.011(22)), that Dr. J performs work for CN and that the claimant “was/is required to seek treatment with the health care providers that have contracted with [the] Alliance” which in this case was CN.

In her Background Information, the hearing officer comments that the Alliance is not a Health Care Network (which would be governed by the provisions of Chapter 1305 of the Texas Insurance Code) and “[t]herefore Rule 180.21(a)(2)(F) does not apply.” Rule 127.5(c)(1) references Rule 180.21 with regard to disqualifying associations.[2] Rule 180.21(a)(2), defines a disqualifying association as any association that may reasonably be perceived as having the potential to influence the conduct or decision of a (designated) doctor. Rule 180.21(a)(2)(F) does not apply in this case because the Alliance is not a health care network; however, the other portions of Rule 180.21(a)(2) would be applicable to this case.

Rule 180.21(a)(2) states that a disqualifying association may include:

* * * *

(D)contracts or agreements for space or equipment rentals, personnel services, management contracts, referral services, or warranties, or any other services related to the management of the doctor’s practice;

* * * *

(G)any other financial arrangement that would require disclosure under the Labor Code or applicable [Texas Department of Insurance, Division of Workers’ Compensation] rules, the Insurance Code or applicable Department rules, or any other association with the injured employee, the employer, or insurance carrier that may give the appearance of preventing the designated doctor from rendering an unbiased opinion.

The hearing officer states in her Background Information and in a finding of fact that there “is no financial arrangement or any other association with the injured employee, the employer, or the insurance carrier that gives the appearance of preventing the designated doctor from rendering an unbiased opinion.” We disagree. In this case, it is stipulated that the claimant was and is required to seek treatment with CN, which is a health care provider that has contracted with the Alliance in which the self-insured is a member. Similarly, it is undisputed that Dr. J, the designated doctor, also “performs work” for CN. The same entity that is treating the claimant also employs the designated doctor, who is to render an unbiased opinion. Under the facts of this case, the association that Dr. J has with CN, where the claimant is required to seek treatment, may reasonably be perceived as having the potential to influence the conduct or decision of the designated doctor. See Rule 180.21(a)(2)(D) and (G).

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).

Accordingly, we hold that the hearing officer’s determination that Dr. J should not be disqualified as the designated doctor, due to a disqualifying association as described in Rule 180.21 to be so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We reverse the hearing officer’s determination that Dr. J should not be disqualified as the designated doctor due to a disqualifying association as described in Rule 180.21 and we render a new decision that Dr. J is disqualified as the designated doctor due to a disqualifying association as described in Rule 180.21.

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).

Thomas A. Knapp

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the hearing officer in her Conclusion of Law and the Decision mistakenly refers to “Rule 180.12” rather than Rule 180.21.

  2. This provision was formerly found in Rule 126.7(h)(2) which has been superceded.

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 29, 2011. The hearing officer determined that: (1) the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010; (2) the claimant is entitled to SIBs for the eighth quarter beginning on July 10, 2010, and ending on October 8, 2010; (3) the claimant is entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011; and (4) (Dr. P) was properly appointed as the designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 126.7 (Rule 126.7).[1]

The appellant (carrier) appeals the hearing officer’s determinations. The claimant responds, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

PROPERLY APPOINTED DESIGNATED DOCTOR AND EIGHTH QUARTER SIBS

The hearing officer’s determinations that Dr. P was properly appointed as the designated doctor in accordance with Section 408.0041 and Rule 126.7 and that the claimant is entitled to SIBs for the eighth quarter beginning on July 10, 2010, and ending on October 8, 2010, are supported by sufficient evidence and are affirmed.

SIXTH AND NINTH QUARTER SIBS

The parties stipulated the following: the claimant was injured in the course and scope of employment on ___________;[2] the claimant reached maximum medical improvement on May 12, 2006, with a 42% impairment rating; the claimant did not elect to commute any portion of his IIBs; the qualifying period for the disputed sixth quarter began on September 27, 2009, and ended on December 26, 2009; and the qualifying period for the disputed ninth quarter began on June 27, 2010, and ended on September 25, 2010.

The claimant sustained a serious traumatic injury on ___________, when he was hit in the head by a crane and knocked off the rig on which he was working and fell 8-10 feet to the ground. The claimant has sustained severe traumatic head injuries and also injuries to other parts of his body, and has undergone multiple surgeries. The claimant testified he has not worked since the date of the injury.

Eligibility criteria for SIBs entitlement are set forth in Section 408.142. Section 408.142 as amended by the 79th Legislature, effective September 1, 2005, references the requirements of Section 408.1415 regarding work search compliance standards. Section 408.1415(a) states that the Division commissioner by rule shall adopt compliance standards for SIBs recipients. Rules 130.100-130.109, effective July 1, 2009, govern the eligibility of SIBs. Rule 130.101(4) provides in part that a qualifying period that begins on or after July 1, 2009, is subject to the provisions of this subchapter, and a qualifying period that begins prior to July 1, 2009, remains subject to the rules in effect on the date the qualifying period begins.

Sixth Quarter SIBs

The claimant argues entitlement for the sixth quarter based on a total inability to work. The sixth quarter qualifying period began on September 27, 2009, and ended on December 26, 2009.

Rule 130.102(d)(1) provides in pertinent part that an injured employee demonstrates an active effort to obtain employment by meeting at least one or any combination of the following work search requirements each week during the entire qualifying period: (E) has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work.

The hearing officer found the claimant was unable to perform any type of work in any capacity during the sixth quarter qualifying period, and noted in the Background Information section of his decision that the claimant’s inability to work is reflected in the medical records of (Dr. H), and Dr. P, as well as testimony from (Dr. A). The hearing officer did not identify which medical record is a narrative report from a doctor which specifically explains how the work injury causes a total inability to work.

A review of the record reflects that Dr. H issued a letter dated September 23, 2009, and (Dr. T), the claimant’s treating doctor, issued a letter dated December 18, 2009. In these letters Dr. H and Dr. T each state the following:

[The claimant] continues to have worsening cognitive function. He is noted to have repetition of the same questions without being able to retain the information. He also continues to have balance and vestibular problems and continues to intermittently use a single-point cane. We await approval from Workers’ Compensation for neuropsychological testing. This will provide objective data for complaints of cognitive decline.

It is my opinion that [the claimant] is not able to return to competitive employment now or in the future.

Neither of these letters from Dr. H and Dr. T specifically explain how the compensable injury caused a total inability to work; therefore, neither letter is sufficient to constitute a narrative as required by Rule 130.102(d)(4). There are no other records in or near the sixth quarter qualifying period that would constitute a narrative as required by Rule 130.102(d)(4). Therefore, we reverse the hearing officer’s determination that the claimant is entitled to SIBs for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010, and render a new decision that the claimant is not entitled to SIBs for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010.

Ninth Quarter SIBs

The claimant argues entitlement for the ninth quarter based on a total inability to work, and in the alternative argues he made job searches in compliance with Rule 130.102.

Total Inability to Work During the Ninth Quarter Qualifying Period

The ninth quarter qualifying period began June 27, 2010, and ended on September 25, 2010. The hearing officer found that the claimant was unable to perform any type of work in any capacity during the ninth quarter qualifying period. The hearing officer did not identify which medical record is a narrative report from a doctor which specifically explains how the work injury causes a total inability to work.

In evidence is a letter dated September 20, 2010, from Dr. T in which he discusses the claimant’s inability to work as follows:

I had previously recommended return to work with restrictions, as [the claimant] had been doing better clinically. At the time of his most recent visit with me on 9/20/10, it appears that [the claimant] has worsened clinically to the point where I do not believe he should attempt work re-entry. Given his head injury, [the claimant] is more sensitive to other medical issues that may arise, for which the net effect has been a decrease in functional status. For this reason, I have placed him on a ‘no-work restriction’ and will plan on re-evaluating this status at the time of our next appointment in 3 months.

However, also in evidence is a letter dated June 18, 2010, from Dr. T, stating the claimant can return to work with the following restrictions:

  1. 1.Work in a non-stress single-minded focused task work setting as opposed to a multitask environment.

  2. 2.No driving or operating heavy machinery due to seizure precautions.

  3. 3.No climbing heights.

  4. 4.No activity that would put the [claimant] or others at risk should the [claimant] have a seizure.

Although Dr. T’s September 20, 2010, letter is sufficient to constitute a narrative as required by Rule 130.102(d)(4), Dr. T’s June 18, 2010, letter, issued just nine days prior to the start of the ninth quarter qualifying period, is an other record, as discussed in Rule 130.102(d)(1), that shows the claimant had an ability to work for at least part of the ninth quarter qualifying period. Dr. T does not explain in his September 20, 2010, letter how the claimant’s compensable injury caused a total inability to work from June 18 through September 20, 2010, the date he opined the claimant could no longer work.

Job Search During the Ninth Quarter Qualifying Period

Section 408.1415(a)(3) provides in part that to be eligible to receive SIBs, a recipient must provide evidence satisfactory to the Division of active work search efforts documented by job applications submitted by the recipient.  Section 408.1415(b)(2) provides that in adopting rules under this section, the commissioner shall define the number of job applications required to be submitted by a recipient to satisfy the work search requirements.  Rule 130.102(d)(1)(D) provides, in pertinent part, that an injured employee demonstrates an active effort to obtain employment by meeting at least the following work search efforts each week during the entire qualifying period by performing active work search efforts documented by job applications.  Rule 130.102(f) provides in part, that as provided in subsection 130.102(d)(1)(C) and (D), regarding active participation in work search efforts and active work search efforts, an injured employee shall provide documentation sufficient to establish that he or she has, each week during the qualifying period, made the minimum number of job applications and/or work search contacts consistent with the work search contacts established by the Texas Workforce Commission (TWC) which are required for unemployment compensation in the injured employee’s county of residence pursuant to the TWC Local Workforce Development Board requirements.

It was undisputed the claimant was required to make a minimum of 3 job searches each week of the ninth quarter qualifying period. A review of the Detailed Job Search/Employer Contact Log of the Application for [SIBs] (DWC-52) for the ninth quarter qualifying period lists 36 job contacts; however, the claimant failed to make the required number of job searches for the first, seventh, and eighth weeks of the ninth quarter qualifying period.

As previously discussed, to meet the eligibility requirements for the ninth quarter of SIBs, the claimant had to meet at least one of the work search requirements listed in Rule 130.102(d)(1) for every week of the ninth quarter qualifying period. Because the evidence contained a record showing the claimant had some ability to work during the ninth quarter qualifying period and because the claimant failed to make the required number of job searches for the ninth quarter qualifying period, the claimant has not met the eligibility requirements for the ninth quarter SIBs. We therefore reverse the hearing officer’s determination that the claimant is entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011, and render a new decision that the claimant is not entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011.

SUMMARY

We affirm the hearing officer’s determination that Dr. P was properly appointed as the designated doctor in accordance with Section 408.0041 and Rule 126.7.

We affirm the hearing officer’s determination that the claimant is entitled to SIBs for the eighth quarter beginning on July 10, 2010, and ending on October 8, 2010.

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010, and render a new decision that the claimant is not entitled to SIBs for the sixth quarter beginning on January 9, 2010, and ending on April 9, 2010.

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011, and render a new decision that the claimant is not entitled to SIBs for the ninth quarter beginning on October 9, 2010, and ending on January 7, 2011.

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

JAMES H. MOODY III

2001 BRYAN STREET, SUITE 1800

DALLAS, TEXAS 75201-3070.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the Texas Department of Insurance, Division of Workers’ Compensation (Division) has adopted new rules concerning designated doctor scheduling and examinations effective February 1, 2011; however, the rule in effect at the time of the CCH was Rule 126.7.

  2. We note the hearing officer states in his decision that the parties stipulated that the claimant sustained a compensable injury on ________; however, the parties stipulated on the record as reflected above. We further note that the parties also stipulated, among other things, that the Division’s initial determination of SIBs was made on October 6, 2008; and that the claimant’s impairment income benefits (IIBs) period ended on October 10, 2008.

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. The hearing officer determined that: (1) the respondent’s (claimant) impairment rating (IR) is 36%; and (2) that the required medical examination (RME) report of (Dr. G) dated June 15, 2010, is not a valid report pursuant to 28 TEX. ADMIN. CODE § 126.6(b) (Rule 126.6(b)). The appellant (carrier) appeals the hearing officer’s determination that the claimant’s IR is 36%. The claimant responds, urging affirmance. The hearing officer’s determination that the RME report of Dr. G dated June 15, 2010, is not a valid report pursuant to Rule 126.6(b) has not been appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

It was undisputed that the claimant sustained a compensable injury on ___________, in a grain elevator explosion. The claimant sustained second and third degree burns to approximately 28% of his body, including his face, head, and upper and lower extremities. The claimant also sustained multiple facial fractures, and vision and hearing loss. He has undergone approximately eight surgeries since the date of injury.

The Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. W) as the designated doctor to determine the claimant’s maximum medical improvement (MMI) and IR, among other issues. Dr. W initially examined the claimant on September 26, 2008, and determined the claimant had not reached MMI as of that date.

In January 2009, the claimant underwent surgery for a ventral wall hernia, performed by (Dr. Gw). However, the claimant continued to have problems with his abdomen.

Dr. W next examined the claimant on April 3, 2009. The parties stipulated that statutory MMI is March 26, 2009. Using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides), Dr. W assigned a 36% IR. Dr. W’s IR included a 9% whole person impairment (WPI) for burns under Chapter 13, Table 2 Class I, page 13/280 of the AMA Guides; a 5% WPI for facial fractures under Section 13.4: Disfigurement, page 13/279 of the AMA Guides; a 13% WPI for an ocular injury under Chapter 8 of the AMA Guides; a 0% WPI for an auditory injury under Chapter 9 of the AMA Guides; and a 15% WPI under Chapter 10.9: Hernias of the Abdominal Wall, Table 7 Class II, page 10/247 of the AMA Guides resulting in a combined IR of 36%.

In a progress note dated April 27, 2009, Dr. Gw noted the claimant had a possible ventral hernia, and recommended a CT scan of the abdomen to evaluate whether the claimant had an abdominal wall hernia. An x-ray was taken on April 30, 2009, to assess the claimant’s abdomen. The x-ray indicated a possible hernia.

A peer review of the IR was performed by (Dr. B). In his peer review dated May 18, 2009, Dr. B noted, among other things, that the ventral wall hernia was healed and that there was no palpable defect in the supporting structures of the abdominal wall.

On July 27, 2009, a letter of clarification (LOC) was sent to Dr. W questioning, among other things, why he had assigned a Class II hernia impairment when Dr. W had stated in his narrative report dated April 30, 2009, that the claimant’s physical examination “notes no palpable defect in the supporting structure of the abdominal wall and no notification of a frequent or persistent protrusion.” Dr. W responded to the LOC on July 30, 2009, stating:

In looking at my report I note, “[h]e has a lot of weakness in the anterior abdominal wall.” I note that he made significant improvement since the surgery but it certainly is not as good as it was. That is an understatement. He has a very abnormal abdominal wall due to having a very large ventral hernia repair utilizing Alloderm. It is definitely an abnormal anterior wall. The whole abdominal wall is stretched out and it is weak and it is not anywhere near what it should be. I felt it very appropriate to rate this problem for the patient since he did not have this problem before he was burned and developed the need for laparotomy and hematoma and that left him with that huge ventral hernia that had to be fixed with an $11,000 piece of Alloderm. That anterior abdominal wall, as I have already said, is not what it used to be and it is appropriate to rate it. There is just no table available to rate it so I elected to utilize Hernia Related Impairment, Table 7. This is one of those cases that there is not an exact method available to rate a problem. I utilized what I felt to be the best approach to rating his problem.

On September 9, 2009, the claimant underwent an exploratory laparotomy with lysis of adhesions, component separation, and abdominal wall reconstruction with mesh placement by Dr. Gw. In a progress note dated June 30, 2010, Dr. Gw noted no hernia defects. The claimant testified at the CCH that the September 9, 2009, surgery was successful.

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

The Appeals Panel has held that the AMA Guides require a palpable defect for an impairment to be awarded for a hernia under Table 7. Appeals Panel Decision (APD) 072253-s, decided March 3, 2008. Although there was evidence that the claimant sustained complications after the initial January 2009 hernia repair, there was no evidence of a documented palpable defect in Dr. W’s examination to determine MMI and IR. As such, Dr. W’s IR assigning a 15% WPI for a hernia under Table 7 is not in accordance with the AMA Guides and therefore contrary to the preponderance of the other medical evidence. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 36%.

As previously noted, the hearing officer’s determination that Dr. G’s report is not a valid report has not been appealed, and has become final and cannot be adopted. Since the hearing officer’s determination that the claimant’s IR is 36% has been reversed and there is no other assignment of an IR in evidence which we can adopt, consideration and development of the evidence is necessary to resolve the issue of the claimant’s IR.  See Albertson’s, Inc. v. Ellis, 131 S.W.3d 245 (Tex. App.—Fort Worth 2004, pet. denied). Accordingly, we remand the IR issue to the hearing officer.

On remand the hearing officer is to send a LOC to Dr. W, if he is still qualified and available to serve as the designated doctor, informing him that to assess impairment for a hernia-related injury under Table 7 of the AMA Guides there must be a palpable defect in the supporting structures of the abdominal wall. Further, the hearing officer is to inform Dr. W that he is not limited to consideration of Table 7 in assessing the claimant’s impairment for an abdominal wall injury, and that he may choose to re-examine the claimant to assess the claimant’s IR. Dr. W should also be informed that the assignment of the IR for the compensable injury must be based on the claimant’s condition as of the stipulated date of MMI, March 26, 2009, considering the medical records and the certifying examination. A copy of this IR is to be made available to the parties and the parties are to be given an opportunity to respond.  The hearing officer is then to make a determination on the IR issue. If Dr. W is no longer qualified and available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Rule 126.7(h).[1]

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

MR. RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TX 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

  1. We note that the Division has adopted new rules concerning designated doctor scheduling and examinations effective February 1, 2011. The pertinent part of Rule 126.7(h) cited above is provided in the new Rule 127.5(d).

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