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 November 20, 2017, with the record closing on February 15, 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 respondent (claimant) did have disability from July 29, 2016, through June 23, 2017, as a result of the compensable injury sustained on (date of injury); (2) the claimant reached maximum medical improvement (MMI) on June 23, 2017; and (3) good cause does not exist to relieve the appellant (carrier) from the effects of the Benefit Dispute Agreement (DWC-24) signed on June 22, 2017. The carrier appeals the ALJ’s determinations of the MMI date, disability and good cause to relieve the carrier from the effects of the DWC-24 signed on June 22, 2017. 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 that: (1) on (date of injury), the claimant sustained a compensable injury to his lumbar spine and bilateral knees; (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division) selected (Dr. L) as designated doctor; (3) the claimant’s impairment rating (IR) is five percent as certified by either the designated doctor or the treating referral doctor; and (4) the date of statutory MMI fell on June 23, 2017, in this case. The claimant testified that he was injured while involved in an altercation with an inmate.

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).

DISABILITY

The ALJ’s determination that the claimant did have disability from July 29, 2016, through June 23, 2017, is supported by sufficient evidence and is affirmed.

GOOD CAUSE TO RELIEVE CARRIER OF EFFECTS OF DWC-24

The ALJ’s determination that good cause does not exist to relieve the carrier from the effects of the DWC-24 signed on June 22, 2017, is supported by sufficient evidence and is affirmed.

MMI

On March 17, 2017, Dr. L examined the claimant and certified that the claimant reached MMI on July 28, 2016, with an IR of five percent, using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. L noted that the claimant’s knees showed full range of motion and that no muscle weakness or neurovascular abnormalities were noted. Dr. L assessed zero percent impairment for the claimant’s left knee; and zero percent impairment for the claimant’s right knee. Dr. L additionally assessed five percent for the claimant’s lumbar spine, placing the claimant in Diagnosis Related Estimate (DRE) Lumbosacral Category II: Minor Impairment of the AMA Guides.

On May 10, 2017, the claimant’s treating doctor referral, (Dr. H), examined the claimant and opined that the claimant had not yet reached clinical MMI. Dr. H noted the claimant in all medical probability will likely improve with continued treatment. Dr. H noted that the claimant was expected to reach MMI on or about August 10, 2017.

In evidence is a DWC-24 in which the parties agreed that “the claimant did not reach MMI on July 28, 2016.” Both the claimant and the carrier’s representative signed the DWC-24 on June 12, 2017, and a Division representative approved the DWC-24 on June 22, 2017.

On August 31, 2017, Dr. H certified in an amended Report of Medical Evaluation (DWC-69) that the claimant reached MMI on June 21, 2017, with a five percent IR and in an amended certification of the same date certified that the claimant reached MMI on June 23, 2017, with a five percent IR.

After the CCH, the ALJ sent a Presiding Officer’s Directive (POD) to Order Designated Doctor Exam to Dr. L. The ALJ informed Dr. L, the designated doctor, that a DWC-24 was signed by both parties and was approved by the Division on June 22, 2017, and it was determined that the claimant had not reached MMI for the compensable injury sustained on (date of injury), to the lumbar spine and bilateral knees. The ALJ then informed Dr. L that because an agreement was signed addressing MMI and IR, the claimant cannot be determined to have clinically reached MMI before June 22, 2017, and that statutory MMI is June 23, 2017. Dr. L responded to the POD and certified that the claimant reached MMI on June 23, 2017, and assessed an IR of five percent for the compensable injury using the AMA Guides.

A review of the record reflects that the parties agreed that the claimant had not reached MMI “on July 28, 2016,” specifically, not as of the date the Division approved the DWC-24, June 22, 2017. Accordingly, it was error for the ALJ to inform Dr. L that the claimant cannot be determined to have clinically reached MMI before June 22, 2017. Therefore, we reverse the ALJ’s determination that the claimant reached MMI on June 23, 2017, with a five percent IR as certified by the designated doctor. We remand the MMI issue to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the claimant did have disability from July 29, 2016, through June 23, 2017, as a result of the compensable injury of (date of injury).

We affirm the ALJ’s determination that good cause does not exist to relieve the carrier from the effects of the DWC-24 signed by the Division on June 22, 2017.

We reverse the ALJ’s determination that the claimant reached MMI on June 23, 2017, and remand the MMI issue 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 available to serve as the designated doctor, then another designated doctor is to be appointed to determine the claimant’s MMI date for the (date of injury), compensable injury.

The ALJ is to request the designated doctor to give an opinion on the claimant’s date of MMI considering the entire compensable injury. The ALJ is to inform the designated doctor that the claimant’s IR is five percent as previously certified by both the designated doctor and the treating doctor referral and as stipulated by the parties. Further, the ALJ is to inform the designated doctor that the date of MMI cannot be earlier than July 29, 2016, and that MMI can be no later than the statutory date of June 23, 2017.

The parties are to be provided with the ALJ’s letter to the designated doctor and the designated doctor’s response.  The parties are to be allowed an opportunity to respond. The ALJ is then to make a determination on the claimant’s MMI date for the (date of injury), compensable injury.

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

The true corporate name of the insurance carrier is FIRST LIBERTY 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:

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 held on July 23, 2015, in Fort Worth, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) good cause exists to relieve the respondent (carrier) from the effects of the Benefit Dispute Agreement (DWC-24) signed on January 15, 2015; and (2) (Dr. R) was not properly appointed as a designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.5 (Rule 127.5).

The appellant (claimant) appealed the hearing officer’s determination that the carrier is relieved from the effects of the DWC-24 signed on January 15, 2015. The claimant contends that the hearing officer erred in finding that the medical records constituted newly discovered evidence because the carrier knew of the existence of those medical records and failed to exercise due diligence in obtaining the medical records prior to signing the DWC-24 on January 15, 2015. Also, the claimant appeals the hearing officer’s determination that Dr. R was not properly appointed as a designated doctor based on sufficiency of the evidence. The carrier responded, urging affirmance of the hearing officer’s determinations.

DECISION

Reversed and rendered.

The claimant testified that on (date of injury), while climbing onto his delivery truck, he slipped and fell forward striking his right knee against a metal step of the truck. The parties stipulated that on (date of injury), the claimant sustained a compensable injury. In evidence is a Notice of Disputed Issues(s) and Refusal to Pay Benefits (PLN-11) which states that the carrier accepts that the compensable injury of (date of injury), extends to a right knee contusion and right knee strain.

On September 25, 2014, the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. E) as designated doctor for the purpose of determining the extent of the compensable injury. On October 10, 2014, the designated doctor, Dr. E, examined the claimant and opined that the compensable injury extends to a right knee contusion, right knee sprain, right medial meniscus tear, ACL acute sprain, and patellar and quadriceps tendinopathy.

On November 25, 2014, the carrier requested subpoenas duces tecum stating in that request that the carrier’s investigation had revealed that the claimant received medical treatment prior to the claimed date of injury. Also, the carrier states that medical records requested from various healthcare providers would assist in determining whether these healthcare providers rendered pre-injury treatment to the claimant’s right knee. On December 4, 2014, the Division granted the carrier’s request and issued the subpoenas.

The claimant was scheduled to be examined by the post-designated doctor required medical examination (RME) doctor, (Dr. KR) on December 19, 2014. On that same date, December 19, 2014, the carrier filed a motion requesting continuance of a CCH set for December 29, 2014, “to allow time for the receipt of [Dr. KR’s] extent of injury RME report as well as the subpoenaed records that are relevant to the issues of extent of injury and disability.”

On December 19, 2014, Dr. KR examined the claimant and opined that the compensable injury included right knee contusion, right knee strain, right medial meniscus tear, signal inhomogeneity along the ACL, and distal patellar and quadriceps tendinopathy.

On January 15, 2015, a day prior to the scheduled CCH of January 16, 2015, the parties, both of which were represented by attorneys, signed a DWC-24 resolving the disputed issues of extent, bona fide offer of employment (BFOE), and disability. The DWC-24 states that the parties agreed that: (1) the (date of injury), compensable injury extends to and includes a right knee medial meniscus tear, right ACL sprain, and patellar tendinopathy; (2) the employer tendered a BFOE to the claimant; and (3) the claimant did not have disability for the period beginning August 8, 2014, and ending October 9, 2014, resulting from the compensable injury, but the claimant did have disability resulting from the compensable injury “beginning on October 10, 2014 and continuing.”

On January 26, 2015, the claimant underwent an arthroscopy of the right knee joint.

On February 10, 2015, the carrier received some subpoenaed medical records, including progress notes and medication reports, which show that the claimant had a prior right knee injury in 2003, while in military service, and had complaints of right knee pain in 2011, 2012, 2013, and 2014. Also, the subpoenaed progress notes in evidence indicate that the claimant received prescriptions for pain medication from various healthcare providers.

In evidence is an email dated February 12, 2015, from the carrier to the claimant’s attorney requesting that the claimant agree to rescind the DWC-24 based on the medical records showing the claimant had a prior right knee injury. In evidence is an email dated March 9, 2015, from the carrier to the claimant’s attorney stating that it intends to file a Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC) (DWC-45) if the claimant is unwilling to rescind the DWC-24.

On March 16, 2015, the carrier filed a DWC-45 stating the disputed issue as “[r]elief from DWC-24 [a]greement based on fraud.” The carrier attached a chronological summary of the date the agreement was signed and the date subpoenaed medical records were received, and states that the DWC-24 was based on the claimant’s “fraudulent answers to vital prior history questions from both the designated doctor and [RME].” The carrier states that the claimant did not respond to its request to rescind the agreement.

On April 7, 2015, the claimant filed a Request for Designated Doctor Examination (DWC-32) for purposes of determining the claimant’s maximum medical improvement (MMI) and impairment rating (IR). On April 14, 2015, the Division appointed Dr. R as designated doctor for the purposes of determining MMI and IR.

On April 16, 2015, the carrier filed its objection to the appointment of a designated doctor for MMI and IR and motion to stay the designated doctor’s examination stating that the DWC-24 was signed as a result of the claimant’s fraud and there is pending litigation on the compensable injuries listed on the DWC-32.

DWC-24

Section 410.030 provides that a written agreement is binding on the insurance carrier absent a finding of fraud, newly discovered evidence or other good and sufficient cause to relieve the insurance carrier of the effect of the agreement. Rule 147.4(d) provides, in part, that a signed written agreement is binding on: (1) a carrier and a claimant represented by an attorney through the final conclusion of all matters relating to the claim, whether before the Division or in court, unless set aside by the Division or court on a finding of fraud, newly discovered evidence, or other good and sufficient cause.

The hearing officer determined good cause exists to relieve the carrier from the effects of the DWC-24 signed on January 15, 2015. The hearing officer’s Finding of Fact No. 3 states: “[n]ewly discovered evidence from the [c]laimant’s previous healthcare providers he saw before this date of injury [(date of injury)] and other good and sufficient cause exist for relieving the parties of the effects of the agreement.”

The hearing officer states in the Discussion portion of the decision that the RME doctor, Dr. KR, testified that she had reviewed the medical records generated prior to the date of injury and “if she had known about [the] [c]laimant’s knee history she would have rendered a completely different opinion that the disputed conditions were not part of the compensable injury.” Further, the hearing officer states that “[t]he medical records clearly show these conditions are not new and [t]he [c]laimant had been treating for them within weeks [prior to] the date of injury. Newly discovered evidence and other good and sufficient cause exist for relieving the parties of the effects of the agreement.”

Based on the hearing officer’s discussion and Finding of Fact No. 3, the hearing officer relied upon newly discovered evidence as a basis for setting aside the DWC-24. We note that the phrase “newly discovered evidence" is not defined under the 1989 Act. In Appeals Panel Decision (APD) 941109, decided September 28, 1994, the Appeals Panel cited case law in determining what constitutes newly discovered evidence.  In Merrifield v. Seyferth, 408 S.W.2d 558 (Tex. Civ. App.-Dallas 1966, no writ), the court looked at "newly discovered evidence" as a basis for a new trial and stated that the appellant needed to show that the evidence was unknown prior to trial, that the failure to discover it was not due to lack of diligence, that the evidence was so material it would probably change the outcome, and that it was not cumulative, corroborative, collateral, or impeaching.

As previously mentioned the DWC-24 was signed on January 15, 2015, and the carrier received a portion of subpoenaed medical records on February 10, 2015. The request for the subpoena of medical records was made on November 25, 2014, a date prior to the date the DWC-24 was signed by the parties. In this case the carrier argued at the CCH that it should be relieved from the effects of the DWC-24 because it subsequently received medical records to show that the claimant had a prior right knee injury. The carrier states that it seeks relief from the effects of the DWC-24 because the receipt of the subpoenaed medical records is newly discovered evidence of the claimant’s fraud.

In this case, the carrier may not have been aware of the contents of records documenting the claimant’s previous healthcare treatment, but it certainly was aware that the claimant had previously received treatment from a number of healthcare providers and was further aware, as reflected in the carrier’s request for subpoenas, that it needed to determine whether these healthcare providers had provided pre-injury treatment to the claimant’s right knee. The fact that the carrier had not received records of the claimant’s prior healthcare treatment at the time it signed the DWC-24 is not, by itself, enough to constitute newly discovered evidence or other good and sufficient cause to relieve the carrier from the effects of the agreement.

We note that fraud is a third criteria to determine whether the carrier is relieved from the effects of an agreement pursuant to Section 410.030. Although the hearing officer did not make a finding of fact on fraud, the carrier’s allegation on fraud is based on the medical records the carrier received after the DWC-24 was signed. We have determined based on the evidence that the medical records are not newly discovered evidence because the carrier did not exercise due diligence in obtaining the records.

The hearing officer’s determination that good cause exists to relieve the carrier from the effects of the DWC-24 signed on January 15, 2015, is against the great weight and preponderance of the evidence. Accordingly, we reverse the hearing officer’s determination that good cause exists to relieve the carrier from the effects of the DWC-24 signed on January 15, 2015, and we render a new decision that there is no good cause for relieving the carrier of the effects of such agreement, and the DWC-24 signed on January 15, 2015, is final and binding pursuant to Section 410.030.

APPOINTMENT OF DR. R AS DESIGNATED DOCTOR

The hearing officer found that Dr. R was not properly appointed as designated doctor in accordance with Section 408.0041 and Rule 127.5. The hearing officer’s Finding of Fact No. 6 states: “[t]he [d]esignated [d]octor appointment for the [d]esignated [d]octor to address MMI and [IR] would not be appropriate at this time because the issue of extent of injury has not been properly addressed and because the information on the DWC-32 is incorrect and misleading.”

The hearing officer states in the Discussion portion of the decision that “[s]ince the agreement is rescinded and the compensable injury, at this time, does not include the disputed conditions, the [d]esignated [d]octor would be appointed under a false pretense that the compensable injury included these conditions. Those conditions need to be properly adjudicated by the parties. The appointment at this time is invalid because the information on the DWC-32 is incorrect and misleading.”

We note that the DWC-24 signed on January 15, 2015, states that the parties agreed that the (date of injury), compensable injury extends to and includes a right knee medial meniscus tear, right ACL sprain, and patellar tendinopathy. The Appeals Panel has stated that “[u]nder the provisions of Section 408.125, no determination can be made regarding the claimant’s IR because there is no report from a designated doctor.” See APD 020385, decided March 18, 2002.  See also APD 142008, decided November 5, 2014, and APD 132423, decided December 19, 2013, in which the issues of MMI and IR were in dispute, and a designated doctor had not been appointed to opine on the issues of MMI and IR.  In both APD 142008 and APD 132423, the Appeals Panel reversed the hearing officer’s decision and remanded for a designated doctor to be appointed on the issues of MMI and IR.

Given that we have reversed the hearing officer’s determination that good cause exists to relieve the carrier from the effects of the DWC-24 signed on January 15, 2015, and we rendered a new decision that there is no good cause for relieving the carrier of the effects of such agreement, and the DWC-24 signed on January 15, 2015, is final and binding pursuant to Section 410.030, we reverse the hearing officer’s determination that Dr. R was not properly appointed as a designated doctor in accordance with Section 408.0041 and Rule 127.5, and we render a new decision that Dr. R was properly appointed as a designated doctor in accordance with Section 408.0041 and Rule 127.5.

SUMMARY

We reverse the hearing officer’s determination that good cause exists to relieve the carrier from the effects of the DWC-24 signed on January 15, 2015, and we render a new decision that there is no good cause for relieving the carrier of the effects of such agreement, and the DWC-24 signed on January 15, 2015, is final and binding pursuant to Section 410.030.

We reverse the hearing officer’s determination that Dr. R was not properly appointed as a designated doctor in accordance with Section 408.0041 and Rule 127.5, and we render a new decision that Dr. R was properly appointed as a designated doctor in accordance with Section 408.0041 and Rule 127.5.

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

CT CORPORTION SYSTEM

1999 BRYANT STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

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 was held on June 21, 2010. With regard to the two issues before him the hearing officer determined that: (1) good cause exists to relieve the respondent (claimant) from the effects of the Benefit Dispute Agreement (DWC-24) of July 29, 2009, and (2) the compensable injury of _____________, includes a disc bulge at L5-S1 and a right sacroiliac strain with right sacroiliitis.

The appellant (carrier) appeals the determination that the claimant was relieved from the effects of the DWC-24, contending that the claimant was aware of the effects of the agreement. The claimant responded, urging affirmance of the hearing officer’s determination on this issue.

The hearing officer’s determination that the compensable injury of _____________, includes a disc bulge at L5-S1 and a right sacroiliac strain with right sacroiliitis has not been appealed and therefore has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The parties stipulated that the claimant sustained a compensable lumbar sprain/strain injury on _____________, and that (Dr. S) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to evaluate the claimant for the compensable injury of _____________, and to determine maximum medical improvement (MMI), impairment rating (IR) and ability of the claimant to return to work.

The claimant testified that he was carrying a box and tripped on a pallet injuring his back on _____________. The claimant also testified that he reported his injury and was seen by several doctors. In evidence is an MRI performed on November 11, 2008, which shows a broad-based disc bulge at L5-S1. Dr. S, the designated doctor examined the claimant on January 9, 2009, and determined that the claimant was not at MMI and therefore no IR could be assigned. Dr. S again examined the claimant on June 24, 2009, and determined that the claimant reached MMI on June 24, 2009, with a five percent IR. The review of the medical history attached to that report references the November 11, 2008, MRI which showed the L5-S1 disc bulge.

The evidence reflects that the claimant, assisted by an ombudsman and not represented by an attorney, and the carrier entered into a DWC-24 on July 29, 2009. The parties agreed that: (1) the claimant had disability from December 16, 2008, through February 5, 2009 “and for no other periods;” (2) the claimant reached MMI on June 24, 2009, as determined by the designated doctor; and (3) the claimant’s IR is five percent as determined by the designated doctor, Dr. S. The DWC-24 is dated July 29, 2009, and is signed by the claimant, the carrier’s attorney and the Division representative. The claimant testified that he and an ombudsman were in the Division field office and spoke with the carrier’s representative on a speaker telephone.

Section 410.030(b) provides that a DWC-24 is binding on an unrepresented claimant through the conclusion of all matters relating to the claim while the claim is pending before the Division unless the Division “for good cause relieves the claimant of the effects of the agreement.” See also 28 TEX. ADMIN. CODE § 147.4(d)(2) (Rule 147.4(d)(2)). Whether good cause exists is a matter left up to the discretion of the hearing officer, and the determination will not be set aside unless the hearing officer abused his discretion, i.e., acted without reference to any guiding rules or principles. Appeals Panel Decision (APD) 041692, decided August 31, 2004, citing Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). We have held that the appropriate test for the existence of good cause is that of ordinary prudence; that is, the degree of diligence as an ordinarily prudent person would have exercised under the same or similar circumstances. APD 042000, decided September 23, 2004.

The claimant testified that he should be relieved of the effects of the DWC-24 because subsequent to the agreement, additional medical conditions were diagnosed (which were the conditions named in the extent-of-injury issue on which the claimant prevailed) and that the carrier had denied additional medical treatment for the compensable injury. The claimant had the burden of proof to establish that the additional conditions diagnosed after the execution of the DWC-24, were mutually unknown to the parties and so material to the agreement that the claimant should be relieved from the agreement’s effects.

We hold that the claimant failed to meet his burden of proof. In doing so, we note that the L5-S1 disc bulge was diagnosed on November 11, 2008, over eight months prior to the execution of the DWC-24. We further note that Dr. S’s June 24, 2009, report, on which the DWC-24 is based, references the L5-S1 disc bulge along with other degenerative conditions at that level. Additionally, the claimant failed to present any evidence as to how a sacroiliac strain is more severe than a disc bulge at that same level, why the strain had not yet resolved, or how it was material to the agreement. Finally, the claimant offered no evidence as to the nature and severity of the condition referred to as sacroiliitis.

The hearing officer commented in the Background Information that:

Based on the probative evidence, including a fair reading and review of the medical evidence, the opinion of [Dr. S], and Claimant’s testimony, good cause exists to relieve Claimant from the effects of the [DWC-24] of July 29, 2009.

The hearing officer, in a finding of fact found:

Claimant was not represented by an attorney and did not have a complete understanding of the [DWC-24] that he entered into and signed on July 29, 2009.

The hearing officer does not explain how the claimant “did not have a complete understanding of the [DWC-24] . . . .” There is no evidence that the claimant misunderstood the terms of the DWC-24 or how he failed to understand the extent of the agreement. The claimant testified that the ombudsman, who was present at the signing, explained the effect of the agreement and that it was based on the designated doctor’s report. The claimant prevailed on the extent-of-injury issue and the DWC-24 does not limit the extent of the injury. Nor does the DWC-24 limit the claimant’s access to medical care. Section 408.021 provides that an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury (which now specifically includes a disc bulge at L5-S1 and a right sacroiliac strain with right sacroiliitis) as and when needed. The carrier’s refusal to pay for medical care that the claimant believes he is entitled to is not a misunderstanding of the DWC-24.

We hold that the hearing officer abused his discretion, i.e., acted without reference to any guiding rules or principles. The hearing officer recites that the claimant “did not have a complete understanding of the [DWC-24] that he entered into” but the hearing officer does not explain how that was so. Our review of the record does not find evidence that supports the hearing officer’s finding that the claimant did not have a complete understanding of the DWC-24. Accordingly, we reverse the hearing officer’s determination that good cause exists to relieve the claimant from the effects of the DWC-24 of July 29, 2009, and we render a new decision that good cause does not exist to relieve the claimant from the effects of the DWC-24 of July 29, 2009.

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.

Thomas A. Knapp

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 (CCH) was held on February 25, 2008. The issues before the hearing officer were: (1) whether the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from Dr. D on July 10, 2006, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (2) whether the respondent (claimant) is entitled to be relieved from the effects of the Employee’s Election for Commuted (Lump Sum) Impairment Income Benefits (IIBs) (DWC-51); (3) whether the compensable injury of ____________, extends to and includes post-traumatic brain injury; and (4) whether the appellant (carrier) waived the right to contest compensability of a traumatic brain injury by not timely contesting the diagnosis in accordance with Sections 409.021 and 409.022.

The hearing officer determined that: (1) the first certification of MMI and assigned IR from Dr. D on July 10, 2006, did not become final under Section 408.123 and Rule 130.12; (2) the claimant is entitled to be relieved from the effects of the DWC-51 signed on October 11, 2006; (3) the compensable injury on ____________, extends to and includes post-traumatic brain injury; and (4) the carrier has not waived the right to contest compensability of traumatic brain injury by not timely contesting the diagnosis in accordance with Sections 409.021 and 409.022.

The carrier appealed the hearing officer’s adverse determinations on the issues of the finality of the first certification of MMI and assigned IR, relief from the effects of the DWC-51, and extent of injury. The claimant responded, urging affirmance. The hearing officer’s determination on the issue of carrier waiver was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

FACTUAL BACKGROUND

The parties stipulated that the claimant sustained a compensable injury on ____________. It was undisputed that the claimant was seriously injured when a 4,800 pound, 8 x 20 foot steel shaker deck struck him, throwing him over a pipe. The claimant was careflighted to a hospital. The evidence indicates the hospital noted a head wound with possible loss of consciousness as well as a ruptured spleen and arterial kidney damage. The claimant underwent a splenectomy and removal of his left kidney. The hospital records noted that the claimant had “Possible TBI,” which the hearing officer read as traumatic brain injury. The primary emergency room diagnosis was “Traumatic Brain Injury – Rule Out.” A CT scan of the claimant’s head done on the date of injury noted no acute traumatic injury. At discharge, there was a diagnosis code for “unspecified open wound of head, uncomplicated.” It is undisputed that the claimant returned to work at his previous job on March 20, 2006. On July 10, 2006, Dr. D, the treating doctor, certified that the claimant reached MMI on that date with an 11% IR (with 10% IR assessed due to the nephrectomy and 1% due to the lateral femoral cutaneous nerve sensory dysfunction). It is undisputed that on October 11, 2006, the date that the claimant signed the DWC-51, he had returned to work at his preinjury wage for more than three months. Furthermore, the carrier signed and approved the DWC-51 on October 13, 2006. The evidence indicates that at the time Dr. D certified MMI and assigned an IR and at the time the claimant signed the DWC-51, the claimant had not yet been diagnosed with post-traumatic brain injury. The claimant received a check for his lump sum payment from the carrier. Thereafter, in April 2007, Dr. D diagnosed the claimant with a traumatic brain injury and reported that the claimant was not at MMI. In February 2008, the designated doctor appointed to determine the extent of the compensable injury diagnosed a concussion of the brain.

