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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 2, 2021, in (city), Texas, with (administrative law judge). presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that (1) the compensable injury of (date of injury), does not extend to concussion with loss of consciousness, post-traumatic headaches, bilateral temporomandibular disorders (TMD), bilateral vestibular dysfunction, right ear hearing loss, right ear tinnitus, anxiety and depression, cognitive dysfunction, chronic pain syndrome, fracture of tooth #30, cervical sprain and strain, right shoulder sprain and strain, rotator cuff tear, labral tear, right biceps strain and tendinitis, left middle finger sprain, right thigh sprain and strain, left thigh sprain and strain, right knee sprain and strain, left lower leg contusion, right foot strain, or lumbar sprain and strain; (2) (Dr. Sk) was properly appointed as a second designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.5 (Rule 127.5); (3) the appellant (claimant) reached maximum medical improvement (MMI) on August 30, 2019; (4) the claimant’s impairment rating (IR) is six percent; and (5) the claimant did not have disability from August 31, 2019, through September 22, 2020, as a result of the compensable injury of (date of injury).

The claimant appealed the ALJ’s determinations of extent of injury, Dr. Sk’s designated doctor appointment, MMI, IR, and disability. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded for reconstruction of the record.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of at least the carrier-accepted conditions of contusions of the right lower leg, right chest, right ribs, and dislocation of the right shoulder; (Dr. Sm) was properly appointed as designated doctor on the issues of MMI, IR, extent of injury, return to work, and disability; Dr. Sk was appointed as successor designated doctor on the issue of extent of injury; and the date of statutory MMI in this case is September 22, 2020. The claimant, a retail assistant, was injured on (date of injury), when she tripped on a box in the lunchroom and was thrown across a barstool.

The ALJ’s decision and order states that the following exhibits were admitted into evidence: ALJ’s Exhibit 1; Claimant’s Exhibits 1 through 25; and Carrier’s Exhibits A through N. The claimant’s Exhibit 5 contains 52 pages of medical records from (Dr. K); however, the case file sent for review does not contain a claimant’s Exhibit 5, page 22 or 32. Additionally, the claimant’s Exhibit 15 contains 65 pages of medical records from (Dr. A); however, the case file sent for review does not contain a claimant’s Exhibit 15, page 63. Because the record is incomplete, it must be remanded for the addition or reconstruction of the missing exhibits. See Appeals Panel Decision (APD) 030543, decided April 18, 2003.

In that the Appeals Panel is allowed only one remand (see Section 410.203(c)) we have reviewed the documentary evidence, recording of the CCH, the ALJ’s decision, the appeal, and the response. The ALJ determined that the claimant reached MMI on August 30, 2019, with a six percent IR in accordance with the certification of Dr. Sm examined the claimant on November 25, 2019, and issued three alternate certifications. The first certification, which was adopted by the ALJ, rated what Dr. Sm described as the carrier-defined compensable injuries. This certification considered and rated a right shoulder dislocation, head contusion, right lower leg contusion, right chest contusion, and right ribs contusion. Dr. Sm assigned six percent impairment for range-of-motion (ROM) deficits in the right shoulder, zero percent impairment for the head contusion, zero percent impairment for the right lower leg contusion, zero percent impairment for the right chest contusion, and zero percent impairment for the right ribs contusion. As this certification considers and rates a head contusion, a condition that has not been accepted and has not yet been determined to be part of the compensable injury, it cannot be adopted.

We remand the case to the ALJ for a reconstruction of the record and to make a determination on the claimant’s MMI and IR that is supported by the evidence and consistent with this decision.

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

CORPORATION SERVICE COMPANY
d/b/a CSC-LAWYERS INCORPORATING SERVICE CO
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 13, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to an annular bulge and mild facet arthrosis at L2-3, a disc bulge and stenosis at L4-5, foraminal narrowing and degenerative changes at L5-S1, or L5 radiculopathy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on March 20, 2018; and (3) the claimant’s impairment rating (IR) is zero percent. The claimant appealed, disputing the ALJ’s determinations. The respondent (carrier) responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that consisted of a mild concussion, cervical sprain/strain, lumbar sprain/strain, and contusions to the right arm and hand. The claimant testified she was injured when she fell backward onto a concrete floor while attempting to retrieve a mannequin from a shelf. We note the stipulation in Finding of Fact No. 1.C. incorrectly states the parties stipulated the compensable injury consists of “concussions” to the right arm and hand, when in fact the parties stipulated that the compensable injury consists of contusions to the right arm and hand. We also note the same mistake is made in the discussion.

EXTENT OF INJURY

The extent-of-injury issue as stated on the Benefit Review Conference Report and as agreed to by the parties at the CCH was whether the compensable injury of (date of injury), extends to an annular bulge and mild facet arthrosis at L2-3, a disc bulge and stenosis at L4-5, foraminal narrowing and degenerative changes at L5-S1, and L5 radiculopathy. Finding of Fact No. 3 states that “[t]he compensable injury of (date of injury) was not a producing case [sic] of (then list all the conditions), and was not a producing case [sic] of an acceleration, enhancement or worsening of those conditions.” Although Conclusion of Law No. 3 and the decision state that the compensable injury of (date of injury), does not extend to an annular bulge and mild facet arthrosis at L2-3, a disc bulge and stenosis at L4-5, foraminal narrowing and degenerative changes at L5-S1, or L5 radiculopathy, the ALJ made no specific finding of fact regarding the compensability of the disputed conditions as required by Section 410.168 and Rule 142.16. See Appeals Panel Decision (APD) 132339, decided December 12, 2013; APD 150510, decided April 21, 2015; APD 162262, decided January 10, 2017; APD 181349, decided August 15, 2018; see also Section 410.168 and Rule 142.16.

