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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 14, 2020, 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 first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. T) on May 2, 2019, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); (2) the respondent (claimant) reached MMI on February 26, 2019; and (3) the claimant’s IR is 51%. The appellant (carrier) appealed the ALJ’s determinations. The claimant responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), in the form of a left wrist sprain/strain, right wrist sprain/strain, right elbow sprain/strain, and right shoulder sprain/strain, and that the designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine MMI and IR is Dr. T. The claimant testified she was injured on (date of injury), when a spring popped while she was wringing out a mop, which caused her to be thrown back into a vending machine and then to the ground.

ABUSE OF DISCRETION

The carrier argues on appeal that the ALJ abused his discretion in denying its request for a continuance for the claimant to attend a post-designated doctor required medical examination (RME) scheduled 3 days after the CCH.

Rulings on continuances are reviewed under an abuse-of-discretion standard and the Appeals Panel will not disturb an 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.  Appeals Panel Decision (APD) 043000, decided January 12, 2005; APD 121647, decided October 24, 2012; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The record reflects that the designated doctor examination upon which the carrier requested an RME occurred on May 2, 2019, and that the carrier requested the RME on January 20, 2020. The ALJ denied the carrier’s request for an RME on the basis of the delay between the designated doctor’s examination and the carrier’s request for an RME. Under the facts of this case we hold that the ALJ did not abuse his discretion in denying the carrier’s request for a continuance to allow a post-designated doctor RME.

The carrier also contends that the ALJ abused his discretion in making a finding of fact that states the record does not show any extent-of-injury (EOI) dispute relating to the EOI conditions determined by Dr. T to be causally related to the compensable injury. The issues in this case are finality of Dr. T’s alternate May 2, 2019, certifications, MMI, and IR. Under the facts of this case we hold that the ALJ did not abuse his discretion in making the complained-of finding of fact.

FINALITY PURSUANT TO SECTION 408.123 AND RULE 130.12

Section 408.123(e) provides that except as otherwise provided by this section, an employee’s first valid certification of MMI and the first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means.  Rule 130.12(c) provides that the certification on the Report of Medical Evaluation (DWC-69) is valid if: (1) there is an MMI date that is not prospective; (2) there is an impairment determination of either no impairment or a percentage [IR] assigned; and (3) there is the signature of the certifying doctor who is authorized by the Division under Rule 130.1(a) to make the assigned impairment determination.  Rule 130.12(a)(1-3) provide that the certifications and assignments that may become final are:  (1) the first valid certification of MMI and/or IR assigned or determination of no impairment; (2) the first valid assignment of IR after the expiration of 104 weeks from the date income benefits begin to accrue or the expiration date of any extension under Section 408.104, if the employee has not been certified as having reached MMI; or (3) the first valid subsequent certification of MMI and/or assignment of an IR or determination of no impairment received after the date a certification of MMI and/or assignment of an IR or determination of no impairment is overturned, modified, or withdrawn by agreement of the parties or by a final decision of the commission or a court.  Rule 130.12(a)(4) provides that a designated doctor may provide multiple IRs if there is a dispute over EOI.  This rule subsection also provides that whichever rating from the designated doctor applies to the compensable injury once an EOI dispute has been resolved may become final if not disputed.  See also APD 190180, decided March 28, 2019.  We note that in APD 190180, unlike the case on appeal, only one of the designated doctor’s multiple certifications based on EOI was valid for purposes of finality and therefore was the only certification subject to finality under Section 408.123 and Rule 130.12.

The evidence established that Dr. T, the designated doctor, examined the claimant on at least four occasions. The first of these examinations occurred on June 24, 2017. Dr. T was appointed by the Division to address in part whether the claimant’s injury extended to the claimant’s “left shoulder” and “left elbow,” and to determine MMI and IR. Dr. T opined that the compensable injury extended to the claimant’s “left shoulder” and “left elbow,” and certified on August 7, 2017, in alternate certifications that the claimant had not reached MMI.

The next designated doctor examination occurred on November 6, 2017, and Dr. T was appointed by the Division to determine MMI and IR. Dr. T certified on that date that the claimant had not reached MMI for the conditions of bilateral wrist sprain/strain and right shoulder sprain/strain. Dr. T next examined the claimant on October 26, 2018, and was appointed by the Division to address whether the claimant’s compensable injury extended to “aggravated foraminal stenosis,” “cervical disc displacement,” “left shoulder sprain/strain,” and “left elbow sprain/strain,” and to determine MMI and IR. Dr. T opined that the compensable injury extended to these conditions, and she certified in alternate certifications that the claimant had not reached MMI.

The last designated doctor examination occurred on May 2, 2019. Dr. T was appointed by the Division to address in part whether the claimant’s compensable injury extends to “right carpal tunnel syndrome (CTS)” and “left [CTS],” and to determine MMI and IR. Dr. T opined that the compensable injury extended to “right [CTS]” and “left [CTS].” Dr. T issued alternate certifications, one based upon what she said in her narrative report were “the carrier accepted conditions of left wrist sprain/strain, right wrist sprain/strain, right elbow sprain/strain, right shoulder sprain/strain, aggravated foraminal stenosis, cervical disc displacement, left shoulder sprain/strain, and left elbow sprain/strain.” Regarding these conditions, Dr. T certified that the claimant reached MMI statutorily on February 26, 2019, and assigned an IR of 35%. In her second certification Dr. T rated the conditions included in her first certification plus the disputed conditions of left CTS and right CTS, which “meets [Dr. T’s] definition of the injury,” and certified that the claimant reached MMI statutorily on February 26, 2019, with a 51% IR.   

The issue before the ALJ was whether the first certification of MMI and assigned IR from Dr. T on May 2, 2019, became final under Section 408.123 and Rule 130.12. Because Dr. T was appointed by the Division to address EOI, MMI, and IR for this examination, Dr. T properly issued alternate certifications. See Rule 127.10(d), (h). The ALJ found that the certifications issued by Dr. T on May 2, 2019, are the first on this claim and each is valid for purposes of Rule 130.12(c). The ALJ also found that the carrier did not dispute Dr. T’s May 2, 2019, certifications within 90 days of the date written notice of those certifications were delivered to it by verifiable means. The ALJ’s findings are supported by the evidence. Dr. T made alternate certifications based upon her EOI opinion; therefore, Rule 130.12(a)(4) applies in determining which, if either, of Dr. T’s May 2, 2019, alternate certifications are subject to finality under Section 408.123 and Rule 130.12.

The ALJ noted in the discussion portion of his decision that Rule 130.12(a)(4) provides “a designated doctor may provide multiple IRs if there is a dispute over [EOI]. Whichever rating from the designated doctor applies to the compensable injury once an [EOI] dispute has been resolved may become final if not disputed.” The ALJ stated that the rule does not identify which of Dr. T’s certifications is subject to finality because the evidence does not show an EOI dispute between the parties.

The ALJ found the record does not show any EOI dispute relating to the EOI conditions determined by Dr. T to be causally related to the compensable injury. While Dr. T was appointed to opine on EOI, the record does not show that either party has ever raised an EOI issue to be resolved through the Division’s dispute resolution process. The ALJ noted in the discussion portion of his decision that “[Dr. T’s] [EOI] opinions have presumptive weight and benefits are paid based on those opinions during the pendency of any dispute,” and that “no dispute was raised on those [EOI] conditions.” The ALJ concluded that for these reasons, “[Dr. T’s] certification that [the] [c]laimant reached MMI on February 26, 2019, with a 51% [IR] is subject to finality.” The ALJ therefore determined Dr. T’s May 2, 2019, certification that the claimant reached MMI on February 26, 2019, with a 51% IR became final under Section 408.123 and Rule 130.12.

As previously discussed, Rule 130.12(a)(4) provides, in part, that a designated doctor may provide multiple IRs if there is a dispute over EOI, and that whichever rating from the designated doctor applies to the compensable injury once an EOI dispute has been resolved may become final if not disputed. The preamble to Rule 130.12 states that “if the final decision regarding the extent of the injured employee’s injuries is not consistent with the injuries of one of the assigned IRs, the designated doctor’s MMI/IR certification with multiple impairments cannot become final.”  29 Tex. Reg. 2330, March 5, 2004.  

The parties stipulated in this case that the claimant sustained a compensable injury on (date of injury), in the form of a left wrist sprain/strain, right wrist sprain/strain, right elbow sprain/strain, and right shoulder sprain/strain. While Dr. T was asked to opine on EOI, neither party has raised an EOI issue to be disputed through the Division’s dispute resolution process. Therefore, the compensable injury in this case, at this time, is a left wrist sprain/strain, right wrist sprain/strain, right elbow sprain/strain, and right shoulder sprain/strain.

Dr. T’s May 2, 2019, certification that the claimant reached MMI on February 26, 2019, with a 35% IR rates what Dr. T states to be the carrier accepted conditions of left wrist sprain/strain, right wrist sprain/strain, right elbow sprain/strain, right shoulder sprain/strain, aggravated foraminal stenosis, cervical disc displacement, left shoulder sprain/strain, and left elbow sprain/strain. The carrier’s attorney stated at the CCH that Dr. T’s “carrier accepted conditions” include conditions that the carrier has not accepted. We note that the conditions of aggravated foraminal stenosis, cervical disc displacement, left shoulder sprain/strain, and left elbow sprain/strain are conditions Dr. T opined to be part of the compensable injury in previous examinations. None of these conditions have been accepted by the carrier or determined to be part of the compensable injury through the Division’s dispute resolution process. The compensable injury in this case, at this time, is a left wrist sprain/strain, right wrist sprain/strain, right elbow sprain/strain, and right shoulder sprain/strain. Dr. T’s May 2, 2019, alternate certification that the claimant reached MMI on February 26, 2019, with a 35% IR is not consistent with the compensable injury in this case. Pursuant to Rule 130.12(a)(4), this May 2, 2019, alternate certification by Dr. T based upon her EOI opinion cannot become final.

Dr. T’s May 2, 2019, certification that the claimant reached MMI on February 26, 2019, with a 51% IR rates what Dr. T states to be the carrier accepted conditions of left wrist sprain/strain, right wrist sprain/strain, right elbow sprain/strain, right shoulder sprain/strain, aggravated foraminal stenosis, cervical disc displacement, left shoulder sprain/strain, and left elbow sprain/strain, plus the disputed conditions of right CTS and left CTS, which she determined to be part of the compensable injury. Dr. T’s May 2, 2019, alternate certification that the claimant reached MMI on February 26, 2019, with a 51% IR is not consistent with the compensable injury in this case. Pursuant to Rule 130.12(a)(4), this May 2, 2019, alternate certification by Dr. T based upon her EOI opinion cannot become final.

