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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 February 23, 2023, 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) sustained a compensable injury on (date of injury); (2) the appellant (carrier) is not relieved of liability under Section 409.002 because the claimant timely notified the employer of his injury pursuant to Section 409.001; (3) the carrier waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021; and (4) the claimant had disability from September 1, 2022, through January 9, 2023, resulting from the compensable injury. The carrier appealed, disputing the ALJ’s determinations. The appeal file does not contain a response from the claimant to the carrier’s appeal.
Affirmed in part and reversed and rendered in part.
The claimant, a material handler for the employer, asserted he was injured on (date of injury), while working on a stacking station. The claimant was removing bags of insulation from a conveyor belt and then stacking the bags onto a pallet. The claimant testified that he was going three times his normal speed and was not watching his movements, and felt a sharp pain in his lower back when he put a bag on the pallet.
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 carrier contends that the ALJ abused his discretion in failing to rule on its motion to add the issue of the date of injury in this case, as well as not consolidating another claim with the case on appeal. In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the ALJ acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). Under the circumstances of this case, we do not find the ALJ’s actions an abuse of discretion.
The ALJ’s determination that the claimant sustained a compensable injury on (date of injury), is supported by sufficient evidence and is affirmed.
The ALJ’s determination that the carrier is not relieved of liability under Section 409.002 because the claimant timely notified the employer of his injury pursuant to Section 409.001 is supported by sufficient evidence and is affirmed.
The ALJ’s determination that the claimant had disability from September 1, 2022, through January 9, 2023, is supported by sufficient evidence and is affirmed.
Section 409.021(a) provides in part that not later than the 15th day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall: (1) begin the payment of benefits as required by the 1989 Act; or (2) notify the Texas Department of Insurance, Division of Workers’ Compensation (Division) and the employee in writing of its refusal to pay. Section 409.021(c) provides in part that if an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability. 28 Tex. Admin. Code § 124.2(d) (Rule 124.2(d)) provides that a carrier shall notify the Division and the claimant of a denial of a claim based on non-compensability or lack of coverage in accordance with this section and as otherwise provided by this title. Rule 124.2(i) provides in part that notification to the claimant requires the carrier to use plain language notices in the form and manner prescribed by the Division, and that the notice shall provide a full and complete statement describing the carrier’s action and rationale. The statement must contain sufficient claim-specific substantive information to enable the claimant to understand the carrier’s position or action taken on the claim.
In evidence is a written statement from the claimant dated September 6, 2022, in which he alleged a work-related injury that occurred on (additional date). The claimant testified at the CCH that the injury actually occurred on (date of injury), and that his written statement contained a typographical error regarding the date of injury. The claimant further testified that no injury occurred on (additional date). However, based on the claimant’s written statement the employer provided an Employer’s First Report of Injury or Illness (DWC-1) dated September 26, 2022, to the carrier specifying (additional date), as the date of injury.
The evidence reflects the carrier received first written notice of an injury on September 26, 2022, for a (additional date), date of injury, and that the carrier filed a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) dated October 14, 2022, which was within the 60 days the carrier had to contest compensability, that was sent to both the Division and the claimant. The PLN-1 references the date of injury as (additional date), and identifies the injury as a strain to the upper and lower back areas. The body of the PLN-1 states the following:
[w]e denied your claim because: [the] [c]arrier disputes that you sustained a compensable injury in the course and scope of your employment on [(additional date),] for the reasons that follow. You did not report a work injury to your supervisor within [30] days as required by [Section 409.001], thereby relieving the [c]arrier of liability under [Section 409.002]. When you informed your employer of an injury, you initially did not specify that it was related to your work. Rather, you indicated that you did not know where it happened. To date, you have not provided any medical records that establish a work injury occurred on or around [(additional date),] and have been unable to specify how the alleged injury occurred. You also indicated that you felt discomfort from a work activity on [(additional date)], but pain and discomfort are not injuries. Moreover, you have asserted that a chiropractic manipulation after that date made your back worse, suggesting this as the possible true source of any injury you may now have. You have not provided said chiropractic records, and the first medical treatment in [the] [c]arrier’s possession was not obtained until [September 6, 2022], more than two months following the date of claimed injury. [The] [c]arrier reserves the right to amend or supplant this notice as its investigation continues.
Also in evidence is a notice of injury dated October 4, 2022, from the Division to the carrier, indicating the Division received notice of an injury to the claimant with a date of injury of (date of injury).
