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 19, 2022, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding: (1) attorney’s fees in the amount of $2,050.00 were reasonable and necessary for services rendered from June 1, 2021, through July 12, 2021; (2) the attorney’s fees should be paid pursuant to 28 Tex. Admin. Code § 152.1(f) (Rule 152.1(f)); and (3) the appellant/cross-respondent 2 (claimant) is entitled to reimbursement of travel expenses from March 9, 2021, through November 1, 2021, for treatment at the direction of (Dr. S) in the amount of $5,322.24. Appellant/cross-respondent 1 (attorney) appealed the ALJ’s determination that attorney’s fees in the amount of $2,050.00 were reasonable and necessary for services rendered from June 1, 2021, through July 12, 2021. The attorney argues, in part, that it was error for the ALJ to fail to address the issue of whether the respondent/cross-appellant (self-insured) timely disputed the Texas Department of Insurance, Division of Workers’ Compensation (Division) Order for Attorney’s Fees (Order). The appeal file does not contain a response from the self-insured to the attorney’s appeal.  The self-insured cross-appealed, disputing the ALJ’s determinations regarding travel reimbursement and that attorney’s fees should be paid pursuant to Rule 152.1(f). The attorney responded, urging affirmance of the issues disputed by the self-insured.

DECISION

Affirmed in part and reversed and rendered in part.

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).

TRAVEL EXPENSES

The ALJ’s determination that the claimant is entitled to reimbursement of travel expenses from March 9, 2021, through November 1, 2021, for treatment at the direction of Dr. S in the amount of $5,322.24 is supported by sufficient evidence and is affirmed.

PAYMENT UNDER RULE 152.1(f)

The ALJ’s determination that the attorney’s fees should be paid pursuant to Rule 152.1(f) is supported by sufficient evidence and is affirmed. See Appeals Panel Decision (APD) 033375, decided February 19, 2004. See also APD 962504, decided January 27, 1997 (where the Appeals Panel determined that the claimant prevailed on the disputed issue of supplemental income benefits (SIBs) when the claimant received two quarters of SIBs in accordance with a benefit review conference agreement).

ATTORNEY’S FEES

In evidence is an Order approving attorney’s fees in the amount of $5,187.50 for services performed from June 6, 2021, through July 12, 2021. At the CCH, the attorney argued in closing arguments that the self-insured failed to timely dispute the Order.  The Order was issued on July 14, 2021, and sent to the claimant, the claimant’s attorney, and to the self-insured at their correct addresses of record. The attorney argues that the ALJ erred in failing to make findings regarding whether the self-insured timely disputed the Order. We agree. A review of the record reflects that the parties actually litigated whether the self-insured timely disputed the Order. The 1989 Act gives the Division the responsibility for approving attorney’s fees and that in implementing a system to carry out that responsibility, the Division has set deadlines for filing a contest of an attorney’s fee order. APD 990533, decided April 16, 1999, APD 971769, decided October 14, 1997, and APD 180777, decided May 8, 2018.

Prior to January 30, 2017, Rule 152.3(d) provided, in part, that except as provided in subsection (e), an attorney, claimant, or carrier who contests the fee fixed and approved by the Division shall request a CCH no later than the 15th day after receipt of the Division’s order.

Rule 152.3(d) was amended effective January 30, 2017, to provide, in part, that to contest a Division order approving an application for attorney fees, an attorney, claimant, or insurance carrier must request a CCH no later than the 20th day after receipt of the Division's order.

Rule 102.5(d) provides, in pertinent part, that unless the great weight of evidence indicates otherwise, the Division will deem the received date of its written communications, including the attorney fee orders at issue, to be five days after the date mailed via United States Postal Service regular mail.

The Order approving the disputed attorney’s fees is dated July 14, 2021. The ALJ failed to make any findings of fact regarding the date the self-insured received the Order. Pursuant to Rule 102.5(d) the self-insured was deemed to have received the Order five days after the date it was mailed. The evidence reflects that the Order was mailed to the self-insured’s address of record on July 14, 2021. The 5th day after July 14, 2021, was Monday, July 19, 2021, so pursuant to Rule 102.5(d) the deemed date of receipt of the Order is July 19, 2021. We note that Rule 102.3(b) provides that use of the term “day” rather than “working day” shall mean a calendar day; that Rule 152.3(d) states that the request for CCH must be submitted no later than the 20th day after receipt of the Division Order; and that the provisions of Rule 143.3(d) regarding not including Saturdays and Sundays and holidays listed in Section 662.003 of the Government Code apply to the computation of the time in which to file a request for appeal with the Appeals Panel, and not to a request for a CCH under Rule 152.3(d). The evidence reflects that the self-insured has not disputed the attorney’s fees awarded in the Order in the amount of $5,187.50 by requesting a CCH. The 20th day after July 19, 2021, the deemed date of receipt, was Sunday, August 8, 2021, so pursuant to Rule 102.3(a)(3) the deadline to dispute the Order was the next working day, which is Monday, August 9, 2021. Accordingly, we reverse the ALJ’s determination that attorney’s fees in the amount of $2,050.00 were reasonable and necessary for services rendered from June 1, 2021, through July 12, 2021, and render a new decision that the Order was not timely disputed by the self-insured and became final.

SUMMARY

We affirm the ALJ’s determination that the claimant is entitled to reimbursement of travel expenses from March 9, 2021, through November 1, 2021, for treatment at the direction of Dr. S in the amount of $5,322.24.

We affirm the ALJ’s determination that the attorney’s fees should be paid pursuant to Rule 152.1(f).

We reverse the ALJ’s determination that attorney’s fees in the amount of $2,050.00 were reasonable and necessary for services rendered from June 1, 2021, through July 12, 2021, and render a new decision that the Order was not timely disputed by the self-insured and became final.

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 May 4, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. S) on September 4, 2015, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (2) the appellant (claimant) reached MMI on August 4, 2015; (3) the claimant’s IR is five percent; (4) the claimant had disability from an injury sustained on (date of injury), from August 5, 2015, through April 11, 2016; and (5) the claimant is not entitled to reimbursement of travel expenses from April 18 through September 21, 2016, for medical treatment at the direction of (Dr. Sm) and (Dr. B), approximately in the amount of $1,500.00.

The claimant appealed, disputing the hearing officer’s determinations of finality, MMI, IR, and travel reimbursement. The claimant contends that the evidence established the first certification did not become final and the evidence precludes a determination that he reached MMI on August 4, 2015, with a five percent IR. Additionally, the claimant argues that the preponderance of the medical evidence supports his position that he is entitled to reimbursement of travel expenses from April 18 through September 21, 2016. The respondent (carrier) responded, urging affirmance of the disputed finality, MMI, IR, and travel reimbursement determinations.

The hearing officer’s determination that the claimant had disability from an injury sustained on (date of injury), from August 5, 2015, through April 11, 2016, was not appealed and became final pursuant to Section 410.169.

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 consisted of a lumbar strain, lumbar radiculopathy, and lumbar disc herniations at L3-4, L4-5, and L5-S1, and that the date of statutory MMI is April 12, 2016. The claimant testified that he injured his back when an out-of-control pressure hose struck him in the back.

TRAVEL REIMBURSEMENT

The hearing officer’s determination that the claimant is not entitled to reimbursement of travel expenses from April 18 through September 21, 2016, for medical treatment at the direction of Dr. Sm and Dr. B, approximately in the amount of $1,500.00 is supported by sufficient evidence and is affirmed.

FINALITY

Section 408.123(e) provides that except as otherwise provided by this section, an employee’s first valid certification of MMI and the first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means: that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both.  The hearing officer found that “[n]o exceptions to 90-day finality per Section 408.123(f) apply.” That finding is supported by sufficient evidence.

In her discussion of the evidence the hearing officer noted that based upon the claimant’s testimony, the report from Dr. S was deemed received by the claimant late in 2015. The hearing officer found that at least by December 31, 2015, the claimant received notification by verifiable means of the September 4, 2015, certification report by Dr. S. The claimant testified that he did not remember the exact date he received the certification of MMI/IR from Dr. S but knew he got it in 2015. The claimant never testified that he received the documents on December 31, 2015, and there is no evidence that December 31, 2015, is the date of receipt by verifiable means. The claimant acknowledged receipt of the report but equally clearly he did not know or testify to the specific date of receipt nor does the carrier have verifiable proof that the first certification of MMI and IR was delivered on December 31, 2015. We hold that the claimant’s testimony in this case does not constitute acknowledged receipt by the claimant on December 31, 2015. See Appeals Panel Decision (APD) 141822, decided October 10, 2014; APD 101033, decided September 22, 2010; and APD 110911, decided August 26, 2011.

In evidence is product and tracking information for a tracking number for documents sent to the claimant’s address from the United States Postal Service that reflects on October 2, 2015, documents were available for pickup. The hearing officer noted in her discussion that in evidence was the tracking information confirming that the certification report was sent on September 28, 2015, but not picked up as of October 2, 2015. However, the hearing officer did not comment on whether she was persuaded that the documents available for pickup included the September 4, 2015, DWC-69 from Dr. S.

In APD 042163-s, decided October 21, 2004, the Appeals Panel discussed whether the deemed receipt provision of Rule 102.4 was applicable and what is meant by “verifiable means.”  APD 041985-s, decided September 28, 2004, and APD 042163-s, both reference the preamble to Rule 130.12.  The preamble provides that the 90-day period “begins when that party receives verifiable written notice of the MMI/IR certification.”