Since there has been no final decision regarding the extent of the claimant’s injuries that is consistent with one of Dr. T’s alternate assigned IRs, we reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. T on May 2, 2019, certifying that the claimant reached MMI on February 26, 2019, with a 51% IR became final under Section 408.123 and Rule 130.12, and we render a new decision that neither of Dr. T’s May 2, 2019, certifications became final under Section 408.123 and Rule 130.12.  

MMI/IR

The ALJ determined that the claimant reached MMI on February 26, 2019, with a 51% IR based upon his determination that this certification became final under Section 408.123 and Rule 130.12. However, we have reversed the ALJ’s finality determination and rendered a new decision that neither of Dr. T’s May 2, 2019, alternate certifications became final under Section 408.123 and Rule 130.12. Additionally, both of Dr. T’s May 2, 2019, alternate certifications consider and rate conditions that have not yet been determined to be compensable. We reverse the ALJ’s determinations that the claimant reached MMI on February 26, 2019, with a 51% IR, and we remand the issues of MMI and IR to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the first certification of MMI and assigned IR from Dr. T on May 2, 2019, became final under Section 408.123 and Rule 130.12, and we render a new decision that neither of Dr. T’s May 2, 2019, certifications became final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determination that the claimant reached MMI on February 26, 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 51%, and we remand the issue of IR to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

Dr. T is the designated doctor in this case. The ALJ is to determine whether Dr. T is still qualified and available to be the designated doctor. If Dr. T 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 the claimant’s MMI and IR for the (date of injury), compensable injury.

On remand the ALJ is to inform the designated doctor what conditions comprise the compensable injury of (date of injury). The ALJ is to request that the designated doctor certify a date of MMI, which cannot be after the statutory date of MMI, and assign an IR for the compensable injury considering the medical record and the certifying examination.    

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 which are supported by the evidence on the issues of MMI and IR consistent with this decision.  

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

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

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on December 12, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the respondent (claimant) sustained a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury); (2) the claimant had disability from March 14 through March 29, 2019, and from May 25 through June 18, 2019; and (3) the claimant did not have disability on March 12, March 13, from March 30 through May 24, 2019, nor from June 19, 2019, through the date of the CCH.

The appellant (self-insured) appealed the ALJ’s determination of compensability as well as the determination of disability in favor of the claimant. The self-insured contends that the ALJ improperly determined that the claimant met the gateway requirements of Government Code Section 607.052(a)(1), (2), and (3). The self-insured also contends that the ALJ incorrectly determined that the claimant met the requirements of Government Code Section 607.052(b)(4) because the claimant admitted to smoking cigarettes at some point in his past. The claimant responded, urging affirmance of the appealed determinations. The ALJ’s determination that the claimant did not have disability on March 12, March 13, from March 30 through May 24, 2019, nor from June 19, 2019, through the date of the CCH was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

We note that the Evidence Presented section of the decision states Claimant’s Exhibits 1 through 19 were admitted. However, the record reflects that Claimant’s Exhibits 1 through 20 were admitted at the CCH.

The evidence reflects that the claimant had been employed with the self-insured since February 2009. The claimant first worked as a firefighter and emergency medical technician. The claimant testified he was promoted to an engineer operator, which required him to drive the firefighting apparatus to the scene, help pump water into the fire, and occasionally suit up and fight interior structure fires. It is undisputed the claimant was diagnosed with bladder cancer in March 2019. The claimant contends he developed bladder cancer as a result of exposure to heat, smoke, and carcinogens during his work for the self-insured.

Government Code Section 607.052.  APPLICABILITY.

(a) Notwithstanding any other law, this subchapter applies only to a firefighter or emergency medical technician who:

(1)  on becoming employed or during employment as a firefighter or emergency medical technician, received a physical examination that failed to reveal evidence of the illness or disease for which benefits or compensation are sought using a presumption established by this subchapter;

(2)  is employed for five or more years as a firefighter or emergency medical technician; and

(3)  seeks benefits or compensation for a disease or illness covered by this subchapter that is discovered during employment as a firefighter or emergency medical technician.

Based upon the evidence presented, the ALJ found the claimant met the gateway requirements of Government Code Section 607.052(a)(1), (2), and (3). The ALJ specifically found that upon becoming a firefighter the claimant had a physical examination that failed to reveal evidence of bladder cancer; the claimant was employed for more than five years[1] as a firefighter or emergency medical technician; and the claimant was seeking benefits for bladder cancer discovered during his employment as a firefighter or emergency medical technician. The evidence supports the ALJ’s finding that the claimant met the gateway requirements of Government Code Section 607.052(a)(1), (2), and (3).

The question now turns to whether the cancer presumption would apply under Government Code Section 607.052(b)(4).

Government Code Section 607.052 provides in pertinent part the following:

(b) A presumption under this subchapter does not apply:

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(4) if the disease or illness for which benefits or compensation is sought is known to be caused by the use of tobacco and:

(A) the firefighter or emergency medical technician is or has been a user of tobacco

The evidence reflects that smoking cigarettes is known to cause bladder cancer. The claimant testified at the CCH that after he graduated high school in 2004, he had socially smoked cigarettes from approximately 2005 to 2006. The claimant testified he had smoked cigarettes on maybe six or seven occasions, he never liked them or purchased any, never considered himself a smoker, and that he had perhaps half a dozen cigarettes in his life at that time and “never picked another one up.” The ALJ stated the following in her discussion regarding the claimant’s tobacco use:

. . . [the] [c]laimant’s testimony regarding his prior limited use of tobacco was persuasive. Consequently, [the] [c]laimant is not excluded from establishing the presumption under Section 607.052(b)(4) of the Texas Government Code.

The self-insured states on appeal that a plain reading of Government Code Section 607.052(b)(4) indicates that if the disease or illness for which benefits or compensation is sought is known to be caused by the use of tobacco and the firefighter or emergency medical technician is or has been a user of tobacco, the presumption does not apply. The self-insured contends that the statute “does not mention or discuss how long the injured worker must use tobacco or the gap between the use of tobacco and the diagnosis.” The self-insured argues the cancer presumption does not apply in this case because the evidence established smoking cigarettes is known to cause bladder cancer and the claimant has smoked cigarettes.

The claimant contends in his response to the self-insured’s appeal that neither the Texas Government Code nor the Texas Labor Code define the term “user” or “tobacco user.” The claimant argues that the definition of tobacco use found in the Code of Federal Regulations and used by health insurance companies should be used. 45 C.F.R. § 147.102(a)(1)(iv) defines tobacco use as:

. . . use of tobacco on average four or more times per week within no longer than the past [six] months. This includes all tobacco products, except that tobacco use does not include religious or ceremonial use of tobacco. Further, tobacco use must be defined in terms of when a tobacco product was last used.

The claimant also argues that tobacco use is “any habitual use of the tobacco plant leaf and its products,” and a user is “based on long-continued use.” The claimant contends that smoking a total of approximately seven cigarettes in his life approximately 15 years before his bladder cancer diagnosis does not make him a habitual user of tobacco and does not exclude the cancer presumption under Government Code Section 607.052(b)(4).

Based on the plain reading of Government Code Section 607.052(b)(4), the cancer presumption under 607.052 does not apply if the disease or illness is known to be caused by the use of tobacco, and the firefighter or emergency medical technician is or has been a user of tobacco.  The statute does not define a minimal amount of tobacco used or the length of time tobacco has been used by the firefighter or emergency medical technician that would preclude the cancer presumption. We decline to impose a threshold amount or time frame when the legislature has not done so. We note the House Research Organization (HRO) Bill Analysis for S.B. 310 reflects that opponents of S.B. 310 presented the argument that a firefighter “who smoked for a short period of time in the past might be denied benefits if he developed certain forms of cancer, even though [firefighters] in burning buildings can be exposed to a variety of cancer-causing carcinogens.” HRO Bill Analysis, Tex. S.B. 310, 79th Leg. R.S. (2005). The facts of this case establish that bladder cancer is known to be caused by smoking cigarettes. The facts also establish that the claimant has smoked cigarettes in the past. Therefore, we hold that under Government Code Section 607.052(b)(4), the claimant’s tobacco use precludes the claimant from establishing the cancer presumption.

The ALJ based her determination that the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), on the basis that the claimant is entitled to the presumption under Government Code Section 607.055(a). Given that we have held the claimant’s tobacco use precludes the cancer presumption from applying in this case, we reverse the ALJ’s determination that the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury). We remand the issue of compensability to the ALJ to make findings of fact, conclusions of law, and a determination whether the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), for further action in accordance with this decision.

Because we have reversed and remanded the ALJ’s compensability determination, we also reverse the ALJ’s determination that the claimant had disability from March 14 through March 29, 2019, and from May 25 through June 18, 2019, and we remand the issue of disability for these periods to the ALJ for further action consistent with this decision.

We note the ALJ stated in a footnote of the decision that the 86th Texas Legislature amended Government Code Chapter 607 by passage of S.B. 2551, and that the amendments apply only to claims filed on or after June 10, 2019. The ALJ also stated that “[t]he claim in this case is governed by the law as it existed on the date the compensable injury occurred” (emphasis added). However, S.B. 2551 states that the amendments apply only to a claim for workers’ compensation benefits filed on or after the effective date of this Act, and that “a claim filed before that date is governed by the law as it existed on the date the claim was filed, and the former law is continued in effect for that purpose” (emphasis added). The evidence reflects that the amendments in S.B. 2551 are not applicable in the case on appeal.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a decision on whether the claimant sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), considering the evidence and without applying the cancer presumption. The ALJ is then to make findings of fact, conclusions of law, and a decision on whether the claimant had disability from March 14 through March 29, 2019, and from May 25 through June 18, 2019.

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

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

ANNA RUSSELL – CITY SECRETARY
900 BAGBY
HOUSTON, TEXAS 77002.

Carisa Space-Beam
Appeals Judge

CONCUR:

Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note Government Code Section 607.052(a)(2) requires employment as a firefighter or emergency medical technician for five or more years.

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 16, 2019, with the record closing on September 19, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the (date of injury), compensable injury does not extend to lumbar spondylosis at L3-S1, lumbar disc bulges at L3-4 and L4-5, retrolisthesis at L5-S1, lumbar stenosis with neurogenic claudication at L2-S1, lumbar spine spondylosis with radiculopathy at L2-S1, right hip osteoarthritis, right hip labral tear, or right hamstring tear; (2) the appellant (claimant) reached maximum medical improvement (MMI) on July 26, 2018; (3) the claimant’s impairment rating (IR) is six percent; (4) the first certification of MMI and assigned IR from (Dr. B) on October 17, 2018, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (5) the claimant did not have disability from January 21 through May 14, 2019. The claimant appealed, disputing all the ALJ’s determinations. The respondent (self-insured) responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the self-insured has accepted an (date of injury), compensable injury in the nature of a right shoulder sprain, lumbar strain, and right hip contusion and that the Texas Department of Insurance, Division of Workers’ Compensation appointed (Dr. P) as the designated doctor to address the issues of MMI, IR, extent of injury, return to work, and disability. The claimant was injured when he slipped and fell while working as a water treatment operator.