On December 21, 2022, the carrier filed another PLN-1, which was outside 60 days of receiving the first written notice of the claim sent by the Division on October 4, 2022. This PLN-1 identifies the claimant’s date of injury as (date of injury), and the injury as a strain to the lower back area. The PLN-1 does not contain a claim number, but does identify the claimant, the employer, and the employer’s address. The body of the PLN-1 is virtually identical to that found in the October 14, 2022, PLN-1, with minor exceptions, including identifying the date of injury as (date of injury), and that the claimant had originally claimed an injury dated (additional date).
In the discussion portion of the decision the ALJ noted the Division’s October 4, 2022, notice of injury for the (date of injury), date of injury, and that the carrier filed a PLN-1 regarding that notice on December 21, 2022. The ALJ also discussed the carrier’s PLN-1 filed on October 14, 2022, disputing the (additional date), date of injury. The ALJ stated the following:
The insurance carrier argued that there was no (additional date), injury, therefore, the October 14, 2022, notice of denial should apply to this claim. This argument was unpersuasive. The insurance carrier did not timely dispute compensability, and did waive the right to dispute compensability of this claim.
In Appeals Panel Decision (APD) 011090 and APD 011091, both decided July 2, 2001, there was a reported injury involving multiple upper extremities/hands/wrists/arms with a July date of injury. The carrier timely disputed this injury. Subsequently, the claims involving the left and right upper extremities were divided into two separate claims and the claimant alleged an injury/occupational disease, affecting only the left hand and wrist, with a May date of injury. The carrier filed no additional dispute in response to this later date of injury. The Appeals Panel reversed the ALJ’s determination that the carrier waived the right to contest compensability of the May left upper extremity injury and held that the dispute filed by the carrier was intended to serve as a contest of the compensability of the claimed bilateral upper extremities injuries, which included a contest of compensability of the left upper extremity injury. The Appeals Panel stated that to require the carrier to dispute an injury, which it had previously disputed, simply because the initial claim had been divided into two claims and the claimant alleged a different date of injury for one of the claimed injuries, would represent an elevation of form over substance. See also APD 080678, decided June 25, 2008.
In the case on appeal, the typographical error contained in the claimant’s written statement reflecting a date of injury of (additional date), rather than (date of injury), resulted in an incorrect date of injury on the carrier’s first written notice of the claimant’s injury. The carrier’s PLN-1 dated October 14, 2022, contained sufficient claim-specific information, including a full and complete statement of the grounds for contesting compensability, to inform the claimant of the carrier’s denial of his injury. Under these facts, to require the carrier in this case to again dispute the injury it had previously disputed simply because the claimant alleged a different date of injury due to a typographical error would represent an elevation of form over substance. Therefore, we reverse the ALJ’s determination that the carrier waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021, and we render a new decision that the carrier did not waive the right to contest compensability of the claimed injury because the carrier timely contested the injury in accordance with Section 409.021.
We affirm the ALJ’s determination that the claimant sustained a compensable injury on (date of injury).
We affirm the ALJ’s determination that the carrier is not relieved of liability under Section 409.002 because the claimant timely notified the employer of his injury pursuant to Section 409.001.
We affirm the ALJ’s determination that the claimant had disability from September 1, 2022, through January 9, 2023, resulting from the compensable injury.
We reverse the ALJ’s determination that the carrier waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021, and we render a new decision that the carrier did not waive the right to contest compensability of the claimed injury because the carrier timely contested the injury in accordance with Section 409.021.
The true corporate name of the insurance carrier is ACCIDENT FUND GENERAL 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.
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 January 10, 2023, with the record closing on February 23, 2023, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the sole disputed issue by deciding the appellant’s (claimant) impairment rating (IR) is seven percent. The claimant appealed, disputing the ALJ’s determination of IR. The respondent (carrier) responded, urging affirmance of the disputed IR determination.
Reversed and remanded.
The claimant attached to his appeal a copy of an analysis letter dated August 18, 2020, sent to the designated doctor, (Dr. J), who was appointed to examine the claimant on September 2, 2020, for the purposes of maximum medical improvement, IR, and extent of injury regarding the compensable injury of March 20, 2020. The analysis letter was prepared by the ALJ, who at the time worked as an attorney for the law firm that at that time represented the carrier in the matter. The claimant contends in his appeal that he did not discover the analysis letter authored by the ALJ until March 7, 2023, after the CCH decision had been mailed to the parties. We hold that because the ALJ was an advocate for an interested party in this case prior to holding the CCH, it is inappropriate for the ALJ to hear and decide any issues in the same case. This case is reversed and remanded. The Decision and Order is void, and the ALJ is to be recused. See Appeals Panel Decision (APD) 141621, decided September 12, 2014. Another ALJ shall be appointed to hear this matter on a de novo basis. At the rehearing of this matter, both parties shall be allowed to present evidence of their respective positions in accordance with the Texas Department of Insurance, Division of Workers’ Compensation (Division) Rules. See APD 022143, decided September 19, 2002.
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 NEW HAMPSHIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
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 was held on December 1, 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 respondent (claimant) is not entitled to supplemental income benefits (SIBs) for the third quarter, April 24, 2022, through July 23, 2022; (2) the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022; and (3) the appellant (carrier) timely filed a request for a benefit review conference (BRC) and did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter. The carrier appealed the ALJ’s determination regarding fourth quarter SIBs entitlement. There is no response from the claimant in the appeal file.
The ALJ’s determinations that: the claimant is not entitled to SIBs for the third quarter, April 24, 2022, through July 23, 2022; and the carrier timely filed a request for a BRC and did not waive its right to contest the claimant’s entitlement to SIBs for the third quarter were not appealed have become final pursuant to Section 410.169.
Reversed and remanded.
The parties stipulated, in part, that: (1) the claimant sustained a compensable injury on (date of injury), that resulted in an impairment rating of 15% or greater; (2) the claimant has not commuted any portion of his impairment income benefits; (3) the qualifying period for the third quarter was from January 10, 2022, through April 10, 2022; and (4) the qualifying period for the fourth quarter was from April 11, 2022, through July 10, 2022. The claimant was injured on (date of injury), when he fell off a ladder.
The ALJ determined that the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022, based on a total inability to work. In Finding of Fact No. 3.H., the ALJ found that (Dr. V) narrative for the fourth quarter of SIBs persuasively explained how the compensable injury caused an inability to perform any type of work in any capacity. He also determined in Conclusion of Law No. 4 that the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022. However, in his discussion of the evidence, the ALJ stated that, “[b]ased on the evidence presented, [the] [c]laimant did not perform the required number of work search efforts each week of the qualifying period for the [third] or [fourth] SIBs quarters. In addition, the narratives from Dr. [V] did not persuasively explain how the compensable injury caused an inability to perform any type of work in any capacity.” The ALJ’s discussion of the evidence is inconsistent with his determination of entitlement to fourth quarter SIBs. Accordingly, we reverse the ALJ’s determination that the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022, and remand the issue of whether the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022, to the ALJ for further action consistent with this decision. See Appeals Panel Decision (APD) 211383, decided October 7, 2021; and APD 210422, decided May 26, 2021.
On remand the ALJ is to make a determination regarding whether the claimant is entitled to SIBs for the fourth quarter, July 24, 2022, through October 22, 2022, that is supported by the evidence and to clarify the inconsistency between his findings and determinations and the discussion of the evidence.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is AMERICAN ZURICH INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
Cristina Beceiro
Appeals Judge
CONCUR:
Carisa Space-Beam
Appeals Judge
Margaret L. Turner
Appeals Judge
A contested case hearing (CCH) was held on August 31, 2022, with the record closing on September 26, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the appellant (employer) was not respondent 1’s (claimant) employer for purposes of the Workers’ Compensation Act on (date of injury). The employer appealed the ALJ’s determination. The claimant responded, contending that the employer did not have standing to appeal the ALJ’s determination. Respondent 2 (carrier) also responded, discussing the resolution of the case on appeal compared to a separate related case.
The ALJ’s decision has become final pursuant to Section 410.169 because the employer was not a party to the CCH and 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. The issue in this case was whether the employer was the claimant’s employer for purposes of the Workers’ Compensation Act on (date of injury); there was no issue of compensability of an injury sustained on (date of injury), nor did the parties stipulate that the carrier accepted liability for the payment of benefits for such injury. The employer does not have standing to appeal the issue 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; APD 170773, decided June 5, 2017; and APD 190148, decided March 19, 2019.
Pursuant to Section 410.169, a decision of an ALJ regarding benefits is final in the absence of a timely appeal. The ALJ’s decision and order has become final under Section 410.169.
The true corporate name of the insurance carrier is NATIONAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
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). An expedited contested case hearing (CCH) was held on August 4, 2022, with the record closing on August 24, 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) (Dr. B) was properly appointed as designated doctor in accordance with 28 Tex. Admin. Code § 127.1 (Rule 127.1) to determine maximum medical improvement (MMI) and impairment rating (IR); and (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) had good cause to support the ALJ’s request for a designated doctor examination in excess of 75 miles from the appellant’s (claimant) residence per Rule 126.6(l). The claimant appealed the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.
Reversed and rendered in part and reversed and remanded in part.
The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury in the form of a scalp laceration, head injury direct trauma, osteopenia of distal right leg, grade 1 mild concussion, bilateral occipital neuralgia, right distal fibula fracture, and mild grade 1 cervical sprain/strain. The evidence reflects the claimant was injured on (date of injury), when bunk feeders on a truck shipment fell from a height of about five feet and hit the claimant on his head.
Rule 126.6, Required Medical Examination (RME), provides in pertinent part:
(l) The Division shall require examinations requiring travel of up to 75 miles from the employee's residence, unless the treating doctor certifies that such travel may be harmful to the employee's recovery. Travel over 75 miles may be authorized if good cause exists to support such travel. The carrier shall pay reasonable travel expenses incurred by the employee in submitting to any [RME], as specified in Chapter 134 of this title (relating to Benefits--Guidelines For Medical Service, Charges, and Payments).
The ALJ noted the following in the discussion portion of her decision:
[I]t is unclear whether Rule 126.6 [RME] applies to [designated doctor] examinations because Rule 126.6(a) refers to requests for medical examinations made by [the carrier] and [the Division]. If Rule 126.6 applies to [designated doctor] examination[s], the [ALJ] notes that Rule 127.5(g) allows [the Division] to choose a qualified [designated doctor] if no other [designated doctor] is available within [the] [c]laimant’s county of residence.
The ALJ found that the claimant resides 77 miles away from Dr. B’s office, and determined the Division had good cause per Rule 126.6(l) to support the ALJ’s request for a designated doctor examination in excess of 75 miles from the claimant’s residence. We note that Conclusion of Law No. 4 and the decision incorrectly cites Rule 126.2(l) rather than Rule 126.6(l).
Rule 126.6(i) specifically provides, in part, that examinations with a designated doctor are not subject to any limitations under the provisions for RMEs. Rule 126.6 does not apply to designated doctor examinations and is inapplicable in this case. We reverse the ALJ’s determination that the Division had good cause per Rule 126.6(l) to support the ALJ’s request for a designated doctor examination in excess of 75 miles from the claimant’s residence. We render a new decision that the Division did not exceed its authority by ordering the claimant to attend a designated doctor examination to occur more than 75 miles from the claimant’s residence because Rule 126.6 does not apply in this case.
(Dr. A) was the previously appointed designated doctor in this case. The ALJ found that Dr. A is a chiropractor, while Dr. B, the second designated doctor, is a medical doctor. The claimant contends on appeal that Dr. A is in fact a medical doctor, not a chiropractor. The carrier agrees in its response. The medical records establish that Dr. A is a medical doctor, not a chiropractor. The ALJ’s statement that Dr. A is a chiropractor is a misstatement of the evidence. While the ALJ can accept or reject in whole or in part the evidence presented, the ALJ’s decision in this case is based, in part, on a misstatement of the evidence in the record. Accordingly, we reverse the ALJ’s determination that Dr. B was properly appointed to serve as the designated doctor on the issues of MMI and IR in accordance with Rule 127.1, and we remand this issue to the ALJ for further action consistent with this decision. We note Rule 127.130(b)(9)(A) provides in pertinent part that in order to examine traumatic brain injuries, including a concussion, a designated doctor “must be board certified in neurological surgery, neurology, physical medicine and rehabilitation, or psychiatry by the [American Board of Medical Specialties] or board certified in neurological surgery neurology, physical medicine and rehabilitation, or psychiatry by the [American Osteopathic Association Bureau of Osteopathic Specialists].”
Additionally, the claimant contended at the CCH and on appeal that Dr. B is not qualified to serve as the designated doctor because he has a disqualifying association. Specifically, the claimant argued that Dr. B is disqualified under Rule 127.140(a) because Dr. B is one of the medical directors of (entity), which is located at the same address where the claimant was ordered to attend an RME examination with (Dr. M). We note the claimant testified he did not believe he had attended any examination with Dr. M.
The ALJ did not discuss or make any findings of fact, conclusions of law, or a decision whether Dr. B has a disqualifying association under Rule 127.140(a), an issue which was actually litigated by the parties at the CCH. The ALJ erred in failing to add this issue, and in failing to make findings of fact, conclusions of law, and a decision as to whether Dr. B has a disqualifying association under Rule 127.140(a). We therefore reverse the ALJ’s decision as being incomplete, and we remand the issue of whether Dr. B has a disqualifying association under Rule 127.140(a) to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the Division had good cause per Rule 126.6(l) to support the ALJ’s request for a designated doctor examination in excess of 75 miles from the claimant’s residence. We render a new decision that the Division did not exceed its authority by ordering the claimant to attend a designated doctor examination to occur more than 75 miles from the claimant’s residence because Rule 126.6 does not apply in this case.
We reverse the ALJ’s determination that Dr. B was properly appointed to serve as the designated doctor on the issues of MMI and IR in accordance with Rule 127.1, and we remand this issue to the ALJ for further action consistent with this decision.
We reverse the ALJ’s decision as being incomplete, and we remand the issue of whether Dr. B has a disqualifying association under Rule 127.140(a) to the ALJ for further action consistent with this decision.
On remand the ALJ is to correct the misstatement regarding Dr. A. The ALJ is also to add the issue of whether Dr. B has a disqualifying association under Rule 127.140(a), and make findings of fact, conclusions of law, and a decision on that issue, considering all the evidence. The ALJ is also to make findings of fact, conclusions of law, and a decision on whether Dr. B was properly appointed to serve as the designated doctor in accordance with Rule 127.1, considering all the evidence.
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 Appeals Panel Decision 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is ACCIDENT FUND GENERAL 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 July 28, 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 right wrist carpal tunnel syndrome (CTS) or right triangular fibrocartilage complex (TFCC) tear; (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. F) on June 19, 2019, became final pursuant to Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (3) the date of MMI is June 4, 2019; and (4) the appellant’s (claimant) IR is seven percent. The claimant appealed, disputing the ALJ’s determinations. The claimant additionally appeals an evidentiary ruling made by the ALJ excluding a letter of causation because it was not timely exchanged. The respondent (self-insured) responded, urging affirmance of the ALJ’s determinations.
Affirmed in part, and reversed and remanded in part.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a right hand sprain and right wrist sprain; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed Dr. F as designated doctor to address MMI and IR; and the statutory date of MMI is April 6, 2021. The claimant was injured on (date of injury), while using a drill to assemble parts.
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).
At the CCH the self-insured objected to the admission of a letter of causation from (Dr. O), the claimant’s treating doctor, on the grounds that the report had not been timely exchanged. To obtain a reversal of a judgment based on the ALJ’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.—San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the ALJ acted without reference to any guiding rules or principles. Appeals Panel Decision (APD) 043000, decided January 12, 2005; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).
Rule 142.13(c)(1) provides, in part, that the parties exchange documentary evidence “no later than 15 days after the benefit review conference [BRC].” Rule 142.13(c)(2) further provides that “[t]hereafter, parties shall exchange additional documentary evidence as it becomes available.” Rule 142.13(c)(3) provides, in part, that the ALJ shall make a determination whether good cause exists for a party not having previously exchanged such information or documents to introduce such evidence at the hearing. A party who belatedly investigates the facts and then does not disclose known information in order to make further investigation and development runs the risk of having evidence excluded for failure of exchange. See APD 991744, decided October 1, 1999.
In this case, the BRC was held on February 16, 2022. The exhibit in question, a report from Dr. O, labeled “Causation Letter,” is dated May 30, 2022. The self-insured contended that the exhibit in question was not exchanged until the day of the CCH. The ALJ noted that there had been two prior settings for the CCH in April and June of 2022 that were rescheduled. The ALJ stated on the record that she did not find good cause for the late exchange of the exhibit. We find no abuse of discretion in the ALJ's application of the exchange of evidence rules and perceive no reversible error in the evidentiary ruling that the claimant did not have good cause for failing to timely exchange the report.
The ALJ’s determination that the first certification of MMI and assigned IR from Dr. F on June 19, 2019, became final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.
The ALJ’s determinations that the claimant reached MMI on June 4, 2019, and the claimant’s IR is seven percent are supported by sufficient evidence and are affirmed.
Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due, and if so, an award of benefits due.
The extent-of-injury issue as stated on the BRC Report and as agreed to by the parties at the CCH was whether the compensable injury of (date of injury), extends to right wrist CTS and right TFCC tear. Although Conclusion of Law No. 3 and the decision state that the compensable injury of (date of injury), does not extend to right wrist CTS and right TFCC tear, the ALJ made no specific finding of fact regarding the compensability of the disputed conditions as required by Section 410.168 and Rule 142.16. See APD 132339, decided December 12, 2013; APD 150510, decided April 21, 2015; APD 162262, decided January 10, 2017; and APD 181349, decided August 15, 2018.
Accordingly, we reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to right wrist CTS and right TFCC tear, and we remand the issue of whether the compensable injury of (date of injury), extends to right wrist CTS and right TFCC tear to the ALJ to make findings of fact on that issue.
We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. F on June 19, 2019, became final under Section 408.123 and Rule 130.12.
We affirm the ALJ’s determination that the claimant reached MMI on June 4, 2019.
We affirm the ALJ’s determination that the claimant’s IR is seven percent.
We reverse the ALJ’s extent-of-injury determination as incomplete, and remand the issue of whether the (date of injury), compensable injury extends to right wrist CTS and right TFCC tear for further action consistent with this decision.
The ALJ is to make findings of fact, conclusions of law, and a determination whether the compensable injury of (date of injury), extends to right wrist CTS and right TFCC tear that is supported by the evidence.
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 GENERAL MOTORS L.L.C. (a certified self-insured), 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.
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 June 6, 2022, with the record closing on July 27, 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 respondent (claimant) reached maximum medical improvement (MMI) on February 7, 2022; and (2) the claimant’s impairment rating (IR) is seven percent. The appellant (carrier) appealed the ALJ’s determinations. The claimant responded, urging affirmance of the ALJ’s determinations.
Reversed and remanded.
The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that consists of a left shoulder sprain and left shoulder rotator cuff tear; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. H) as the designated doctor to determine the issues of MMI, IR, and return to work; and the date of statutory MMI is June 5, 2022. The claimant was injured on (date of injury), while moving wheel stands.
The decision reflects the following exhibits were admitted: Claimant’s Exhibits 1-4; Carrier’s Exhibits A-F; and ALJ’s Exhibits 1-3. The ALJ noted in her decision that a Presiding Officer’s Directive (POD) to order a designated doctor examination was sent after the CCH to inform the designated doctor the date of statutory MMI and requested a certification considering that date. The ALJ further noted that Dr. H sent a response, which was admitted as ALJ Exhibit 3, and that “all parties were given time to respond to the report.” The ALJ also stated the record closed on July 27, 2022. Although both the POD dated June 8, 2022, and Dr. H’s response and certification dated July 6, 2022, are in evidence, no further post-CCH evidence is in the file provided for review.
The carrier contends on appeal that it timely submitted Carrier’s Exhibit G, which is a peer review report from (Dr. Hd) dated July 25, 2022, and closing remarks. The carrier attached to its appeal a Dispute Resolution Information System (DRIS) note dated July 28, 2022, from a Division employee. This DRIS note states that a response was received from the carrier’s attorney with a copy of Dr. Hd’s July 25, 2022, peer review report, and that “the parties responded before the deadline expired on [July 26, 2022] at [5:00 p.m.],” and “the [ALJ] closed the CCH record on [July 27, 2022].”
The carrier timely submitted the additional documentary evidence to the Division prior to the closing of the record on July 27, 2022. The ALJ’s decision does not indicate that Carrier’s Exhibit G was received or admitted as an exhibit. Accordingly, we reverse the ALJ’s determinations and remand the issues to the ALJ for further consideration of all the evidence and for further proceedings consistent with this decision.
Pursuant to Section 410.203(c), the Appeals Panel may not remand a case more than once. Given that we are remanding this case to the ALJ, we note there appears to be pages missing from the claimant’s exhibits. The claimant’s exhibit list states that Claimant’s Exhibit 3 contains 105 pages. However, the record reflects that pages 5, 36, and a portion of page 105 are missing from Claimant’s Exhibit 3.
We reverse the ALJ’s determination that the claimant reached MMI on February 7, 2022, and we remand this issue to the ALJ for further action consistent with this decision.
We reverse the ALJ’s determination that the claimant’s IR is seven percent, and we remand this issue to the ALJ for further action consistent with this decision.
On remand the ALJ is to reconstruct the record regarding the missing pages in Claimant’s Exhibit 3. The ALJ is also to consider Dr. Hd’s peer review report and the carrier’s closing remarks and allow the parties an opportunity to respond. The ALJ is to then make a determination of the date the claimant reached MMI and the claimant’s IR.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the 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 Appeals Panel Decision 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is ARCH INDEMNITY INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701.
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 consolidated contested case hearing was held on August 17, 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 first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. S) on January 19, 2022, became final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (2) the appellant (claimant) reached MMI on January 19, 2021; (3) the claimant’s IR is zero percent; and (4) (Dr. V) was not appointed to serve as designated doctor on the issues of MMI, IR, and extent of injury in accordance with Section 408.0041 and Texas Department of Insurance, Division of Workers’ Compensation (Division) rules. The claimant appealed, disputing the ALJ’s determinations of finality, MMI, IR, and the proper appointment of Dr. V as designated doctor for MMI, IR, and extent of injury. The respondent (carrier) responded, urging affirmance of the disputed determinations.
Affirmed in part and reversed by striking in part.
The parties stipulated, in part, that the claimant sustained a compensable injury in the form of bilateral Achilles tendon ruptures. The claimant testified that he was injured when he was going down the stairs.
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 first certification of MMI and assigned IR from Dr. S on January 19, 2022, became final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.
The ALJ’s determination that the claimant reached MMI on January 19, 2021, is supported by sufficient evidence and is affirmed.
The ALJ’s determination that the claimant’s IR is zero percent is supported by sufficient evidence and is affirmed.
The ALJ’s finding that because the certification of MMI and assigned IR from Dr. S became final, Dr. V was not appointed as designated doctor on the issues of MMI and IR in accordance with the “Texas Labor Code and [Division] rules” is supported by sufficient evidence. However, in Conclusion of Law No. 4 and the Decision section the ALJ determined that Dr. V was not appointed to serve as designated doctor on the issues of MMI, IR, and extent of injury in accordance with Section 408.0041 and Division rules. The issue before the ALJ was as follows: Was Dr. V properly appointed to serve as designated doctor on the issues of MMI and IR in accordance with Section 408.0041 and Division rules? That portion of the ALJ’s determination that Dr. V was not appointed to serve as designated doctor on the issues of MMI and IR in accordance with Section 408.0041 and Division rules is affirmed. Whether or not Dr. V was properly appointed as designated doctor on the issue of extent of injury was not an issue before the ALJ to decide nor was it litigated. Accordingly, we strike that portion of the ALJ’s determination that Dr. V was not appointed to serve as designated doctor on the issue of extent of injury in accordance with Section 408.0041 and Division rules as exceeding the scope of the issue.
We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. S on January 19, 2022, became final under Section 408.123 and Rule 130.12.
We affirm the ALJ’s determination that the claimant reached MMI on January 19, 2021.
We affirm the ALJ’s determination that the claimant’s IR is zero percent.
We affirm that portion of the ALJ’s determination that Dr. V was not appointed to serve as designated doctor on the issues of MMI and IR in accordance with Section 408.0041 and Division rules.
We reverse by striking that portion of the ALJ’s determination that Dr. V was not appointed to serve as designated doctor on the issue of extent of injury in accordance with Section 408.0041 and Division rules as exceeding the scope of the issue before her.
The true corporate name of the insurance carrier is INCLINE CASUALTY COMPANY and the name and address of its registered agent for service of process is
CHRISTOPHER MCCLELLAN
13215 BEE CAVE PARKWAY, SUITE B150
AUSTIN, TEXAS 78738-0059.
Margaret L. Turner
Appeals Judge
CONCUR:
Cristina Beceiro
Appeals Judge
Carisa Space-Beam
Appeals Judge
The administrative law judge’s (ALJ) decision has become final under Labor Code § 410.169 because a timely appeal has not been filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division).
Section 410.202(c) provides, “A request for appeal or a response must clearly and concisely rebut or support the decision of the [ALJ] on each issue on which review is sought.” See also 28 Tex. Admin. Code § 143.3(a)(2) (Rule 143.3(a)(2)).
On August 4, 2022, the appellant (claimant) filed with the Division a fax cover sheet that identified 9 pages were being sent along with the transmittal letter, a copy of the decision and order in (Docket No.), and a document titled “You Have the Right to Appeal this Decision.” In a similar case the Appeals Panel held that the filing of an “Appeal Rights and Procedures” (brochure) is insufficient to constitute a request for appeal because it does not specify how or why a party disagrees with an ALJ’s decision. See Appeals Panel Decision (APD) 160575, decided May 31, 2016. In APD 94973, decided September 1, 1994, the Appeals Panel explained that we have generally held that a simple written statement from an unrepresented claimant that he or she thinks the ALJ was wrong and does not agree with the decision will be interpreted as a challenge to the sufficiency of the evidence, but that even those minimal filings we have accepted as appeals indicated disagreement with the ALJ’s decision. The filing of the claimant in the instant case did not state the grounds upon which review was requested nor indicate disagreement with any portion of the ALJ’s decision. See also APD 000452, decided April 13, 2000; APD 002385, decided December 1, 2000; and APD 030296, decided March 18, 2003; all of which held that the filing of the brochure was insufficient to constitute an appeal.
The last day for the claimant to have filed a timely and sufficient appeal with the Division under Section 410.202, as amended June 17, 2001, was August 22, 2022. Although timely submitted, the filing of the copy of the decision and order along with the appeal rights document on August 4, 2022, did not constitute the filing of a sufficient appeal and the time for filing an appeal has expired. Thus, the decision and order have become final under Section 410.169.
The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA 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.
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 October 27, 2021, with the record closing on March 9, 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 respondent (claimant) reached maximum medical improvement (MMI) on March 17, 2021; and (2) the claimant’s impairment rating (IR) is 19%. The appellant (carrier) appealed the ALJ’s determinations. The carrier asserts on appeal that the ALJ’s discussion contained an error regarding the nature of the compensable injury and the certification issued by (Dr. O), the carrier-selected post-designated doctor required medical examination doctor. The claimant responded, urging affirmance of the disputed determinations.
Affirmed.
The parties stipulated, in part, that: (1) the claimant sustained a compensable injury on (date of injury); (2) the carrier accepted at least a cervical sprain, right shoulder sprain, right shoulder strain, and a right forearm contusion; (3) based on a July 23, 2020, decision and order, the compensable injury extends to a cervical strain, right shoulder supraspinatus tear, right shoulder glenoid labrum tear, and right shoulder impingement syndrome; (4) (Dr. A) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor to determine MMI and IR; and (5) the date of statutory MMI is March 17, 2021. The evidence reflects that the claimant was injured on (date of injury), while working as a rigger, and he tripped and fell, hitting a cement block. We note that in the ALJ’s decision, she indicated that the claimant testified; however, the record indicates that the claimant did not testify at the CCH.
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 determined the claimant reached MMI on March 17, 2021, and the claimant’s IR is 19% in accordance with an amended certification by Dr. A, the designated doctor. The ALJ’s determinations are supported by sufficient evidence and are affirmed. However, a decision is being written to clarify statements made by the ALJ in her discussion.
Dr. O examined the claimant on June 3, 2021. The ALJ stated in her decision that, “Dr. [O’s] report did not specifically identify the degloving injury, nor adequately explain the date of [MMI].” The evidence reflects that Dr. O certified that the claimant reached MMI on February 5, 2021, because the claimant’s range of motion measurements on that date were the same as the measurements on the date of statutory MMI. Dr. O did not consider whether additional treatment could reasonably be anticipated to result in further material recovery from or lasting improvement to the claimant’s injury. The ALJ’s statement that Dr. O did not adequately explain the date of MMI is supported by sufficient evidence. However, the evidence reflects that there is no degloving injury in this case. The ALJ specifically found that the preponderance of the evidence is not contrary to Dr. A’s certification that the claimant reached MMI on March 17, 2021, with a 19% IR. This finding is supported by sufficient evidence. Under the circumstances of this case, we view the ALJ’s statement in her discussion that Dr. O did not identify a degloving injury as a typographical error that does not affect the outcome of the case. See Appeals Panel Decision 220307, decided April 20, 2022. Accordingly, we affirm the ALJ’s determinations that the claimant reached MMI on March 17, 2021, and the claimant’s IR is 19%.
The true corporate name of the insurance carrier is OLD REPUBLIC GENERAL INSURANCE CORPORATION 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.
Cristina Beceiro
Appeals Judge
CONCUR:
Carisa Space-Beam
Appeals Judge
Margaret L. Turner
Appeals Judge