The preamble goes on to state:

Written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party.  This may include acknowledged receipt by the injured employee or insurance carrier, a statement of personal delivery, confirmed delivery by e-mail, confirmed delivery by facsimile, or some other confirmed delivery to the home or business address.  The goal of this requirement is not to regulate how a system participant makes delivery of a report or other information to another system participant, but to ensure that the system participant filing the report or providing the information has verifiable proof that it was delivered.  29 Tex Reg 2331, March 5, 2004.

The preamble further stated that a party may not prevent verifiable delivery and specifically provided that a party who refuses to take personal delivery or certified mail has still been given verifiable written notice.  When or if the notice was provided/delivered to the claimant presented a question of fact for the hearing officer to resolve.  APD 042163-s, supra. Consequently, we reverse the hearing officer’s determination that the first certification of MMI and assigned IR from Dr. S on September 4, 2015, became final pursuant to Section 408.123 and Rule 130.12 and remand the issue of finality to the hearing officer for her to make a determination regarding delivery of the first certification to the claimant by verifiable means.

MMI/IR

Given we have reversed and remanded the issue of finality to the hearing officer for further action consistent with this decision we also reverse and remand the issues of MMI and IR.

SUMMARY

We affirm the hearing officer’s determination that the claimant is not entitled to reimbursement of travel expenses from April 18 through September 21, 2016, for medical treatment at the direction of Dr. Sm and Dr. B, approximately in the amount of $1,500.00.

We reverse the hearing officer’s determination that the first certification of MMI and assigned IR from Dr. S on September 4, 2015, became final under Section 408.123 and Rule 130.12 and remand the issue of finality to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determination that the claimant reached MMI on August 4, 2015, and remand the issue of MMI to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determination that the claimant’s IR is five percent and remand the issue of IR to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to make a determination regarding whether the first certification of MMI and assigned IR from Dr. S on September 4, 2015, was delivered to the claimant by verifiable means and if so on what date. The claimant’s testimony that he received the certification in 2015, does not support a finding that at least by December 31, 2015, the claimant received the certification by verifiable means. After making a determination regarding finality, the hearing officer is to then make a determination of MMI and IR 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 hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 ZURICH AMERICAN 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

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 15, 2016, with the record closing on October 27, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that respondent 2 (claimant) is not entitled to travel reimbursement expenses from January 18 through February 14, 2015, for medical treatment at the direction of (Dr. D). The appellant (subclaimant) appeals the hearing officer’s determination arguing that the determination was rendered based upon an issue not in dispute. Respondent 1 (carrier) responded, urging affirmance. The appeal file does not contain a response from the claimant.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record at the CCH. The appeal file does not contain an audio recording of the CCH. The file indicates that there was no court reporter present at the hearing and the file does not contain a transcript. Accordingly, we reverse and remand this case to the hearing officer who presided over the CCH, if possible, for reconstruction of the record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 SERVICE LLOYDS INSURANCE COMPANY and the name and address of its registered agent for service of process is

JOSEPH KELLY-GRAY, PRESIDENT

6907 CAPITOL OF TEXAS HIGHWAY NORTH

AUSTIN, TEXAS 78755.

K. Eugene Kraft
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 October 18, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that the compensable injury of (date of injury), extends to a right arm biceps tendon strain, lateral epicondylitis with tendonitis, and a right arm partial biceps tendon tear and that the respondent (claimant) is entitled to reimbursement of travel expenses incurred on July 24, 2015, and September 25, 2015, for medical treatment at the direction of (Dr. A) in the amount of $190.90.

The appellant (carrier) appealed the hearing officer’s decision arguing that such determinations are contrary to the evidence.

The appeal file does not contain a response from the claimant.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified that he injured his right elbow on (date of injury), while using a heavy probe bar to locate underground piping. The parties stipulated that the claimant sustained a compensable injury on (date of injury), that includes at least a right elbow strain. The claimant further testified that he sought medical attention with Dr. A, whose office is located in (city), Texas, more than 80 miles from the claimant’s residence in (city), Texas, because Dr. A is an orthopedic doctor who has previously treated the claimant and the claimant’s son and because there are no doctors qualified to treat the compensable injury in (city), Texas.

TRAVEL REIMBURSEMENT

That portion of the hearing officer’s determination that the claimant is entitled to reimbursement of travel expenses incurred on July 24, 2015, and September 25, 2015, for medical treatment at the direction of Dr. A in the amount of $190.90 is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury of (date of injury), extends to a right arm biceps tendon strain and lateral epicondylitis with tendonitis is supported by sufficient evidence and is affirmed.

