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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 June 1, 2021, with the record closing on June 16, 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), extends to right hip sprain and right knee sprain; (2) the compensable injury of (date of injury), does not extend to aggravation of right knee osteoarthritis; (3) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. H) on January 3, 2020, did not become final under Section 408.123 and 28 Tex. Admin. Code § 130.12 (Rule 130.12); (4) the date of MMI is November 23, 2018; and (5) appellant’s (claimant) IR is 0%.

The claimant appealed that portion of the ALJ’s extent-of-injury determination that was adverse to her, as well as the ALJ’s determinations regarding finality, MMI, and IR. Respondent 1 (self-insured) responded, urging affirmance of the ALJ’s determinations. There was no response in the file from respondent 2 (subclaimant) to the claimant’s appeal. The ALJ’s determination that the compensable injury of (date of injury), extends to right hip sprain and right knee sprain was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), at least in the form of a right hip contusion and right knee contusion; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed Dr. H as designated doctor to determine extent of injury, MMI, and IR; and the Division appointed (Dr. Hm) as designated doctor to determine MMI and IR. The claimant was injured while working on (date of injury), when she tripped over a box in the freezer and fell onto her right side.

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 aggravation of right knee osteoarthritis is supported by sufficient evidence and is affirmed.

FINALITY

Section 408.123(e) provides that, except as otherwise provided by Section 408.123, an employee’s first valid certification of MMI and 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, including IRs related to extent-of-injury disputes. The notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c).

Section 408.123(f) provides in part:

(f) An employee’s first certification of [MMI] or assignment of an [IR] may be disputed after the period described by 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.

Dr. H examined the claimant on January 3, 2020, and issued two certifications. In the first one, Dr. H certified the claimant reached MMI on January 3, 2020, and, 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), assigned a 20% IR. Dr. H’s second certification found that the claimant had not reached MMI and did not assign an IR. Therefore, as the ALJ correctly noted in her decision, Dr. H’s first certification is the only valid certification subject to finality. See Appeals Panel Decision (APD) 190180, decided March 28, 2019.

Dr. H’s 20% IR is comprised of range of motion (ROM) measurements for the claimant’s right hip and right knee. Dr. H noted that in the claimant’s right hip, the flexion measurement resulted in a 4% impairment and the external rotation measurement resulted in a 2% impairment. Dr. H then combined these for a 6% IR for the hip. Dr. H noted that in the claimant’s right knee, the flexion measurement resulted in an 8% impairment and the flexion contracture measurement also resulted in an 8% IR. Dr. H combined the knee measurements for a total 15% IR for the right knee. She then combined the 6% IR for the right hip with the 15% IR for the right knee for a total 20% IR.

The ALJ found that Dr. H’s assigned IR was the first valid rating and the self-insured disputed Dr. H’s IR on February 1, 2021, after the 90-day deadline. Those findings are supported by sufficient evidence. The ALJ also found that compelling medical evidence exists of a significant error in applying the appropriate AMA Guides or in calculating the IR. The ALJ stated in her decision, “[s]pecifically, the designated doctor miscalculated the [IR] by combining instead of adding the [ROM] measurements for the right knee.”

However, in Section 3.2, The Lower Extremity, on page 3/75 of the AMA Guides, it states, “[i]f the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and toe, the whole-person estimates for the impairments are combined [emphasis in original] (Combined Values Chart, p. 322).” Accordingly, Dr. H correctly combined the impairments from the right knee. The ALJ’s finding that there was compelling medical evidence of a significant error in applying the appropriate AMA Guides or in calculating the IR was legal error. Therefore, we reverse the ALJ’s determination that the first certification of MMI and IR from Dr. H on January 3, 2020, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and IR from Dr. H on January 3, 2020, did become final under Section 408.123 and Rule 130.12.

To the extent that prior Appeals Panel decisions can be read as allowing impairments in the same lower extremity part to be added rather than combined, those decisions are now overruled. See APD 110741, decided July 25, 2011.

MMI/IR

As we have rendered a new decision that the first certification of MMI and IR from Dr. H on January 3, 2020, did become final under Section 408.123 and Rule 130.12, we also must reverse the ALJ’s determinations that the date of MMI is November 23, 2018, and the claimant’s IR is 0%. We render a new decision that the claimant reached MMI on January 3, 2020, with a 20% IR in accordance with Dr. H’s certification that became final.

SUMMARY

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to aggravation of right knee osteoarthritis.

We reverse the ALJ’s determination that the first certification of MMI and IR from Dr. H on January 3, 2020, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and IR from Dr. H on January 3, 2020, did become final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determinations that the date of MMI is November 23, 2018, and the claimant’s IR is 0%, and we render a new decision that the claimant reached MMI on January 3, 2020, with a 20% IR.

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

NAME
ADDRESS
CITY, TEXAS ZIP CODE.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 18, 2021, with the record closing on May 28, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable mental trauma injury on (date of injury); and (2) the claimant did not have disability from (date of injury), through the date of the CCH, resulting from the claimed mental trauma injury of (date of injury). The claimant appeals the ALJ’s determination that she did not sustain a compensable mental trauma injury on (date of injury), and that she did not have disability. The respondent (self-insured) responded, urging affirmance of the disputed issues.

DECISION

Affirmed in part and reversed and rendered in part by striking. The claimant testified that she sustained a mental trauma injury on (date of injury), when she was sent to work at an inmate facility that had a COVID-19 outbreak and no air conditioning. The claimant testified that she had several comorbidities including asthma, obesity, and high blood pressure.

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).

MENTAL TRAUMA INJURY

The ALJ’s determination that the claimant did not sustain a compensable mental trauma injury on (date of injury), is supported by sufficient evidence and is affirmed.

DISABILITY

The disability issue reported out of the benefit review conference was as follows: “[d]id the [c]laimant sustain disability as a result of the claimed injury, and if so, for what period?” During the opening argument, the claimant’s attorney stated that the claimant was claiming disability beginning (day after the date of injury), through March 31, 2021. The ALJ asked the parties if they agreed to amend the disability issue to reflect the period of (day after the date of injury), through March 31, 2021, and both parties stated that they agreed to amend the disputed period of disability. The ALJ stated on the record that the disability issue would be amended as agreed to by the parties. However, the ALJ failed to amend the disability issue in the Decision and Order. The claimant appealed the ALJ’s determination that she did not have disability from (date of injury), through the date of the CCH.

The ALJ failed to modify the disability issue as agreed to by the parties. Accordingly, we reform the ALJ’s decision to reflect that the only period of disability at issue before the ALJ was (day after the date of injury), through March 31, 2021. We reverse that portion of the ALJ’s determination that the claimant did not have disability on (date of injury), and from April 1, 2021, through the date of the CCH as exceeding the scope of the amended issue before him. We strike that portion of the ALJ’s determination that the claimant did not have disability on (date of injury), and from April 1, 2021, through the date of the CCH. That portion of the ALJ’s determination that the claimant did not have disability from (day after the date of injury), through March 31, 2021, is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the ALJ’s determination that the claimant did not sustain a compensable mental trauma injury on (date of injury).

We affirm that portion of the ALJ’s determination that the claimant did not have disability from (day after the date of injury), through March 31, 2021.

We reverse that portion of the ALJ’s determination that the claimant did not have disability on (date of injury), and from April 1, 2021, through the date of the CCH, as exceeding the scope of the amended issue before him. We strike that portion of the ALJ’s determination that the claimant did not have disability on (date of injury), and from April 1, 2021, through the date of the CCH.

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

NAME
ADDRESS
CITY, TEXAS ZIP CODE.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 12, 2021, with the record closing on May 18, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the appellant (claimant) did not sustain a compensable injury in the form of an occupational disease with a date of injury of (date of injury). The claimant appealed, disputing the ALJ’s determination that he did not sustain a compensable injury. The respondent (self-insured) responded, urging affirmance.

DECISION

Reversed and remanded.

The claimant worked as a senior patrol officer for (county) County. The claimant testified that on (date of injury), he was dispatched to respond to a call regarding a death in a private residence. The claimant testified that he was notified prior to his arrival at the call that the residents of the home had tested positive for coronavirus 2019 (COVID-19). The claimant testified he spent 3 to 4 hours at the scene. The claimant traveled by airplane to (city), (state), for a short vacation on (the day after the date of injury). After experiencing a fever and body aches along with a cough, the claimant tested for COVID-19 on (two days after the date of injury), which yielded a positive result.

At issue was whether the claimant sustained a compensable injury in the form of an occupational disease on (date of injury). The parties argued at the CCH about the applicability of Section 607.054 of the Texas Government Code. Section 607.054 of the Government Code provides, in part, that a firefighter, peace officer, or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter, peace officer, or emergency medical technician. In her discussion of the evidence the ALJ correctly noted that the record contains no authoritative evidence addressing any statistical correlation between the claimant’s COVID-19 infection and his service as a peace officer. The ALJ stated that for this reason the evidence failed to raise a presumption that the claimant’s COVID-19 infection was contracted in the course and scope of his employment.

Section 401.011(34) provides that “occupational disease” means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease. Expert medical testimony is necessary to establish the cause of the claimant’s disease. See generally Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.—Texarkana 1974, writ ref'd n.r.e.), Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980). The question in this case is whether there is a causal connection between COVID-19 and the claimant’s employment as established by medical evidence.

The ALJ found that the claimant’s employment did not place him at greater risk of a COVID-19 infection than employment generally. Accordingly, the ALJ determined that the claimant did not sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury).

The claimant testified regarding Senate Bill (S.B.) 22 of the 87th Leg., R.S. (2021) at the CCH but stated he did not know if at that time it had been signed into law. S.B. 22 added a subsection (b) to Section 607.054 of the Government Code which provides this section does not apply to a claim that a firefighter, peace officer, or emergency medical technician suffers from severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or COVID-19.

S.B. 22 provided an additional section to specifically cover SARS-CoV-2 and COVID-19 for detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians. Section 607.0545(a) of the Government Code provides, in pertinent part, that a peace officer who suffers from COVID-19 that results in death or total or partial disability is presumed to have contracted the virus or disease during the course and scope of employment as a peace officer if the peace officer is: (1) employed in the area designated in a disaster declaration by the governor under Section 418.014 of the Government Code or another law and the disaster is related to COVID-19; and (2) contracts the disease during the disaster declared by the governor described above. On March 13, 2020, the governor declared a state of disaster in Texas due to COVID-19.

Section 607.0545(b) of the Government Code provides, in pertinent part, the presumption only applies to specified persons including a peace officer employed on a full-time basis who is diagnosed with COVID-19 using a test authorized, approved, or licensed by the United States Food and Drug Administration. See Section 607.0545(b)(1) and (2)(A) of the Government Code. Section 607.0545(b)(3) of the Government Code further provides, in pertinent part, that the presumption only applies to a peace officer who was last on duty not more than 15 days before the date the person is diagnosed with COVID-19 using a test described by Section 607.0545(b)(2)(A) of the Government Code.

Section 607.058(a) of the Government Code provides, in part, that the presumption established in Section 607.0545 of the Government Code is rebuttable. Section 607.058(b) of the Government Code provides, in pertinent part, that any rebuttal offered must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual’s service as a peace officer was a substantial factor in bringing about the individual’s disease or illness without which the disease or illness would not have occurred.

Section 607.058(c) of the Government Code provides, in pertinent part, that an ALJ in addressing an argument based on a rebuttal must make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the individual’s service as a peace officer was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred. Section 607.058(d) provides, in pertinent part, that a rebuttal to a presumption under Section 607.0545 of the Government Code may not be based solely on evidence relating to the risk of exposure to COVID-19 of a person with whom a peace officer resides.

S.B. 22 provides that a person subject to Section 607.0545 of the Government Code who on or after the date the governor declared a disaster under Chapter 418 of the Government Code relating to COVID-19 but before the effective date of S.B. 22 may file a claim for benefits related to COVID-19 on or after the effective date of S.B. 22 regardless of whether the claim is otherwise considered untimely and the changes in law made by S.B. 22 apply to that claim.

The ALJ correctly determined that the presumption set forth in Section 607.054 of the Government Code did not apply. However, S.B. 22 makes clear that the presumption set forth in Section. 607.0545 of the Government Code applies to claims, like the one in the instant case, that were pending at the time the law went into effect. See Appeals Panel Decision (APD) 211026-s, decided August 20, 2021. S.B. 22 became effective on June 14, 2021, a date after the CCH was held in this case and a decision was issued. However, because this claim was pending at the time S.B. 22 went into effect, we reverse the ALJ’s determination that the claimant did not sustain a compensable injury in the form of an occupational disease with a date of injury of (date of injury), and remand this case back to the ALJ. On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of 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 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 Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

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

NAME
ADDRESS
CITY, TEXAS ZIP CODE.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 25, 2021, and May 24, 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 decedent, (claimant), did sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death; (2) the respondent (claimant beneficiary) is a proper legal beneficiary of the decedent, thus the claimant beneficiary is entitled to death benefits; and (3) the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86. The appellant (self-insured) appealed, disputing the ALJ’s determinations. The claimant beneficiary responded, urging affirmance of the disputed determinations.

DECISION

Reversed and remanded.

The evidence reflected that the decedent had been employed with the self-insured for 27 years and worked as a deputy sheriff detention officer in the Annex building of the (county) County Jail. The claimant beneficiary testified that the decedent began to have a dry cough and was tested for coronavirus 2019 (COVID-19) on (date of injury). The decedent’s condition rapidly deteriorated and he passed away at his house on the morning of April 30, 2020. The COVID-19 test yielded a positive result. Additionally, an autopsy report in evidence dated April 30, 2020, concluded that the decedent died as a result of complications of COVID-19, with hypertension and cardiomegaly contributing.

At issue was whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death. The ALJ reconvened the hearing on May 24, 2021, in order to take evidence and testimony regarding the applicability of Section 607.054 of the Texas Government Code. The self-insured argued in its appeal that the admission of new evidence and testimony at the May 24, 2021, CCH was improper. Rulings on evidentiary matters are reviewed under an abuse-of-discretion standard and the Appeals Panel will not disturb the ALJ’s ruling on a continuance absent an abuse of discretion.  Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.—San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the ALJ acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).  Considering the facts of this case, we find no abuse of discretion in the ALJ’s reconvening the hearing and admission of evidence.

COMPENSABILITY

Section 401.011(34) provides that “occupational disease” means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease. Expert medical testimony is necessary to establish the cause of the disease. See generally Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.—Texarkana 1974, writ ref'd n.r.e.), Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980).  The question in this case is whether there is a causal connection between COVID-19 and the decedent’s employment as established by medical evidence. 

Section 607.054 of the Government Code provides, in part, that a firefighter, peace officer, or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter, peace officer, or emergency medical technician. In her discussion of the evidence the ALJ stated that the claimant beneficiary satisfactorily met the requirements of Section 607.054 of the Government Code by proving that COVID-19 is a disease or illness of the lungs or respiratory tract and proving that there is a statistically positive correlation between COVID-19 and the decedent’s employment. We disagree. Although the articles in evidence discuss a prevalence of COVID-19 in police officers, the evidence in the record is insufficient to prove a statistically positive correlation between the decedent’s COVID-19 infection and his service as a detention officer. In addition, Senate Bill (S.B.) 22 of the 87th Leg., R.S. (2021) added a subsection (b) to Section 607.054 of the Government Code which provides this section does not apply to a claim that a firefighter, peace officer, or emergency medical technician suffers from severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or COVID-19.

S.B. 22 provided an additional section to specifically cover SARS-CoV-2 and COVID-19 for detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians. Section 607.0545(a) of the Government Code provides, in pertinent part, that a detention officer who suffers from COVID-19 that results in death or total or partial disability is presumed to have contracted the virus or disease during the course and scope of employment as a detention officer if the detention officer is: (1) employed in the area designated in a disaster declaration by the governor under Section 418.014 of the Government Code or another law and the disaster is related to COVID-19; and (2) contracts the disease during the disaster declared by the governor described above. On March 13, 2020, the governor declared a state of disaster in Texas due to COVID-19.

Section 607.0545(b) of the Government Code provides, in pertinent part, the presumption only applies to specified persons including a detention officer employed on a full-time basis who is diagnosed with COVID-19 using a test authorized, approved, or licensed by the United States Food and Drug Administration. See Section 607.0545(b)(1) and (2)(A) of the Government Code. Section 607.0545(b)(2)(B) of the Government Code reflects that the presumption would apply to a deceased person who is diagnosed by a test authorized, approved, or licensed by the United States Food and Drug Administration (Section 607.0545(b)(2)(A) of the Government Code) or by another means, including by a physician. Section 607.0545(b)(3)(B)(iv) of the Government Code further provides, in pertinent part, that the presumption only applies to a detention officer who was last on duty not more than 15 days before the person died if COVID-19 was a contributing factor in the person’s death.

Section 607.058(a) of the Government Code provides, in part, that the presumption established in Section 607.0545 of the Government Code is rebuttable. Section 607.058(b) of the Government Code provides, in pertinent part, that any rebuttal offered must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual’s service as a detention officer was a substantial factor in bringing about the individual’s disease or illness without which the disease or illness would not have occurred.

Section 607.058(c) of the Government Code provides, in pertinent part, that an ALJ in addressing an argument based on a rebuttal shall make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the individual’s service as a detention officer was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred. Section 607.058(d) of the Government Code provides, in pertinent part, that a rebuttal to a presumption under Section 607.0545 of the Government Code may not be based solely on evidence relating to the risk of exposure to COVID-19 of a person with whom a detention officer resides.

S.B. 22 provides that a person subject to Section 607.0545 of the Government Code who on or after the date the governor declared a disaster under Chapter 418 of the Government Code relating to COVID-19 but before the effective date of S.B. 22, contracted COVID-19, may file a claim for benefits related to COVID-19 on or after the effective date of S.B. 22 regardless of whether the claim is otherwise considered untimely and the changes in law made by S.B. 22 apply to that claim.

The ALJ in this case incorrectly determined that the presumption set forth in Section 607.054 of the Government Code applied to this claim. However, S.B. 22 makes clear that the presumption set forth in Section 607.0545 of the Government Code applies to claims, like the one in the instant case, that were pending at the time the law went into effect. S.B. 22 became effective on June 14, 2021, a date after the CCH was held and a decision was issued in this case. Because this claim was pending at the time S.B. 22 went into effect, we reverse the ALJ’s determination that the decedent did sustain a compensable injury in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death, and we remand this issue back to the ALJ for further action consistent with this decision.

On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death.

PROPER LEGAL BENEFICIARY AND DEATH BENEFITS

As we have reversed and remanded the compensability issue in this case, we also reverse the ALJ’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent, thus entitling her to death benefits, and we remand this issue back to the ALJ for further action consistent with this decision.

BURIAL BENEFITS

As we have reversed and remanded the compensability issue in this case, we also reverse the ALJ’s determination that the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86, and we remand the issue of burial benefits back to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the decedent did sustain a compensable injury in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death, and we remand this issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent, thus entitling her to death benefits, and we remand this issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86, and we remand the issue of burial benefits back to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death. The ALJ is then to make determinations regarding the issues of whether the claimant beneficiary is a proper legal beneficiary entitling her to death benefits and whether the claimant beneficiary is entitled to reimbursement for burial benefits.

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 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 (COUNTY) COUNTY (a self-insured governmental entity) and the name and address of its registered agent for service of process is

COUNTY JUDGE NELSON WOLFF
101 W. NUEVA, 10TH FLOOR
SAN ANTONIO, TEXAS 78205.

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 September 29, 2020, with the record closing on May 17, 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), extends to a lumbar sprain, right knee strain, lumbago, left knee grade II chondromalacia of the medial tibial plateau, left knee grade IV chondromalacia of the trochlea, left knee grade II lateral meniscus tear, and right knee oblique flap tear of the posterior horn of the medial meniscus; (2) the compensable injury of (date of injury), does not extend to L3-4 degenerative disc disease, L4-5 degenerative disc disease, L3-4 right lumbosacral radiculopathy, acquired spondylolisthesis, or right ankle contusion; (3) the appellant (claimant) reached maximum medical improvement (MMI) on January 8, 2019; and (4) the claimant’s impairment rating (IR) is 13%.

The claimant appealed, disputing that portion of the ALJ’s extent-of-injury determination that was adverse to him, as well as the ALJ’s MMI and IR determinations. The respondent (carrier) responded, urging affirmance of the appealed determinations. The ALJ’s determination that the compensable injury of (date of injury), extends to a lumbar sprain, right knee strain, lumbago, left knee grade II chondromalacia of the medial tibial plateau, left knee grade IV chondromalacia of the trochlea, left knee grade II lateral meniscus tear, and right knee oblique flap tear of the posterior horn of the medial meniscus was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), which extends to a left knee strain and left knee medial meniscus tear, and the statutory date of MMI is June 8, 2019. The claimant testified he was injured on (date of injury), while loading a forklift onto a truck. The claimant was tightening chains to secure the forklift and fell off the truck, landing on the ground.

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

That portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to L3-4 degenerative disc disease, L4-5 degenerative disc disease, L3-4 right lumbosacral radiculopathy, acquired spondylolisthesis, or right ankle contusion is supported by sufficient evidence and is affirmed.

The parties agreed at the CCH that the extent-of-injury conditions at issue were the following: left knee grade II chondromalacia of medial femoral condyle, left knee grade IV chondromalacia of trochlea, left knee grade II chondromalacia of medial tibia plateau, left knee lateral meniscus tear[1], right knee oblique flap tear of the posterior horn of the medial meniscus, lumbago, acquired spondylolisthesis, L3-4 right lumbosacral radiculopathy, L3-4 degenerative disc disease, L4-5 degenerative disc disease, lumbar sprain, right knee strain, and a right ankle contusion. The ALJ resolved all of the disputed conditions with the exception of left knee grade II chondromalacia of medial femoral condyle.

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. The decision and order in this case does not contain any findings of fact, conclusions of law, or a decision regarding left knee grade II chondromalacia of medial femoral condyle, a condition which was certified in this case and 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; and APD 210332, decided May 3, 2021. Accordingly, we reverse the ALJ’s extent-of-injury determination as incomplete, and we remand the issue of whether the compensable injury of (date of injury), extends to left knee grade II chondromalacia of medial femoral condyle to the ALJ for further action consistent with this decision.  

MMI/IR

Because we have reversed and remanded a portion of the ALJ’s extent-of-injury determination, we also reverse the ALJ’s determination that the claimant reached MMI on January 8, 2019, and that the claimant’s IR is 13%. We note the ALJ based her MMI and IR determinations on the report of (Dr. K), the post-designated doctor required medical examination doctor. However, Dr. K opined that the claimant reached MMI on June 8, 2019, not January 8, 2019. We remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We affirm that portion of the ALJ’s determination that the compensable injury of (date of injury), does not extend to L3-4 degenerative disc disease, L4-5 degenerative disc disease, L3-4 right lumbosacral radiculopathy, acquired spondylolisthesis, or right ankle contusion.

We reverse the ALJ’s extent-of-injury determination as incomplete, and we remand the issue of whether the compensable injury of (date of injury), extends to left knee grade II chondromalacia of medial femoral condyle to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant reached MMI on January 8, 2019, 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 13%, 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 compensable injury of (date of injury), extends to left knee grade II chondromalacia of medial femoral condyle that is consistent and supported by the evidence. The ALJ is then to determine when the claimant reached MMI and the claimant’s IR based on the entire 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 Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

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

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note the parties agreed that one of the extent-of-injury conditions at issue was a left knee lateral meniscus tear. However, the ALJ determined the compensable injury extended to a left knee grade II lateral meniscus tear. This determination was not appealed and has become final pursuant to Section 410.169. ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 24, 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 sustained on (date of injury), does not extend to a left foot sprain/strain, bilateral shoulder rotator cuff tears, left knee medial meniscus tear, or left knee internal derangement; (2) the appellant (claimant) reached maximum medical improvement (MMI) on September 17, 2019; and (3) the claimant’s impairment rating (IR) is nine 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 determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the carrier has accepted an (date of injury), compensable injury in the nature of a right knee sprain/strain, right rib contusion, right elbow sprain/strain, right wrist sprain/strain, right hand sprain/strain, right shoulder sprain/strain, lumbar sprain/strain, left hand sprain/strain, left wrist sprain/strain, left shoulder sprain/strain, and left knee sprain/strain; (Dr. M) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor to address the issues of extent of injury, MMI, and IR; and the date of statutory MMI is May 19, 2020. The claimant testified that she was injured on (date of injury), when she fell on uneven pavement while sweeping. We note that in several places in the decision and order the ALJ inadvertently referred to a medical meniscus tear rather than a medial meniscus tear.

The ALJ’s decision states that carrier’s exhibits A through K were admitted into evidence. The carrier’s exhibit list states that carrier’s exhibit H contains 6 pages; however, the file forwarded to us for review contains only 4 pages. Additionally, the carrier’s exhibit list states that carrier’s exhibit I contains 73 pages; however, the file forwarded to us for review contains only 71 pages.  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.   

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 XL INSURANCE AMERICA, INC. and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on January 14, 2021, with the record closing on April 29, 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), extends to a lumbar spine strain, right shoulder sprain, and left shoulder sprain; (2) the compensable injury of (date of injury), does not extend to right shoulder impingement syndrome or tear of right supraspinatus tendon; (3) the appellant (claimant) reached maximum medical improvement (MMI) on March 18, 2019; (4) the claimant’s impairment rating (IR) is 6%; (5) the claimant did not have disability from March 28, 2019, through August 13, 2020; and (6) the claimant did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, so the claimant is not entitled to temporary income benefits (TIBs) from March 28, 2019, through August 13, 2020.

The claimant appealed the ALJ’s extent-of-injury determination that was adverse to him, as well as the ALJ’s MMI, IR, and disability determinations. The claimant also appealed the ALJ’s determination that he did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, and is not entitled to TIBs from March 28, 2019, through August 13, 2020. The respondent (carrier) responded, urging affirmance of the appealed determinations. The ALJ’s determination that the compensable injury of (date of injury), extends to a lumbar spine strain, right shoulder sprain, and left shoulder sprain was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the carrier has accepted bilateral shoulder strains as the compensable injury; the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. A) as designated doctor for purposes of extent of injury, MMI, IR, disability, and return to work; and the statutory MMI date is December 25, 2020. The claimant testified he was injured on (date of injury), while lifting a basket weighing between 50 and 70 pounds from one rack to a higher rack.

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 right shoulder impingement syndrome or tear of right supraspinatus tendon is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from March 28, 2019, through August 13, 2020, is supported by sufficient evidence and is affirmed.

FAILURE TO SUBMIT TO DESIGNATED DOCTOR’S EXAMINATION

The ALJ’s determination that the claimant did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, and the claimant is not entitled to TIBs from March 28, 2019, through August 13, 2020, is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on March 18, 2019, is supported by sufficient evidence and is affirmed.

IR

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 that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.  

The ALJ found the preponderance of the other medical evidence is contrary to the certification of Dr. A, the designated doctor. This finding is supported by the evidence, which is further discussed below. The ALJ then found the evidence supported the certification of (Dr. L), the post-designated doctor required medical examination doctor, and determined that the claimant’s IR is 6% based on Dr. L’s certification.

Dr. L initially examined the claimant on November 10, 2020, and issued alternate certifications. In one of his certifications Dr. L opined that the claimant had not reached MMI but was expected to do so February 10, 2021, based upon a left shoulder strain/sprain, right shoulder strain/sprain, lumbar strain, right shoulder impingement syndrome, and tear of the right supraspinatus tendon. In his other certification Dr. L certified the claimant reached MMI on March 18, 2019, with a 6% IR based on a left shoulder strain and right shoulder strain. We note that neither of these certifications considers and rates the entire compensable injury in this case, which is bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain.

Dr. L then examined the claimant on April 7, 2021, and again certified the claimant reached MMI on March 18, 2019, with a 6% IR. Dr. L based this certification on bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain. We note that although Dr. L acknowledged the compensable injury included a lumbar spine strain, he did not specifically discuss an IR for that condition. It is this certification that was adopted by the ALJ.

Dr. L stated in his report that he used the range of motion (ROM) measurements from Dr. A’s August 13, 2020, examination to determine the IR because “this was the first evaluation that documented the bilateral shoulder planes of motion,” and assessed the same IR as Dr. A.  We note that Dr. A’s August 13, 2020, report contains two sets of ROM measurements for the right shoulder, one for “TODAY(’s)” date of August 13, 2020, and the second for December 3, 2018. Dr. A’s report contains one set of ROM measurements for the claimant’s left shoulder with no date specified. Dr. A stated in his report that the claimant’s right shoulder examination “was limited due to recent surgery” and his right shoulder movement was “severely restricted,” and we note those ROM measurements do not correspond with the impairments Dr. A assessed for the right shoulder. Dr. A did not identify in his report where the December 3, 2018, ROM measurements were taken.

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 assigned a 6% IR based on the bilateral shoulder ROM measurements noted in Dr. A’s examination by combining 2% whole person impairment (WPI) for the left shoulder with 4% WPI for the right shoulder. Specifically, Dr. L used Figure 38 on page 3/43, Figure 41 on page 3/44, Figure 44 on page 3/45, and Table 3 on page 3/20 of the AMA Guides.

Using Dr. A’s ROM measurements listed for the right shoulder, Dr. L assigned 2% upper extremity (UE) impairment for flexion; 1% UE impairment for extension; 1% UE impairment for abduction; and 2% UE impairment for internal rotation. We note the ROM measurements listed in Dr. A’s and Dr. L’s reports for right shoulder adduction and external rotation both result in 0% impairment. Dr. L stated that these figures add to “7% (UE) impairment,” which, using Table 3 on page 3/20, “converts to a 4% WPI rating.”  Adding the impairments for right shoulder flexion, extension, abduction, and internal rotation results in 6% UE impairment, not 7%. We note Dr. A’s report contains this same error. However, Table 3 provides that both 6% UE impairment and 7% UE impairment convert to 4% WPI.

Using Dr. A’s ROM measurements listed for the claimant’s left shoulder, Dr. L assigned 2% UE impairment for flexion and 2% UE impairment for adduction.[1] Dr. L noted the remaining left shoulder planes “were full.” Dr. L stated these impairments add to 4% UE impairment, which converts to 2% WPI.  Dr. A’s August 13, 2020, report lists the claimant’s left shoulder ROM as 65° of internal rotation, for which both he and Dr. L assessed 0% impairment. However, Figure 44 on page 3/45 of the AMA Guides provides that 65° of internal rotation results in either 2% UE impairment or 1% UE impairment depending on how 65° internal rotation is rounded, not 0% UE impairment.  

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 Appeals Panel Decision (APD) 171766, decided September 7, 2017; APD 152464, decided February 17, 2016; 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.  Because there are questions regarding how to round the ROM measurements, which require medical judgment, a mathematical correction would not be appropriate in this case.  Dr. L’s IR cannot be adopted.  

There are numerous other certifications in evidence. As discussed above, Dr. L initially examined the claimant on November 10, 2020, and issued alternate certifications. In one of his certifications Dr. L opined that the claimant had not reached MMI but was expected to do so February 10, 2021. Given that we have affirmed the ALJ’s determination that the claimant reached MMI on March 18, 2019, this certification cannot be adopted. In his other certification Dr. L certified the claimant reached MMI on March 18, 2019, with a 6% IR based on a left shoulder strain and right shoulder strain. However, because this IR contains the same error as explained above, and because this IR does not consider and rate the compensable injury of bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain, this IR cannot be adopted.

The other certifications in evidence are from Dr. A, the designated doctor. Dr. A initially examined the claimant on August 13, 2020, and issued three certifications. In the first certification Dr. A certified the claimant reached MMI on March 28, 2019, with a 6% IR. We note Dr. A’s 6% IR contains the same error as discussed above for Dr. L’s 6% IR. In the second and third certifications Dr. A opined the claimant had not reached MMI but was expected to do so on December 15, 2020, based on various disputed conditions. Because we have affirmed the ALJ’s determination that the claimant reached MMI on March 18, 2019, these certifications cannot be adopted.

Dr. A also examined the claimant on January 7, 2021, and again issued three certifications. In all three of these certifications Dr. A certified the claimant reached MMI on December 25, 2020, with a 20% IR based on various accepted and disputed conditions. Dr. A also provided three additional certifications in response to a letter of clarification sent to him by the ALJ on January 28, 2021, all of which certified the claimant reached MMI on December 25, 2020, with a 15% IR. Because these certifications are not based on the affirmed MMI date of March 18, 2019, they cannot be adopted.

There is no IR in evidence that can be adopted. Therefore, we reverse the ALJ’s determination that the claimant’s IR is 6%, and we remand the issue of the claimant’s 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 right shoulder impingement syndrome or tear of right supraspinatus tendon.

We affirm the ALJ’s determination that the claimant did not have disability from March 28, 2019, through August 13, 2020.

We affirm the ALJ’s determination that the claimant did not have good cause for failing to submit to the designated doctor’s examination on March 28, 2019, and April 18, 2019, and the claimant is not entitled to TIBs from March 28, 2019, through August 13, 2020.

We affirm the ALJ’s determination that the claimant reached MMI on March 18, 2019.

We reverse the ALJ’s determination that the claimant’s IR is 6%, and we remand the issue of the claimant’s IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. A is the designated doctor in this case. On remand the ALJ is to determine whether Dr. A is still qualified and available to be the designated doctor.  If Dr. A is still qualified and available to be the designated doctor, the ALJ is to inform Dr. A that the compensable injury in this case is bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain and that the date of MMI is March 18, 2019. The ALJ is to notify Dr. A of his error in calculating 7% UE impairment for the claimant’s right shoulder, and in calculating 0% impairment for 65° of internal rotation for the claimant’s left shoulder. As previously noted, Dr. A’s August 13, 2020, report contains two sets of ROM measurements for the claimant’s right shoulder with different dates. The ALJ is to ask Dr. A to clarify which ROM measurements he is using to assess the claimant’s IR, the date those measurements were taken, and where those measurements were obtained. The ALJ is to request Dr. A to rate the entire compensable injury as of the MMI date of March 18, 2019, considering the medical records, the certifying examination, and rating criteria in the AMA Guides.

If Dr. A is no longer qualified or available, then another designated doctor is to be appointed to determine the claimant’s IR.  The ALJ is to inform the designated doctor that the compensable injury in this case is bilateral shoulder strains, bilateral shoulder sprains, and a lumbar spine strain and that the date of MMI is March 18, 2019.  The ALJ is to request the designated doctor to rate the entire compensable injury in accordance with Rule 130.1(c)(3) based on the claimant’s condition as of the MMI date of March 18, 2019, considering the medical records, the certifying examination, and rating criteria in the AMA Guides.  

The parties are to be provided with the ALJ’s letter of clarification to Dr. A or Presiding Officer’s Directive to Order Designated Doctor Examination if another designated doctor is assigned, as well as the designated doctor’s report.  The ALJ is to give the parties an opportunity to respond prior to closing the record and issuing a 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 AMERICAN ZURICH INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that Dr. A states in his report he assigned 2% UE impairment for abduction, not adduction as specified by Dr. L.  Dr. A assigned 0% UE impairment for adduction.  We view Dr. L’s use of adduction versus abduction as a typographical error.  ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 5, 2021, with the record closing on May 11, 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 sustained on (date of injury), does not extend to depression, anxiety, mental anguish, stress, somatic symptom disorder, intervertebral disc disorder of the lumbar region, lumbar strain, or lumbar radiculopathy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on July 24, 2018; (3) the claimant’s impairment rating (IR) is 5%; and (4) the claimant did not have disability from June 1, 2019, to January 22, 2020.  The claimant appealed, disputing the ALJ’s determinations of extent of injury, MMI, IR, and disability. The respondent (self-insured) responded, urging affirmance of the disputed determinations.  

DECISION

Affirmed, in part, and reversed and remanded, in part.

The parties stipulated, in part, that: the claimant sustained a compensable injury on (date of injury); the compensable injury extends to a lumbar sprain; and (Dr. C) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor to address MMI and IR. The claimant testified that she was injured when carrying out bags of trash.

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 depression, anxiety, mental anguish, stress, somatic symptom disorder, intervertebral disc disorder of the lumbar region, lumbar strain, or lumbar radiculopathy is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant did not have disability from June 1, 2019, to January 22, 2020, resulting from the compensable injury of (date of injury), is supported by sufficient evidence and is affirmed.

MMI/IR

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

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

The ALJ found that the preponderance of the other medical evidence is contrary to the certification of MMI and assigned IR from Dr. C, the designated doctor. The ALJ adopted the certification of MMI and assigned IR from (Dr. D), a carrier-selected required medical examination doctor. Dr. D examined the claimant on February 5, 2021. Dr. D provided two alternate certifications. In the first certification, Dr. D certified that the claimant reached MMI on July 24, 2018, with a 5% 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. D placed the claimant in Lumbosacral Diagnosis-Related Estimate (DRE) Category II: Minor Impairment. In his narrative report, Dr. D specifically states that he is assessing impairment for a lumbar strain. As previously noted, the ALJ determined that the claimant’s compensable injury does not extend to a lumbar strain. That determination has been affirmed. Dr. D specifically rated a condition the ALJ determined was not part of the compensable injury of (date of injury). Accordingly, we reverse the ALJ’s determination that the claimant reached MMI on July 24, 2018, and that the claimant’s IR is 5%.

Dr. D provided an alternate certification in which he certified that the claimant reached MMI on January 15, 2020, and assessed an IR of 5%. The alternate certification considered and rated a lumbar strain, lumbar radiculopathy, and an L3-4 and L4-5 laminectomy and discectomy. The parties stipulated that the compensable injury of (date of injury), includes a lumbar sprain. The ALJ’s determination that the compensable injury of (date of injury), does not extend to a lumbar strain or lumbar radiculopathy has been affirmed. Dr. D’s alternate certification does not rate the compensable injury and rates conditions that have been determined are not part of the compensable injury. Accordingly, Dr. D’s alternate certification cannot be adopted.

There are two certifications from (Dr. V), a referral doctor acting in place of the treating doctor. Dr. V examined the claimant on November 18, 2020. In the first certification, Dr. V certified that the claimant reached MMI on January 15, 2020, with a 10% IR using the AMA Guides, placing the claimant in Lumbosacral DRE Category III: Radiculopathy. Dr. V considered and rated intervertebral disc disorder with radiculopathy, lumbar region. As previously noted, the ALJ determined that the compensable injury of (date of injury), did not extend to intervertebral disc disorder of the lumbar region or lumbar radiculopathy. Accordingly, the first certification from Dr. V cannot be adopted.

Dr. V provided an alternate certification based on his examination of November 18, 2020. In the alternate certification, Dr. V certified that the claimant reached MMI on January 15, 2020, with a 19% IR. Dr. V considered and rated intervertebral disc disorder with radiculopathy, lumbar region and somatic symptom disorder. As previously noted, the ALJ determined that the compensable injury of (date of injury), does not extend to intervertebral disc disorder of the lumbar region, lumbar radiculopathy, or somatic symptom disorder. Accordingly, the alternate certification from Dr. V cannot be adopted.

Dr. C, the designated doctor, examined the claimant on September 1, 2020, and certified that the claimant reached MMI on January 15, 2020, with a 10% IR using the AMA Guides, placing the claimant in Lumbosacral DRE Category III: Radiculopathy. Dr. C considered and rated a lumbar sprain, lumbar radiculopathy, and “lumbar post laminectomy.” As previously noted, the ALJ’s determination that the compensable injury of (date of injury), does not extend to lumbar radiculopathy has been affirmed. Accordingly, the certification from Dr. C cannot be adopted.

On March 24, 2021, a letter of clarification (LOC) was sent to Dr. C which noted that the correct date of statutory MMI was January 22, 2020, rather than January 15, 2020, and requested a certification of MMI/IR that considered only the lumbar sprain. On April 6, 2021, Dr. C responded to the LOC. Dr. C provided two certifications: one considering a lumbar sprain and a second certification that considered the same conditions as his previous certification: lumbar sprain, lumbar radiculopathy, and “lumbar post laminectomy.” In both certifications, Dr. C certified that the claimant reached MMI on January 22, 2020, the statutory date of MMI, and assessed a 10% IR. Dr. C placed the claimant in Lumbosacral DRE Category III: Radiculopathy, noting that the claimant’s history and exam findings after the statutory MMI date, indicates a lumbar radiculopathy.

However, as noted above the ALJ’s determination that the compensable injury does not extend to lumbar radiculopathy was affirmed.  Under the facts of this case, the certification of MMI/IR includes a condition that has specifically been determined to not be part of the compensable injury.  Accordingly, Dr. C’s certification of MMI/IR cannot be adopted. See Appeals Panel Decision (APD) 132028, decided October 14, 2013.

There are no other certifications of MMI/IR in evidence. Accordingly, 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 depression, anxiety, mental anguish, stress, somatic symptom disorder, intervertebral disc disorder of the lumbar region, lumbar strain, or lumbar radiculopathy.

We affirm the ALJ’s determination that the claimant did not have disability from June 1, 2019, to January 22, 2020, resulting from the compensable injury of (date of injury).

We reverse the ALJ’s determination that the claimant reached MMI on July 24, 2018, and 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 5% and remand the issue of IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. C is the designated doctor in this case. On remand, the ALJ is to determine whether Dr. C is still qualified and available to be the designated doctor.  If Dr. C is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to opine on the issues of MMI and IR for the (date of injury), compensable injury.      

On remand the ALJ is to inform the designated doctor that the compensable injury of (date of injury), extends to a lumbar sprain but does not extend to depression, anxiety, mental anguish, stress, somatic symptom disorder, intervertebral disc disorder of the lumbar region, lumbar strain, or lumbar radiculopathy and that the date of statutory MMI is January 22, 2020.  The ALJ is then to request that the designated doctor rate the entire compensable injury, considering the claimant’s medical record and the certifying examination and in accordance with Rule 130.1(c)(3).  

The parties are to be provided with the ALJ’s letter to the designated doctor, the designated doctor’s response, and are to be allowed an opportunity to respond.  If another designated doctor is appointed, the parties are to be provided with the Presiding Officer’s Directive to Order Designated Doctor Examination, the designated doctor’s report, and are to be allowed an opportunity to respond.  The ALJ is to make determinations on the MMI and IR issues which are 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 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 (insurance name) (a self-insured governmental entity) and the name and address of its registered agent for service of process is

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

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 24, 2021, with the record closing on March 30, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the compensable injury of (date of injury), does not extend to neuropathy of the left upper extremity (UE); (2) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. M) on February 10, 2018, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (3) the respondent/cross-appellant (claimant) reached MMI on November 13, 2017; (4) the claimant’s IR is 8%; and (5) the claimant had disability resulting from the compensable injury sustained on (date of injury), from November 14, 2017, and continuing to April 12, 2018. The appellant/cross-respondent (carrier) appeals the ALJ’s determination of finality. The claimant responded to the carrier’s appeal, urging affirmance of the ALJ’s determination of finality. The claimant cross-appealed the ALJ’s determinations of extent of injury, MMI, IR, and disability. The carrier responded to the claimant’s cross-appeal, urging affirmance of the ALJ’s determinations of extent of injury, MMI, and IR.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury; (2) the compensable injury of (date of injury), extends to a laceration of the extensor muscle, fascia, and tendon of the left thumb; (3) Dr. M was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor to address MMI and IR; (4) the designated doctor, Dr. M, evaluated the claimant and certified that the claimant reached MMI on November 13, 2017, with an IR of 8%; and (5) the claimant reached statutory MMI on April 12, 2018. The evidence reflected that the claimant was injured on (date of injury), when he was using a cutting tool and it lacerated his left thumb.  

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 neuropathy of the left UE is supported by sufficient evidence and is affirmed.

FINALITY

The ALJ’s determination that the first certification of MMI and assigned IR from Dr. M on February 10, 2018, did not become final under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that the claimant had disability resulting from the compensable injury sustained on (date of injury), from November 14, 2017, and continuing to April 12, 2018, is supported by sufficient evidence and is affirmed.

MMI

The ALJ’s determination that the claimant reached MMI on November 13, 2017, is supported by sufficient evidence and is affirmed.

IR

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. Rule 130.1(c)(3) provides, in part, that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.  

The ALJ determined that the claimant reached MMI on November 13, 2017, with an 8% IR in accordance with the certification of Dr. M, the designated doctor. The record indicates that the designated doctor examined the claimant on February 10, 2018, and assigned the 8% IR based on the compensable condition of a laceration of the extensor muscle, fascia, and tendon of the left thumb 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. M assessed 21% digit impairment for the claimant’s left thumb based on the following range of motion (ROM) measurements: IP flexion 50° (2% impairment); IP extension 20° (0% impairment); MP flexion 35° (2% impairment); MP extension 10° (0% impairment); radial abduction angle 40° (0% impairment); adduction of 4 centimeters (4% impairment); and opposition of 3 centimeters (13% impairment).  Dr. M then added these for a 21% digit impairment. However, we note that Table 6 on page 3/28 of the AMA Guides indicates that 40° of radial abduction results in 1% impairment, not 0% as calculated by Dr. M. Therefore, the total digit impairment is 22%, not 21% as indicated by Dr. M.

Dr. M further assessed 25% impairment for the claimant’s left thumb sensory loss. He then combined the 25% for sensory loss with the 21% digit impairment for a total 41% digit impairment. Converting the digit impairment to hand impairment results in 16% hand impairment. Dr. M then converted the 16% hand impairment to 14% UE impairment which results in a total whole person impairment (WPI) of 8%.

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 Appeals Panel Decision (APD) 171766, decided September 7, 2017; APD 172488, decided December 18, 2017; APD 152464, decided February 17, 2016; 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.

In this case, Dr. M mistakenly indicated that 40° of radial abduction in the thumb results in 0% impairment, instead of 1% impairment, as shown in Table 6, page 3/28 of the AMA Guides, to arrive at the WPI for the left thumb. Adding 1% impairment to Dr. M’s other thumb ROM measurements results in a 22% digit impairment for loss of motion in the left thumb. Combining the 22% impairment with 25% impairment for sensory loss results in 42% thumb impairment. Converting the 42% thumb impairment to hand impairment results in 17% hand impairment. Converting 17% hand impairment to UE impairment results in 15% UE impairment. The 15% UE impairment results in a WPI of 9%, instead of 8% as assessed by Dr. M.

The ALJ found that the preponderance of the other medical evidence is not contrary to the certification of IR by Dr. M. After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 8%, and we render a new decision that the claimant’s IR is 9% as mathematically corrected.

SUMMARY

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

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. M on February 10, 2018, did not become final under Section 408.123 and Rule 130.12.

We affirm the ALJ’s determination that the claimant had disability resulting from the compensable injury sustained on (date of injury), from November 14, 2017, and continuing to April 12, 2018.

We affirm the ALJ’s determination that the claimant reached MMI on November 13, 2017.

We reverse the ALJ’s determination that the claimant’s IR is 8%, and we render a new decision that the claimant’s IR is 9% as mathematically corrected.

The true corporate name of the insurance carrier is 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 April 7, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the respondent’s (claimant) impairment rating (IR) is 23%. The appellant (self-insured) appeals the ALJ’s determination of IR. Additionally, the self-insured contends that there may have been unauthorized persons at the CCH. The appeal file does not contain a response from the claimant.

DECISION

Reversed and rendered.

The parties stipulated, in part, that: (1) on (date of injury), the claimant sustained a compensable injury; (2) the compensable injury extends to a left shoulder sprain/strain grade 1, left hip contusion, left forearm/wrist contusion, left knee contusion, left knee sprain/strain grade 1, left ankle sprain/strain grade 1, and a lumbosacral contusion/strain grade 1; (3) (Dr. D) was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as designated doctor to determine maximum medical improvement (MMI) and IR; and (4) the claimant reached MMI on September 21, 2020. The evidence reflected that the claimant was injured when she fell while moving bags of trash. We find no merit in the self-insured’s allegation that unauthorized participants appeared to be present during the CCH and may have adversely influenced the proceedings.

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

The record indicates that the designated doctor examined the claimant on October 14, 2020, and certified that the claimant reached MMI on September 21, 2020, and assigned a 23% 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) for the compensable injury. Dr. D assessed 10% upper extremity (UE) impairment for the claimant’s left wrist based on the following range of motion (ROM) measurements: flexion 50° (2% UE impairment); extension 40° (4% UE impairment); radial deviation 10° (2% UE impairment); and ulnar deviation 20° (2% UE impairment). Dr. D further assessed 6% UE impairment for the claimant’s left shoulder based on the following ROM measurements: flexion 150° (2% UE impairment); extension 40° (1% UE impairment); abduction 140° (2% UE impairment); adduction 30° (1% UE impairment); internal rotation 80° (0% UE impairment); and external rotation 90° (0% UE impairment). Dr. D then combined 10% UE impairment for the left wrist with 6% UE impairment for the left shoulder for a total of 15% UE impairment which using Table 3, page 3/20 converts to a whole person impairment (WPI) of 9%. We note that Dr. D in the worksheet attached to his narrative report, inadvertently mixed the numerical measurements for abduction and adduction for the left shoulder. However, the chart of actual ROM measurements included in his narrative is correct and the impairment assessed for the left shoulder is in accordance with the AMA Guides based on the ROM loss measured as reflected in Dr. D’s chart.

Dr. D assessed 5% WPI for the lumbar spine, placing the claimant in Lumbosacral Diagnosis-Related Estimate (DRE) Category II.

Dr. D then assessed 6% WPI for the claimant’s left hip based on the following ROM measurements: flexion 90° (2% WPI); extension 24° (4% WPI); internal rotation 30° (0% WPI); external rotation 34° (0% WPI); abduction 38° (0% WPI); and adduction 38° (0% WPI). Dr. D assessed 4% WPI for the claimant’s left knee based on the following ROM measurement: flexion 100° (4% WPI). Dr. D then assessed 4% WPI for the claimant’s left ankle based on the following ROM measurements: using Table 42, page 3/78, plantar flexion 20° (3% WPI) and extension/dorsiflexion 32° (0% WPI); using Table 43 (hindfoot), page 3/78, inversion 16° (1% WPI) and eversion 14° (0% WPI). In his narrative, under the heading left ankle, Dr. D stated that “[t]he claimant is awarded 4% [WPI] for the left ankle.”

Dr. D then combined the 6% left hip WPI with the 4% left knee WPI for a total of 10% WPI and then combined the 10% WPI with 1% for the left ankle resulting in 11% WPI for the left lower extremity (LE). Dr. D combined the 11% WPI for the left LE with 9% WPI for the left UE resulting in 19%. Dr. D combined 19% WPI with 5% WPI for the lumbar spine for a total of 23% WPI. Dr. D mistakenly combined 1% for the left ankle, rather than the 4% impairment he awarded for the left ankle, with the 6% WPI for the left hip and 4% WPI for the left knee. 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 Appeals Panel Decision (APD) 171766, decided September 7, 2017; APD 172488, decided December 18, 2017; APD 152464, decided February 17, 2016; 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.

In this case, Dr. D correctly assessed 4% WPI for the left ankle, but mistakenly combined 1% for the left ankle with the WPI derived for the left hip and left knee to arrive at the WPI for the left LE. Combining 6% left hip WPI with the 4% left knee WPI for a total of 10% WPI and then combining the 10% WPI with 4% for the left ankle results in 14% WPI for the left LE. Combining the 14% WPI for the left LE with 9% WPI for the left UE results in 22%. Combining 22% WPI with 5% WPI for the lumbar spine results in a total of 26% WPI.

The ALJ found that the preponderance of the other medical evidence is not contrary to the certification of IR by Dr. D. After a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the ALJ’s determination that the claimant’s IR is 23% and we render a new decision that the claimant’s IR is 26% as mathematically corrected.

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

SHANAE JENNINGS
CITY SECRETARY, CITY OF IRVING
825 W. IRVING BLVD.
IRVING, TEXAS 75060.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Carisa Space-Beam
Appeals Judge

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