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).

FINALITY AND MMI/IR

The ALJ’s determinations that: (1) the first certification of MMI and assigned IR from Dr. B on October 17, 2018, became final under Section 408.123 and Rule 130.12; (2) the claimant reached MMI on July 26, 2018; and (3) the claimant’s IR is six percent are supported by sufficient evidence and are affirmed.

EXTENT OF INJURY

Right Hip Labral Tear and Right Hamstring Tear

The ALJ determined that the (date of injury), compensable injury does not extend to a right hip labral tear or right hamstring tear. The ALJ explained in the Discussion portion of her decision that the extent-of-injury conditions at issue are sufficiently complex as to require expert medical evidence to establish a causal connection to the compensable injury. See City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.-San Antonio 2009, no pet.) citing Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007). We agree with the ALJ regarding expert evidence for the conditions at issue in this case. However, as stated above, we have affirmed the ALJ’s determination that the first certification of MMI and assigned IR from Dr. B on October 17, 2018, became final under Section 408.123 and Rule 130.12.

Section 401.011(24) defines IR as “the percentage of permanent impairment of the whole body resulting from a compensable injury.” Rule 130.1(c)(1) states, in part, that an IR is the percentage of permanent impairment of the whole body resulting from the current compensable injury. Because the definition of IR establishes that an IR is the percentage of impairment received for the compensable injury, any condition included in the six percent IR, which has become final, was for the compensable injury. See also Appeals Panel Decision (APD) 132055, decided October 24, 2013, in which the Appeals Panel indicated that any conditions included in an IR that becomes final pursuant to Section 408.123 and Rule 130.12 are part of the compensable injury.

Dr. B, a doctor selected by the treating doctor to act in his place, indicated in his October 17, 2018, report under “assessment” that the conditions he considered and rated are a right hip contusion/sprain and labral tear, lumbar strain, right hamstring tear, and right shoulder strain. As Dr. B’s six percent IR, which has become final pursuant to Section 408.123 and Rule 130.12, included a rating for the conditions of right hip labral tear and right hamstring tear, we hold that the compensable injury extends to a right hip labral tear and right hamstring tear.

Our holding should not be construed as limiting claimants from expanding on what is included in the compensable injury. We acknowledge that injuries can evolve over time and that claimants may claim that additional injuries or conditions are compensable even after an IR becomes final. See APD 040150-s, decided March 8, 2004.

We reverse that portion of the ALJ’s determination that the (date of injury), compensable injury does not extend to a right hip labral tear and a right hamstring tear, and we render a new decision that the (date of injury), compensable injury does extend to a right hip labral tear and a right hamstring tear.

Additionally, we note that although the ALJ states in the Discussion portion of her decision that “[the] [c]laimant did not offer expert evidence supporting a causal link between the mechanism of injury and the disputed conditions,” Dr. P, the designated doctor, provided a detailed analysis supporting the causation of the right hip labral tear and right hamstring tear in his report dated August 27, 2019. Regarding the right hip labral tear, Dr. P stated that the claimant’s injury includes him slipping and falling directly on his right side and “[g]iven the amount of force directly placed on his right hip and the reliance of the anterior portion of the labrum to absorb this force gives the mechanism a likely cause of the injuries seen on the MRI...[g]iven the consistent mechanism, subjective complaints, objective findings in multiple exams, and numerous opinions of the inclusion of this diagnosis, I believe that it is medically probable that the fall on [(date of injury)] was a direct cause of the anterior-superior labral tear.” Regarding the right hamstring tear, Dr. P stated that “[t]his action would have likely caused accelerated extension of his legs out from under him causing a severe load of stretch on the hamstring tendons and their bony attachments…[g]iven the MRI findings with [the] radiologist’s impression of common hamstring tear/avulsion in conjunction with the mechanism of his injury I believe that it is within medical probability that his injury on [(date of injury)] was a direct cause of the right hamstring tear.”

Remaining Disputed Conditions

The ALJ also determined that the (date of injury), compensable injury does not extend to lumbar spondylosis at L3-S1, lumbar disc bulges at L3-4 and L4-5, retrolisthesis at L5-S1, lumbar stenosis with neurogenic claudication at L2-S1, lumbar spine spondylosis with radiculopathy at L2-S1, and right hip osteoarthritis. Nowhere in Dr. B’s Report of Medical Evaluation (DWC-69) or his narrative report did he consider or rate these conditions. The ALJ noted that lumbar spondylosis at L3-S1, lumbar disc bulges at L3-4 and L4-5, retrolisthesis at L5-S1, lumbar stenosis with neurogenic claudication at L2-S1, lumbar spine spondylosis with radiculopathy at L2-S1, and right hip osteoarthritis are conditions requiring expert medical evidence to establish a causal connection with the compensable injury, and as noted above, we agree. The ALJ’s determination that the compensable injury does not extend to these conditions is supported by sufficient evidence. Therefore, we affirm that portion of the ALJ’s extent-of-injury determination that the (date of injury), compensable injury does not extend to lumbar spondylosis at L3-S1, lumbar disc bulges at L3-4 and L4-5, retrolisthesis at L5- S1, lumbar stenosis with neurogenic claudication at L2-S1, lumbar spine spondylosis with radiculopathy at L2-S1, and right hip osteoarthritis.

DISABILITY

The ALJ’s determination that the claimant did not have disability from January 21 through May 14, 2019, is supported by sufficient evidence and is affirmed. The claimant claimed disability during this period because he was off work due to recovering from lumbar surgery. The claimant underwent lumbar surgery on January 21, 2019, and the operative report of that date indicates that the pre and post-operative diagnosis was lumbar stenosis with neurogenic claudication. The claimant underwent a second surgery on January 25, 2019, and the operative report of that date indicates that the pre and post-diagnosis was lumbar spondylosis with radiculopathy. As noted above, we affirmed the ALJ’s determination that these conditions are not a part of the compensable injury. Therefore, the claimant’s inability to work during this period was due to surgeries for non-compensable conditions and not due to the compensable injury.

SUMMARY

We affirm the ALJ’s determination that the first certification of MMI and assigned IR from Dr. B on October 17, 2018, became final under Section 408.123 and Rule 130.12. We affirm the ALJ’s determination that the claimant reached MMI on July 26, 2018. We affirm the ALJ’s determination that the claimant’s IR is six percent. We affirm that portion of the ALJ’s extent-of-injury determination that the (date of injury), compensable injury does not extend to lumbar spondylosis at L3-S1, lumbar disc bulges at L3-4 and L4-5, retrolisthesis at L5-S1, lumbar stenosis with neurogenic claudication at L2-S1, lumbar spine spondylosis with radiculopathy at L2-S1, and right hip osteoarthritis. We reverse that portion of the ALJ’s extent-of-injury determination that the (date of injury), compensable injury does not extend to a right hip labral tear and a right hamstring tear, and we render a new decision that the (date of injury), compensable injury does extend to a right hip labral tear and a right hamstring tear.

We affirm the ALJ’s determination that the claimant did not have disability from January 21 through May 14, 2019.

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

TERI SOLIS, CITY ATTORNEY

101 S. MESQUITE STREET, SUITE 300

ARLINGTON, TEXAS 76010.

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). An expedited contested case hearing (CCH) was held on March 6, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. DG) on July 24, 2017, that the appellant (claimant) reached MMI on May 18, 2017, with a 13% IR, has become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (2) (Dr. M) appointment as the designated doctor to address the date of MMI and IR was not made in accordance with Section 408.0041 and Rule 127.

The claimant appealed, disputing the ALJ’s determinations of finality and appointment of a designated doctor. The claimant contends that the evidence established she timely disputed the first certification of MMI and IR in accordance with Section 408.123 and Rule 130.12. Additionally, the claimant contends that the appointment of Dr. M as the designated doctor to address the date of MMI and IR was made in accordance with Section 408.0041 and Rule 127. The respondent (carrier) responded, urging affirmance of the ALJ’s determination on the disputed issues of finality and appointment of a designated doctor.

DECISION

Reversed and rendered.

The parties stipulated, in part, that the carrier accepted a compensable injury in the form of a crushing injury to the left middle finger and left hand contracture. The evidence reflects that the claimant was examined by Dr. DG, the referral doctor, on July 24, 2017, and he certified on July 24, 2017, that the claimant reached MMI on that same date, July 24, 2017, with a 13% 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). It is undisputed that Dr. DG’s certification dated July 24, 2017, is the first valid certification of MMI and IR, and that the claimant received Dr. DG’s certification of MMI and IR on August 10, 2017. Pursuant to Section 408.123 and Rule 130.12, the 90th day after the claimant’s receipt of the written notification of Dr. DG’s certification of MMI and IR is calculated to be November 8, 2017, rather than November 7, 2017, as indicated by the parties at the CCH.

In evidence is the claimant’s Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC) (DWC-45) dated October 31, 2017, and Texas Department of Insurance, Division of Workers’ Compensation (Division) notice dated November 14, 2017, setting a BRC for December 8, 2017. We note that the ALJ did not discuss or make any findings regarding the DWC-45 dated October 31, 2017, that was filed by the claimant. Also, in evidence is the claimant’s Request for Designated Doctor Examination (DWC-32) dated November 3, 2017, and a Commissioner’s Order dated November 7, 2017, denying the claimant’s request for a designated doctor because the required information on the DWC-32 was incomplete. The evidence reflects that the claimant resubmitted the DWC-32, and Dr. M was appointed as designated doctor to address the issues of MMI and IR. The carrier requested an expedited CCH and a stay of the scheduled designated doctor’s examination asserting that the claimant did not timely dispute Dr. DG’s certification of MMI and IR.

FINALITY

Section 408.123(e) provides that except as otherwise provided by this section, an employee’s first valid certification of MMI and the first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means.  Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means; that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both.  Rule 130.12(b)(1) provides, in part, that only an insurance carrier, an injured employee, or an injured employee’s attorney or employee representative under Rule 150.3(a) may dispute a first certification of MMI and IR under Rule 141.1 (related to Requesting and Setting a BRC) or by requesting the appointment of a designated doctor, if one has not been appointed.

In this case, Dr. DG’s certification of MMI and IR dated July 24, 2017, was the first certification of MMI and IR, and a designated doctor had not been appointed to address MMI and IR. Pursuant to Rule 130.12(b)(1), the claimant could dispute Dr. DG’s certification of MMI and IR, by either filing a DWC-45 or a DWC-32 prior to the expiration of the 90-day period to file a dispute. The claimant’s attorney filed a DWC-45, requesting a BRC to dispute MMI and IR on October 31, 2017, and subsequently filed a DWC-32, requesting a designated doctor examination on November 3, 2017. Both the DWC-45 and the DWC-32 were filed prior to the expiration of the 90-day period, November 8, 2017, disputing the first certification of MMI and IR.

With regard to the DWC-45 filed October 31, 2017, the claimant states on the form that she is disputing the certification of MMI and IR by “the designated doctor.” Attached to the DWC-45 was a document entitled “Efforts to Resolve Dispute” stating that the claimant disputes the “treating doctor’s” determination of MMI and that the carrier stood by the “[d]esignated [d]octor’s” certification. The Division granted the claimant’s request for a BRC to dispute the designated doctor’s MMI and IR, and scheduled a BRC for December 8, 2017.

The preamble to Rule 141.1, in pertinent part, provides that “[a]fter a complete request is submitted, approved, and a BRC scheduled, the party has established a dispute of the first certification of MMI and/or IR in accordance with [Section] 408.123(e), effective as of the date the request was filed.”  (35 Tex. Reg. 7430, 2010). See Appeals Panel Decision (APD) 111006-s, decided September 15, 2011. In this case, the claimant filed a DWC-45 disputing MMI and IR, the Division approved the request, and the Division scheduled a BRC for December 8, 2017. The evidence reflects that the claimant’s dispute was effective as of the date the DWC-45 was filed on October 31, 2017, which is a date within the 90-day period to dispute the first certification of MMI and IR. We further note that although the claimant’s attorney rescheduled the BRC to January 25, 2018, there is no evidence that the claimant withdrew her finality dispute as provided in Rule 130.12(b)(3). Accordingly, the evidence is sufficient to establish that the first certification of MMI and IR assigned by Dr. DG was disputed within 90 days after the date the certification was provided.

With regard to the DWC-32 filed on November 3, 2017, the ALJ found that the claimant filed a DWC-32 requesting the appointment of a designated doctor on November 7, 2017, and that the Division acted within its administrative regularity in denying the claimant’s request for a designated doctor examination on November 7, 2017. The ALJ states in her discussion of the Division determination that it was necessary, at the very least, to provide correct information on the DWC-32 and that the claimant failed to do so. The ALJ concluded that the DWC-32 was not timely and the first certification of MMI and IR became final.

As previously mentioned, Rule 130.12(b)(1) provides, in part, that a party may dispute a first certification of MMI and IR by requesting the appointment of a designated doctor, if one has not been appointed. As previously mentioned, a designated doctor had not been appointed to address the issues of MMI and IR. The Appeals Panel has held that “[u]nder the provisions of Section 408.125, no determination can be made regarding the claimant’s IR because there is no report from a designated doctor.”  See APD 020385, decided March 18, 2002.  In evidence is the Division’s Commissioner Order dated November 7, 2017, that states the request for a designated doctor examination was reviewed and considered and it determined that all the required information on the DWC-32 was not complete as required by Rule 127.1(b). Specifically, the Commissioner’s Order dated November 7, 2017, denying the request states the DWC-32 was incomplete and missing the following information: “CITY, STATE & ZIP CODE,” “[(date of injury)],” and Notice of Representation (DWC-150).”

In APD 043023-s, decided January 6, 2005, the carrier filed a DWC-32 requesting the appointment of a designated doctor to “dispute an assigned date of [MMI] and [IR];” however, the DWC-32 was returned to the carrier by the Division as incomplete because it did not complete Section III of the form. In that case, the Appeals Panel affirmed the ALJ’s determination that the filing of the DWC-32 requesting a designated doctor was sufficient to dispute the first valid certification of MMI and IR pursuant to Rule 130.12(b)(1). In this case, as in APD 043023-s, the claimant filed a DWC-32 requesting the appointment of a designated doctor to address MMI and IR on November 3, 2017, which was timely and sufficient to dispute the first certification of MMI and IR.

Under the facts of this case, the evidence establishes that the claimant timely disputed the first certification of MMI and assigned IR by Dr. DG dated July 24, 2017, by filing a DWC-45 on October 31, 2017. Also, the evidence establishes that the claimant timely disputed the first certification of MMI and IR assigned by Dr. DG on July 24, 2017, by filing a DWC-32 on November 3, 2017. The ALJ found that no exceptions to 90-day finality per Section 408.123(f) apply. That finding is supported by sufficient evidence.

Accordingly, we reverse the ALJ’s decision that the first certification of MMI and IR from Dr. DG on July 24, 2017, that the claimant reached MMI on May 18, 2017, with a 13% IR, has become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and assigned IR by Dr. DG on July 24, 2017, did not become final under Section 408.123 and Rule 130.12.

APPOINTMENT OF DESIGNATED DOCTOR

The ALJ found that because the issues of MMI and assigned IR have become final, the appointment of Dr. M to address the date of MMI and IR was not necessary and was not made in accordance with Section 408.0041 and Rule 127. Given that we have reversed the ALJ’s finality determination, we reverse the ALJ’s determination on the designated doctor appointment issue.

As previously mentioned, the Appeals Panel has held that “[u]nder the provisions of Section 408.125, no determination can be made regarding the claimant’s IR because there is no report from a designated doctor.”  See APD 020385, supra.   See also APD 142008, decided November 5, 2014, and APD 132423, decided December 19, 2013, in which the issues of MMI and IR were in dispute, and a designated doctor had not been appointed to opine on the issues of MMI and IR.  In both APD 142008 and APD 132423, the Appeals Panel reversed the ALJ’s decision and remanded for a designated doctor to be appointed on the issues of MMI and IR.

The evidence reflects that the Division appointed Dr. M as designated doctor to address the issues of MMI and IR. Accordingly, we reverse the ALJ’s determination that Dr. M’s appointment as the designated doctor to address the date of MMI and IR was not made in accordance with Section 408.0041 and Rule 127, and we render a new decision that Dr. M’s appointment as the designated doctor to address the date of MMI and IR was made in accordance with Section 408.0041 and Rule 127.

SUMMARY  

We reverse the ALJ’s decision that the first certification of MMI and IR from Dr. DG on July 24, 2017, that the claimant reached MMI on May 18, 2017, with a 13% IR, has become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and assigned IR by Dr. DG on July 24, 2017, did not become final under Section 408.123 and Rule 130.12.

We reverse the ALJ’s determination that Dr. M’s appointment as the designated doctor to address the date of MMI and IR was not made in accordance with Section 408.0041 and Rule 127, and we render a new decision that Dr. M’s appointment as the designated doctor to address the date of MMI and IR was made in accordance with Section 408.0041 and Rule 127.

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

RICHARD GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 10, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) (Dr. O) was not appointed as the designated doctor in accordance with Section 408.0041 and 28 TEX. ADMIN. CODE § 127.130 (Rule 127.130); (2) the appellant (claimant) reached maximum medical improvement (MMI) on March 1, 2016; and (3) the claimant’s impairment rating (IR) is five percent.

The claimant appealed, disputing the hearing officer’s determinations of MMI and IR as well as the hearing officer’s determination that Dr. O was not appointed in accordance with Section 408.0041 and Rule 127.130.  The respondent (carrier) responded, urging affirmance of the disputed determinations.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The parties stipulated in part that: (1) the claimant sustained a compensable injury on (date of injury); (2) the carrier has accepted a head injury, bilateral shoulder contusions, right shoulder rotator cuff tear, right shoulder labrum tear, and a right bicep injury as the compensable injury; (3) Dr. O was appointed as designated doctor on the issues of MMI and IR; and (4) the statutory MMI date is November 10, 2016. The claimant testified that he was injured when he fell at work.

APPOINTMENT OF DESIGNATED DOCTOR

Rule 127.130(b)(7) provides, in part, that for examinations performed on or after January 1, 2013, a designated doctor must be a licensed medical doctor or doctor of osteopathy to perform an examination of an injured employee who has tendon lacerations. Dr. O was appointed as designated doctor to examine the claimant for purposes of MMI and IR. It is undisputed that Dr. O is a chiropractor. The carrier contends that Dr. O was improperly appointed to examine the claimant to give an opinion of MMI and IR because the claimant’s injuries included a tendon laceration. The hearing officer found that the claimant’s injuries include tendon lacerations or tears, which injuries require a medical doctor or doctor of osteopathy to examine or treat them. However, Rule 127.130(b) only requires a medical doctor or doctor of osteopathy for tendon lacerations, not tears. Rule 127.130(b) does not prohibit a chiropractor from being appointed as a designated doctor to examine a claimant who has suffered a tendon tear. No medical records in evidence reflect that the claimant suffered a tendon laceration.

The carrier argued based on dictionary definitions admitted into evidence that a laceration is a tear. We disagree. The dictionary definitions admitted into evidence contain conflicting descriptions of the meaning of laceration. For example, one of the definitions describes a laceration as a torn or jagged wound, or an accidental cut wound while another definition describes a laceration as a torn or jagged wound caused by blunt trauma, incorrectly used when describing a cut. We note that the MDGuidelines (MDG), the current edition of the Medical Disability Advisor, Workplace Guidelines for Disability Duration, excluding all sections and tables relating to rehabilitation published by the Reed Group, Ltd. referenced in Rule 137.10, defines laceration, in part, as a disruption of the skin, commonly called a cut. The MDG goes on to state that lacerations can be shallow cuts or deep gashes that penetrate through the muscle layer to internal organs and bone.

An order of administrative body is presumed to be valid and the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action. Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref’d). It is undisputed, and the hearing officer noted in her decision that the carrier in this case raised the issue that the Texas Department of Insurance, Division of Workers’ Compensation (Division) should not have appointed Dr. O as designated doctor on the issues of MMI and IR. The Division’s appointment of Dr. O for the issues of MMI and IR is presumed to be valid, and the carrier had the burden of proof to establish that the Division’s appointment of Dr. O was invalid.

The carrier did not meet its burden of proof to establish that the Division should not have appointed Dr. O for the issues of MMI and IR. Therefore, the hearing officer’s determination that Dr. O was not appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.130, for the issues of MMI and IR, is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the hearing officer’s determination, and we render a new decision that Dr. O was appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.130.

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

Given that the hearing officer’s determination that Dr. O was not appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.130 is reversed and a new decision rendered that Dr. O was appointed as the designated doctor in accordance with Section 408.0041 and Rule 127.130, we reverse the hearing officer’s determinations that the claimant reached MMI on March 1, 2016, and the claimant’s IR is five percent and remand the issues of MMI and IR to the hearing officer for further action consistent with this decision.

SUMMARY

We reverse the hearing officer’s determination that Dr. O was not appointed as designated doctor in accordance with Section 408.0041 and Rule 127.130, and render a new decision that Dr. O was appointed as designated doctor in accordance with Section 408.0041 and Rule 127.130.

We reverse the hearing officer’s determination that the claimant reached MMI on March 1, 2016, and remand the issue of MMI to the hearing officer for further action consistent with this decision.

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

REMAND INSTRUCTIONS

The certification of MMI/IR should rate the entire compensable injury. The certification of MMI should be 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 considering the physical examination and the claimant’s medical records. The parties stipulated that the statutory MMI date is November 10, 2016. The MMI date can be no later than the statutory date of MMI. The assignment of an IR is required to be based on the claimant’s condition as of the MMI date considering the medical records and the certifying examination and according to the rating criteria of 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), and the provisions of Rule 130.1(c)(3). The hearing officer is to give presumptive weight to the certification of MMI/IR from Dr. O and make a determination of MMI and IR 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 hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See Appeals Panel Decision 060721, decided June 12, 2006.

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

RICHARD J. GERGASKO, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). An expedited contested case hearing (CCH) was held on March 14, 2016, in Houston, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that pursuant to Section 408.0041 and Texas Department of Insurance, Division of Workers’ Compensation (Division) rules, a second designated doctor examination of the appellant (claimant) by (Dr. S) should not have been scheduled.

The claimant appealed the hearing officer’s determination, contending that the hearing officer’s determination is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, and that the hearing officer erroneously found good cause did not exist for a second designated doctor appointment. The respondent (carrier) responded, urging affirmance of the hearing officer’s decision.

DECISION

Reversed and rendered.

The parties stipulated that the claimant sustained a compensable injury on (date of injur), in the form of a left knee strain, and that the Division appointed Dr. S for purposes of extent of injury, maximum medical improvement (MMI), impairment rating (IR), return to work, and disability.

The claimant testified that he sustained an injury to his left knee at work on (date of injury), and that he returned to work for his employer on a light duty basis after the date of injury. Although the claimant could not recall the exact date on which he returned to work, he testified that he worked for the employer on a light duty basis with restrictions through the end of 2015. The claimant testified that he began to have heart problems towards the end of 2015, and he had a pacemaker inserted in January 2016. The claimant has not returned to work since the placement of the pacemaker. The record reveals that the carrier has not at this time accepted a compensable heart condition.

Section 408.0041(b) provides, in part, that an examination under Section 408.0041 may not be conducted more frequently than every 60 days, unless good cause for more frequent examinations exists, as defined by commissioner rules.

28 TEX. ADMIN. CODE § 127.1(c) (Rule 127.1(c)) provides the following:

(c) If a party submits a request for a designated doctor examination under subsection (b) of this section that would require the [D]ivision to schedule an examination within 60 days of a previous examination of the injured employee that party must provide good cause for scheduling that designated doctor examination in order for the [D]ivision to approve the party's request. For the purposes of this subsection, the commissioner or the commissioner's designee shall determine good cause on a case by case basis and will require at a minimum:

(1) if that requestor also requested the previous examination, a showing by the requestor that the submitted questions could not have reasonably been included in the prior examination and a designated doctor examination is reasonably necessary to resolve the submitted question(s) and will affect entitlement to benefits; or

(2) if that requestor did not request the previous examination, a showing by the requestor a designated doctor examination is reasonably necessary to resolve the submitted question(s) and will affect entitlement to benefits.

Rule 127.1(d) provides, in part, that the Division shall deny a request for a designated doctor examination and provide a written explanation for the denial to the requestor if the request does not comply with any of the requirements of Rule 127.1(c).

The claimant filed a Request for Designated Doctor Examination (DWC-32) on November 11, 2015, for extent of injury, and disability and return to work from October 1, 2015, through the present. On December 9, 2015, the carrier filed a DWC-32 for MMI and IR. The Division appointed Dr. S to determine extent of injury, MMI, IR, and disability and return to work from October 1, 2015, through the present.

Dr. S examined the claimant on December 23, 2015, for extent of injury, MMI, IR, and disability and return to work from October 1, 2015, through the date of his examination. Dr. S submitted alternate Reports of Medical Evaluation (DWC 69), rendered an opinion regarding the extent of the claimant’s compensable injury, and opined that the claimant’s disability during the requested period of October 1 through December 23, 2015, was a direct result of the claimant’s work-related injury. Dr. S also submitted a Work Status Report (DWC-73) taking the claimant off work beginning October 1, 2015, through the date of the December 23, 2015, examination.

We note that the 60th day after Dr. S’s December 23, 2015, examination is Sunday, February 21, 2016, so pursuant to Rule 102.3 the 60th day is extended to the next working day, which is Monday, February 22, 2016.

On February 5, 2016, within 60 days of the date of Dr. S’s December 23, 2015, designated doctor examination, the claimant filed a DWC-32 on the issues of disability and return to work for the period beginning January 28, 2016, through the present. We note this is a different period than the period requested of and opined by Dr. S in his December 23, 2015, examination. Box 40 of the DWC-32 instructs the requestor that if the approval of the request would result in the Division scheduling an examination within 60 days of a previous designated doctor examination, the requestor is to provide good cause as to why it is necessary to schedule the requested examination within 60 days. The claimant noted in Box 40 that “[the] [c]laimant’s condition has worsened and he needs a new assessment for disability/return to work.” Box 41 of the DWC-32 instructs the requestor to explain any change of medical condition since the most recent designated doctor examination. Box 41 of the claimant’s DWC-32 is blank.

On February 12, 2016, within 60 days of Dr. S’s December 23, 2015, designated doctor examination, the Division approved the claimant’s DWC-32 and scheduled a second designated doctor examination for March 7, 2016, with Dr. S for the issues of disability and return to work. We note that the March 7, 2016, examination is more than 60 days after Dr. S’s first designated doctor examination on December 23, 2015. On February 16, 2016, the carrier filed a motion for an expedited CCH “to address the propriety of allowing [the] [c]laimant an additional [d]esignated [d]octor examination. . . .”

The hearing officer determined that pursuant to Section 408.0041 and Division rules a second designated doctor examination of the claimant with Dr. S should not have been scheduled, and canceled the March 7, 2016, designated doctor examination with Dr. S. The hearing officer cited Rule 127.1 in her Discussion, and stated the following:

Although [the] [c]laimant’s representative asserts that there is a change in his medical condition, no proof of this change or medical evidence was provided to support his assertion. There was no explanation or testimony offered by [the] [c]laimant regarding the nature of the claimed change. For this reason, the [h]earing [o]fficer finds that a second designated doctor examination of [the] [c]laimant by [Dr. S] should not have been scheduled, and, consequently, the stay previously issued is vacated, and the examination is canceled.

The claimant points out on appeal that Section 408.0041(b) and Rule 127.1(c) specifically provide that the controlling date in the question of whether a requested designated doctor examination occurs within 60 days of a previous designated doctor examination is the date of the actual subsequent examination rather than the date the request is made. The carrier, on the other hand, contends in its response that the controlling date is the date of the request rather than the date of the examination. Section 408.0041(b) specifically provides that “[a]n examination under this section may not be conducted more frequently than every 60 days. . . .” Rule 127.1(c) specifically provides that “[i]f a party submits a request for a designated doctor examination . . . that would require the [D]ivision to schedule an examination within 60 days of a previous examination of the injured employee. . . .” Section 408.0041(b) and Rule 127.1(c) both specifically discuss the date of the actual designated doctor examination rather than the date the request for a designated doctor examination is made. Therefore, we hold that the controlling date in determining whether a requested designated doctor examination takes place within 60 days of a previous designated doctor examination is the date of the actual subsequent designated doctor examination. Furthermore, as noted above the claimant’s February 5, 2016, DWC-32 requests a designated doctor examination to opine on a different disability and return to work period than what was addressed in the first designated doctor examination requested by the claimant.

The hearing officer found that good cause for the claimant’s request for a second designated doctor examination was not established, and determined that the second designated doctor examination of the claimant with Dr. S should not have been scheduled. The hearing officer required a showing of good cause by the claimant under Rule 127.1(c) because she based her analysis on the date of the claimant’s request, which was made within 60 days after the first designated doctor examination. However, as explained above the controlling date is the date of the subsequent designated doctor examination, and in this case the scheduled date for the second designated doctor examination was after the 60-day period. Because the evidence established the second designated doctor examination was not within 60 days of the first designated doctor examination, the claimant was not required to show good cause for scheduling the second designated doctor examination under Rule 127.1(c). Accordingly, we reverse the hearing officer’s determination, and we render a new determination that pursuant to Section 408.0041 and Division rules, a second designated doctor examination of the claimant with Dr. S should have been scheduled.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 1, 2015, with the record closing on July 7, 2015, in Denton, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent’s (claimant) average weekly wage (AWW) is $1,084.28; and (2) the appellant (carrier) is required to pay benefits retroactively due to a change in AWW which is based upon pre-injury wages from a non-claim employer reflected on an Employee’s Multiple Employment Wage Statement (DWC-3ME) which was not submitted to the carrier until after the claimant had reached maximum medical improvement (MMI) and all income benefits which were due had been paid.

The carrier appealed the hearing officer’s determinations, contending that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The claimant responded, urging affirmance of the hearing officer’s determinations.

DECISION

Affirmed.

The parties stipulated in part that the claimant sustained a compensable injury on (date of injury), and the claimant reached MMI on the statutory date of March 15, 2014. Also, the parties stipulated to the amount of the AWW with and without the inclusion of pre-injury wages paid to the claimant by a non-claim employer, Healing Touch Homecare (HTH), as follows: (1) the claimant’s AWW exclusive of wages from the non-claim employer, HTH, is $972.73, and benefits were paid based upon that figure; and (2) the claimant’s AWW including wages from the non-claim employer, HTH, is $1,084.28.

In this case, the evidence reflects that on the date of injury the claimant was employed by a claim employer, and two non-claim employers, Lakes Regional MHMR Center (LR) and HTH, respectively. In evidence is a letter dated February 26, 2015, from the claimant to the carrier requesting that the amount of AWW be re-calculated based on the pre-injury wages from the second non-claim employer.

The carrier states in its appeal that it paid temporary income benefits (TIBS) based upon the pre-injury wages from the claim employer and one non-claim employer, LR. The carrier argues that since the claimant has been paid all income benefits and the claimant’s date of MMI has passed, the claimant is prohibited from requesting an adjustment to her AWW from an additional non-claim employer.

Section 408.042(e) provides:

For an employee with multiple employment, only the employee’s wages that are reportable for federal income tax purposes may be considered. The employee shall document and verify wage payments subject to this section.

28 TEX. ADMIN. CODE § 128.1(h) (Rule 128.1(h)) amended effective May 16, 2002, states in pertinent part:

(h) For employees injured on or after July 1, 2002, who are employed by more than one employer on the date of injury and the employee submits the wage information from the other employer(s) in the form and manner prescribed by [Rule] 122.5 of this title (relating to [DWC-3ME]), the carrier shall calculate the AWW using the wages from all the employers in accordance with this section.  The employee’s AWW shall be the sum of the AWWs for each employer.

* * * *

(2) The portion of the employee’s AWW based upon employment with each “Non-Claim Employer” (as the term is defined in [Rule] 122.5 of this title) shall be calculated in accordance with [Rule] 128.3 of this title (relating to [AWW] Calculations for Full-Time Employees, and for [TIBs] for All Employees) except that the employee’s wages from the Non-Claim Employer(s) shall only include those wages that are reportable for federal income tax purposes.

Rule 122.5(f) effective May 16, 2002, states in pertinent part:

(f) Employees who file [DWC-3ME] are required to report all changes in employment status and/or earnings at the Non-Claim Employer to the carrier until the employee reaches [MMI].

(1) The employee shall report all changes in employment status at the Non-Claim Employer including termination or resignation within 7 days of the date the change takes place.

(2) The employee shall report within 7 days of the end of the pay period in which a change in earnings at the Non-Claim Employer related to the compensable injury took place. This would include both reductions and increases in wages as compared to the prior week as long as the difference was caused by the compensable injury such as because the employee's ability to work changed or the employer was more or less able to provide work that met the employee's work restrictions.

The carrier argued that the claimant had waived the right to seek further adjustment of her AWW because of lack of due diligence in obtaining and submitting an updated wage statement from her second non-claim employer, HTH; the claimant violated Rule 122.5(f) when she submitted the DWC-3ME for one non-claim employer, LR, but not for the additional non-claim employer, HTH; and pursuant to Rule 122.5(f) the claimant’s obligation to report changes ceases upon reaching MMI, placing an affirmative duty upon the claimant to submit wage information while benefits are still being paid.

The hearing officer explains in the discussion portion of his decision that in this case Rules 128.1 and 122.5 do not provide an exception where there is a delay in filing the DWC-3ME, whereas the carrier has a duty to adjust the AWW and to make payments based upon the correct AWW. The hearing officer’s determinations that: (1) the claimant’s AWW is $1,084.28; and (2) the carrier is required to pay benefits retroactively due to a change in AWW which is based upon pre-injury wages from a non-claim employer reflected on DWC-3ME which was not submitted to the carrier until after the claimant had reached MMI and all income benefits which were due had been paid, are supported by sufficient evidence and are affirmed.

A written decision is being issued in this case to clarify that Rule 122.5 does not establish a deadline for filing a DWC-3ME. Rule 122.5(f) defines the time period, up to the date the claimant reaches MMI, for which any change in employment status or wages must be reported to the carrier.

The preamble to Rule 122.5 clarifies that there is no deadline for filing a DWC-3ME (27 Tex. Reg. 4032, 2002). The following public comment and Texas Department of Insurance, Division of Workers’ Compensation (Division) response to Rule 122.5 states:

Comment: Commenter was concerned that the rule did not provide a timeframe in which to file a [DWC-3ME] which “will result in continuing uncertainty as to the proper AWW.” The commenter suggested adding a time limit to the rule so that claimants would have 30 days from the date they received the Employer’s Wage Statement to file their own [DWC-3MEs].

 

[Division] Response: The [Division] disagrees that the employee should have only 30 days to report the multiple employment wages. Employees may have difficulty obtaining wage information from non-claim employers and to put a limit on the amount of time the employee has to submit the information might punish the employee for the inactions of the non-claim employer (who is not required by statute to provide the information). It may turn out that the employee is only able to obtain the information from the Texas Workforce Commission. According to their process, wage reports are filed quarterly and subsequently loaded into database files where wage reports for given individuals are generated. Based on their schedule, a considerable gap in time exists, potentially six months, between the time the wages are earned and the time that a wage report reflecting the needed earning can be generated.

If a carrier receives a late wage statement that proves that the AWW that the carrier has been using to pay benefits is too high, the carrier is not prevented from using this new information even though the employer was in noncompliance by failing to timely file the report. Putting a limit on the amount of time the employee has to report the wages from a non-claim employer while not putting such a limit on a claim employer would result in an unwarranted double standard.

SUMMARY

The hearing officer’s determinations that the claimant’s AWW is $1,084.28, and the carrier is required to pay benefits retroactively due to a change in AWW which is based upon pre-injury wages from a non-claim employer reflected on DWC-3ME which was not submitted to the carrier until after the claimant had reached MMI and all income benefits which were due had been paid are supported by sufficient evidence and are affirmed.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 18, 2015, with the record closing on May 22, 2015, in Fort Worth, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the sole disputed issue by deciding that the appellant’s (claimant) impairment rating (IR) is 9%.

The claimant appealed the hearing officer’s determination, contending that the hearing officer’s determination is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The respondent (carrier) responded, urging affirmance of the hearing officer’s determination.

DECISION

Affirmed.

The parties stipulated in part that the claimant sustained a compensable injury on (date of injury), the accepted compensable injury is a left shoulder sprain/strain, left shoulder anterior labral tear, left shoulder partial detachment of the anteroinferior labrum and left shoulder partial detachment of the posterior horn; and that the claimant reached maximum medical improvement (MMI) on the statutory MMI date of September 28, 2014, as certified by (Dr. E), the designated doctor, and (Dr. G), the claimant’s treating doctor. The claimant testified he injured his left shoulder on (date of injury), when he repeatedly lifted a 200-pound gate and operated a pallet jack.

The hearing officer determined that the claimant’s IR is 9% as certified by (Dr. S), a subsequently-appointed designated doctor to determine the claimant’s IR. There is sufficient evidence to support the hearing officer’s determination; therefore, we affirm the hearing officer’s determination that the claimant’s IR is 9%. A written decision is being issued in this case to clarify the use of Table 27, Impairment of the Upper Extremity (UE) After Arthroplasty of Specific Bones or Joints, of 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) in assessing impairment for a distal clavicle resection arthroplasty received as treatment for the compensable injury.

It is undisputed by the parties that the claimant underwent a distal clavicle resection arthroplasty for the compensable injury on (date of injury). The claimant contended at the CCH and on appeal that the IR assigned by Dr. G, his treating doctor, is the correct IR in this case. The carrier contended at the CCH that the IR assigned by Dr. E, the first designated doctor, is the correct IR. Both parties agreed at the CCH that the difference between the IRs assigned by Dr. G and Dr. E was a 10% UE impairment assigned for the distal clavicle resection arthroplasty under Table 27 on page 3/61 of the AMA Guides.

Dr. G examined the claimant on December 1, 2014, and certified that the claimant reached MMI on the stipulated date of September 28, 2014, with a 9% IR.[1] As correctly noted by the hearing officer in the Discussion portion of the decision, Dr. G stated in his report that he rated the diagnosis of “unspecified derangement of joint, shoulder region” and sprain/strain of shoulder. This condition was neither stipulated to by the parties as being compensable, nor was this condition actually litigated by the parties as being compensable. The hearing officer was correct in stating that Dr. G’s certification is not adoptable.

Dr. E, the prior designated doctor, examined the claimant on November 10, 2014, and certified that the claimant reached MMI on the stipulated date of September 28, 2014, with a 4% IR. Dr. E explained in his narrative report that he assigned 4% impairment based on loss of range of motion (ROM) of the claimant’s left shoulder. Dr. E also explained in his report that he did not assign an impairment under Table 27 of the AMA Guides for the claimant’s distal clavicle resection arthroplasty because:

[c]urrent guidance from the [Texas Department of Insurance, Division of Workers’ Compensation (Division)] on this from impairment from Table 27, though, is to consider the final result of the injured worker and if they have a relatively good result, then the examiner would probably not be advised to assign impairment for the distal clavicle arthroplasty since the procedure was not intended to impair them and a good result means that they were not impaired, subverting any reasonable application of that impairment from that table. But if the final result of such surgery was relatively adverse, such as instability or other factors, then it would be reasonable to assign that 10% [UE] impairment. In this case, the examinee has a relatively normal examination except for minor loss in [ROM], which is accounted for by the [ROM] impairment. As such, assignment for the distal clavicle arthroplasty is not seen as reasonable here.

The hearing officer noted in his discussion that Table 27 of the AMA Guides does not give the guidance as stated by Dr. E; rather, Table 27 “simply gives an [IR] value for different levels of arthroplasty, with 10% being given for a distal clavicle arthroplasty.” The hearing officer then stated in part that because Dr. E did not give a rating for the distal clavicle resection arthroplasty, the claimant was sent to a new designated doctor to address the claimant’s IR.

Dr. S was subsequently appointed as the designated doctor to determine the claimant’s IR. Dr. S determined that the claimant reached MMI on the stipulated date of September 28, 2014, with a 9% IR. Dr. S assessed 6% UE impairment for loss of ROM of the claimant’s left shoulder, and 10% UE impairment for the distal clavicle resection arthroplasty under Table 27 of the AMA Guides, for a combined UE impairment of 15%, which converts to 9% whole person impairment under Table 3 on page 3/20 of the AMA Guides. The hearing officer found that Dr. S’s IR is not contrary to the preponderance of the evidence, and therefore determined that the claimant’s IR is 9%.

The question in this case is whether a distal clavicle resection arthroplasty received as treatment for the compensable injury results in a 10% UE impairment under Table 27 of the AMA Guides.

The AMA Guides provide on page 3/58 the following:

It is emphasized that impairments from the disorders considered in this section [3.1m Impairment Due to Other Disorders of the UE] are usually estimated by using other criteria. The criteria described in this section should be used only when the other criteria have not adequately encompassed the extent of the impairments.

Table 27, Impairment of the UE After Arthroplasty of Specific Bones or Joints, falls under Section 3.1m. When considering the language on page 3/58 in isolation it would appear that a distal clavicle resection arthroplasty would receive a 10% UE rating under Table 27 only if the other criteria provided in the AMA Guides have not adequately rated the impairment. However, the AMA Guides also provide on page 3/62 the following specifically regarding arthroplasty of a joint:

In the presence of decreased motion, motion impairments are derived separately (Sections 3.1f through 3.1j) and combined with arthroplasty impairments using the Combined Values Chart (p. 322).

The language on page 3/62 clearly provides that impairment for arthroplasty procedures is to be derived by combining loss of ROM, if any, with arthroplasty impairment under Table 27.

The language contained on page 3/58 is ambiguous, whereas the language on page 3/62 provides more clear instruction regarding the rating of arthroplasty procedures. Therefore, we hold that impairment for a distal clavicle resection arthroplasty that was received as treatment for the compensable injury results in 10% UE impairment under Table 27, which is then combined with ROM impairment, if any, as provided by the AMA Guides. We note that the manner of assessing loss of ROM, including but not limited to whether or not loss of ROM should be invalidated or the comparison of ROM of a contralateral joint, remains within the discretion of the certifying doctor. See Appeals Panel Decision (APD) 091820, decided January 13, 2010, in which the Appeals Panel reversed the hearing officer’s IR determination because the certifying doctor failed to rate the entire compensable injury when he failed to combine ROM impairment with arthroplasty impairment under Table 27 as provided by the AMA Guides; and APD 132926, decided February 13, 2014, in which the Appeals Panel rejected an MMI/IR certification in part because the certifying doctor failed to include a rating for the claimant’s right distal clavicle resection arthroplasty.

SUMMARY

The hearing officer’s determination that the claimant’s IR is 9% as certified by Dr. S is supported by sufficient evidence and is affirmed.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. As noted by the hearing officer, the Report of Medical Evaluation (DWC-69) from Dr. G assigned a 10% IR. However, in evidence is an amended DWC-69 from Dr. G that assigned a 9% IR.

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 22, 2015,[1] in Houston, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that “[the respondent (claimant)] is entitled to supplemental income benefits (SIBs) for the 11th quarter, July 25, 2014, through October 23, 2014, because [the appellant (carrier)] waived its right to contest [the] [c]laimant’s entitlement to SIBs for the 11th quarter by failing to timely request a benefit review conference (BRC).”

The carrier appealed the hearing officer’s determination, contending that the hearing officer’s determination is unsupported by the evidence. The carrier alleged that the evidence established it timely filed a Request for a [BRC] (DWC-45) along with documentation reflecting its efforts to resolve the disputed SIBs issue with the claimant’s counsel, and therefore the denial by the Texas Department of Insurance, Division of Workers’ Compensation (Division) of the carrier’s DWC-45 was improper. The claimant responded, urging affirmance of the hearing officer’s determination.

DECISION

Reversed and remanded.

The parties stipulated in part that: the claimant sustained a compensable injury on [Date of Injury], which resulted in a final impairment of 19%; the claimant has not commuted any portion of the impairment income benefits; the 11th quarter of SIBs is from July 25 through October 23, 2014; the qualifying period for the 11th quarter of SIBs was from April 12 through July 11, 2014; and the minimum number of weekly work search contacts for the claimant’s county of residence is three. The claimant testified that she was injured when she slipped and fell on a wet floor.

The hearing officer found the following unappealed findings of fact:

5. [The] [c]laimant did not demonstrate an active effort to obtain employment during each week of the qualifying period for the 11th quarter of SIBs.

7. [The] [c]arrier filed its [DWC-45] to dispute [the] [c]laimant’s entitlement to SIBs for the 11th quarter with the Division on July 25, 2014, within 10 days after receiving the application for SIBs.

8. On July 30, 2014, the Division denied the [carrier’s] DWC-45.

9. [The] [c]arrier did not request an expedited CCH under [28 TEX. ADMIN. Code § 141.1(g) (Rule 141.1(g))] to determine whether there was good cause for failing to meet the requirements of Rule 141.1(d).

The hearing officer determined that the claimant is entitled to 11th quarter SIBs solely on the basis of carrier waiver. The hearing officer stated in the Discussion portion of the decision that the Division’s denial of the carrier’s DWC-45 noted that the documentation of efforts to resolve the disputed issues prior to requesting a BRC was insufficient. The hearing officer also noted that the carrier did not request an expedited CCH under Rule 141.1(g) to determine whether there was good cause for failing to meet the requirements of Rule 141.1(d). The hearing officer stated that because the carrier’s DWC-45 was denied and a complete DWC-45 was not filed within 10 days after receiving the claimant’s application for 11th quarter SIBs, the carrier waived its right to contest the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a BRC, and therefore the claimant is entitled to 11th quarter SIBs.

The carrier contended that it presented evidence establishing that it filed a DWC-45 on July 25, 2014, disputing the claimant’s entitlement to 11th quarter SIBs, and that it attached to the DWC-45 e-mails between the claimant’s attorney and the carrier’s adjuster as documentation of its efforts to resolve the disputed issue. We note that in evidence are e-mails from (Ms. J) from the carrier to (Ms. H) with the claimant’s attorney’s office that are date stamped as received by the Division on July 25, 2014, which is the same date the carrier filed the DWC-45. Also in evidence is a DRIS note dated September 4, 2014, Sequence Number 183 from a Division employee noting that she had “denied the [DWC-45] based on the fact that I [received] only two pages, which was the DWC-45 and no attachments. After reviewing TxComp, I see that the supportive documentation was scanned in and date stamped on the same day just not noticed that they were (sic) should be together. . . .”

The carrier alleged that it had timely filed a complete DWC-45 disputing the claimant’s entitlement to 11th quarter SIBs, and that because the Division had improperly denied the DWC-45 it did not waive its right to contest the claimant’s entitlement to 11th quarter SIBs.

Section 408.147(b) provides as follows:

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

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

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

1.  identify and describe the disputed issue or issues;

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

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

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

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

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

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

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

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

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

Rule 141.1(g) provides two methods under which a party may pursue a disagreement with the Division’s denial: a party may request an expedited CCH in accordance with Rule 140.3, or a party may pursue an administrative appeal of the Division’s denial in accordance with Chapter 142 relating to Dispute Resolution. While the hearing officer is correct in finding that the carrier did not request an expedited CCH in accordance with Rule 140.3 regarding the Division’s denial of the carrier’s DWC-45, that finding alone does not necessarily establish that the carrier failed to avail itself of its ability to challenge the Division’s denial under Rule 141.1(g). In evidence is a second DWC-45 filed by the carrier on September 3, 2014, in which the carrier described the disputed issue as follows:

[The] [c]arrier asserts that the [Division] abused its discretion in denying the BRC requested [on July 25, 2014] based on [Rule] 141.1. The [c]arrier included with the [July 25, 2014] DWC-45 its attempts to resolve the issue through documentation showing the date the claims adjuster contacted the claimant’s attorney and the representation that counsel would not agree that her client is not entitled to [SIBs]. The communications between the claims adjuster and the claimant’s attorney are memorialized in e-mail communications attached to the DWC-45. All documents reflect hand delivery to the [Division] on July 25, 2014.

A BRC was held on October 3, 2014. The BRC report in evidence shows that the two issues unresolved after the BRC were whether the claimant is entitled to 11th quarter SIBs, and whether the carrier waived its right to contest the claimant’s entitlement to 11th quarter SIBs by failing to timely request a BRC. The BRC report notes that the carrier’s position at the BRC was that it did not waive the right to dispute 11th quarter SIBs because it timely filed a DWC-45 on July 25, 2014, along with documentation showing the carrier’s attempts to resolve the issue with the claimant’s attorney, and that the Division abused its discretion by denying the July 25, 2014, DWC-45. The carrier argued the same position at the CCH.

The evidence in this case shows that the carrier pursued an administrative appeal of the Division’s denial of the carrier’s July 25, 2014, DWC-45 under Chapter 142 relating to Dispute Resolution, which is one of the two methods listed in Rule 141.1(g) under which a party may challenge a Division denial of an incomplete DWC-45.

The claimant contended that the facts in Appeals Panel Decision (APD) 111189-s, decided October 3, 2011, are directly applicable to the case on appeal. In that case the carrier timely filed a DWC-45 to dispute the claimant’s entitlement to 2nd quarter SIBs; however, the Division denied the carrier’s DWC-45. The Division denial noted that all claim information was not provided in Section II of the DWC-45 and that there was an insufficient description of the disputed issue. The claimant in that case argued on appeal that because the carrier’s DWC-45 was denied, the carrier waived its right to dispute the claimant’s entitlement to 2nd quarter SIBs. The Appeals Panel stated that because the carrier’s DWC-45 was incomplete and was denied it did not constitute a dispute proceeding. The Appeals Panel noted that the carrier did not request an expedited CCH under Rule 141.1(g) to determine whether there was good cause for failing to meet the requirements of Rule 141.1(d). The Appeals Panel therefore reversed the hearing officer’s determination that the carrier did not waive the right to contest the claimant’s entitlement to 2nd quarter SIBs by failing to timely request a BRC, and rendered a new decision that the carrier did waive the right to contest the claimant’s entitlement to 2nd quarter SIBs by failing to timely request a BRC.

The carrier in both the instant case and in APD 111189-s, supra, did not request an expedited CCH under Rule 141.1(g) to determine whether there was good cause for failing to meet the requirements of Rule 141.1(d). However, unlike the facts in the instant case, there was no evidence in APD 111189-s that the carrier had pursued an administrative appeal of the Division’s denial of the carrier’s DWC-45 under Chapter 142 relating to Dispute Resolution. As noted above the carrier in the instant case filed a DWC-45 asserting that the Division abused its discretion in denying the carrier’s July 25, 2014, DWC-45, because the carrier did file a complete DWC-45 under Rule 141.1(d). The carrier argued this position at both the BRC and the CCH. Therefore, we find the facts in the instant case distinguishable from those in APD 111189-s, and we hold that the carrier in the instant case appealed the Division’s denial of its July 25, 2014, DWC-45 under Rule 141.1(g).

The hearing officer based her determination that the carrier waived its right to contest the claimant’s entitlement to 11th quarter SIBs on the basis that the carrier’s DWC-45 was denied and a complete DWC-45 was not filed within 10 days after receiving the claimant’s 11th quarter SIBs application. However, as discussed above the carrier in this case appealed the Division’s denial of its July 25, 2014, DWC-45 under Rule 141.1(g). The carrier argued and presented evidence at the CCH that it timely filed a complete DWC-45 under Rule 141.1(d). The hearing officer erred in failing to determine whether or not the carrier filed a complete DWC-45 in compliance with Rule 141.1(d). We reverse the hearing officer’s determination that the claimant is entitled to 11th quarter SIBs because the carrier waived its right to contest the claimant’s entitlement to 11th quarter SIBs by failing to timely request a BRC, and we remand the issues of whether the carrier waived the right to contest the claimant’s entitlement to 11th quarter SIBs and whether the claimant is entitled to 11th quarter SIBs for further action consistent with this decision.

SUMMARY

We reverse the hearing officer’s determination that the claimant is entitled to SIBs for the 11th quarter, July 25, 2014, through October 23, 2014, because the carrier waived its right to contest the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a BRC, and we remand these issues to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to determine whether the carrier’s July 25, 2014, DWC-45 was a complete DWC-45 as provided in Rule 141.1(d). Once the hearing officer makes this determination, the hearing officer is then to determine whether the carrier waived its right to contest the claimant’s entitlement to SIBs for the 11th quarter by failing to timely request a BRC. Once the hearing officer makes this determination, the hearing officer is then to determine whether the claimant is entitled to 11th quarter SIBs.

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

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

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the decision incorrectly states that the CCH was held on January 22, 2014.

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on December 11, 2014, in Fort Worth, Texas, with [hearing officer] Brown presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the first certification of maximum medical improvement (MMI) and assigned impairment rating (IR) from (Dr. S) on January 16, 2014, did not become final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (2) the appellant’s (claimant) IR is 6%, as of the MMI date of January 9, 2014.[1]

The claimant appealed both of the hearing officer’s determinations, contending that the hearing officer abused his discretion in making his findings of fact relating to his finality determination, and that the hearing officer did not give the designated doctor’s MMI/IR certification presumptive weight. The carrier responded, urging affirmance of the hearing officer’s determinations.

DECISION

Reversed and rendered.

The parties stipulated that the claimant sustained a compensable injury on [Date of Injury], that includes a right wrist volar[2] ganglion cyst excision and right interpositional arthroplasty with EPB tendon transfer. The claimant testified that she slipped and fell on the date of injury and injured her right wrist when she attempted to break her fall by catching herself with her right arm. In evidence is an operative report dated July 8, 2013, establishing that the claimant underwent an excision of volar wrist ganglion cyst and interpositional arthroplasty of the right wrist with EPB tendon transfer on that same date. We note that the parties did not stipulate to an MMI date; however, the Benefit Review Conference (BRC) report shows that the parties were not disputing that the date of MMI is January 9, 2014, as all doctors certified this date of MMI. All of the Reports of Medical Evaluation (DWC-69) in evidence list an MMI date of January 9, 2014.

ISSUE STATEMENT 1 CORRECTION

The BRC lists the following finality issue:

Did the first certification of [MMI] and assigned [IR] from [Dr. S] on [January 16, 2014] become final under [Section 408.123] and Rule 130.12?

At the CCH the parties agreed to Issue Statement 1, the finality issue, as stated on the BRC report. However, the hearing officer’s decision lists Issue Statement 1, the finality issue, as follows:

Did the first certification of [MMI] and assigned [IR] from [Dr. S] become final under [Section 408.123] and Rule 130.12?

Issue Statement 1 as listed in the decision and order is incorrect because it omits the date of the first MMI/IR certification assigned by Dr. S. We therefore reform the hearing officer’s decision to state the following to reflect the actual issue as stated on the BRC report and agreed to by the parties at the CCH:

Did the first certification of [MMI] and assigned [IR] from [Dr. S] on [January 16, 2014] become final under [Section 408.123] and Rule 130.12?

STIPULATION CORRECTION

The parties stipulated at the CCH that on February 6, 2014, (Dr. N) certified that the claimant reached MMI on January 9, 2014, with an IR of 19%. However, the stipulation contained in the hearing officer’s decision as Finding of Fact No.1.E. is the following:

1.E. On February 8, 2014, [Dr. N] certified that [the] [c]laimant reached MMI on January 9, 2014, with an IR of 19%.

The decision does not list the correct date of Dr. N’s MMI/IR certification that was in the stipulation made by the parties at the CCH. Further, we note that in evidence is a DWC-69 from Dr. N dated February 6, 2014, certifying that the claimant reached MMI on January 9, 2014, with a 19% IR. Accordingly, we reform the hearing officer’s decision by reforming Finding of Fact No. 1.E. to reflect the actual stipulation made by the parties to read as follows:

1.E. On February 6, 2014, [Dr. N] certified that the claimant reached MMI on January 9, 2014, with an IR of 19%.

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; that the notice must contain a copy of a valid DWC-69, as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both.

Section 408.123 also 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.

The hearing officer found that Dr. S’s January 16, 2014, MMI/IR certification was the first valid certification for purposes of Rule 130.12(c), and that Dr. S’s January 16, 2014, MMI/IR certification was provided to the claimant by verifiable means on January 24, 2014. The hearing officer’s findings of fact are supported by sufficient evidence.

The hearing officer also found in Finding of Fact No. 5 that the claimant did not dispute Dr. S’s January 16, 2014, MMI/IR certification “within 91 days” after the date the certification was provided to her by verifiable means. As noted above, 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. Section 408.123(e) does not provide that an employee or a carrier has 91 days to dispute a first valid MMI/IR certification; rather, that provision states that the first valid MMI/IR certification has to be disputed before the 91st day after the date written notification of the MMI/IR certification is provided by verifiable means. Also noted above, 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. Neither the Act nor Rules provide that a party disputing the first valid MMI/IR certification has 91 days after the date the certification was provided to the party by verifiable means to dispute that certification.

There is sufficient evidence to support the hearing officer’s finding that the claimant did not dispute Dr. S’s January 16, 2014, MMI/IR certification within 91 days after the date the rating was provided to her by verifiable means. As noted above, Section 408.123 and Rule 130.12 provide that the first valid MMI/IR certification may become final if not disputed within 90 days after the date written notification of the MMI/IR certification is provided by verifiable means. Therefore, we reform Finding of Fact No. 5 as follows to conform to Section 408.123(e), Rule 130.12(b), and the evidence:

The claimant did not dispute [Dr. S’s] January 16, 2014, MMI/IR certification within 90 days after the date the rating was provided to her by verifiable means.

The hearing officer determined that the first MMI/IR certification from Dr. S on January 16, 2014, did not become final under Section 408.123 and Rule 130.12 because “[t]here was compelling medical evidence of a significant error in applying the appropriate [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)] in calculating [the] [c]laimant’s IR pursuant to [Section 408.123(f)(1)(B)] in that [Dr. S] failed to rate a medical condition that the parties have stipulated to be included in the compensable injury.” We note that the hearing officer made an incorrect statutory reference in Finding of Fact No. 6; the correct citation is Section 408.123(f)(1)(A). We also note that although the claimant prevailed in her argument regarding finality at the CCH, the claimant specifically listed Finding of Fact No. 6, Conclusion of Law No. 3, and the decision that the first MMI/IR certification from Dr. S on January 16, 2014, did not become final under Section 408.123 and Rule 130.12 as being disputed in her appeal.

The hearing officer discussed Appeals Panel Decision (APD) 132594-s, decided January 3, 2014, in his decision. The hearing officer noted that the Appeals Panel held that a subsequent determination that a compensable injury extends to a disputed condition is not, by itself, an exception to finality. The hearing officer also noted that there was no extent-of-injury dispute in the instant case, and that because the parties stipulated that the compensable injury includes right wrist volar ganglion cyst excision and right interpositional arthroplasty with EPB tendon transfer, “it was incumbent on the certifying doctor to rate separately each condition that the parties have accepted as part of the compensable injury.” The hearing officer stated that Dr. S’s failure to rate the conditions stipulated to by the parties constitutes compelling evidence of a significant error in applying the appropriate AMA Guides in calculating the claimant’s IR.

In APD 132594-s, supra, the issues before the hearing officer were extent of the compensable injury, finality of the first MMI/IR certification, MMI, IR, and disability. The hearing officer in that case determined that the first valid MMI/IR certification did not become final because the certifying doctor did not consider and rate the extent-of-injury determinations the hearing officer found in favor of the claimant. The Appeals Panel stated that while a subsequent resolution of the extent of the compensable injury may be an element of one of the three exceptions contained in Section 408.123(f), that resolution in and of itself is not an exception to finality. The Appeals Panel noted that “there is no provision in either Section 408.123 or Rule 130.12 that provides that the exclusion of a condition in an assignment of IR constitutes an exception for finality,” and declined to read any such interpretation in those provisions and declined to follow any prior cases that may have read such an interpretation. The Appeals Panel held that the hearing officer’s resolution of the extent-of-injury dispute in favor of the claimant by itself would not allow the claimant to dispute the first MMI/IR certification because the 90-day period to do so had expired.

In APD 132117, decided November 4, 2013, the issues before the hearing officer were finality of the first assigned IR and IR. We note that in APD 132117, as in the instant case, the extent of the claimant’s compensable injury was not at issue. The hearing officer in that case determined that the first assigned IR did not become final because there was compelling medical evidence of a significant error by the certifying doctor in calculating the claimant’s IR because the certifying doctor included a condition that was not determined to be a part of the compensable injury. The Appeals Panel noted, as it did in APD 132594-s, supra, that “[t]here is no provision in either Section 408.123 or Rule 130.12 that states that the mere inclusion of a condition in an assignment of IR constitutes an exception for finality.” The Appeals Panel declined to read that interpretation in those provisions and declined to follow any prior cases that may have read such an interpretation.

In the instant case, the hearing officer correctly stated that extent of the claimant’s compensable injury was not at issue. As noted above, the parties stipulated at the CCH that the claimant sustained a compensable injury on [Date of Injury], that includes a right wrist volar ganglion cyst excision and right interpositional arthroplasty with EPB tendon transfer. It was undisputed by the parties that the claimant underwent an excision of volar wrist ganglion cyst and interpositional arthroplasty of the right wrist with EPB tendon transfer on July 8, 2013. The hearing officer found Dr. S’s failure to rate a medical condition that the parties stipulated to be included in the compensable injury constitutes compelling medical evidence of a significant error in applying the appropriate AMA Guides in calculating the claimant’s IR pursuant to Section 408.123(f)(1)(A). However, as we have stated in APD 132117, supra, and APD 132594-s, supra, neither Section 408.123 nor Rule 130.12 provide that the mere inclusion or the exclusion of a condition in an assignment of IR constitutes an exception for finality, and we decline to read any such interpretation in those provisions. We hold that under the facts of this case, Dr. S’s failure to rate a medical condition to which the parties have stipulated at the CCH to be included in the compensable injury does not, by itself, constitute compelling medical evidence of a significant error in applying the appropriate AMA Guides under Section 408.123(f)(1)(A). Accordingly, the hearing officer’s determination that the first MMI/IR certification from Dr. S on January 16, 2014, did not become final on this basis is legal error.

Although the hearing officer made no specific findings regarding the finality exceptions found in Section 408.123(f)(1)(B) or (C), it is clear from his discussion that the hearing officer was persuaded that the evidence did not establish those exceptions in this case.

As there is no compelling medical evidence in this case to establish an exception to finality as found in Section 408.123(f)(1), we reverse the hearing officer’s determination that the first MMI/IR certification from Dr. S on January 16, 2014, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the first MMI/IR certification from Dr. S on January 16, 2014, did become final under Section 408.123 and Rule 130.12.

MMI/IR

We note that the parties did not stipulate as to the date the claimant reached MMI. However, as noted above the BRC report in evidence states that the parties were not disputing that the date of MMI is January 9, 2014, as all doctors certified the same MMI date, and all the DWC-69s in evidence certify a January 9, 2014, MMI date. Given that Dr. S’s January 16, 2014, MMI/IR certification has become final under Section 408.123 and Rule 130.12, we reverse the hearing officer’s determination that the claimant’s IR is 6% as of the MMI date of January 9, 2014, per (Dr. K), the post-designated doctor required medical examination doctor, and we render a new decision that the claimant reached MMI on January 9, 2014, with a 0% IR per Dr. S.

SUMMARY

We reverse the hearing officer’s determination that the first MMI/IR certification from Dr. S on January 16, 2014, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the first MMI/IR certification from Dr. S on January 16, 2014, did become final under Section 408.123 and Rule 130.12.

We reverse the hearing officer’s determination that the claimant’s IR is 6% as of the MMI date of January 9, 2014, and we render a new decision that the claimant reached MMI on January 9, 2014, with a 0% IR per Dr. S.

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. We note that the decision and order does not reflect the entire zip code for the respondent’s (carrier) registered agent for service of process.

  2. We note that the decision identifies this condition as “[v]olvar” ganglion cyst. However, the medical records in evidence identify this condition as “volar” ganglion cyst.

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