In the Discussion section of her decision, the hearing officer correctly stated that the disputed conditions in this case, with the exception of a right arm biceps tendon strain, are outside the common knowledge and experience of the fact finder and require expert evidence to establish a causal connection with the compensable injury. The hearing officer further stated that the claimant, relying upon the medical record and a causation letter from Dr. A, met his burden to establish by expert medical evidence that the compensable injury extends to a right arm partial biceps tendon tear. We disagree. In his letter dated June 9, 2016, Dr. A stated the compensable injury was a producing cause of symptoms for both lateral epicondylitis and a biceps tendon strain but made no mention of a partial biceps tendon tear. Neither Dr. A’s causation narrative nor the medical record in the case establish within reasonable medical probability that the compensable injury caused or aggravated a right arm partial biceps tendon tear. Accordingly, we reverse that portion of the hearing officer’s determination that the compensable injury of (date of injury), extends to a right arm partial biceps tendon tear and render a new decision that the compensable injury of (date of injury), does not extend to a right arm partial biceps tendon tear.

SUMMARY

We affirm the hearing officer’s determination that the claimant is entitled to reimbursement of travel expenses incurred on July 24, 2015, and September 25, 2015, for medical treatment at the direction of Dr. A in the amount of $190.90.

We affirm that portion of the hearing officer’s determination that the compensable injury of (date of injury), extends to a right arm biceps tendon strain and lateral epicondylitis with tendonitis.

We reverse that portion of the hearing officer’s decision that the compensable injury of (date of injury), extends to a right arm partial biceps tendon tear and render a new decision that the compensable injury of (date of injury), does not extend to a right arm partial biceps tendon tear.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3232.

K. Eugene Kraft
Appeals Judge

CONCUR

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 12, 2015, in San Antonio, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the sole disputed issue by deciding that the respondent (claimant) is entitled to reimbursement for travel expenses for medical treatment at the direction of (Dr. D) and (Dr. J) from May 7 through August 28, 2014, in the sum of $1,123.36. The hearing officer specifically found that the claimant is entitled to reimbursement of $1,039.36 for travel for treatment by Dr. D between May 7, 2014, and August 28, 2014, and $84.00 for travel for treatment by Dr. J on May 21, 2014.

The appellant (carrier) only appealed that portion of the hearing officer’s determination that the claimant is entitled to reimbursement for travel expenses for medical treatment at the direction of Dr. D, in the amount of $1039.36. The carrier argues that the hearing officer created a new legal standard and requirement under 28 TEX. ADMIN. CODE § 134.110(a)(1) (Rule 134.110(a)(1)) which allows injured workers to seek reimbursement for travel to any location. The claimant responded, urging affirmance of the hearing officer’s determination because the evidence establishes that the claimant was not able to find reasonable medical treatment within 30 miles of where he resides.

The carrier specifically states in its appeal that it does not dispute nor appeal the hearing officer’s determination that the claimant is entitled to reimbursement for traveling 150 miles roundtrip to Dr. J, in the amount of $84.00.

Accordingly that portion of the hearing officer’s determination that the claimant is entitled to travel expenses for medical treatment at the direction of Dr. J, on May 21, 2014, in the amount of $84.00 was not appealed and has become final pursuant to Section 410.169.

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.  The appeal file in this case contains one compact disc and contains only one second of sound. The file indicates that there was no court reporter and the file does not contain a transcript, or tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer who presided over the February 12, 2015, CCH, if possible, for reconstruction of the CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

On remand, the hearing officer is to make a determination on whether the claimant is entitled to reimbursement for travel expenses from May 7 through August 28, 2014, for medical treatment at the direction of Dr. D, and if so, for what amount.

No new evidence should be admitted on remand. See APD 031163, decided June 17, 2003, and APD 041970, decided October 4, 2004.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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.

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 June 17, 2014, in Laredo, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [date of injury], does not extend to the diagnoses of cervical disc bulges at C2-3, C3-4, C4-5, C5-6, and C6-7, disc protrusion/herniation at C5-6, nasal bone fracture, concussion, traumatic brain injury with post-concussion syndrome/seizure disorder—epilepsy; (2) the appellant (claimant) is not entitled to reimbursement of travel expenses for medical treatment at the direction of (Dr. G) during the period of April 8 through April 20, 2013, in the amount of $246.20; and (3) the claimant did not have disability resulting from the compensable injury of [date of injury], beginning December 15, 2011, and continuing through the date of the CCH. The claimant appealed, disputing the hearing officer’s determinations of the extent of the compensable injury, disability and the denial of reimbursement of travel expenses. The claimant argues on appeal that the evidence established that the disputed extent-of-injury conditions were part of the compensable injury; that he is entitled to reimbursement for the requested travel expenses; and that he had disability for the disputed period at issue, December 15, 2011, through the CCH. The respondent (self-insured) responded, urging affirmance of the disputed extent of injury, disability, and travel reimbursement determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated in part that the claimant sustained a compensable injury, in the form of a nasal contusion, lip laceration, and cervical strain on [date of injury]. The claimant testified he was working as a prison guard and was assaulted by an inmate on the date of injury.