Accordingly, we reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to an annular bulge and mild facet arthrosis at L2-3, a disc bulge and stenosis at L4-5, foraminal narrowing and degenerative changes at L5-S1, or L5 radiculopathy as being incomplete, and we remand the issue of whether the compensable injury of (date of injury), extends to an annular bulge and mild facet arthrosis at L2-3, a disc bulge and stenosis at L4-5, foraminal narrowing and degenerative changes at L5-S1, and L5 radiculopathy to the ALJ to make findings of fact on that issue.

MMI AND IR

The ALJ determined that the claimant reached MMI on March 20, 2018, with a zero percent IR, as certified by (Dr. S), the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division). However, given that we have reversed the ALJ’s decision as being incomplete and have remanded the issue of whether the compensable injury of (date of injury), extends to an annular bulge and mild facet arthrosis at L2-3, a disc bulge and stenosis at L4-5, foraminal narrowing and degenerative changes at L5-S1, and L5 radiculopathy, we also reverse the ALJ’s determinations that the claimant reached MMI on March 20, 2018, with a zero percent IR. We remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to an annular bulge and mild facet arthrosis at L2-3, a disc bulge and stenosis at L4-5, foraminal narrowing and degenerative changes at L5-S1, or L5 radiculopathy, and we remand the issue of whether the compensable injury of (date of injury), extends to an annular bulge and mild facet arthrosis at L2-3, a disc bulge and stenosis at L4-5, foraminal narrowing and degenerative changes at L5-S1, and L5 radiculopathy for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant reached MMI on March 20, 2018, and we remand the issue of MMI to the ALJ for further action consistent with this decision.

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

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a decision as to whether the compensable injury of (date of injury), extends to an annular bulge and mild facet arthrosis at L2-3, a disc bulge and stenosis at L4-5, foraminal narrowing and degenerative changes at L5-S1, and L5 radiculopathy. The ALJ is then to make a decision regarding the claimant’s date of MMI and IR. Additionally, the ALJ is to correct the stipulation in Finding of Fact No. 1.C. to reflect the stipulation made by the parties at the CCH.

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

The true corporate name of the insurance carrier is SAFETY NATIONAL CASUALTY 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.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 6, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that: the compensable injury sustained on (date of injury), does not extend to an L4-5 disc protrusion with left L5 nerve root impingement, moderate disc height loss at L2-3, L3-4, L4-5, and L5-S1 and 4 to 5 mm central disc protrusion at L5-S1. The appellant (claimant) appealed, disputing the ALJ’s determination of extent of injury. The respondent (carrier) responded to the claimant’s request for review, urging affirmance of the disputed issue.

DECISION

Affirmed in part as reformed and reversed and remanded in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury at least in the form of a lumbar strain and that the (date of injury), compensable injury does not extend to moderate disc height loss at L2-3, L3-4, L4-5, and L5-S1 and 4 to 5 mm central disc protrusion at L5-S1. The claimant testified that he was injured when he caught a machine part weighing between 70 and 90 pounds that had come loose when he was changing it out.

EXTENT OF INJURY

As previously noted, the parties stipulated that the compensable injury of (date of injury), does not extend to moderate disc height loss at L2-3, L3-4, L4-5, and L5-S1 and 4 to 5 mm central disc protrusion at L5-S1. That stipulation was not appealed. Accordingly, we affirm that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to moderate disc height loss at L2-3, L3-4, L4-5, and L5-S1 and 4 to 5 mm central disc protrusion at L5-S1.

We note that in Finding of Fact No. 1.D. the ALJ inadvertently omitted the word “least” from the stipulation of the parties. We reform Finding of Fact No. 1.D. to read as follows: On (date of injury), the claimant sustained a compensable injury in the form of at least a lumbar strain.

In the discussion of the evidence, the ALJ described the claimant’s mechanism of injury of (date of injury), as a motor vehicle accident (MVA) while in the course and scope of his employment. The ALJ further stated in her discussion that the parties stipulated that the claimant sustained a compensable injury in the form of at least multiple pelvic fractures, lumbar contusion, and left hip contusion. A review of the record reflects that the claimant’s mechanism of injury did not involve an MVA and the parties stipulated that on (date of injury), the claimant sustained a compensable injury in the form of at least a lumbar strain. No stipulation was made regarding multiple pelvic fractures, lumbar contusion, or left hip contusion nor were these conditions at issue in the CCH. Additionally, the ALJ stated that the designated doctor determined that the disputed conditions were caused by the (date of injury), injury event but did not persuasively show how the disputed conditions were caused by the (date of injury), injury event. The ALJ mistakenly identified the “injury event” in her discussion as an MVA. We view the ALJ’s misstatement of the evidence as a material misstatement of the facts. Accordingly, we reverse that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to an L4-5 disc protrusion with left L5 nerve root impingement and remand that portion of the extent-of-injury issue to the ALJ for further action consistent with this decision.

SUMMARY

We reform Finding of Fact No. 1.D. to read as follows: On (date of injury), the claimant sustained a compensable injury in the form of at least a lumbar strain.