EXTENT OF INJURY

The hearing officer’s determination that the compensable injury extends to and includes a post-traumatic brain injury is supported by sufficient evidence and is affirmed.

FINALITY UNDER SECTION 408.123

The hearing officer made a finding that the Report of Medical Evaluation (DWC-69) reflecting Dr. D’s first certification of MMI and assigned IR on July 10, 2006, “was not shown to have been delivered to Claimant by verifiable means at any time.” However, in evidence are the claimant’s sworn answers to interrogatories, in which the claimant was asked when he “received [Dr. D’s] certification of [MMI] and [IR],” to which the claimant answered, “to the best of my knowledge July 10[,] 2006.” In Appeals Panel Decision (APD) 041985-s, decided September 28, 2004, the Appeals Panel noted that the preamble to Rule 130.12 stated that written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party, and that this may include acknowledged receipt by the injured employee or insurance carrier . . . .” See also APD 080301-s, decided April 16, 2008, regarding acknowledged receipt by an insurance carrier. We hold that a sworn answer to an interrogatory, acknowledging receipt of the first valid certification of MMI and assigned IR, constitutes delivery by verifiable means. The hearing officer’s finding that the “first certification of [MMI] and assigned [IR] on July 10, 2006, was not shown to have been delivered to Claimant by verifiable means at any time” is not supported by the evidence. However, the hearing officer’s implied finding that compelling medical evidence existed of a clearly mistaken diagnosis or a previously undiagnosed medical condition (see Section 408.123(f)(1)(B)) and the determination that the first certification of MMI and assigned IR from Dr. D on July 10, 2006, did not become final under Section 408.123 and Rule 130.12 are supported by sufficient evidence and are affirmed.

RELIEF FROM THE EFFECTS OF THE COMMUTATION OF IIBS

An employee’s election to receive a lump sum of IIBs is final and binding if it is properly made in accordance with the requirements of Section 408.128 and Rule 147.10. APD 992541, decided December 29, 1999. Section 408.128(a) provides that “[a]n employee may elect to commute the remainder of the [IIBs] to which the employee is entitled if the employee has returned to work for at least three months, earning at least 80 percent of the employee’s average weekly wage [AWW].” Subsection (b) further provides that an employee who elects to commute IIBs “is not entitled to additional income benefits for the compensable injury.” Rule 147.10, in addition to requiring that the employee has returned to work for at least three months, earning at least 80% of his AWW in order to elect to commute IIBs, provides:

(b)A request to commute must:

(1)be in writing on a commission-[now Texas Department of Insurance, Division of Workers’ Compensation (Division)] prescribed form [DWC-51];

(2)state the date the employee reached [MMI]; the [IR]; and the employee’s weekly [IIBs];

(3)be sent to the carrier; and

(4)be filed with the [Division] field office managing the claim.

(c)The [Division]-prescribed form shall include a warning to the employee that commutation terminates the employee’s entitlement to additional income benefits for the injury.

1. (d)The employee may contact the [Division] field office managing the claim to obtain or verify the information required to be included in the request.

(e)The carrier shall send a notice of approval or denial of the request to the employee no later than 14 days after receipt of the request. A notice of approval shall include payment of the commuted [IIBs]. A notice of denial shall include the carrier’s reasons for denial. A copy of the notice shall be filed with the [Division] field office managing the claim.

(f)If the carrier denies the request, the employee may request the [Division] to schedule a benefit review conference [BRC] to resolve the issue, as provided by §141.1 of this title (relating to Requesting and Setting a [BRC]).

It is undisputed that the claimant had been at work for over three months at his preinjury wage when he signed the DWC-51. The DWC-51 contained, in bold print, the consequences of requesting a commutation of IIBs and the warning that commutation of IIBs terminates the employee’s entitlement to supplemental income benefits or any additional income benefits for the injury. The DWC-51 also noted the weekly IIBs amount, the MMI date of July 10, 2006, the IR of 11%, a notation that the IR had not been disputed by the claimant or the carrier, when the claimant had returned to work, which was more than three months before the date the claimant signed the DWC-51 and the claimant’s pay rate. The claimant seeks to avoid the consequences of his election to commute IIBs by testifying that he did not really understand what he was signing or the effects of the document. However, in APD 992541, supra, the claimant sought to avoid the commutation of IIBs because she had not made a “knowing and voluntary election” due to a mentally fragile condition and a drug dependency problem. The claimant, in that case, also alleged there was a discrepancy on the DWC-51 as to whether or not there was a dispute of the IR. The Appeals Panel, in affirming the hearing officer’s decision that the claimant was not able to avoid the election to commute IIBs, held that the Appeals Panel would not require a carrier to go behind the DWC-51 to determine whether the representations are accurate and whether the claimant has any inconsistent intentions, absent fraud by the carrier. There was no finding in that case, or in the case before us, that the claimant lacked the mental ability to sign a legal document. We have previously stated that the failure of a claimant to make a “clear and informed choice” is not a basis for invalidating a commutation of IIBs. APD 94207, decided April 6, 1994.

The claimant, in the case before us, also sought to avoid his election to commute IIBs by arguing at the CCH that the DWC-51 is null and void because it was not filed with the Division field office managing the claim as required by Rule 147.10. However, in his response, the claimant states “the form itself was not filed for at least seven months after [claimant’s] signature was secured.” No evidence was presented at the CCH that the completed DWC-51 had been filed with the Division field office managing the claim after the DWC-51 was approved by the carrier on October 13, 2006. In APD 970940, decided July 3, 1997, the claimant sought to avoid the effects of commutation of IIBs by contending that the filing requirements of Rule 147.10 were not met. The Appeals Panel held that there is no time period for the carrier to file the completed DWC-51 with the field office, only that the form be filed. In this case the carrier, in closing argument, commented that it believed that the DWC-51 had been filed with the Division on May 9, 2007. Our review of the Division’s Dispute Resolution Information System (DRIS) indicates that a note dated June 1, 2007, states, “received faxed copy of DWC-51 in (City 1) office [the field office managing the claim] on 6-1-07—employee’s election for commuted lump sum payment shows it was approved on 10-13-06.” Another DRIS note dated June 4, 2007, states that “carrier states there is no time limit to file the D-51 and it was rec’d on 5/9/07 & again today at BRC.” While neither party requested the hearing officer to take official notice of whether the DWC-51 had been filed with the Division field office managing the claim, we note that the Appeals Panel has “required that a hearing officer take official notice of essential [Division] records where compliance with the 1989 Act is at issue.” APD 032619-s, decided November 13, 2003; APD 031441, decided July 23, 2003; and APD 031458, decided July 23, 2003. We note that at the CCH, regarding another matter, the hearing officer commented that he was “required to take official notice of our [Division] records.” We hold that the hearing officer should have inquired and taken official notice of the DRIS notes which would have supported the carrier’s assertions of the filing of the DWC-51 with the Division field office.

There is no allegation by the claimant of fraud, misrepresentation, or misinformation on the part of the carrier.^[1] Rather, the hearing officer, in the case before us, finds that both parties were mutually mistaken as to the facts at the time of the signing of the DWC-51, to-wit: no definitive symptoms nor diagnosis of traumatic brain injury. However, a mistake of this nature has not been held to relieve a legally qualified, injured employee of the effects of a completed election for commutation of IIBs. In APD 961110, decided July 22, 1996, the claimant argued that there was good cause to set aside the commutation because at the time he signed, the doctors did not know that his injury would include a claimed extent of injury or that the accepted condition would result in a higher IR. The Appeals Panel held, in that case, that the safeguards provided by Rule 147.10 had been complied with, affording the claimant protection against commuting imprudently. See also APD 93894, decided November 17, 1993, in which the Appeals Panel noted that despite the injured employee’s awareness of facts tending to show that he had not yet reached MMI, the claimant initiated the request for a lump sum of IIBs based on a certification of MMI and IR and the form contained the appropriate warning of the consequences of his election. The Appeals Panel in that decision held that the form the claimant filled out to request commutation of IIBs warned of the consequences of his election and that the claimant was not entitled to additional income benefits for the compensable injury. In APD 023166, decided January 30, 2003, the Appeals Panel has held there is no “good cause” exception to Section 408.128(a) and Rule 147.10(a), however, in that case the claimant was found not to be legally qualified to elect to commute IIBs because he had not returned to work for at least three months earning at least 80% of his AWW. There is no authority for the claimant’s argument that the good cause exception to set aside a BRC agreement is applicable to an employee’s election to commute IIBs.

Accordingly, we reverse the hearing officer’s determination that the claimant is entitled to be relieved from the effects of the commutation of IIBs signed on October 11, 2006, and we render a new decision that the claimant is not entitled to be relieved from the effects of the commutation of IIBs signed on October 11, 2006.

SUMMARY

We affirm the hearing officer’s determination that the compensable injury of ____________, extends to and includes post-traumatic brain injury and the determination that the first certification of MMI and assigned IR from Dr. D on July 10, 2006, did not become final under Section 408.123 and Rule 130.12. We reverse the hearing officer’s determination that the claimant is entitled to be relieved from the effects of the commutation of IIBs signed on October 11, 2006, and render a new decision that the claimant is not entitled to be relieved from the effects of the commutation of IIBs signed on October 11, 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

LEO F. MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251-2237.

Thomas A. Knapp
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

1. See APD 042062, decided October 4, 2004, in which the Appeals Panel cautions that fraud may be a ground to avoid an election to commute IIBs.

   ↑

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 July 19, 2004. With respect to the single issue before her, the hearing officer determined that good cause does not exist to relieve the appellant (claimant) from the effects of the benefit dispute agreement (BDA) signed on March 1, 2000. In his appeal, the claimant contends that the hearing officer erred in determining that good cause does not exist for relieving him from the effects of the BDA. In its response to the claimant’s appeal, the respondent (carrier) urges affirmance.

DECISION

Affirmed.

The hearing officer did not err in determining that good cause does not exist to relieve the claimant of the effects of the BDA executed on March 1, 2000. Section 410.030(b) provides that a BDA is binding on an unrepresented claimant through the conclusion of all matters relating to the claim while the claim is pending before the Texas Workers' Compensation Commission (Commission) unless the Commission "for good cause relieves the claimant of the effects of the agreement.” See also Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 147.4(d)(2) (Rule 147.4(d)(2)). Whether good cause exists is a matter left up to the discretion of the hearing officer, and the determination will not be set aside unless the hearing officer abused her discretion, i.e., acted without reference to any guiding rules or principles. Texas Workers' Compensation Commission Appeal No. 94244, decided April 15, 1994, citing Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). We have held that the appropriate test for the existence of good cause is that of ordinary prudence; that is, the degree of diligence as an ordinarily prudent person would have exercised under the same or similar circumstances. Texas Workers' Compensation Commission Appeal No. 92426, decided October 1, 1992.

The claimant argued that good cause existed to relieve him from the effects of the BDA because he did not understand the agreement. He testified that he thought there was going to be another meeting to raise the impairment rating (IR). The hearing officer was not persuaded that the claimant demonstrated that good cause existed to relieve him from the effects of the BDA. To the contrary, the hearing officer believed that the evidence demonstrated that the claimant voluntarily entered into the agreement after its effects were explained to him with the assistance of an interpreter. The hearing officer concluded that a reasonably prudent person would have known that the document was an agreement on claimant’s dates of disability, date of maximum medical improvement and IR. In view of the evidence presented, we cannot conclude that the hearing officer abused her discretion in determining that good cause does not exist to relieve the claimant of the effects of the BDA.

The hearing officer’s decision and order are affirmed.

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

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Gary L. Kilgore

CONCUR:

Judy L. S. Barnes
Appeals Judge

Daniel R. Barry
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 10, 2004. The hearing officer resolved the disputed issue by determining that good cause exists to relieve the respondent (claimant) from the effects of the Benefit Dispute Agreement (TWCC-24) approved on May 10, 2002. The appellant (carrier) appeals this determination. The appeal file does not contain a response from the claimant.

DECISION

Affirmed.

The hearing officer did not err in reaching the complained-of determination. We review a hearing officer’s decision on a request to set aside an agreement under an abuse-of-discretion standard. Texas Workers’ Compensation Commission Appeal No. 92426, decided October 1, 1992. The Appeals Panel must consider whether the hearing officer looked to appropriate guiding principles or standards in making the determination. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). A claimant's failure to understand the extent of an agreement has been found to be good cause for setting aside an agreement. See Texas Workers’ Compensation Commission Appeal No. 950180, decided March 21, 1995.Under the circumstances presented in this case, we cannot conclude that the hearing officer abused his discretion or otherwise erred in determining that good cause exists to relieve the claimant from the effects of the TWCC-24 approved on May 10, 2002.

The hearing officer’s decision and order are affirmed.

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

STEVE ROPER

1616 SOUTH CHESTNUT STREET

LUFKIN, TEXAS 75901.

Chris Cowan
Appeals Judge

CONCUR:

Daniel R. Barry
Appeals Judge

Edward Vilano
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on June 16, 2004. The hearing officer resolved the disputed issue by deciding that good and sufficient cause exists to relieve the respondent (claimant) from the effects of the Benefit Dispute Agreement (TWCC-24) signed on June 19, 2003. The appellant (carrier) appealed, arguing that the hearing officer abused his discretion in determining that there is good and sufficient cause to relieve the claimant of the effects of the TWCC-24. The appeal file does not contain a response from the claimant.

DECISION

Affirmed.

The evidence reflects that the parties signed a TWCC-24 in June of 2003, in which the parties agreed that the claimant had disability from January 17 through April 22, 2003; that the claimant reached maximum medical improvement on April 22, 2003, as certified by the designated doctor; and that the claimant’s impairment rating is five percent as certified by the designated doctor. The claimant contends that he should be relieved of the effects of the TWCC-24. The hearing officer did not err in deciding that good and sufficient causes exists to relieve the claimant from the effects of the TWCC-24, signed on June 19, 2003.

Section 410.030(a) provides that an agreement signed in accordance with Section 410.029 is binding on the insurance carrier through the conclusion of all matters relating to the claim, unless the Texas Workers' Compensation Commission or a court, on a finding of fraud, newly discovered evidence, or other good and sufficient cause, relieves the insurance carrier of the effect of the agreement. Section 410.030(b) provides that the agreement is binding on the claimant, if represented by an attorney, to the same extent as on the insurance carrier. It was undisputed that the claimant was represented by an attorney at the time the TWCC-24 was signed.

The evidence reflects that the claimant underwent a lumbar discogram on September 23, 2003. The hearing officer specifically found that the September discogram revealed newly discovered evidence about the claimant’s physical condition. Whether a good and sufficient cause exists is to be determined from the facts as they stand at the time the party seeks to set aside the agreement. Texas Workers' Compensation Commission Appeal No. 950625, decided June 5, 1995. We have also held that a finding regarding the existence of good cause is reviewed by the Appeals Panel under an abuse of discretion standard, that is, whether the hearing officer looked to appropriate guiding rules or principles. Texas Workers' Compensation Commission Appeal No. 951812, decided December 4, 1995; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). We do not find the hearing officer's ruling to be an abuse of discretion, nor can we say that the hearing officer acted without reference to guiding rules and principles.

We affirm the decision and order of the hearing officer.

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner

CONCUR:

Daniel R. Barry
Appeals Judge

Chris Cowan
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 March 31, 2004. With regard to the only issue before him the hearing officer determined that good cause does not exist to relieve the appellant (claimant) from the effects of the Benefit Dispute Agreement (TWCC-24) signed on June 24, 2003.

The claimant appeals, contending that Texas Workers' Compensation Commission (Commission) staff did not adequately assist or advise him regarding the subject TWCC-24, and/or that he was misled in signing the TWCC-24. The respondent (carrier) responded, urging affirmance.

DECISION

Affirmed.

The parties stipulated that the claimant had sustained a compensable injury on ______________. In evidence is a TWCC-24 dated July 24, 2003, wherein in response to the disputed issue of whether the claimant sustained a compensable injury on “________” the parties agreed that the “Claimant did sustain a compensable injury to the left elbow only on _________” (emphasis in the original). The TWCC-24 is signed by the carrier’s representative Ms. L, the claimant, and the benefit review officer. The claimant acknowledged that he had read and signed the agreement and that the right arm was not included, but that he had asked about his right arm at the conclusion of the hearing. Both the claimant and Ms. L testified as to what occurred at the proceeding, with conflicting versions. The claimant seeks to be relieved from the agreement because he maintains that he also injured his right arm and that should have been included in the agreement.

The names of a number of Commission employees were mentioned. There was conflicting testimony regarding the conduct of the benefit review conference (BRC) and who said what to whom and when. Section 410.030 provides that an agreement signed in accordance with Section 410.029, regarding BRC Agreements, is binding on an unrepresented claimant through the conclusion of all matters relating to the claim, unless the Commission finds good cause to relieve the claimant of the effects of the agreement. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 147.4(d)(2) (Rule 147.4(d)(2)). The hearing officer found that the claimant failed to show good cause for relief from the agreement. We review good cause determinations under an abuse-of-discretion standard. Texas Workers' Compensation Commission Appeal No. 002251, decided November 8, 2000. See Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986) for the standard on abuse of discretion. We conclude that the hearing officer did not abuse his discretion in determining no good cause existed to relieve the claimant of the effects of his agreement.

The claimant also asserts error because the hearing officer refused to allow the claimant to call one of his prior ombudsman to testify. The procedure to be followed in calling Commission Staff is in the Procedure for Handling Requests for Commission Staff as Witnesses at [CCH’s], Joint Procedure 8-4, Hearings/EEFS, dated August 4, 1997. We further note that the claimant failed to identify the individual in accordance with Rule 142.13(c)(1)(D). The hearing officer did not err in refusing to call the ombudsman as a witness.

We have reviewed the complained-of determinations and conclude that the hearing officer’s determinations are not erroneous as a matter of law and are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We affirm the hearing officer’s decision and order.

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

VAN WAGNER COMPANY

1100 JUPITER ROAD, SUITE 121

PLANO, TEXAS 75074.

Thomas A. Knapp

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 16, 2004. The hearing officer determined that the appellant (claimant) was not entitled to supplemental income benefits (SIBs) for the first and second quarters; that the claimant was not entitled to SIBs for the third through eighth quarters (based on a different theory than the first two quarters); that the claimant has permanently lost entitlement to income benefits pursuant to Section 408.146(c); that good cause does not exist to relieve the claimant from the effects of a Benefit Dispute Agreement (TWCC-24); and that the claimant’s compensable injury of _____________, does not include a depressive disorder.

The claimant appeals, contending that he is entitled to SIBs because his treating chiropractor (and other doctors) had taken him off work, that he should be relieved of the effects of the TWCC-24 because he had been “tricked” by the respondent (carrier), and that his compensable injury should include a depressive disorder. The carrier responds, urging affirmance.

DECISION

Affirmed.

The parties stipulated that the claimant sustained a compensable left shoulder and neck injury on _____________. The hearing officer, in her Statement of the Evidence, lays out the timeline of treatment and events in some detail and that will not be repeated here.

Eligibility criteria for SIBs entitlement are set forth in Section 408.142(a) and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102 (Rule 130.102). The claimant asserts entitlement to SIBs for the first and second quarters on the basis of a return to work in a position relatively equal to his ability to work (see Rule 130.102(d)(1)). During the applicable qualifying periods the claimant had returned to work full time at a wage that exceeded his preinjury wage and thereby was not entitled to SIBs pursuant to Section 408.142(a)(2) and (b)(1) and Rule 130.102(b)(1).

During the third quarter qualifying period the claimant drew unemployment benefits but failed to document any job search efforts. See Rule 130.102)(d)(5) and (e). Basically the claimant asserts entitlement to SIBs for quarters three through eight on the basis of a total inability to work. Rule 130.102(d)(4) provides that an injured employee has made a good faith effort to obtain employment commensurate with the employee’s ability to work if the employee has been unable to perform any type of work in any capacity, has provided a narrative report from a doctor which specifically explains how the injury causes a total inability to work, and no other records show that the injured employee is able to return to work. The hearing officer commented that during all of the qualifying periods at issue, the claimant did not produce narrative medical reports specifically explaining how the compensable injury causes a total inability to work which would satisfy the requirement of Rule 130.102(d)(4) and further that during the last two qualifying periods there were other records that showed that the claimant could work in some capacity. Conclusory off-work slips or Work Status Reports (TWCC-73) without further explanation do not provide the specific narrative required by Rule 130.102(d)(4).

The claimant asserts that he had good cause to be relieved of the effects of the TWCC-24 dated April 8, 2003, in which the parties agreed that the compensable injury includes cervical disc injuries at C5-6 and C6-7 but does not include a depressive disorder. The claimant had been diagnosed as having depression in November 2002;, that diagnosis had been disputed by the carrier and a Texas Workers' Compensation Commission (Commission)-required medical examination (RME) doctor in a report dated March 17, 2003, gave the opinion that the claimant’s depression was due more to his lifestyle than his work-related injury. The claimant contends that he should be relieved from the effects of the TWCC-24 because he was “tricked” by the carrier. Exactly how the claimant believes he was tricked is not clear other than the claimant apparently believed that he would be getting SIBs for the accepted cervical injury. The hearing officer’s determination regarding the TWCC-24 is supported by the evidence.

Regarding whether the compensable includes depression (aside from the TWCC-24), there was conflicting evidence. The hearing officer’s determination is supported by sufficient evidence in the form of the Commission’s RME doctor’s report.

We have reviewed the complained-of determinations and conclude that the hearing officer’s determinations are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We affirm the hearing officer’s decision and order.

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL

DALLAS, TEXAS 75201.

Thomas A. Knapp

CONCUR:

Chris Cowan
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 (CCH) was held on November 5, 2003. The hearing officer resolved the disputed issues by deciding that the appellant/cross-respondent’s (claimant) compensable injury of ______________, does not extend to include the lumbar spine, and that good cause does not exist to relieve the claimant of the effects of the Benefit Dispute Agreement (BDA) signed on November 12, 2002. The claimant appeals, contending that the hearing officer’s determinations on the disputed issues are against the great weight and preponderance of the evidence. The respondent/cross-appellant (carrier) appeals the hearing officer’s decision to the extent that it concludes that the compensable injury includes the lumbar spine. The carrier responded to the claimant’s appeal. No response to the carrier’s appeal was received from the claimant.

DECISION

Affirmed as reformed herein.

It is undisputed that the claimant sustained a compensable injury on ______________. The claimant and the carrier entered into a BDA on November 12, 2002. At the time the claimant signed the BDA, he was not represented by an attorney, but had the assistance of a Texas Workers’ Compensation Commission (Commission) ombudsman. The BDA reflects that the disputed issue was whether the ______________, injury extends to the left hip, groin, and back. The agreed resolution is stated in the BDA as: “Parties agree the _________ injury extends to the left hip + groin and does not include the back. The hip is a sprain/strain.” The claimant, a carrier’s representative, and a benefit review officer signed the BDA. Section 410.030(b) provides in pertinent part that, if the claimant is not represented by an attorney, the agreement is binding on the claimant through the conclusion of all matters relating to the claim while the claim is pending before the Commission, unless the Commission for good cause relieves the claimant of the effect of the agreement. See also Tex. W.C. Comm’n 28 TEX. ADMIN. CODE § 147.4(d)(2) (Rule 147.4(d)(2)).

Conflicting evidence was presented on the disputed issues. The claimant’s arguments concerning his confusion about the nature of the injury, ineffective assistance by the ombudsman, lack of consideration for the BDA, and financial pressure to sign the BDA were all presented at the CCH for the hearing officer’s consideration. Whether good cause existed to relieve the claimant of the effect of the BDA was a fact question for the hearing officer to resolve as the finder of fact. There was evidence that both the ombudsman and the benefit review officer explained the BDA to the claimant before the claimant signed it. The hearing officer decided that the compensable injury of ______________, does not extend to and include the lumbar spine and that good cause does not exist to relieve the claimant from the effects of the BDA signed on November 12, 2002. Although there is conflicting evidence in this case, we conclude that the hearing officer’s determinations on the disputed issues are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

Based on the hearing officer’s findings of fact, Conclusion of Law No. 2, and her decision on the disputed issues (compensable injury does not extend to and include the lumbar spine and good cause does not exist to relieve the claimant of the effects of the BDA), we believe that Conclusion of Law No. 3 contains a typographical error in that it leaves out the word “not” between the words “does” and “extend” and we hereby reform Conclusion of Law No. 3 to read as follows:

1. 3.Because good cause does not exist to relieve Claimant from the effects of the agreement signed on November 12, 2002, the compensable injury of ______________, does not extend to and include the lumbar spine.

As reformed herein, the hearing officer’s decision and order are affirmed.

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

WILLIAM S. MCINTYRE IV

12222 MERIT DRIVE, SUITE 1660

DALLAS, TEXAS 75215-3212.

Robert W. Potts

CONCUR:

Elaine M. Chaney
Appeals Judge

Gary L. Kilgore
Appeals Judge