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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 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.

DECISION

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

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 31, 2022, with the record closing on February 22, 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 appellant (claimant) reached maximum medical improvement (MMI) on April 7, 2021; and (2) the claimant’s impairment rating (IR) is zero percent. The claimant appealed, disputing the ALJ’s determinations of MMI and IR.  The claimant contends on appeal that he has been having trouble with his mail and was unable to respond to the 10-day letter or attend the CCH on January 31, 2022.  The respondent (self-insured) filed a response, urging affirmance of the disputed issues.

DECISION

Reversed and remanded.

The evidence reflects that the claimant was injured on (date of injury), while he was in an employee shuttle and the driver ran into a telephone pole. The self-insured stipulated that the claimant sustained a compensable injury in the form of a lumbar sprain/strain and bilateral leg contusions on (date of injury). On January 31, 2022, a CCH was called to order to hear the disputed issues. The claimant did not appear at the CCH, and a 10-day letter was sent to the claimant.  The claimant failed to respond to the 10-day letter and the ALJ closed the record on February 22, 2022.  A decision was issued on March 8, 2022, that was unfavorable to the claimant on the issues before her.  In her discussion of the case in the decision and order, the ALJ stated that she mailed a 10-day letter to the claimant. A 10-day letter dated January 31, 2022, is in the hearing file and was mailed to the claimant at the following address: (address 1). However, the decision and order was mailed to the claimant at the following address: (address 2). The record reflects that this is the claimant’s correct address of record.

In Appeals Panel Decision (APD) 042634, decided November 29, 2004, the Appeals Panel noted that the purpose of the 10-day letter process is to give the non-appearing party the opportunity to meaningfully participate in the dispute resolution process.  In APD 020273, decided March 29, 2002, the claimant made a number of factual allegations in her appeal regarding good cause for failing to attend the CCH and her attempts to respond to the 10-day letter, and the Appeals Panel stated that it was not in a position to evaluate the credibility of the claimant in regard to those matters and thus, remanded the case to the ALJ to take evidence concerning the claimant’s allegations and to permit the claimant to present evidence on the merits of her claim at the CCH on remand.  

28 Tex. Admin. Code § 142.11 (Rule 142.11) regarding the failure to attend a CCH was amended to be effective January 7, 2019.  Rule 142.11(c) provides, in part, that if the ALJ determines that good cause exists for the failure to attend, the hearing will be rescheduled.    

In this case, the evidence indicates that the January 31, 2022, 10-day letter was not mailed to the claimant’s correct address of record.  Therefore, we remand this case to the ALJ to consider whether the claimant had good cause for failing to attend the January 31, 2022, CCH.  See APD 201401, decided November 6, 2020. If good cause is found, the ALJ is to permit the parties to present evidence on the merits of the claim at the CCH on remand.    

Accordingly, we reverse the ALJ’s determinations that the claimant reached MMI on April 7, 2021, and the claimant’s IR is zero percent. We remand this case to the ALJ to take evidence concerning the claimant’s nonappearance at the January 31, 2022, CCH and, if good cause is found, to allow for the presentation of evidence on the merits of the claim.  The ALJ is then to make determinations on the disputed issues of MMI and IR.     

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the 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 (a self-insured governmental entity) and the name and address of its registered agent for service of process is

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

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on February 16, 2022, with the record closing on February 22, 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 compensable injury of (date of injury), does not extend to the following left knee conditions: ganglion cyst and ACL tear, and the following left ankle conditions: talofibular ligament tear and spring ligament complex tear. The appellant (claimant) appealed the ALJ’s extent-of-injury determination. The respondent (carrier) responded, urging affirmance of the ALJ’s determination. We note the address for the carrier’s registered agent for service of process contains a misspelling.

DECISION

Reversed and remanded for reconstruction of the record.

The ALJ’s decision and order states that the following exhibits were admitted into evidence:  ALJ’s exhibits 1 and 2; claimant’s exhibits 1 through 8; and carrier’s exhibits A through G.  The claimant’s exhibit list states that claimant’s exhibit 5 contains two pages; however, the case file provided to us for review does not contain any pages identified as exhibit 5.  Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibits.  See Appeals Panel Decision (APD) 030543, decided April 18, 2003; and APD 210136, decided March 26, 2021.      

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 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.

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 31, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue in (Docket No. 1) by deciding that the appellant (claimant) did not sustain a compensable injury on (date of injury 1). The ALJ resolved the disputed issues in (Docket No. 2) by deciding that: (1) the claimant did not sustain a compensable injury on (date of injury 2), and (2) because the claimant did not sustain a compensable injury on (date of injury 2), the claimant did not have disability from February 4, 2021, through the date of the CCH. The claimant appealed, disputing the ALJ’s determinations in both docket numbers. The respondent (carrier) responded, urging affirmance of the disputed determinations.  

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. There was an audio recording in the appeal file but the recording abruptly stopped while the ombudsman was presenting the claimant’s opening argument before any testimony was taken. The file does not contain a transcript of the proceeding. Consequently, we reverse and remand this case to the ALJ who presided over the January 31, 2022, CCH, if possible, for reconstruction of the CCH record. See Appeals Panel Decision (APD) 190446, decided May 1, 2019.

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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO, PRESIDENT
2220 ALDRICH STREET
AUSTIN, TEXAS 78723.

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 December 14, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); and (2) the claimant did not have disability from April 29, 2021, through the date of the CCH. The claimant appealed the ALJ’s determinations of compensability and disability. The respondent (carrier) responded, urging affirmance of the disputed determinations.  

DECISION

Affirmed.

The claimant testified that on the date of the claimed injury there was a heavy workload and they were short of employees. The claimant testified that as he was performing his job duties he felt his back tighten. At issue was whether the claimant sustained a compensable injury on (date of injury), and whether he had disability resulting from the claimed injury.

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 did not sustain a compensable injury on (date of injury), and that the claimant did not have disability from April 29, 2021, through the date of the CCH.  The ALJ’s determinations are supported by sufficient evidence and are affirmed. However, a decision is being written to address statements made by the ALJ in his discussion.

In his discussion of the evidence, the ALJ noted that the claimant was first seen for this claimed injury at (Clinic) on May 29, 2021. In his appeal, the claimant alleges that he provided medical records that showed his initial medical treatment occurred on April 29, 2021, and that the medical treatment received on May 29, 2021, occurred at CareNow rather than (Clinic).

In evidence is a medical record from (Emergency Department) which diagnosed the claimant with a baker’s cyst on April 19, 2021, and work note that stated the claimant had an appointment with an orthopedic specialist on April 27, 2021, without detailing any further information. We note that these records are prior to the alleged date of injury.

The claimant references a work/school note from (Clinic) dated April 29, 2021, that stated the claimant was seen at the clinic on that date and could return to work/school on April 30, 2021, with work restrictions of no lifting over 10 pounds until further notice. However, no diagnosis or examination details were included in the document referenced.

The ALJ noted in his discussion of the evidence that the claimant was first seen for the claimed injury on May 29, 2021. The ALJ was persuaded based on the evidence in the record that the claimant did not seek medical treatment for the claimed injury until May 29, 2021.

The medical record in evidence dated May 29, 2021, identifies the claimant and specifies that the claimant’s chief complaint was back pain and referenced the claimant felt pain while lifting heavy boxes at work. The claimant notes in his appeal that the ALJ incorrectly references the medical provider as Concentra rather than CareNow. While the claimant is correct that the ALJ referenced the wrong clinic, the incorrect reference of the clinic name did not cause an improper decision in this case. Under the circumstances of this case, we view the ALJ’s statement in his discussion identifying the wrong medical provider as a typographical error that does not affect the outcome of the case. Accordingly, we affirm the ALJ’s determinations that the claimant did not sustain a compensable injury on (date of injury), and the claimant did not have disability from April 29, 2021, through the date of the CCH.

The true corporate name of the insurance carrier is LM 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.

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 30, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant/cross-respondent (self-insured) is entitled to redesignate impairment income benefits (IIBs) paid after June 10, 2016, as lifetime income benefits (LIBs); and (2) the self-insured is not entitled to redesignate supplemental income benefits (SIBs) paid after June 10, 2016, as LIBs.

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

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

DECISION

Affirmed in part and reversed and rendered in part.

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

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

REDESIGNATION OF IIBS

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

REDESIGNATION OF SIBS

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

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

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

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

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

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

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

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

SUMMARY

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

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

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

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 10, 2021, with the record closing on September 7, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the compensable injury extends to a complex tear of the superior glenoid labrum and a partial tear of the supraspinatus tendon of the left shoulder; (2) the respondent/cross-appellant (claimant) reached maximum medical improvement (MMI) on June 15, 2019; (3) the claimant’s impairment rating (IR) is 0%; and (4) the claimant’s statutory date of MMI fell on April 22, 2021. The appellant/cross-respondent (carrier) appealed the ALJ’s extent-of-injury determination. The claimant cross-appealed the ALJ’s MMI, IR, and statutory MMI date determinations. The carrier responded, urging affirmance of those determinations. The appeal file does not contain a response from the claimant to the carrier’s appeal.  

DECISION

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), that extends to at least a left knee contusion, left leg contusion, and a lumbar strain. The claimant was injured on (date of injury), when he slipped off of a six-foot ladder on which he was standing to clean walls as directed by his employer.

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).  

EXTENT OF INJURY

The ALJ’s determination that the compensable injury extends to a complex tear of the superior glenoid labrum and a partial tear of the supraspinatus tendon of the left shoulder is supported by sufficient evidence and is affirmed.

STATUTORY DATE OF MMI

The ALJ’s determination that the claimant’s statutory date of MMI is April 22, 2021, is supported by sufficient evidence and is affirmed.

MMI/IR

Section 401.011(30)(A) defines MMI as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.”  Section 408.1225(c) provides that the report of the designated doctor has presumptive weight, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base its determination of whether the employee has reached MMI on the report of the designated doctor unless the preponderance of the other medical evidence is to the contrary.

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors.  28 Tex. Admin. Code § 130.1(c)(3) (Rule 130.1(c)(3)) provides, in part, that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.  

The ALJ determined the claimant reached MMI on June 15, 2019, with a 0% IR as certified by (Dr. L), a designated doctor appointed by the Division. The ALJ correctly noted in her discussion that the numerous certifications in evidence could not be adopted and issued a Presiding Officer’s Directive to obtain an adoptable certification that considered and rated the entire compensable injury. Dr. L was appointed and examined the claimant on July 29, 2021. Dr. L noted in his attached narrative report that the compensable injury is a left knee contusion, left leg contusion, lumbar strain, a complex tear of the superior glenoid labrum, and a partial tear of the supraspinatus tendon of the left shoulder. Dr. L stated the following as the basis for his opinion the claimant reached MMI on June 15, 2019:

[The claimant] completed conservative therapy for the compensable injuries. Specifically, uncomplicated left knee contusion and left leg contusion resolve with the passage of time requiring ice and elevation. A lumbar strain is a soft tissue injury which heals without treatment in four to six weeks. Although I do not believe the MRI findings in the left shoulder were sustained in the work-related event, the active range of motion [ROM] demonstrated by the [claimant] is non-physiologic and implausible from an orthopedic standpoint based on thousands of examinations performed personally. There is no objective evidence of injury to the left shoulder in the records just after the work-related fall. Moreover, the MRI findings in the left shoulder, if caused by the fall, would have been more painful within seconds of the fall than the other compensable injuries based on reasonable medical probability.

Dr. L assigned 0% IR because he found the claimant’s ROM recorded in a previous designated doctor examination closer in time to MMI to be invalid.

The ALJ stated in her discussion that Dr. L “persuasively noted his concerns regarding [the] [c]laimant’s complaint levels as exaggerating his movements to his left shoulder,” and that Dr. L noted numerous times that the claimant’s active left shoulder ROM is “non-physiologic and implausible from an orthopedic standpoint.” The ALJ concluded that as there was no other certification to adopt, the preponderance of the other medical evidence is not contrary to Dr. L’s certification.

However, Dr. L’s narrative report reflecting his opinion that the claimant reached MMI on June 15, 2019, does not consider the pending treatment for the claimant’s complex tear of the superior glenoid labrum and the partial tear of the supraspinatus tendon of the left shoulder, both of which have been determined to be part of the compensable injury. In evidence are numerous medical records discussing recommended treatment for these two conditions.

On May 15, 2019, (Dr. A), a doctor with whom the claimant treated, noted the claimant had completed six physical therapy sessions and left shoulder movements were painful with decreased ROM. On May 29, 2019, Dr. A noted an initial encounter for a superior glenoid labrum lesion of the left shoulder, and referred the claimant to an orthopedic surgeon for a surgical opinion on a labrum tear and supraspinatus tear.  On June 7, 2019, Dr. A noted the claimant had seen an orthopedic surgeon on the previous day and surgery was planned for June 28, 2019.

On June 6, 2019, (Dr. V), an orthopedic surgeon, saw the claimant and noted a diagnosis of superior glenoid labrum lesion of the left shoulder. Dr. V opined that “since non operative measures have not given lasting relief and pain persists, arthroscopy with rotator cuff repair and all other indicated procedures of the involved shoulder was advised.” A physical therapy record dated June 14, 2019, noted the claimant’s progression in therapy had been minimal due to pain intensity and limited ability to perform activities due to restrictions and pending surgery for the left shoulder.

On July 16, 2019, (Dr. R), another doctor with whom the claimant treated, noted a diagnosis of a superior glenoid labrum lesion of the left shoulder, and that Dr. V saw the claimant and recommended surgery for the claimant’s left shoulder. Dr. R also noted that another physical therapy referral was given that day for continuation of therapy.

In a report dated April 27, 2021, (Dr. H), the post-designated doctor required medical examination (RME) doctor, opined that, regarding the superior glenoid labrum lesion of the left shoulder and supraspinatus tear of the left shoulder, the claimant reached MMI on April 25, 2021, the statutory date of MMI (we note the correct statutory date of MMI is April 22, 2021), because the claimant has severe limitation of motion of the left shoulder. Dr. H further opined “[i]t is unfortunate that [the claimant] has not had approval for shoulder surgery.”

The medical records reflect the recommended left shoulder surgery was for a condition that is part of the compensable injury, and Dr. L did not consider the recommended treatment for the compensable injury. We hold that the ALJ’s determination that the claimant reached MMI on June 15, 2019, based on Dr. L’s certification is against the great weight and preponderance of the evidence. We therefore reverse the ALJ’s determination that the claimant reached MMI on June 15, 2019. Because we have reversed the ALJ’s determination of MMI, we also reverse the ALJ’s determination that the claimant’s IR is 0%.  

There are numerous other certifications in evidence from various doctors. Several of these doctors certified the claimant had not reached MMI. As previously discussed, we have affirmed the ALJ’s determination that the statutory date of MMI is April 22, 2021; therefore, a certification that the claimant has not reached MMI cannot be adopted in this case.  See Appeals Panel Decision (APD) 131554, decided September 3, 2013.  Certifications that the claimant had not reached MMI in evidence include (Dr. M), a previously assigned designated doctor, on September 23, 2019; (Dr. T), another previously assigned designated doctor, on August 7, 2020; and Dr. H, the post-designated doctor RME doctor, on January 9, 2020. None of these certifications can be adopted.

There are other certifications from Dr. H, one of which was discussed above. Dr. H examined the claimant on April 27, 2021, and issued alternate certifications. In two of these certifications Dr. H certified the claimant reached MMI on the statutory date of April 25, 2021, with a 20% IR. However, as the correct statutory date of MMI is April 22, 2021, neither of these certifications can be adopted. An alternate certification from Dr. H on April 27, 2021, certified the claimant reached MMI on June 15, 2019, with a 0% IR. However, this certification does not consider and rate a complex tear of the superior glenoid labrum or a partial tear of the supraspinatus tendon of the left shoulder, and therefore that certification cannot be adopted.

Another certification is from Dr. R, who examined the claimant on May 7, 2020, and certified the claimant reached MMI on May 7, 2020, with a 6% IR. However, Dr. R’s attached narrative report reflects that he considered, among other conditions, a sprain of other ligament of the left ankle, which has not been stipulated to as being compensable by the parties or actually litigated at the CCH. Dr. R’s certification cannot be adopted.

Another certification is an alternate certification from Dr. T, a previously appointed designated doctor. Dr. T examined the claimant on August 7, 2020, and certified the claimant reached MMI on June 15, 2019, with a 0% IR. However, this certification does not consider and rate a complex tear of the superior glenoid labrum and a partial tear of the supraspinatus tendon of the left shoulder. Dr. T’s certification cannot be adopted.

There is no certification in evidence that can be adopted. Therefore, we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the compensable injury extends to a complex tear of the superior glenoid labrum and a partial tear of the supraspinatus tendon of the left shoulder.

We affirm the ALJ’s determination that the claimant’s statutory date of MMI is April 22, 2021.

We reverse the ALJ’s determinations that the claimant reached MMI on June 15, 2019, with a 0% IR, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. L is the designated doctor in this case. On remand the ALJ is to determine whether Dr. L is still qualified and available to be the designated doctor.  If Dr. L is no longer qualified or is not available to serve as the designated doctor, then another designated doctor is to be appointed to determine MMI and IR for the claimant’s (date of injury), compensable injury.  

On remand the ALJ is to notify the designated doctor that the compensable injury in this case is a left knee contusion, left leg contusion, a lumbar strain, a complex tear of the superior glenoid labrum, and a partial tear of the supraspinatus tendon of the left shoulder, and that the statutory date of MMI is April 22, 2021. If Dr. L is still qualified and available to be the designated doctor, the ALJ is to request Dr. L to review and consider the records regarding pending treatment for the claimant’s complex tear of the superior glenoid labrum and partial tear of the supraspinatus tendon of the left shoulder, and to explain how those records impact his opinion on the claimant’s date of MMI. The ALJ is then to request Dr. L to determine the claimant’s date of MMI, which cannot be after April 22, 2021, the date of statutory MMI, and rate the claimant’s entire compensable injury in accordance with the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides).

The parties are to be provided with the designated doctor’s new certification and allowed an opportunity to respond.  The ALJ is then to make a determination on MMI and IR consistent with the evidence and this decision.    

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the 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.

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 June 28, 2018, with the record closing on August 2, 2018, 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 employer or appellant (carrier) properly provided respondent 2 (claimant) with the information required by Insurance Code §§ 1305.005 and 1305.451; (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) has jurisdiction to determine the medical fee disputed by (Dr. R) for the date of service of June 9, 2017; and (3) the carrier is liable to pay for the maximum medical improvement (MMI) and impairment rating (IR) evaluation by Dr. R, a non-network doctor, because the claimant was referred to him by the treating doctor for such evaluation.

The carrier appealed the ALJ’s determination that it is liable to pay Dr. R for the MMI and IR evaluation at issue. The carrier states the ALJ added the issue on his own motion and that it was improper to do so as this was not a justiciable issue. Respondent 1 (subclaimant) responded, urging affirmance of the ALJ’s determination. The appeal file does not contain a response from the claimant.

The ALJ’s determinations that the employer or carrier properly provided the claimant with the information required by Insurance Code §§ 1305.005 and 1305.451, and the Division has jurisdiction to determine the medical fee disputed by Dr. R for the date of service of June 9, 2017, have not been appealed and have become final pursuant to Labor Code § 410.169.

DECISION

Reversed and rendered by striking.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), and that, on that date, the employer provided workers’ compensation insurance coverage through the carrier. The evidence reflects that the carrier provided health care to the claimant through a workers’ compensation health care network, the Texas Star Network. The evidence also reflects the claimant’s treating doctor, (Dr. G), a network doctor, referred the claimant to Dr. R, a non-network doctor who is the subclaimant in this case, for an examination to determine MMI and IR. Dr. R examined the claimant on June 9, 2017, and certified on June 19, 2017, that the claimant reached MMI on May 30, 2017, with a one percent IR.

At the CCH, the ALJ, on his own motion and over objection by the carrier, added the following issue:

Is the [c]arrier liable to pay for the [MMI/IR] evaluation by [Dr. R], a non-network physician, because [the] [c]laimant was referred to him by the treating doctor for such evaluation?

The ALJ writes in the statement of the case portion of the decision that he added the issue “to reflect to [the] correct issue raised by the positions of the parties in this case. . . .” The ALJ held the record open for the parties to have the opportunity to provide briefs on the added issue. After receipt of the parties’ briefs, the ALJ closed the record on August 2, 2018, and later issued a decision and order.

The ALJ concluded that the carrier is liable to pay for the MMI/IR evaluation by Dr. R, a non-network doctor, because the claimant was referred to him by the treating doctor for such evaluation. A dispute over payment for providing an MMI/IR examination is a medical fee dispute which is adjudicated through the Division’s Medical Fee Dispute Resolution program (Chapter 413, Medical Review, of the Labor Code) or the network’s internal complaint resolution process (Chapter 1305, Workers’ Compensation Health Care Networks, of the Insurance Code). Accordingly, we reverse by striking the ALJ’s Conclusion of Law No. 3 and the decision that: “[t]he [c]arrier is liable to pay for the MMI/[IR] evaluation by [Dr. R], a non-network physician, because [the] [c]laimant was referred to him by the treating doctor for such evaluation.”

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

RICHARD J. GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto
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 October 5, 2017, in (city), Texas, with (hearing officer) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the appellant/cross-respondent (self-insured) did not waive the right to contest the compensability of brachial neuritis by not timely contesting the impairment rating (IR) in accordance with 28 TEX. ADMIN. CODE § 130.102(h) (Rule 130.102(h)); (2) the compensable injury of (date of injury), does not extend to brachial neuritis; (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) abused its discretion in denying the self-insured’s first Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC) (DWC-45) filed on June 22, 2017; (4) the self-insured did not waive its right to contest the respondent/cross-appellant’s (claimant) entitlement to supplemental income benefits (SIBs) for the 12th quarter by failing to timely request a BRC; and (5) the claimant is not entitled to SIBs for the 12th quarter, July 2 through September 30, 2017.

The self-insured appealed the ALJ’s determination, requesting review to correct clerical mistakes. The claimant cross-appealed the ALJ’s determinations. The self-insured responded, urging affirmance of the ALJ’s determinations. The appeal file does not contain a response from the claimant to the self-insured’s appeal.

DECISION

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

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the self-insured (we note the ALJ refers to the self-insured as a carrier throughout the decision) has accepted the compensable injury in the form of a cervical strain and the diagnosis of right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h); the qualifying period for the 12th quarter of SIBs was from March 20 through June 18, 2017; the self-insured received the Application for [SIBs] (DWC-52) for the 12th quarter of SIBs on June 19, 2017; the self-insured paid the claimant the 11th quarter SIBs; the self-insured submitted a DWC-45 requesting a BRC disputing the claimant’s entitlement to SIBs on June 22, 2017; the DWC-45 was denied by the Division on June 28, 2017; and the self-insured filed a second DWC-45 disputing the claimant’s entitlement to SIBs for the 12th quarter on July 3, 2017. The evidence established that the claimant was injured during self-defense training.

CLERICAL CORRECTIONS

As noted above the parties stipulated at the CCH that the self-insured has accepted the compensable injury in the form of a cervical strain and the diagnosis of right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h). However, Finding of Fact No. 1.H. omits “right-sided” from the stipulation. We reform Finding of Fact No. 1.H., in part, to state right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h) to reflect the stipulation as made by the parties at the CCH.

The decision states that the true corporate name of the self-insured is City of Fort Worth. However, the evidence established that the correct name for the self-insured is Tarrant County. We reform the decision to reflect that the true corporate name of the self-insured is Tarrant County.

WAIVER OF RIGHT TO CONTEST COMPENSABILITY OF BRACHIAL NEURITIS UNDER RULE 130.102(h)

The ALJ’s determination that the self-insured did not waive the right to contest the compensability of brachial neuritis by not timely contesting the IR in accordance with Rule 130.102(h) is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to brachial neuritis is supported by sufficient evidence and is affirmed.

ABUSE OF DISCRETION IN DENYING SELF-INSURED’S DWC-45 FILED ON JUNE 22, 2017

The claimant contended that the ALJ erred in adding the issue of whether the Division abused its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017. We review the ALJ’s ruling to add an issue on an abuse-of-discretion standard, that is, whether the ALJ acted without reference to any guiding rules or principles.  Appeals Panel Decision (APD) 031719, decided August 11, 2003, Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). The ALJ correctly noted at the CCH that the BRC report reflects the self-insured’s position, and added the issue at the self-insured’s request and for good cause. The ALJ did not abuse her discretion in adding this issue.

As previously noted the parties stipulated that the self-insured paid the 11th quarter of SIBs, and that it received the claimant’s DWC-52 for the 12th quarter of SIBs on June 19, 2017. It is undisputed that the self-insured had until June 29, 2017, to request a BRC to dispute the claimant’s entitlement to SIBs for the 12th quarter as provided by Rule 130.108(c).

In evidence is a DWC-45 filed with the Division by the self-insured on June 22, 2017. The self-insured indicated that it was disputing entitlement to SIBs, and specified the following:

Inability to work was not direct result of compensable injury, no good faith effort to seek work duringt [sic] qualifying period, and no sufficiently detailed narrative from physician that explains complete inability to work.

Also in evidence is a Commissioner Order dated June 28, 2017, denying the self-insured’s request to schedule a BRC because the self-insured failed to indicate what quarter was in dispute and the description of the disputed issue was insufficient to meet the requirements of Rule 141.1(d). The self-insured submitted another DWC-45 on July 3, 2017, with more specific information; however, as noted above the self-insured’s deadline to file was June 29, 2017. The self-insured argued at the CCH that the Division abused its discretion in denying its DWC-45 filed on June 22, 2017.

Section 408.147(b) provides as follows:

(b) If an insurance carrier fails to make a request for a [BRC] within 10 days after the date of the expiration of the impairment income benefit period or within 10 days after receipt of the employee’s statement, the insurance carrier waives the right to contest entitlement to [SIBs] and the amount of [SIBs] for that period of [SIBs].

Rule 141.1, effective October 1, 2010, provides in part:

(d) Request for [BRC].  A request for a [BRC] shall be made in the form and manner required by the [D]ivision.  The request shall:

(1)  identify and describe the disputed issue or issues;

(2)  provide details and supporting documentation of efforts made by the requesting party to resolve the disputed issues, including but not limited to, copies of the notification provided in accordance with subsection (a) of this section, correspondence, e-mails, facsimiles, records of telephone contacts, or summaries of meetings or telephone conversations . . .;

(3)  contain a signature by the requesting party attesting that reasonable efforts have been made to resolve the disputed issue(s) prior to requesting a [BRC], and that any pertinent information in their possession has been provided to the other parties . . .; and

(4)  be sent to the [D]ivision and opposing party or parties.

(e) Complete Request.  A request that meets the requirements of subsection (d) of this section is a complete request for a [BRC].  The [D]ivision will schedule a [BRC] if the request is complete and otherwise appropriate for a [BRC].

(f)  Incomplete Request.  A request for a [BRC] that does not meet the requirements of subsection (d) of this section is an incomplete request and will be denied.

(1)  A denied request for a [BRC] does not constitute a dispute proceeding, except as provided by subsection (g) of this section.

(2)  The [D]ivision will notify the parties if a request is denied and state the reasons for the denial.

(3)  Upon notice from the [D]ivision, the requesting party may submit a new request for a [BRC] that meets the requirements of this section.

(g) Incomplete Request Denials.  If a party disagrees with the [D]ivision’s determination that the request was incomplete, or, if a party has good cause for failing to meet the requirements of subsection (d) of this section, the party may pursue an administrative appeal of the [D]ivision’s determination in accordance with Chapter 142 of this title (relating to Dispute Resolution—[CCH]).  The party may also request an expedited [CCH] in accordance with [Rule] 140.3 of this title (relating to Expedited Proceedings).

The self-insured satisfied the criteria of Rule 141.1(g) to pursue an administrative appeal of the Division’s denial of the self-insured’s DWC-45 filed on June 22, 2017, because the self-insured’s position at the August 9, 2017, BRC was that the Division abused its discretion in denying its DWC-45 filed on June 22, 2017, and the self-insured made a motion to add abuse of discretion as an issue at the CCH. See APD 150499-s, decided April 29, 2015.

The ALJ found that the DWC-45 filed by the self-insured on June 22, 2017, satisfied the criteria of Rule 141.1, and determined that the Division abused its discretion in denying the self-insured’s DWC-45 filed on June 22, 2017.

An order of an administrative body is presumed to be valid and the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action.  Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref’d).

The evidence established that the Division denied the self-insured’s DWC-45 filed on June 22, 2017, because the self-insured failed to indicate what quarter was in dispute and the description of the disputed issue was insufficient to meet the requirements of Rule 141.1(d).

Rule 141.1(d)(1) requires the request for BRC to both identify and describe the disputed issue or issues. The self-insured’s DWC-45 in evidence does not state which quarter is in dispute and there was no evidence to establish that any information containing the specific quarter in dispute, such as the claimant’s 12th quarter DWC-52, was attached to the DWC-45. Identification of the specific SIBs quarter or quarters being disputed is essential for the Division to determine whether or not it has authority to set the BRC. By not specifying the actual quarter in dispute the self-insured’s request does not identify the disputed issue of whether the claimant is entitled to 12th quarter SIBs, and is therefore not a complete request under Rule 141.1(d). The ALJ’s finding that the DWC-45 submitted by the self-insured on June 22, 2017, satisfied the criteria of Rule 141.1 is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the ALJ’s determination that the Division abused its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017, and we render a new decision that the Division did not abuse its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017.

WAIVER OF 12TH QUARTER SIBs AND CLAIMANT’S ENTITLEMENT TO 12TH QUARTER SIBs

The evidence established that the self-insured’s DWC-45 filed on June 22, 2017, was not a complete request pursuant to Rule 141.1 and that the self-insured did not file another request until after the 10-day deadline. Accordingly, we reverse the ALJ’s determination that the self-insured did not waive its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC, and we render a new decision that the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC. See APD 111189-s, decided October 3, 2011.

The ALJ determined that the claimant is not entitled to SIBs for the 12th quarter. However, given that we have reversed the ALJ’s determination that the self-insured did not waive its right to contest the claimant’s entitlement to SIBs for the 12th quarter and have rendered a new decision that the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the 12th quarter, July 2 through September 30, 2017, and we render a new decision that the claimant is entitled to SIBs for the 12th quarter, July 2 through September 30, 2017.

SUMMARY

We reform Finding of Fact No. 1.H., in part, to state right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h) to reflect the stipulation as made by the parties at the CCH.

We reform the decision to reflect that the true corporate name of the self-insured is Tarrant County.

We affirm the ALJ’s determination that the self-insured did not waive the right to contest the compensability of brachial neuritis by not timely contesting the IR in accordance with Rule 130.102(h).

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to brachial neuritis.

We reverse the ALJ’s determination that the Division abused its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017, and we render a new decision that the Division did not abuse its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017.

We reverse the ALJ’s determination that the self-insured did not waive its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC, and we render a new decision that the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the 12th quarter, July 2 through September 30, 2017, and we render a new decision that the claimant is entitled to SIBs for the 12th quarter, July 2 through September 30, 2017.

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

COUNTY JUDGE GLEN WHITLEY

100 EAST WEATHERFORD STREET

FORT WORTH, TEXAS 76102.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to The Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. §401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 19, 2017, with the record closing on September 26, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that in Sequence No. 3, attorney’s fees in the amount of $704.00 are reasonable and necessary for services rendered beginning January 4 through January 31, 2017, and the appellant (claimant) had good cause for failing to appear at the CCH on June 12, 2017.

In a Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees Sequence No. 3 dated April 7, 2017 (Order), a Division employee approved 4.80 hours of attorney’s fees out of 4.80 attorney’s fees requested at $200.00 per hour, and .90 hours of legal assistant’s fees out of .90 hours of legal assistant’s fees requested at $65.00 per hour for a total attorney fee award of $1,018.50. The claimant appealed, arguing that his attorney did nothing to advance his claim. The appeal file does not contain a response from either respondent 1 (carrier) or respondent 2 (attorney).

The ALJ’s determination that the claimant had good cause for failing to appear at the CCH on June 12, 2017, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The standard for review in an attorney’s fees case is abuse of discretion. Appeals Panel Decision 061189, decided July 24, 2006. 28 TEX. ADMIN. CODE § 152.4(d) (Rule 152.4(d)) effective January 30, 2017, increased the maximum hourly rates that may be charged by attorneys and legal assistants in the workers’ compensation system. Effective January 30, 2017, the maximum hourly rates increased from $150.00 an hour to $200.00 for attorneys, and from $50.00 an hour to $65.00 an hour for legal assistants.

The attorney requested fees for 4.80 hours of attorney’s time in the Order dated April 7, 2017, as follows:

.70 hours on January 15, 2017, for the receipt and review of documents;

.20 hours on January 15, 2017, for a telephone conference;

.35 hours on January 9, 2017, for receipt and review of documents;

.50 hours on January 9, 2017, for review of file;

.60 hours on January 10, 2017, for drafting a letter;

.60 hours on January 10, 2017, for receipt and review of documents;

.50 hours on January 13, 2017, for drafting a letter;

1.00 hour on January 15, 2017, for performing legal research; and

.35 hours on January 31, 2017, for drafting a letter.

The attorney requested fees for .90 hours for legal assistant’s time in the Order dated April 7, 2017, as follows:

.20 hours on January 4, 2017, for a telephone conference;

.20 hours on January 9, 2017, for a telephone conference;

.10 hours on January 9, 2017, for a telephone conference;

.20 hours on January 10, 2017, for a telephone conference;

.10 hours on January 20, 2017, for a telephone conference; and

.10 hours on January 31, 2017, for a telephone conference.

The ALJ found in Finding of Fact No. 4 that a reasonable hourly rate for the attorney’s fees in this matter for dates before January 31, 2017, is $150.00 and $50.00 for legal assistant time and in Finding of Fact No. 5 that a reasonable hourly rate for the attorney in this matter for dates on or after January 31, 2017, is $200.00 and $65.00 for legal assistant time. However, the rule became effective on January 30, 2017, not January 31, 2017. We note that the ALJ mistakenly included two Findings of Fact that are numbered 5 in her Decision.

The ALJ found that by Order dated April 7, 2017, in Sequence No. 3 an attorney’s fee was approved in the amount of $1,018.50, which fee included 4.00 hours of attorney time and 1.70 hours of legal assistant time. However, a review of the record reflects that the fee included 4.80 hours of attorney time and .90 hours of legal assistant time.

In her discussion of the evidence, the ALJ stated that there was no persuasive justification for the attorney or her legal assistant to receive more than the fee allowed by law. The ALJ then noted that the attorney performed 3.65 hours before January 31, 2017. However, the record reflects that the attorney performed 4.45 hours of service before January 30, 2017. The maximum hourly rate for legal services performed by an attorney at that time was $150.00 per hour, which would be $667.50. The attorney additionally requested fees for .35 hours for services performed on January 31, 2017, for which the maximum hourly rate would be $200.00. In multiplying $200.00 by .35, the amount of $70.00 for attorney time is calculated for the January 31, 2017, date of service.

In her discussion of the evidence the ALJ noted that the legal assistant performed 1.60 hours of service at the rate of $50.00 per hour prior to January 31, 2017 (1.60 hours multiplied by $50.00 equals $80.00). The ALJ indicated later that .10 hours for service by the legal assistant on January 31, 2017, would be $6.50. The record reflects that the legal assistant performed .80 hours of service prior to the effective date of the rule, January 30, 2017 (for a total of $40.00) and performed .10 hours of service on January 31, 2017 (for a total of $6.50).

Adding the totals for services performed by the attorney prior to January 30, 2017 ($667.50); the services performed by the legal assistant prior to January 30, 2017 ($40.00); the total for attorney time on January 31, 2017 ($70.00); and the total for legal assistant time on January 31, 2017 ($6.50) equals $784.00 rather than $704.00 as determined by the ALJ. Accordingly, we reverse the ALJ’s determination that in Sequence No. 3, attorney’s fees in the amount of $704.00 are reasonable and necessary for services rendered beginning January 4 through January 31, 2017, and render a new decision that in Sequence No. 3, attorney’s fees in the amount of $784.00 are reasonable and necessary for services rendered beginning January 4 through January 31, 2017.

The true corporate name of the insurance carrier is CHARTER OAK FIRE 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.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

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