We affirm that portion of the ALJ’s determination that the (date of injury), compensable injury does not extend to moderate disc height loss at L2-3, L3-4, L4-5, and L5-S1 and 4 to 5 mm central disc protrusion at L5-S1.

We reverse that portion of the ALJ’s determination that the (date of injury), compensable injury does not extend to an L4-5 disc protrusion with left L5 nerve root impingement, and remand that portion of the ALJ’s extent-of-injury determination to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to correct her misstatement of the evidence regarding the mechanism of injury and the parties’ stipulation regarding the conditions of multiple pelvic fractures, lumbar contusion, and left hip contusion. The ALJ is then to make a determination of whether the (date of injury), compensable injury extends to an L4-5 disc protrusion with left L5 nerve root impingement consistent with this decision.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the 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 Appeals Panel Decision 060721, decided June 12, 2006.

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

CT CORPORATION SYSTEMS

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on November 5, 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 compensable injury sustained on (date of injury), does not extend to the following conditions of the right upper extremity: a triangular fibrocartilage complex (TFCC) tear, ulnar abutment syndrome, Kienbock’s syndrome, tenosynovitis, carpal tunnel syndrome (CTS), and a ganglion cyst; (2) the appellant (claimant) reached maximum medical improvement (MMI) on July 16, 2016; and (3) the claimant’s impairment rating (IR) is zero percent. The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, and IR. The respondent (carrier) responded, urging affirmance of the disputed extent of injury, MMI, and IR determinations.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that on (date of injury), the claimant sustained a compensable injury at least in the form of a sprain and strain of the right wrist. The claimant testified that she was injured when she fell while performing a perimeter check of a building.

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

EXTENT OF INJURY

The ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to the following conditions of the right upper extremity: a TFCC tear, ulnar abutment syndrome, Kienbock’s syndrome, tenosynovitis, CTS, and a ganglion cyst is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on July 16, 2016, is supported by sufficient evidence and is affirmed.

The ALJ determined that the claimant’s IR is zero percent as certified by (Dr. F), the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division).

Dr. F examined the claimant on March 17, 2018. In a narrative report dated that same date Dr. F opined that the claimant reached MMI on July 16, 2016, and noted that the right wrist sprain/strain had resolved and determined that the claimant’s IR is zero percent. However, none of the Reports of Medical Evaluation (DWC-69) in evidence from Dr. F specify the claimant’s IR nor is the box checked that the claimant does not have any permanent impairment as a result of the compensable injury but rather the space provided to record the claimant’s IR is left blank.

Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 28 TEX. ADMIN. CODE § 130.1(c)(3) ((Rule 130.1(c)(3)) provides, in part, that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination. Rule 130.1(c)(3) also provides, in part, that an IR is invalid if it is based on the injured employee’s condition on a date that is not the MMI date. See also Rule 130.1(b)(2). Rule 130.1(d)(1) states that a certification of MMI and assignment of an IR requires completion, signing, and submission of the DWC-69 and a narrative report. Rule 130.12(c) provides, in part, that the certification on the DWC-69 is valid if there is an impairment determination of either no impairment or a percentage IR assigned.

As previously noted, Dr. F failed to specify any impairment in the DWC-69s in evidence. Accordingly, Dr. F’s zero percent IR cannot be adopted.

There are two other certifications from Dr. F in evidence that certify the claimant has not reached MMI. However, as noted above the ALJ’s determination that the claimant reached MMI on July 16, 2016, is affirmed. Additionally, those certifications consider conditions that have been determined not to be part of the compensable injury, including a right wrist TFCC tear and Kienbock’s syndrome.

There are three certifications in evidence from (Dr. D), a carrier-selected required medical examination doctor, based on a medical examination of the claimant that occurred on June 25, 2018. The first certification from Dr. D certified that the claimant reached MMI on September 1, 2016, with a zero percent IR. However, as noted above the ALJ’s determination that the claimant reached MMI on July 16, 2016, was affirmed. Consequently, the IR assigned from Dr. D cannot be adopted.

The remaining two certifications from Dr. D opined that the claimant had not yet reached MMI. As previously noted, the ALJ’s determination that the claimant reached MMI on July 16, 2016, is affirmed. Additionally, those certifications consider and rate conditions that have been determined not to be part of the compensable injury, including a TFCC tear and Kienbock’s syndrome.

There is no MMI/IR certification assigning a zero percent IR with an MMI date of July 16, 2016, in evidence that can be adopted. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is zero percent. As there is no other IR in evidence that can be adopted, we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision. See Appeals Panel Decision (APD) 170321, decided April 10, 2017.

SUMMARY

We affirm the ALJ’s determination that the compensable injury sustained on (date of injury), does not extend to the following conditions of the right upper extremity: a TFCC tear, ulnar abutment syndrome, Kienbock’s syndrome, tenosynovitis, CTS, and a ganglion cyst.

We affirm the ALJ’s determination that the claimant reached MMI on July 16, 2016.

We reverse the ALJ’s determination that the claimant’s IR is zero percent, and remand the IR issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. F is the designated doctor in this case. On remand the ALJ is to determine whether Dr. F is still qualified and available to be the designated doctor. If Dr. F 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 IR for the (date of injury), compensable injury as of the July 16, 2016, date of MMI.

The ALJ is to inform the designated doctor that the date of MMI is July 16, 2016, and request that the designated doctor assign an IR as of the date of MMI in accordance with Rule 130.1(c) and the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). The ALJ is to advise the designated doctor that the compensable injury extends to a sprain and strain of the right wrist but does not extend to the following conditions of the right upper extremity: a TFCC tear, ulnar abutment syndrome, Kienbock’s syndrome, tenosynovitis, CTS, and a ganglion cyst.

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

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

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

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 May 29, 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) had disability resulting from the compensable injury of (date of injury), from January 1, 2018, through the date of the CCH; and (2) the employer did not make a bona fide offer of employment (BFOE) to the claimant entitling the appellant (carrier) to adjust the post-injury weekly earnings. The carrier appealed the ALJ’s determinations of disability and BFOE. The claimant responded, urging affirmance of the disputed determinations.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated that the compensable injury of (date of injury), extends to a lumbar sprain. The claimant testified that she was injured while trying to lift a roll up door of a truck.

BFOE

The ALJ’s determination that the employer did not make a BFOE to the claimant entitling the carrier to adjust the post-injury weekly earnings is supported by sufficient evidence and is affirmed.

DISABILITY

That portion of the ALJ’s disability determination that the claimant had disability resulting from the compensable injury of (date of injury), from January 1, 2018, through the date of the CCH is supported by sufficient evidence and is affirmed.

The Benefit Review Conference (BRC) Report was in evidence and listed the disability issue in dispute as follows: “Did the claimant have disability from December 15, 2017, through the present resulting from an injury sustained on (date of injury)?” The parties agreed at the CCH that this was the disputed disability issue.

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. 28 TEX. ADMIN. CODE § 142.16 (Rule 142.16) provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due. However, the ALJ failed to make a finding of fact, conclusion of law, or decision of whether the claimant had disability from December 15 through December 31, 2017. Because the ALJ failed to make a determination on the entire disability period as properly before him to determine, the ALJ’s decision is reversed as being incomplete. See Appeals Panel Decision (APD) 150510, decided April 21, 2015. Accordingly, we reverse the ALJ’s decision as being incomplete and remand a portion of the disability issue to the ALJ to determine whether the claimant had disability from December 15 through December 31, 2017.

SUMMARY

We affirm the ALJ’s determination that the employer did not make a BFOE to the claimant entitling the carrier to adjust the post-injury weekly earnings.

We affirm that portion of the ALJ’s disability determination that the claimant had disability resulting from the compensable injury of (date of injury), from January 1, 2018, through the date of the CCH.

We reverse the ALJ’s disability determination as being incomplete and remand to the ALJ to determine whether the claimant had disability from December 15 through December 31, 2017.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a determination as to whether the claimant had disability from December 15 through December 31, 2017.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

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 September 28, 2017, with the record closing on April 17, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the compensable injury of (date of injury), does not extend to lumbar intervertebral disc disorders; (2) the appellant/cross-respondent (claimant) reached maximum medical improvement (MMI) on April 15, 2016; (3) the claimant’s impairment rating (IR) is zero percent; (4) the first certification of MMI and assigned IR from (Dr. H), on April 15, 2016, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (5) the claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH.

The claimant appealed, disputing the ALJ’s extent of injury, MMI, and IR determinations. The respondent/cross-appellant (carrier) responded, urging affirmance of the ALJ’s extent-of-injury determination. The carrier cross-appealed, disputing the ALJ’s MMI, IR, and finality determinations. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.

The ALJ’s determination that the claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part, reformed 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 includes a lumbar sprain/strain, and the statutory date of MMI is March 25, 2018. The claimant testified he was injured when he lifted a hot water heater.

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

EXTENT OF INJURY

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

DISABILITY

The parties stipulated at the CCH that the claimant did not have disability due to the (date of injury), compensable injury from March 8, 2016, to the date of the CCH. The ALJ determined in the Decision portion of the decision and order that the claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH. However, the summary paragraph on the first page of the decision and order omits the disability determination, and the decision does not contain a conclusion of law on disability. We reform the decision and order to include the following language as Conclusion of Law No. 7 as well as the summary paragraph on the first page of the decision:

The claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH.

FINALITY UNDER SECTION 408.123 AND RULE 130.12

At the CCH the carrier contended it mailed Dr. H’s MMI/IR certification to the claimant at (address), (city), Texas (zip code), which is the only address the carrier had for the claimant. The claimant contended at the CCH that he did not live at that address at the time the carrier sent Dr. H’s MMI/IR certification, and that he received the certification at Dr. H’s office in June 2017. In evidence is a Notification of MMI/First Impairment Income Benefit Payment (PLN-3) dated April 29, 2016, notifying the claimant the carrier had received the attached DWC-69 from Dr. H and that the claimant had 90 days from the date he received the certification to file a dispute. Also in evidence is a “green card” addressed to the claimant at (address), (city), Texas (zip code), that states the carrier’s PLN-3 and Dr. H’s DWC-69 were contained in the mailing. Also in evidence is track and confirm information from the United States Postal Service showing the tracking number corresponding to the carrier’s mailing and that notice was left at the claimant’s mailing address on May 4, 2016, because an authorized recipient was not available.

The ALJ states the following in her discussion:

[The] [c]arrier failed to establish delivery of [Dr. H’s] certification through verifiable means. [The] [c]arrier did not provide a green card verifying delivery of [Dr. H’s] certification. [The] [c]arrier argued that, on May 4, 2016, [the] [c]laimant rejected delivery of [Dr. H’s] certification. [The] [c]laimant contends that, on June 22, 2017, [Dr. H’s] office provided a copy of her certification. On September 19, 2016, [the] [c]laimant filed a [Request for Designated Doctor Examination (DWC-32)] to timely challenge [Dr. H’s] certification and to request a [designated doctor] examination and certification. Thus, the certification of MMI and assigned IR by [Dr. H] on April 15, 2016, did not become final under [Section 408.123] and [Rule 130.12].

It is unclear from the ALJ’s discussion whether or not she believed the claimant lived at the address to which the carrier sent Dr. H’s MMI/IR certification on May 4, 2016, or whether she was requiring a “green card” signed by the claimant to verify delivery of the certification to establish delivery by verifiable means. The Appeals Panel has held that verifiable written notice of the first MMI/IR certification has been given in cases where the PLN-3 and DWC-69 were mailed to the claimant’s correct address by certified mail, return receipt requested, and delivery was attempted and the “green card” indicates that the PLN-3 and DWC-69 were included. See Appeals Panel Decision (APD) 070913, decided July 2, 2007; APD 080745, decided July 25, 2008; APD 100316, decided May 7, 2010. We note that Rule 102.4(a) provides that all non-Division written communications to a claimant shall be sent to the most recent address or facsimile number supplied by the claimant, and if an address has not been supplied by the claimant the most recent address provided by the employer shall be used.

The ALJ made no findings of fact regarding whether Dr. H’s MMI/IR certification was provided to the claimant by verifiable means or whether any exceptions to finality under Section 408.123 applied. Section 410.168 provides that an ALJ’s decision shall contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due and if so, an award of benefits due. Because the ALJ’s decision contains no findings of fact regarding the issue of finality of Dr. H’s April 15, 2016, MMI/IR certification under Section 408.123 and Rue 130.12, which was an issue properly before the ALJ to resolve, it does not comply with Section 410.168 and Rule 142.16. We therefore reverse the ALJ’s determination that the certification of MMI and assigned IR from Dr. H on April 15, 2016, did not become final under Section 408.123 and Rule 130.12, and we remand this issue to the ALJ for further action consistent with this decision.

MMI/IR

Because we have remanded the issue of whether Dr. H’s April 15, 2016, MMI/IR certification became final under Section 408.123 and Rule 130.12, we reverse the ALJ’s determinations that the claimant reached MMI on April 15, 2016, with a zero percent IR and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to lumbar intervertebral disc disorders.

We reform the decision and order to include the following language as Conclusion of Law No. 7 as well as the summary paragraph on the first page of the decision:

The claimant did not have disability resulting from the compensable injury on (date of injury), beginning on March 8, 2016, and continuing through the date of the CCH.

We reverse the ALJ’s determination that the certification of MMI and assigned IR from Dr. H on April 15, 2016, did not become final under Section 408.123 and Rule 130.12, and we remand the issue of whether the certification of MMI and assigned IR from Dr. H on April 15, 2016, became final under Section 408.123 and Rule 130.12 for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant reached MMI on April 15, 2016, and we remand the issue of MMI to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant’s IR is zero percent, and we remand the issue of IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a decision on whether the first certification of MMI and assigned IR from Dr. H on April 15, 2016, became final under Section 408.123 and Rule 130.12. The ALJ is then to make findings of fact, conclusions of law, and a decision on the claimant’s date of MMI and IR.

(Dr. M) is the most recently appointed designated doctor in this case. If necessary on remand the ALJ is to determine whether Dr. M is still qualified and available to be the designated doctor. If Dr. M 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 date of MMI and IR for the (date of injury), compensable injury. The ALJ is to inform the designated doctor that the statutory date of MMI in this case is March 25, 2018. The parties are to be provided with any new MMI/IR certification from the designated doctor and are to be allowed an opportunity to respond.

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

RICHARD J. GERGASKO

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
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 April 4, 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 appellant (claimant) did not sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury); (2) the respondent (carrier) is not relieved from liability under Section 409.002 because of the injured employee’s failure to timely notify his employer pursuant to Section 409.001; and (3) because there is no compensable injury, the claimant does not have disability for the period beginning on May 22, 2016, and continuing through the date of the CCH. The claimant appealed, disputing the ALJ’s compensability and disability determinations. The carrier responded, urging affirmance of the ALJ’s determinations.

The ALJ’s determination that the carrier is not relieved from liability under Section 409.002 because of the injured employee’s failure to timely notify his employer pursuant to Section 409.001 has not been 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 contains an audio recording lasting approximately two minutes and six seconds containing a recording of preliminary matters, but does not include any arguments or testimony. The file does not contain a transcript or a complete audio recording of the proceeding. Consequently, we reverse and remand this case to the ALJ who presided over the April 4, 2018, CCH, if possible, for reconstruction of the CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

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

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201.

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 May 26, 2016, and continued on August 1, 2016, with the record closing on August 23, 2016, in (city), Texas, with (hearing officer)., presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) (AEP) was not respondent 1’s (claimant) employer for purposes of the Texas Workers’ Compensation Act; (2) appellant (carrier 1) provided workers’ compensation insurance for AEP on (date of injury); (3) respondent 2 (carrier 2) did not provide workers’ compensation insurance for AEP on (date of injury); (4) the claimant did not sustain a compensable injury on (date of injury); and (5) the claimant did not have disability resulting from an injury sustained on (date of injury), from (date of injury), through the date of the CCH. The hearing officer made clear in his decision that his compensability and disability determinations were based on his determination that the claimant was not an employee of AEP on (date of injury).

Carrier 1 appealed the hearing officer’s determination that it provided workers’ compensation insurance for AEP on (date of injury), contending that the hearing officer erred in making that determination. The claimant responded, urging affirmance. The appeal file does not contain a response from carrier 2 to carrier 1’s appeal.

DECISION

Reversed and remanded.

The claimant testified he was injured on (date of injury), while working in a cooling tower. The claimant testified he fell approximately 36 feet while tearing down a scaffold. We note that the decision incorrectly states Claimant’s Exhibits C-1 through C-7 were admitted, when in fact Claimant’s Exhibits C-1 through C-8 were admitted at the CCH.

As noted by the hearing officer in his decision, the claimant’s testimony indicated that another party, (BES), was a potential employer in this case. The hearing officer noted that several attempts were made to contact BES to no avail, and that the parties elected at the August 1, 2016, CCH to proceed without BES. The hearing officer discussed BES in the Discussion portion of his decision, and determined that because AEP did not maintain a right of control over the claimant on (date of injury), AEP was not the claimant’s employer on that date. The evidence is incomplete regarding the claimant’s correct employer on the (date of injury), date of injury, and any potential carrier that may have provided workers’ compensation insurance. Because of the uncertainty as to the identity of the proper employer and carrier in this case, we remand the case to the hearing officer to determine the proper employer and carrier. The hearing officer is to hold another hearing and ensure that the proper employer and carrier is present at the CCH. On remand, the hearing officer shall take official notice of the Texas Department of Insurance, Division of Workers’ Compensation (Division) records regarding the proper employer and carrier in this case. The parties are to be allowed an opportunity to present evidence as to the correct employer and carrier and the issues in this proceeding.

SUMMARY

On remand, the hearing officer shall take official notice of the Division records regarding the proper employer and carrier in this case. The hearing officer is to hold another hearing with the proper employer and carrier present at the CCH. The parties are to be allowed an opportunity to present evidence as to the correct employer and carrier. The hearing officer is to determine the proper employer and carrier in this case, and then make findings of fact, conclusions of law, and a decision as to whether the claimant sustained a compensable injury on (date of injury), and whether the claimant had disability resulting from an injury sustained on (date of injury), and if so for what periods.

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 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.

According to information provided by carrier 1, the true corporate name of the insurance carrier is EVEREST NATIONAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

According to information provided by carrier 2, the true corporate name of the insurance carrier is SUNZ INSURANCE COMPANY and the name and address of its registered agent for service of process is

NATIONAL R AGENTS, INC.

16055 SPACE CENTER BOULEVARD, SUITE 235

HOUSTON, TEXAS 77062.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 14, 2016, 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 impairment rating (IR) assigned by (Dr. R) on January 14, 2016, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (2) the respondent (claimant) reached MMI on January 4, 2016, with a 17% IR. The appellant (carrier) appeals the hearing officer’s determination of finality and IR. The carrier contends that an exception to finality was established preventing Dr. R’s certification from becoming final and the correct IR is 12% as certified by the designated doctor. The claimant responded, urging affirmance of both the finality and IR determinations.

DECISION

Reversed and rendered.

The parties stipulated that the Texas Department of Insurance, Division of Workers’ Compensation (Division)-selected designated doctor to determine MMI and IR is (Dr. F) and that the claimant reached statutory MMI on January 4, 2016. It was undisputed that the claimant sustained a compensable injury on (date of injury). The claimant testified that he injured his left shoulder and neck when helping to move a large pipe.

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 and that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c). Rule 130.12(c) provides, in part, that a certification of MMI and/or IR assigned as described in subsection (a) must be on a [DWC-69]. The certification on the [DWC-69] is valid if: (1) there is an MMI date that is not prospective; (2) there is an impairment determination of either no impairment or a percentage [IR] assigned; and (3) there is the signature of the certifying doctor who is authorized by the [Division] under Rule 130.1(a) to make the assigned impairment determination. Section 408.123(f) provides in pertinent part that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described in Subsection (e) if: (1) compelling medical evidence exists of: (A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the [IR] (B) [a] clearly mistaken diagnosis or a previously undiagnosed medical condition; or (C) improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid.

The hearing officer’s finding that the carrier did not dispute Dr. R’s certification of MMI and assignment of IR within 90 days after the date the certification and assignment were provided is supported by sufficient evidence. At issue was whether Dr. R made a significant error in applying 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. R, a doctor selected by the treating doctor to act in his place, examined the claimant on January 14, 2016. Dr. R certified that the claimant reached MMI on the statutory date of January 4, 2016, and assigned a 17% IR using the AMA Guides. Dr. R assessed 13% impairment for the cervical spine using Table 75, page 3/113. Dr. R assessed 10% impairment under Section IV, part D for a single-level spinal fusion with or without decompression with residual signs or symptoms and added 3% impairment for multiple levels operated on with residual pain and rigidity. Dr. R then combined the 13% impairment for the cervical spine with 5% impairment assessed for loss of range of motion (ROM) of the left shoulder for a total of 17% IR.

The carrier argues that Dr. R misapplied the AMA Guides because he used the ROM Model to assess impairment for the cervical spine rather than the Injury Model. The AMA Guides on page 3/100 state that the Injury Model “relies especially on evidence of neurologic deficits and uncommon, adverse structural changes, such as fractures, dislocations, and loss of motion segment integrity. Under this model, Diagnosis-Related Estimates (DRE) are differentiated according to clinical findings that are verifiable using standard medical procedures.”

In Appeals Panel Decision (APD) 030288-s, decided March 18, 2003, the Appeals Panel held that although there are instances when the ROM Model may be used, such as if none of the categories of the DRE Model are applicable, the use of the DRE Model is not optional and is to be used unless there is a specific explanation why it cannot be used. In that case, the Appeals Panel referenced the AMA Guides on page 3/94 that states “[t]he evaluator assessing the spine should use the [DRE Model], if the patient’s condition is one of those listed in Table 70 ([page]108).” The Appeals Panel also referenced page 3/112 that states the “[ROM] Model should be used only if the [DRE] Model is not applicable, or if more clinical data on the spine are needed to categorize the individual’s spine impairment.” The Appeals Panel held that unless there is a specific explanation why the DRE Model cannot be used, a comment that the evaluator merely prefers to use the model that he or she feels is most appropriate is insufficient justification for not using the DRE Model.

In APD 042543, decided December 2, 2004, the Appeals Panel stated that simply because the claimant had spinal surgery was not sufficient justification for using the ROM Model rather than the DRE Model. In that case, the designated doctor stated, “there was no DRE category that specifically addresses spinal surgery post injury. However, the ROM Model specifically rates spinal surgery.” The Appeals Panel stated that “[i]t is clear from his response, that the designated doctor did not use the DRE Model to assess impairment not because of any factor specific to the claimant’s condition and treatment but simply because he had spinal surgery.” Spinal surgery in and of itself is not an appropriate reason to use the ROM Model to assess an impairment.

In correspondence dated May 15, 2016, Dr. R stated in part, using the DRE Model, the claimant would be placed in Cervicothoracic DRE Category II and 5% impairment would be assigned. Dr. R further stated in his opinion the Cervicothoracic DRE Category II did not adequately reflect the claimant’s cervical related impairment after his four-level cervical fusion, considering his significantly decreased cervical motion, cervical rigidity, and pain. In evidence is a records review dated May 10, 2016, from F (Dr. C). Dr. C notes that Dr. R only used a portion of the ROM Model to assess impairment for the cervical spine. The AMA Guides provide on page 3/115 that when using the ROM Model the estimated diagnosis-related impairment percent for the primarily involved region using Table 75 should be determined. ROM measurements should be taken and any impairments due to neurologic deficits should also be determined. The AMA Guides then provide that the diagnosis-based and ROM impairment percents should be combined using the combined values chart. Dr. R’s narrative does not reflect that he took ROM measurements of the claimant’s cervical spine and he did not combine the diagnosis-based and ROM impairment percents to determine the claimant’s cervical spine impairment.

The hearing officer found that none of the exceptions to 90-day finality provided in Section 408.123(f) were shown to apply in this case. However, as noted above there was compelling medical evidence that Dr. R made a significant error in applying the AMA Guides and in calculating the IR. Accordingly, we reverse the hearing officer’s determination that the first certification of MMI and IR assigned by Dr. R on January 14, 2016, became final under Section 408.123 and Rule 130.12 and render a new determination that the first certification of MMI and IR assigned by Dr. R on January 14, 2016, did not become final.

The parties stipulated that the claimant reached statutory MMI on January 4, 2016. Only two certifications of MMI/IR were in evidence. Dr. R certified that the claimant reached MMI on January 4, 2016, and assigned a 17% IR. As discussed above, Dr. R made a significant error in applying the AMA Guides and his certification cannot be adopted. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 17%

The only other certification in evidence was from the Division-appointed designated doctor, Dr. F. Dr. F certified that the claimant reached MMI January 4, 2016, with a 12% IR based on an examination that occurred on April 4, 2016. Dr. F placed the claimant in Cervicothoracic DRE Category II: Minor Impairment and assessed 5%. Dr. F noted he used the ROM findings of Dr. R’s examination of January 14, 2016, and assessed 12% upper extremity impairment. The following ROM values were used: flexion of 150°; extension 40°; abduction 140°; adduction 40°; internal rotation 60°; and external rotation 40°. Using Figure 38, page 3/42, Dr. F properly assessed 2% impairment for flexion and 1% impairment for extension. Using Figure 44, page 3/45, Dr. F properly assessed 2% impairment for internal rotation and 1% impairment for external rotation. Using Figure 41, page 3/44, Dr. F assessed 6% impairment for abduction. However, Figure 41 provides that for abduction of 140° ROM 2% impairment should be assessed. Dr. F properly assessed 0% impairment for adduction.

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See APD 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011. Under the facts of this case, the certifying doctor’s assigned IR can be mathematically corrected based on the documented measurements for the left shoulder.

Assigning 2% impairment for loss of ROM based on 140° of abduction with the previous impairment assigned based on Figures 38, 41, and 44 results in 8% upper extremity impairment for the left shoulder rather than 12% upper extremity impairment as assigned by Dr. F. Converting 8% upper extremity impairment to whole person using Table 3, page 3/20 results in 5% whole person impairment. Combining 5% impairment for the left shoulder with 5% impairment for the cervical spine results in a whole person impairment for the compensable injury of 10% rather than 12%. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 17% and render a new decision that the claimant’s IR is 10%.

SUMMARY

We reverse the hearing officer’s determination that the first certification of MMI and IR assigned by Dr. R on January 14, 2016, became final under Section 408.123 and Rule 130.12 and render a new decision that the first certification of MMI and IR assigned by Dr. R on January 14, 2016, did not become final.

We reverse the hearing officer’s determination that the claimant’s IR is 17% and render a new decision that the claimant’s IR is 10%.

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

RICHARD GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

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 was held on February 1, 2016, in Houston, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the appellant’s (claimant) impairment rating (IR) is 1%. The claimant appealed, disputing the hearing officer’s determination of the claimant’s IR. The claimant contends that the evidence establishes that the correct IR is 7%. The respondent (carrier) responded, urging affirmance of the disputed IR determination.

DECISION

Reversed and rendered.

The parties stipulated that the carrier accepted a left elbow sprain/strain and a tear of the distal biceps tendon as the compensable injury and that the claimant reached maximum medical improvement (MMI) on June 13, 2015. The sole issue before the hearing officer was the claimant’s IR. The claimant testified that he injured his left arm when unloading ice cream from a truck.

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

Two certifications with the stipulated date of MMI were in evidence. The parties stipulated that (Dr. F) was appointed by the Division as designated doctor to determine MMI and IR. Dr. F examined the claimant on June 13, 2015, and certified that the claimant reached MMI on June 13, 2015, with a 1% IR, 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. F noted that the claimant showed vast improvement including range of motion and strength. Dr. F stated the IR for the claimant is 1% “based on the compensable injury limited to the left elbow.” In his narrative report, Dr. F listed the following diagnoses: left elbow strain/sprain resolved and tear of distal bicep tendon resolved. The narrative reflects that the examination of the claimant lasted thirty minutes and listed the medical documents he reviewed. In the section of the narrative entitled “Results of the Examination” only the following information was included: General: “The claimant was a cooperative and pleasant gentleman and did not seem as if he was in any obvious pain. He displayed normal gait as he walked into the examination room. The claimant did not utilize the assistance of a device.” No range of motion measurements or other description of physical examination findings were included in the narrative report in evidence.

Rule 130.1(c)(3) provides in pertinent part that the assignment of an IR shall be based on the injured worker’s condition as of the MMI date considering the medical record and the certifying examination and the doctor assigning the IR shall:

(A) identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;

(B) document specific laboratory or clinical findings of an impairment;

(D) compare the results of the analysis with the impairment criteria and provide the following:

(i) [a] description and explanation of specific clinical findings related to each impairment, including [0%] [IRs]; and

(ii) [a] description of how the findings relate to and compare with the criteria described in the applicable chapter of the AMA Guides. The doctors inability to obtain required measurements must be explained.

The narrative from Dr. F which accompanied the Report of Medical Evaluation (DWC-69) does not document clinical findings from an examination performed to assess impairment. Rather, the narrative simply contains a history and notes some of the records reviewed and then assesses impairment. The narrative does not contain any clinical findings of a physical examination. Because the narrative report from Dr. F does not comply with Rule 130.1(c)(3), his assessment of IR cannot be adopted.

Only one other certification with the stipulated MMI date is in evidence. (Dr. Fr), a referral doctor acting in place of the treating doctor, examined the claimant on September 1, 2015. Dr. Fr certified that the claimant reached MMI on June 13, 2015, with a 7% IR, using the AMA Guides. Dr. Fr certified 2% upper extremity impairment for loss of range of motion of the left elbow based on measurements taken for extension. The AMA Guides provide on page 3/64 under Strength Evaluation that “[i]n a rare case, if the examiner believes the patient’s loss of strength represents an impairing factor that has not been considered adequately, the loss of strength may be rated separately. The loss of strength impairment would be combined with other upper extremity impairments.” In his narrative, Dr. Fr stated that the 1% whole person IR assigned by the elbow extension loss does not adequately describe the claimant’s impairment. Dr. Fr noted that the most significant functional issue the claimant was dealing with as a residual, was loss of strength in his left upper extremity. Dr. Fr noted the claimant had significant left hand strength loss which has an impact on his activities of daily living and that the claimant had significant pain and weakness of approximately 50% of comparative elbow flexion and wrist extension. Dr. Fr ordered functional testing to assess the exact degree of weakness and to determine validity of effort. After testing, Dr. Fr stated the functional assessment results established valid criteria. Based on the results, Dr. Fr then assessed 10% upper extremity impairment using Table 34 on page 3/65 for loss of strength. Dr. Fr then combined the upper extremity impairment assessed for loss of strength with the upper extremity impairment assessed for loss of range of motion for a total of 12% upper extremity impairment which is then converted using Table 3 on page 3/20 of the AMA Guides for a total whole person impairment of 7%.

In evidence is a letter dated November 9, 2015, from (Dr. A) the surgeon who operated to repair the claimant’s left biceps tendon tear. The surgeon opined that the assessment of IR from Dr. Fr was much more comprehensive than that of Dr. F and included strength examination of the entire left upper extremity not just by manual motor testing but by computerized functional evaluation to confirm appropriate effort expenditure and bell shaped force vs. time curves. The surgeon opined that the impairment assigned by Dr. Fr would be “more inclusive of all disability resulting from the injury.” In a medical note dated November 9, 2015, the surgeon stated the claimant continued to have pain and limited strength.

In her discussion of the evidence, the hearing officer stated that the report of Dr. F constitutes a mere difference of opinion concerning the proper IR. The hearing officer found that Dr. F’s assignment of 1% IR is not contrary to the preponderance of the other medical evidence. However, as previously discussed Dr. F’s assignment of 1% IR cannot be adopted because he failed to comply with Rule 130.1(c)(3). Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 1% and render a new decision that the claimant’s IR is 7%.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge