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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 December 12, 2013, in [City], Texas, with [hearing officer] presiding as the hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [date of injury], extends to a 5th metatarsal fracture after September 6, 2011; and (2) the treatment rendered by respondent 2 (subclaimant) during the period of September 7, 2011, through May 22, 2012, was treatment for the compensable injury of [date of injury], for a fracture of the 5th metatarsal.

The appellant (self-insured) appealed all of the hearing officer’s determinations, arguing that there was not sufficient evidence to support the determinations and that the hearing officer did not have jurisdiction to decide whether the treatment rendered by the subclaimant during the period of September 7, 2011, through May 22, 2012, was treatment for the compensable injury of [date of injury], for a fracture of the 5th metatarsal because the proper venue for that determination is medical dispute resolution. The subclaimant responded, urging affirmance of the hearing officer’s determinations. The appeal file does not contain a response from respondent 1 (claimant).

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 described by 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 by 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 is a case of first impression and is a situation with an error that requires correction, but the error does not affect the outcome of the hearing.

The parties stipulated on the record that: (1) the claimant sustained a compensable injury on [date of injury], and (2) the self-insured accepts that a fracture of the 5th metatarsal is included in the compensable injury before September 7, 2011, but not thereafter.

ISSUE NO. 1

The Decision and Order lists Issue No. 1 as “[w]as the treatment rendered by [the subclaimant] during the period September 7, 2011 through May 22, 2012 treatment for the compensable injury of [date of injury] for a fracture of the 5th metatarsal?” The parties agreed on the record and the Benefit Review Conference (BRC) Report states that the issue should be “[w]as the treatment rendered by [the subclaimant] during the period September 7, 2011 through May 22, 2012 for the compensable injury of [date of injury] for a fracture of the left 5th metatarsal?” However, Issue No. 1 as listed in the Decision and Order does not include the word “left.” Therefore, we reform Issue No. 1 by adding the word “left” directly before “5th metatarsal.”

ISSUE NO. 2

The hearing officer added Issue No. 2 because it was actually litigated by the parties. Issue No. 2 was also requested by the self-insured in Carrier’s Request for Correction and Clarification of the Issues and Argument in Support. The self-insured’s request, filed in response to the BRC Report, requests the following issue: “[d]oes the compensable injury of [date of injury] extend to and include a fracture of the left 5th metatarsal after [September 7, 2011]?” At the hearing, the self-insured urged that the issue be worded the same way as in its request. However, the decision again leaves out the word “left” and states the issue as: “[d]oes the compensable injury of [date of injury] extend to and include a fracture of the 5th metatarsal after September 6, 2011?” The parties litigated whether the compensable injury extends to a fracture of the left 5th metatarsal after September 6, 2011. Therefore, we reform Issue No. 2 in the Decision and Order to read: “[d]oes the compensable injury of [date of injury] extend to and include a fracture of the left 5th metatarsal after September 6, 2011?”

FINDINGS OF FACT NOS. 6, 7, AND 8; CONCLUSIONS OF LAW NOS. 3 and 4; AND THE DECISION

As with Issue Nos. 1 and 2, the hearing officer failed to include the word “left” before “5th metatarsal” in Findings of Fact Nos. 6, 7, and 8; Conclusions of Law Nos. 3 and 4; and the Decision section of the Decision and Order. To conform with the wording of the issues as litigated, we reform Findings of Fact Nos. 6, 7, and 8; Conclusions of Law Nos. 3 and 4; and the Decision section of the Decision and Order by inserting “left” before every instance of “5th metatarsal.”

EXTENT OF INJURY

The hearing officer’s determination, as reformed, that the compensable injury of [date of injury], extends to a left 5th metatarsal fracture after September 6, 2011, is supported by sufficient evidence and is affirmed.

RELATEDNESS OF TREATMENT TO COMPENSABLE INJURY

The hearing officer’s determination, as reformed, that the treatment rendered by the subclaimant during the period of September 7, 2011, through May 22, 2012, was treatment for the compensable injury of [date of injury], for a fracture of the left 5th metatarsal is supported by sufficient evidence and is affirmed.

The self-insured argued at the hearing that the proper venue for a determination of whether the treatment at issue was reasonable and necessary for the compensable injury of [date of injury], is medical dispute resolution. We note that the self-insured is correct that, in this case, a dispute regarding whether treatment is reasonable and necessary would be governed by Sections 413.031, 413.0311, Insurance Code Chapter 4202, and 28 TEX. ADMIN. CODE § 133.308 (Rule 133.308). However, the issue decided by the hearing officer did not address whether the treatment was reasonable and necessary. The hearing officer merely addressed whether the treatment was for the compensable injury.

SUMMARY

We reform Issue No. 1 to add the word “left” before the words “5th metatarsal.”

We reform Issue No. 2 to read “[d]oes the compensable injury of [date of injury] extend to and include a fracture of the left 5th metatarsal after September 6, 2011?”

We reform Findings of Fact Nos. 6, 7, and 8; Conclusions of Law Nos. 3 and 4; and the Decision section of the Decision and Order by inserting the word “left” before every instance of the words “5th metatarsal.”

We affirm as reformed the hearing officer’s determination that the compensable injury of [date of injury], extends to a left 5th metatarsal fracture after September 6, 2011.

We affirm as reformed the hearing officer’s determination that the treatment rendered by the subclaimant during the period of September 7, 2011, through May 22, 2012, was treatment for the compensable injury of [date of injury], for a fracture of the left 5th metatarsal.

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

For service in person, the address is:

JONATHAN D. BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

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

AUSTIN, TEXAS 78701.

For service by mail, the address is:

JONATHAN D. BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Tracey T. Guerra
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 7, 2012, reconvened on April 3, 2012, June 13, 2012, with the record closing on August 21, 2012,[1] in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) as a result of a prior decision and order, the Texas Department of Insurance, Division of Workers’ Compensation (Division) does not have jurisdiction to determine the date of maximum medical improvement (MMI); (2) as a result of a prior Division determination, the respondent/cross-appellant’s (claimant) date of MMI is May 7, 2003; (3) the claimant is entitled to supplemental income benefits (SIBs) for the 5th through 23rd quarters by virtue of appellant/cross-respondent’s (carrier) waiver; (4) the carrier waived its right to contest the claimant’s entitlement to SIBs for the 5th through 23rd quarters; (5) the claimant is not entitled to lifetime income benefits (LIBs); (6) the claimant is not entitled to have the statutory MMI date extended pursuant to Section 408.104; (7) the issue of whether the claimant is entitled to reimbursement for medical expenses cannot be decided in this indemnity dispute resolution proceeding; (8) the carrier is not entitled to reduce/suspend temporary income benefits (TIBs) to offset Social Security payments; and (9) the carrier is not entitled to reduce/suspend impairment income benefits (IIBs) to offset Social Security payments.

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

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

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

DECISION

Affirmed in part and reversed and rendered in part.

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

LIBs

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

EXTENSION OF STATUTORY MMI FOR SPINAL SURGERY

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

REIMBURSEMENT FOR MEDICAL EXPENSES

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

JURISDICTION TO DECIDE MMI

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

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

SIBS AND CARRIER WAIVER

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

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

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

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

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

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

Section 408.143 provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SUMMARY

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

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

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

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

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

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

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

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

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

    ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 7, 2005. The hearing officer determined that the appellant’s (claimant) compensable injury of ____________, does not extend to and include the right shoulder; that Dr. F, findings are entitled to presumptive weight in that Dr. F was properly appointed as the second designated doctor in accordance with Section 410.0041 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5 (Rule 130.5); and that the claimant’s impairment rating (IR) is 9%, as certified by Dr. F. The claimant appealed the hearing officer’s determinations based on sufficiency of the evidence grounds. The respondent (carrier) responded, urging affirmance.

DECISION

Affirmed in part; reversed and rendered in part.

BACKGROUND INFORMATION

The parties stipulated that the claimant sustained a compensable injury on ____________; that (Dr. C) was the first designated doctor; and that Dr. F was the second designated doctor. It is undisputed that the claimant reached maximum medical improvement on July 13, 2003, and that the claimant’s IR was assessed under 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). In this case, Dr. C was appointed as the designated doctor, and he examined the claimant on July 18, 2003, and he assessed that the claimant’s IR was 19% based on 5% whole person impairment for the cervical spine under Diagnosis-Related Estimate Cervicothoracic Category II, 12% whole person impairment for “decreased grip strength due to residual ulnar and medical nerve weakness” under Table 3, and 4% whole person impairment for the upper extremity for “loss of shoulder strength.” The peer review doctor, (Dr. S) disagreed with Dr. C’s IR assessment and stated that the claimant’s injury was in the form of carpal tunnel syndrome, and that the cervical spine and right shoulder were not casually related to the claimant’s injury but resulted from a motor vehicle accident (MVA) sustained on July 26, 2001. The Texas Workers’ Compensation Commission (Commission) sent Dr. C the peer review doctor’s letter for his review. Thereafter, Dr. C amended his report to reflect a 12% IR, after reviewing Dr. S’s report which included information that the claimant was involved in a MVA. It is undisputed that Dr. S referenced (Dr. P) medical report that erroneously referred to a MVA from another individual that had the same name as the claimant’s. Due to the erroneous information, Dr. S corrected his peer review report to reflect that the claimant was not involved in a MVA on July 26, 2001, however he stated that the claimant was involved in two separate MVAs on October 27, 2000, and October 19, 2002. On February 18, 2004, the Commission appointed a second designated doctor based on the claimant’s request that the first designated doctor’s opinion was “tainted” by erroneous information from Dr. S that was inappropriately sent to him for his review. Thereafter, Dr. F was appointed the second designated doctor, and he assigned two separate IRs, one that included the right shoulder and the other that did not include the right shoulder. At a prior CCH, the hearing officer in that case determined and the Appeals Panel affirmed, that the claimant’s compensable injury included the cervical spine. Based on the extent-of-injury determination, Dr. F assigned two separate IRs, one that included the right wrist, right shoulder, and cervical spine, and the other that included the right wrist, and cervical spine. At the agreement of the parties, the hearing officer in this case requested a letter of clarification from the first designated doctor, Dr. C, regarding the claimant’s IR. In a letter of clarification dated February 16, 2005, Dr. C amended his report to reflect the claimant’s correct information. Dr. C stated that he had received “erroneous information, which my prior supplemental report was based upon. Also, it states that the compensable injury does include the cervical spine.” Dr. C assessed that the claimant’s IR was 16% based on 5% whole person impairment for the cervical spine, and 12% whole person impairment due to ulnar and median nerve weakness residuals.

EXTENT OF INJURY

The extent-of-injury issue presented a question of fact for the hearing officer to resolve. The hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as the weight and credibility that is to be given to the evidence. Section 410.165(a). It is for the hearing officer to resolve the inconsistencies and conflicts in the evidence and to decide what facts the evidence has established. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The hearing officer reviewed the record and medical evidence and decided what facts were established. An appeals-level body is not a fact finder, and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer’s decision for factual sufficiency of the evidence we should reverse such decision only if it is so against the weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, and we do not find it to be so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The hearing officer’s extent-of-injury determination is affirmed.

APPOINTMENT OF A SECOND DESIGNATED DOCTOR

An abuse of discretion is the standard to use in reviewing a decision to appoint a second designated doctor. Texas Workers’ Compensation Commission Appeal No. 960454, decided April 17, 1996. 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); See also Texas Workers’ Compensation Commission Appeal No. 931034, decided December 27, 1993.

In Texas Workers’ Compensation Commission Appeal No. 011607, decided August 28, 2001, the Appeals Panel held that normally the appointment of a second designated doctor is appropriate only in those cases where the first designated doctor is unable or unwilling to comply with the required AMA Guides or requests from the Commission for clarification, or if he or she otherwise compromises the impartiality demanded of the designated doctor. In Texas Workers' Compensation Commission Appeal No. 002043, decided October 6, 2000, the Commission was found to have abused its discretion when it appointed a second designated doctor because, when it appointed him, it had not established that the first designated doctor would either be completely unavailable or unreasonably delayed in his ability to reexamine the claimant. If a designated doctor cannot or refuses to comply with the requirements of the 1989 Act, a second designated doctor may be appointed. Texas Workers' Compensation Commission Appeal No. 961436, decided September 5, 1996. In the instant case, the hearing officer found that Dr. F’s appointment was done for a proper purpose and that it was not an abuse by the Commission. The hearing officer commented that the “appointment of the second designated doctor was proper and compatible with the concerns of the Benefit Review Officer and the parties.”

In Texas Workers’ Compensation Commission Appeal No. 022492, decided November 13, 2002, the Appeals Panel noted that a second designated doctor is rarely appropriate and should be limited to situations where, for example, the first designated doctor cannot or refuses to properly apply the AMA Guides, particularly after being asked for clarification or additional information concerning the report. In this instance, the evidence reflects that the first designated doctor provided a letter of clarification in which he acknowledged the erroneous information regarding the claimant’s MVA, and he amended his report to reflect the correct information. Dr. C assessed that the claimant’s IR was 16%, based on 5% cervical spine and 12% for ulnar and medial nerve weakness.

We reverse the hearing officer’s determination that Dr. F’s findings are entitled to presumptive weight in that Dr. F was properly appointed as the second designated doctor in accordance with Section 410.0041 and Rule 130.5, and render a new decision that Dr. F was not properly appointed as the second designated doctor in accordance with Section 410.0041 and Rule 130.5

IR

Consequently the only reports to be considered to determine the claimant’s IR are from the treating doctor and first designated doctor. Section 408.125(e) provides that the report of the designated doctor chosen by the Commission shall have presumptive weight, and the Commission shall base the IR on that report unless the great weight of the other medical evidence is to the contrary, and that if the great weight of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Commission, the Commission shall adopt the IR of one of the other doctors. Rule 130.6(i) provides that the designated doctor’s response to a Commission request for clarification is considered to have presumptive weight as it is part of the doctor’s opinion

Given that we have reversed the hearing officer’s determination that the second designated doctor was properly appointed, we also reverse the hearing officer’s IR determination based on the second designated doctor’s assessment and render a new decision that the claimant’s IR is 16%, based on the first designated doctor’s amended report.

We affirm the hearing officer’s extent-of-injury determination.

We reverse the hearing officer’s determination that Dr. F was properly appointed as the second designated doctor and that the claimant’s IR is 9%, as certified by Dr. F, and render a new decision that Dr. F was not properly appointed as the second designated doctor and that the claimant’s IR is 16%, as certified by Dr. C, the first designated doctor.

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

CT CORPORATION

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 14, 2004. The hearing officer resolved the disputed issues by determining that the appellant/cross-respondent (claimant) is entitled to change treating doctors to Dr. D pursuant to Section 408.022; that the respondent/cross-appellant (carrier) is not relieved from liability for treatment provided at the direction of Dr. D pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9 (Rule 126.9); that the claimant’s ______________, compensable injury includes a thoracic sprain/strain, but does not include a cervical sprain/strain or a herniated disc/degenerative disc disease at L5-S1; and that the claimant had disability from March 26, 2004, through the date of the hearing. The claimant appeals the portion of the extent-of-injury determination that is adverse to him and attaches new evidence to his appeal. The carrier appeals the determinations relating to disability and change of treating doctors, and presumably, the resulting effect of the change of doctor determination on the carrier’s liability for treatment. The carrier responded to the claimant’s appeal. The appeal file contains no response by the claimant to the carrier’s appeal.

DECISION

Affirmed.

The claimant attached new evidence to his appeal, which was not offered into evidence at the hearing. Documents submitted for the first time on appeal are generally not considered unless they constitute newly discovered evidence. Texas Workers' Compensation Commission Appeal No. 93111, decided March 29, 1993; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). Upon our review, the evidence offered is not so material that it would probably produce a different result. The evidence, therefore, does not meet the requirements for newly discovered evidence and will not be considered on appeal.

The determinations complained of by both the carrier and the claimant involved factual questions for the hearing officer to resolve. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given to the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). It was the hearing officer's prerogative to believe all, part, or none of the testimony of any witness, including that of the claimant. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). Nothing in our review of the record indicates that the hearing officer’s decision is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is GREAT AMERICAN ALLIANCE 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.

Chris Cowan
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 10, 2004. The hearing officer resolved the disputed issues by deciding that the respondent’s (claimant) compensable injury of ______________, includes an injury to her low back and right shoulder; that the temporary income benefits rate during the period from April 1, 2003, through the date of the CCH is $536.00; and that the Texas Workers’ Compensation Commission did not abuse its discretion in appointing Dr. H as the third designated doctor. The appellant (carrier) appeals the hearing officer’s determinations on all of the disputed issues, contending that they are not supported by sufficient evidence. The claimant asserts that the evidence supports the hearing officer’s determinations.

DECISION

Affirmed.

Conflicting evidence was presented on the appealed issues. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. Although there is conflicting evidence in this case, we conclude that the hearing officer’s decision is supported by sufficient evidence and that it is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

We affirm the hearing officer’s decision and order.

The true corporate name of the insurance carrier is ADVANTAGE WORKERS’ COMPENSATION 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.

Robert W. Potts

CONCUR:

Gary L. Kilgore
Appeals Judge

Veronica L. Ruberto
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 October 9, 2003. The hearing officer determined that the respondent (claimant) has had disability resulting from her _______________, compensable injury from February 17, 2003, and continuing through the date of the hearing; that the claimant is entitled to change treating doctors to Dr. B; and that the claimant is entitled to change treating doctors to Dr. M. The appellant (carrier) appealed, asserting that the hearing officer’s determinations are against the great weight of the evidence. The claimant responded, urging affirmance.

DECISION

Affirmed.

We have reviewed the complained-of determinations and find that the hearing officer’s Decision and Order is supported by sufficient evidence to be affirmed. The issue of disability presented a question of fact for the hearing officer to resolve. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a); Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). There was conflicting evidence presented on the disputed issue. It was for the hearing officer, as the trier of fact, to resolve the conflicts and inconsistencies in the evidence and to determine what facts had been established. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). Nothing in our review of the record reveals that the hearing officer’s determination regarding disability is so contrary to the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. As such, no sound basis exists for us to reverse that determination on appeal. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Regarding the change of treating doctor issue, we review that matter on an abuse-of-discretion standard. There is an abuse of discretion when a decision maker reaches a decision without reference to guiding rules or principles (Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986)). The hearing officer made a factual determination that the Texas Workers’ Compensation Commission did not abuse its discretion in approving both of the claimant’s requests. Because we find sufficient evidence in the record to support the hearing officer’s findings in this regard, we cannot say that the hearing officer abused her discretion.

The hearing officer’s decision and order are affirmed.

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

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 1050

AUSTIN, TEXAS 78701.

Thomas A. Knapp
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 21, 2003. The hearing officer determined that: (1) because the appellant (self-insured) did not timely dispute the order of November 21, 2002, approving a change in treating doctor to Dr. S, that order became final; and (2) because the self-insured did not timely dispute the order of April 29, 2003, approving a change in treating doctor to Dr. O, that order became final. The carrier appeals essentially on sufficiency of the evidence grounds. The respondent (claimant) did not file a response.

DECISION

Affirmed.

The hearing officer did not err in making the complained-of determinations. Section 408.022 sets out the criteria for selecting and changing a treating doctor. Additionally, Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 126.9(g) (Rule 126.9(g)) governs the procedure for disputing an order approving a change in treating doctor. The issues presented involved questions of fact for the hearing officer to resolve. The hearing officer 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 including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). The hearing officer could determine that the self-insured received copies of the orders approving a change in treating doctors on the dates specified in the decision. Rule 102.5(d). In view of the applicable law and the evidence presented, we cannot conclude that the hearing officer's determinations 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 (Tex. 1986).

The decision and order of the hearing officer are affirmed.

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

CITY SECRETARY

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Edward Vilano
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Michael B. McShane

Appeals Panel

Manager/Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 27, 2003. With respect to the sole disputed issue before her, the hearing officer determined that the appellant (claimant) did not have disability from April 9, 2002, through the date of the hearing. Although initially disputed issues, the parties resolved the following through stipulations: Dr. R was the claimant’s treating doctor from February 4, 2002, through April 8, 2002; and the Report of Medical Evaluation (TWCC-69) from Dr. R dated February 27, 2002, is valid. The claimant appeals the disability determination. The appeal file contains no response from the respondent (carrier).

DECISION

Affirmed.

Whether the claimant had disability for the period of time in question was a factual question for the hearing officer to resolve. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given to the evidence. It was the hearing officer's prerogative to believe all, part, or none of the testimony of any witness, including that of the claimant. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). Nothing in our review of the record indicates that the hearing officer’s decision is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We affirm the hearing officer’s decision and order.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

ROBERT PARNELL

8144 WALNUT HILL LANE, SUITE 1600

DALLAS, TEXAS 75231-4813.

Chris Cowan

CONCUR:

Thomas A. Knapp
Appeals Judge

Edward Vilano
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The file reflects that a benefit review conference (BRC) was held on April 8, 2002, to mediate the following two disputed issues: (1) “Who is the Claimant’s treating doctor”; and (2) “What is the maximum medical improvement [MMI] date.” The benefit review officer recommended that the appellant’s (claimant) treating doctor is Dr. F pursuant to Section 408.022, and also recommended that the MMI date of January 3, 2002, determined by the designated doctor, Dr. H, be adopted by the Texas Workers' Compensation Commission (Commission). The Commission’s letter of May 30, 2002, set a contested case hearing (CCH) on the two issues for June 26, 2002, in (city 1), Texas. The file contains correspondence reflecting that the CCH was continued to July 11, 2002. The hearing officer signed a Decision and Order on July 26, 2002, stating that a CCH was scheduled on July 11, 2002, to determine the two disputed issues; that the claimant appeared with his attorney; that the respondent (carrier) appeared with its attorney; and that prior to the presentation of any evidence, the parties reached an agreement on the disputed issues, to wit: that Dr. F is the claimant’s treating doctor and that the date of MMI is January 3, 2002, as determined by Dr. H.

The hearing officer’s Decision and Order states the following pertinent findings and conclusion:

FINDINGS OF FACT

  1. 3.The agreement terms set forth under the Statement of Evidence accurately reflect the terms of the agreement between the parties.

  2. 3.The agreement is in the best interest of the Claimant and the Claimant acknowledged that the agreement is acceptable to him.

  3. 4.[Dr. F] is the treating doctor.

  4. 5.The date of [MMI] is January 3, 2002, as determined by [Dr. H], the designated doctor.

  5. 6.The parties did not dispute that Claimant had an 8% impairment rating as determined by [Dr. H], the designated doctor.

CONCLUSIONS OF LAW

3.[Dr. F] is the claimant’s treating doctor

In the “Decision” portion of his Decision and Order, the hearing officer states, in part, that the agreement only resolves the issues to be decided at the hearing and does not resolve all issues regarding the claim and is not a settlement.

The claimant has filed an appeal, asserting that it was his attorney who made the agreement at the hearing which resulted in the hearing officer’s resolution of the two issues and that he disagrees with them. The carrier’s response, which was misaddressed to the Commission and subsequently remailed, was not timely received by the Commission and will not be considered. The governing statute and Commission rules do not provide any good cause or other basis for our considering untimely appeals or responses.

DECISION

Affirmed.

Section 410.166 provides as follows: “A written stipulation or agreement of the parties that is filed in the record or an oral stipulation or agreement of the parties that is preserved in the record is final and binding.”

Rule 147.4(b) provides as follows: “A written agreement reached after a benefit proceeding has been scheduled, whether before, during, or after the proceeding has been held, shall be sent or presented to the presiding officer. The presiding officer will review the agreement to ascertain that it complies with the Texas Workers’ Compensation Act and these rules; if so, sign it, and furnish copies to the parties. A written agreement is effective and binding on the date signed by the hearing officer.”

The hearing officer introduced as Hearing Officer Exhibit No. 1 a letter agreement dated July 11, 2002, authored by the carrier’s attorney and signed by the claimant’s attorney. The document is not signed by the hearing officer. The agreement reflects the parties’ agreement that the claimant’s MMI date is January 3, 2002, and that his treating doctor is Dr. F. Attached to this letter agreement is a letter of the same date from the carrier’s attorney to the hearing officer stating that he understands the letter agreement resolves the two issues scheduled to be heard and that no CCH is necessary.

In the claimant’s appeal, he states his disagreement with Findings of Fact Nos. 5 and 6 and Conclusion of Law No. 3. He maintains that Dr. F should not have determined him to be at MMI and should not have assigned him an IR; that he never wanted Dr. F to be his treating doctor; and that he wanted Dr. S to be his treating doctor and had given the Commission a form on March 13, 2001. The claimant states in conclusion the following: “My attorney made this agreement for me, and I told him I did not want [Dr. F] as my doctor. My attorney would not listen, and dropped me as soon as he made this agreement[.]”

The hearing officer 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 (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)). The Appeals Panel, an appellate reviewing tribunal, will not disturb the challenged factual determinations of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. 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 decision and order of the hearing officer are affirmed.

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

CAMBRIDGE INTEGRATED SERVICES GROUP, INC.

1501 LUNA ROAD, SUITE 102

CARROLLTON, TEXAS 75006.

Philip F. O'Neill
Appeals Judge

CONCUR:

Margaret L. Turner
Appeals Judge

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on February 28, 2001. The hearing officer found:

1.The appellant’s (claimant’s) compensable injury did not extend to or include an injury to the thoracic spine; and

2.The claimant did not have good cause for failure to attend the required medical examination (RME) appointment on December 29, 2000.

The claimant contended there was sufficient evidence to find his thoracic compression fracture to be related to his compensable injury; respondent (carrier) requested affirmance. As to the good cause issue, claimant urged there was sufficient evidence to find he did reschedule; carrier again asked affirmance.

DECISION

We affirm in part and reverse and remand in part.

APPEALED ISSUE NO. 1 AND DECISION

It was not error to find that the thoracic spine injury was not compensable. Extent of injury is a question of fact within the sound discretion of the hearing officer. We find the hearing officer’s decision was not against the great weight and preponderance of the evidence.

APPEALED ISSUED NO. 2 AND DECISION

It was error to find the claimant did not have good cause for failing to attend the RME on the sole basis that pain is not good cause.

A brief summary of the evidence on this issue is necessary. Claimant testified that he awoke on the day of the examination in great pain; that he took medication as prescribed but it was ineffective for the pain; that he lay quietly until 11:00 a.m. for the 1:30 p.m. appointment before accepting that his pain level was not going to substantially lessen. There was evidence in the medical records that claimant was at that time suffering from an untreated compression fracture. Claimant testified that he called to request a reschedule, and was told he would receive a new date and time. The appointment was not rescheduled, however and temporary income benefits (TIBs) were terminated. Carrier presented evidence indicating that there was no record of such a call on that day.

The hearing officer made these remarks in the Statement of the Evidence:

Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 126.6(h) (Rule 126.6(h)) states, ‘. . . a carrier may suspend TIBs if an employee fails to attend an RME, including a designated doctor examination, without good cause.’ Being in pain is not good cause for failure to attend an RME. Whether Claimant called or not to reschedule the appointment is not an issue as good cause for failure to attend was not found.”

Good cause is a question of fact for the hearing officer to resolve. Texas Workers’ Compensation Commission Appeal No. 941656, decided January 26, 1995. The test for whether good cause exists is, as in other Texas Workers' Compensation Commission (Commission) rules, whether the claimant acted with that degree of diligence which an ordinary person would exercise in the same or similar circumstances. The ordinary prudent person standard is not a subjective one. Texas Workers’ Compensation Commission Appeal No. 960060, decided February 20, 1996 (Unpublished). Whether or not pain was or is a reason for missing an RME can constitute good cause must be measured under the reasonable person standard; we know of no authority to support a blanket statement that pain is not good cause.

Mistake of fact could be good cause for missing an RME. If a reasonable and prudent person believes he has properly rescheduled an RME (for whatever reason), then he will not appear at the original appointment. Such a reason would be a credibility issue for the fact finder, along with such issues as whether the claimant did or did not understand the consequences of failing to appear.

In this case, the hearing officer apparently did not doubt claimant’s account of his pain on the day of the RME; rather, he stated, “Being in pain is not good cause for failure to attend an RME.”

As the law was misapplied, we will reverse and remand the issue of whether the claimant did have good cause for his failure to attend the RME appointment on December 29, 2000. The question must be considered and resolved by applying the reasonable and prudent person standard considering all the evidence.

The decision and order of the hearing officer as to the extent of injury is affirmed.

Findings of Fact No. 3 and Conclusion of Law No. 4,“Claimant did not show good cause for his failure to attend the RME appointment on December 29, 2000,” and Finding of Fact No. 4, “Carrier was within the Act and Rules to suspend TIBs from December 29, 2000 through January 19, 2001" are reversed and remanded for reconsideration.

The Decision and Order relieving carrier for liability for TIBs from December 29, 2000, through January 19, 2001, is reversed and remanded. 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 new request for review not later than 15 days after the date on which the new decision is received from the Commission’s Division of Hearings pursuant to Section 410.202. See Texas Workers Compensation Commission Appeal No. 92642, decided January 20,1993.

Gary L. Kilgore
Appeals Judge

CONCUR:

Elaine M. Chaney
Appeals Judge

Thomas A. Knapp
Appeals Judge

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