TRAVEL REIMBURSEMENT

The hearing officer’s determination that the claimant is not entitled to reimbursement of travel expenses of medical treatment at the direction of Dr. G during the period of April 8 through April 20, 2013, in the amount of $246.20 is supported by sufficient evidence and is affirmed.

DISABILITY

The hearing officer’s determination that the claimant did not have disability resulting from the compensable injury of [date of injury], for the time period in dispute, December 15, 2011, through the date of the CCH is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

That portion of the hearing officer’s determination that the compensable injury of [date of injury], does not extend to cervical disc bulges at C2-3, C3-4, C4-5, C5-6, and C6-7, disc protrusion/herniation at C5-6, concussion, and traumatic brain injury with post-concussion syndrome/seizure disorder—epilepsy is supported by sufficient evidence and is affirmed.

In evidence is an injury account to the unit risk manager that noted the claimant was punched to the face several times by an offender and went to the hospital where he received stitches to his lower lip area. The injury account noted the claimant complained of soreness to the neck and had bruising to the bridge of his nose. A hospital record dated July 26, 2010, noted the claimant had stitches under his lower lip on his initial visit to the hospital but did not have any x-rays done. Diagnostic x-rays of the nasal bone were ordered. In evidence are x-rays dated July 30, 2010, that note a fracture of the tip of the nasal bones. In the instant case it was undisputed that the claimant was hit in the face with a closed fist. The first x-rays were taken of the claimant’s nasal bones, six days after the date of injury, and noted that the claimant had a fracture of the tip of the nasal bones. Under the facts of this case, with the described mechanism of injury, we decline to hold expert medical evidence was required to prove a nasal bone fracture. The self-insured accepted a nasal contusion, the medical records document bruising to the bridge of the claimant’s nose, and x-rays taken close in time to the date of injury reflect that the claimant had a fracture of the tip of the nasal bones. Accordingly, we hold that the hearing officer’s determination that the compensable injury does not extend to a nasal bone fracture is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We reverse that portion of the hearing officer’s determination that the compensable injury does not extend to a nasal bone fracture and render a new decision that the compensable injury of [date of injury], extends to a nasal bone fracture.

SUMMARY

We affirm the hearing officer’s determination that the claimant is not entitled to reimbursement of travel expenses for medical treatment at the direction of Dr. G during the period of April 8 through April 20, 2013, in the amount of $246.20.

We affirm the hearing officer’s determination that the claimant did not have disability resulting from the compensable injury of [date of injury], for the time period in dispute, December 15, 2011, through the date of the CCH.

We affirm that portion of the hearing officer’s determination that the compensable injury of [date of injury], does not extend to cervical disc bulges at C2-3, C3-4, C4-5, C5-6, and C6-7, disc protrusion/herniation at C5-6, concussion, and traumatic brain injury with post-concussion syndrome/seizure disorder—epilepsy.

We reverse that portion of the hearing officer’s determination that the compensable injury does not extend to a nasal bone fracture and render a new decision that the compensable injury of [date of injury], extends to a nasal bone fracture.

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

For service in person the address is:

JONATHAN D. BOW, EXECUTIVE DIRECTOR  

300 W. 15TH STREET  

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

AUSTIN, TEXAS 78701.  

 

For service by mail the address is:

JONATHAN D. BOW, EXECUTIVE DIRECTOR  

P.O. BOX 13777  

AUSTIN, TEXAS 78711-3777.  

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
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 commenced on November 16, 2011, with the record closing on December 5, 2011, in[City], Texas, with [hearing officer] presiding as hearing officer. The issues at the CCH were the date of maximum medical improvement (MMI), the respondent’s (claimant) impairment rating (IR) and whether the claimant was entitled to reimbursement of travel expenses for medical treatment at the direction of [Dr. R], the treating doctor. The hearing officer determined that the claimant reached MMI on December 1, 2010, with a 0% IR and that the claimant is not entitled to reimbursement of travel expenses for medical treatment at the direction of Dr. R. The hearing officer’s determination that the claimant is not entitled to reimbursement for travel expenses for medical treatment at the direction of Dr. R has not been appealed and has become final pursuant to Section 410.169.

The appellant (self-insured) appealed, contending that the hearing officer made a clerical error in determining the claimant had a 0% IR and requested correction of the name of the self-insured. The appeal file does not contain a response from the claimant.

DECISION

Reversed and rendered.

The Insurance Carrier Information form submitted by the self-insured, states the Carrier’s True Corporate Name is [Self-Insured]. A Notification of [MMI]/First Impairment Income Benefit Payment (PLN-3) lists [Self-Insured] as the carrier. The hearing officer, in Finding of Fact No. 3, found that the claimant was an employee of [Employer], a self-insured entity other than the self-insured in this case. We reverse Finding of Fact No. 3 and render a new finding that on [date of injury], the claimant was an employee of the self-insured, when he sustained a compensable injury.

The hearing officer, in the Background Information and Finding of Fact No. 5, found that the claimant failed to appear for the November 16, 2011, CCH and failed to respond to the 10-day letter. That finding was not appealed and has become final. In the Background Information portion of the decision the hearing officer commented that “[t]he evidence preponderates that [the] [c]laimant reached [MMI] on December 1, 2010, with a 0% [IR] in accordance with the findings of [(Dr. S)], the designated doctor.” In fact, the report of Dr. S, in evidence, certified that the claimant reached clinical MMI on December 1, 2010, with a 10% IR. The only certification of MMI/IR in evidence is from Dr. S assessing a 10% IR. There is no certification of a 0% IR in evidence. The treating doctor signed Dr. S’s Report of Medical Evaluation (DWC-69) agreeing with the 10% IR.

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

In Finding of Fact No. 6, the hearing officer found that the 0% IR certified by Dr. S is supported by a preponderance of the evidence. We reverse Finding of Fact No. 6 as being so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We render a new finding that the 10% IR certified by Dr. S is supported by a preponderance of the evidence.

In Conclusion of Law No. 3, we reverse the hearing officer’s determination that the claimant has a 0% IR as being so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We render a new decision that the claimant has a 10% IR.

In the hearing officer’s Decision portion of the decision and order we reverse so much of the decision that states the claimant has “a 0% [IR]” and render a new decision that the claimant has a 10% IR.

The true corporate name of the insurance carrier is [SELF-INSURED] (a certified self-insured) and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Thomas A. Knapp
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was commenced on August 14, 2008, with the record closing on October 20, 2008. With regard to the three disputed issues before her, the hearing officer determined that the respondent (claimant) reached maximum medical improvement (MMI) on December 1, 2006, that the claimant’s impairment rating (IR) is four percent and that the claimant is entitled to reimbursement for travel expenses in the amount of $20.65.

The appellant (self-insured) appeals all the hearing officer’s determinations, contending that the claimant reached MMI on July 17, 2007, with a one percent IR as assessed by the designated doctor and that the claimant is not entitled to reimbursement for travel expenses. The appeal file does not contain a response from the claimant.

DECISION

Affirmed in part and reversed and rendered in part.

It is undisputed that the claimant, a payroll and data specialist, sustained an injury on __________, when she slipped going down a stairwell and injured her left ankle. The parties stipulated that on __________, the claimant sustained a compensable injury. The parties also stipulated that “the designated doctor, [Dr. JK], certified that the claimant reached [MMI] on July 17, 2007, with a zero percent impairment” and that “the treating surgeon, [Dr. K], certified that the claimant reached [MMI] on December 1, 2006, with a four percent whole person impairment.”^[1]

MMI/IR

The hearing officer’s determinations that the claimant reached MMI on December 1, 2006, and that the claimant’s IR is four percent are supported by the evidence and are affirmed.

TRAVEL REIMBURSEMENT

28 TEX. ADMIN. CODE § 134.6 (Rule 134.6), applies to all dates of travel on or after July 15, 2000.^[2] Rule 134.6(a) provides that for dates of travel on or after July 15, 2000, when it becomes reasonably necessary for an injured employee to travel in order to obtain reasonable and necessary medical care for the injured employee’s compensable injury, the injured employee may request reimbursement from the carrier by submitting a request to the carrier in the form, format and manner required by the Texas Department of Insurance, Division of Workers’ Compensation (Division). The hearing officer, in the Background Information portion of her decision comments:

The credible evidence reflects that the Claimant went to the [City 1] of [Dr. P] clinic near her home on July 27, 2005. However, she was informed that the doctor was seeing patients at his [City 2] office that day. Claimant called the adjuster to ask if she could see the doctor in [City 1] rather than [City 2]. She was instructed to keep her appointment in [City 2] by the adjuster . . . . However, it is clear from the evidence that the Claimant could have followed-up with [Dr. P] in the [City 1] office near her home after her initial appointment in July.

Although there is some conflicting evidence regarding who actually referred the claimant to Dr. P, who the treating doctor was at the time, and the claimant’s conversation with the adjuster, the hearing officer, as the sole judge of weight and credibility to be given to the evidence (Section 410.165(a)) could certainly believe the scenario set out in her comment. Rule 134.6 only requires that when it becomes reasonably necessary to travel in order to obtain reasonable and necessary medical care for the compensable injury, the injured employee may request reimbursement from the insurance carrier by submitting a request to the carrier in the form, format and manner required by the Division. Rule 134.6(b) provides that an injured employee is entitled to reimbursement for travel expenses only if:

1. (1)medical treatment for the compensable injury is not reasonably available within 20 miles of the injured employee’s residence;

2. (2)the distance traveled to secure medical treatment is greater than 20 miles, one-way; and

3. (3)the injured employee submits the request to the insurance carrier in the form and manner prescribed by the [Division] within one year of the date the injured employee incurred the expenses.

It is undisputed that the claimant was referred to Dr. P for treatment of the compensable injury and that the claimant submitted a request for reimbursement to the self-insured on a Request for Travel Reimbursement (DWC-48) form within one year of the date the claimant incurred the expense. In evidence is the DWC-48 which requested reimbursement for travel expenses incurred by the claimant for mileage on July 27, 2005, August 23, 2005 and October 7, 2005. The question was whether treatment was reasonably available within 20 miles of the claimant’s residence. The hearing officer determined that for the July 27, 2005, visit that the self-insured’s adjuster had specifically required the claimant to see Dr. P at his City 2 location. However, medical treatment for the compensable injury was clearly available within 20 miles of the claimant’s residence as evidenced by the hearing officer’s comment that the claimant could have followed up with Dr. P in the City 1 office near her home after her initial appointment in July. While the claimant may have been misinformed by, and detrimentally relied on, the adjuster’s direction, the claimant nonetheless does not qualify for reimbursement for travel expenses under Rule 134.6. The Division is limited to ordering reimbursement for travel expenses only in the circumstances established in Rule 134.6(b). That is, in order for the Division to order reimbursement for travel expenses in this case the claimant would have had to demonstrate that “medical treatment for the compensable injury is not reasonably available within 20 miles of the injured employee’s residence.” Appeals Panel Decision 040876, decided May 21, 2004. The claimant made no effort to make such a showing in this case and, as such, the hearing officer erred in determining that the claimant is entitled to reimbursement for travel expenses in the amount of $20.65 for the July 27, 2005, travel. Accordingly, we reverse the hearing officer’s determination that the claimant is entitled to reimbursement for travel expenses in the amount of $20.65 and render a new decision that the claimant is not entitled to reimbursement of travel expenses for medical treatment at the direction of the treating doctor for visits on July 27, 2005, August 23, 2005 and October 7, 2005.

SUMMARY

We affirm the hearing officer’s determination that the claimant reached MMI on December 1, 2006, and that the claimant’s IR is four percent. We reverse the hearing officer’s determination that the claimant is entitled to reimbursement for travel expenses in the amount of $20.65 (for a July 27, 2005, doctor visit to Dr. P) and render a new decision that the claimant is not entitled to reimbursement of travel expenses for medical treatment at the direction of the treating doctor for visits on July 27, 2005, August 23, 2005 and October 7, 2005.

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).

Thomas A. Knapp

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

1. The hearing officer in Finding of Fact No. 3 found that Dr. K certified that the claimant reached MMI “on the statutory date of December 1, 2006” with an IR of four percent. The self-insured’s appeal notes that the hearing officer’s finding that Dr. K certified that the claimant reached MMI on the statutory date of December 1, 2006, “is incorrect as a matter of law.” In actuality, Dr. K marked on his December 1, 2006, Report of Medical Evaluation (DWC-69) that the claimant reached clinical MMI on December 1, 2006, and the parties stipulated that Dr. K certified that the claimant reached MMI on December 1, 2006.

   ↑

2. Rule 134.6 was superceded by Rule 134.110 adopted effective May 2, 2006, and applies to all dates of travel on or after May 2, 2006. The dates of travel at issue here are July 27, 2005, August 23, 2005 and October 7, 2005, therefore, we apply Rule 134.6.

   ↑

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 November 14, 2007. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of ___________, extends to and includes reflex sympathetic dystrophy (RSD) of the left upper extremity, and (2) the respondent (claimant) is entitled to reimbursement for travel expenses for medical treatment at the direction of Dr. C, Dr. S, and Dr. L in the amount of $377.28. The appellant (self-insured) appeals the hearing officer’s determination on reimbursement for travel expenses. The claimant responds, urging affirmance. The hearing officer’s determination that the compensable injury extends to RSD of the left upper extremity was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

We reverse the hearing officer’s determination that the claimant is entitled to reimbursement for travel expenses for medical treatment at the direction of Dr. C and render a decision that the claimant is not entitled to reimbursement for travel expenses for medical treatment at the direction of Dr. C because there is no request for reimbursement for travel expenses for medical treatment at the direction of Dr. C in evidence.

We reverse the hearing officer’s determination that the claimant is entitled to reimbursement for lodging on May 23, 2007, in the amount of $92.48 and render a decision that the claimant is not entitled to reimbursement for lodging in the amount of $92.48 because there was no documentation or evidence (such as an itemized receipt) in evidence to support the request for reimbursement for lodging. 28 TEX. ADMIN. CODE § 134.110(c) (Rule 134.110(c)).

The hearing officer’s determination that the claimant is entitled to reimbursement for travel expenses for medical treatment at the direction of Dr. S and Dr. L in the amount of $284.80 is supported by sufficient evidence. Although the hearing officer erred in applying Rule 134.6 with regard to the 20-mile requirement because the dates of travel were on or after May 2, 2006, and thus Rule 134.110 applies, the evidence supports a determination that medical treatment for the compensable injury was not reasonably available within 30 miles from where the claimant lived on the dates of travel at issue. Rule 134.110(a).

SUMMARY

The hearing officer’s decision that the claimant is entitled to reimbursement of travel expenses for medical treatment at the direction of Dr. C, Dr. S, and Dr. L in the amount of $377.28 is reversed and we render a new decision that the claimant is entitled to reimbursement for travel expenses for medical treatment at the direction of Dr. S and Dr. L in the amount of $284.80.

I

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

For service in person the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR  

STATE OFFICE OF RISK MANAGEMENT  

300 W. 15TH STREET  

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

AUSTIN, TEXAS 78701.

For service by mail the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR  

STATE OFFICE OF RISK MANAGEMENT  

P.O. BOX 13777  

AUSTIN, TEXAS 78711-3777.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 26, 2007. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) is entitled to supplemental income benefits (SIBs) for the 11th quarter; (2) the appellant (self-insured) waived the right to dispute the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a benefit review conference (BRC); and (3) the claimant is not entitled to additional reimbursement of travel expenses for medical treatment. The self-insured appealed, disputing the determination of entitlement to 11th quarter SIBs and the determination that the self-insured waived the right to dispute the claimant’s entitlement to 11th quarter SIBs. The appeal file does not contain a response from the claimant. The hearing officer’s determination that the claimant is not entitled to additional reimbursement of travel expenses for medical treatment was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

SIBS

The hearing officer’s decision that the claimant is entitled to SIBs for the 11th quarter is supported by sufficient evidence and is affirmed.

WAIVER

The hearing officer found that the self-insured received the claimant’s Application for [SIBs] (DWC-52) for the 11th quarter on May 31, 2007, and that the self-insured filed a request for a BRC on June 11, 2007. These findings were not appealed. At issue was whether the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a BRC. Section 408.147(b) provides 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 DWC-52, the insurance carrier waives the right to contest entitlement to SIBs and the amount of SIBs for that period of SIBs. See also, 28 TEX. ADMIN. CODE § 130.108 (Rule 130.108). The hearing officer determined that the self-insured waived its right to dispute the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a BRC.

On appeal, the self-insured does not disagree that it had to file a request for a BRC in this case to dispute the claimant’s entitlement to SIBs for the 11th quarter. However, the self-insured argues on appeal that the hearing officer failed to apply Rule 102.3(a)(3) which would have extended the 10-day deadline and made its BRC request timely. Rule 102.3(a)(3) provides, in part, that due dates and time periods under this Act shall be computed as follows:

(3) unless otherwise specified, if the last day of any period is not a working day, the period is extended to include the next day that is a working day.

Rule 102.3(b) provides that a working day is any day, Monday-Friday, other than a national holiday as defined by the Texas Government Code, Section 662.003(a) and the Friday after Thanksgiving Day, December 24th and December 26th. Use in this title of the term “day,” rather than “working day” shall mean a calendar day.

In this case, the 10th day after the self-insured’s receipt of the claimant’s 11th quarter DWC-52, was June 10, 2007, a Sunday, and the date for requesting a BRC to dispute the claimant’s entitlement to 11th quarter SIBs with the Texas Department of Insurance, Division of Workers’ Compensation was thus, in accordance with Rules 102.3(a)(3) and (b), on Monday, June 11, 2007. Appeals Panel Decision 041358, decided July 27, 2004. The hearing officer’s calculation of the 10-day deadline was incorrect. Therefore, we reverse the hearing officer’s determination that the self-insured waived the right to contest the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a BRC, and render a new decision that the self-insured did not waive the right to contest the claimant’s entitlement to SIBs for the 11th quarter because it timely filed a request for a BRC.

SUMMARY

The hearing officer’s decision that the claimant is entitled to SIBs for the 11th quarter is affirmed. The hearing officer’s decision that the self-insured waived the right to contest the claimant’s entitlement to SIBs for the 11th quarter is reversed and a new decision is rendered that the self-insured did not waive the right to contest the claimant’s entitlement to SIBs for the 11th quarter.

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

For service in person the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

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

AUSTIN, TEXAS 78701.

For service by mail the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge