Recent TX Appeals Panel Decisions (March 28, 2008)

Recent TX Appeals Panel Decisions (March 28, 2008)

Recent Appeals Panel Decisions (March 28, 2008).

APD  072259
Issue:  Waiver
 
The carrier received notice on September 18, 2006.   An MRI was dated November 8, 2006 showing L5-S1 posterior protrusion of disc material and chronic disc degenerative changes at L5-S1 with posterolateral disc protrusion.  Therefore, the Appeals Panel held, “The carrier could have reasonably discovered in its investigation that either a protrusion or herniated nucleus pulposus at L5-S1 equated to the same condition and was part of the claimed injury in the 60 day waiver period.”  The carrier waived its right to dispute the findings of an MRI that was taken on the 51st day and not received by the carrier within the first 60 days.
 
APD 072242
Issue:  Maximum Medical Improvement

 
The Hearing Officer found an earlier date of maximum medical improvement because the claimant did not have any material recovery or lasting improvement.  The Appeals Panel, quoting from APD No. 012284, helds, “It is of no moment that the treatment did not ultimately prove successful in providing material recovery or lasting improvement in the claimant’s condition, where, as here, the recovery and improvement could reasonably be anticipated according to the designated doctor.”  The Appeals Panel will only look to whether or not treatment was provided with a reasonable medical probability that further material recovery is possible.  Apparently, the Appeals Panel will not require actual improvement or recovery when determining MMI.
 
APD 072220-S
Issue:  Impairment Rating
 
The Hearing Officer found in accordance with an RME report because she felt the atrophy must be greater than 2 cm.  However, the AMA Guides Differentiator No. 3 found in Table 71 only shows that the loss of girth must be 2 cm. or more.

APD 072129
Issue:  Waiver
 
Carrier received written notice on August 30, 1996.  The Appeals Panel utilized '409.021 as found in 2003.  The Appeals Panel found the carrier had seven days to take action and therefore the carrier waived its right to dispute compensability.  The Appeals Panel then used its created “waiver period” to determine the extent of the injury that the carrier waived within the first 60 days.  The Appeals Panel found, “The carrier could have reasonably discovered in its investigation the diagnosed acute exacerbation of degenerative arthritis/osteoarthritis was part of the claimed injury within the seven day waiver period.” 

APD 072090
Issue: 90 Day Rule Finality
 
The first doctor diagnosed a left shoulder contusion.  A December 15, 2006 MRI showed a full rotator cuff tear.  The Hearing Officer found the claimant was told he had a tear of the left shoulder in July 2006 and should have disputed impairment at that time.  The Appeals Panel “relied upon Appeals Panel No. 061493-S holding the exceptions in Section 408.123(f)(1)(a), (b) and (c) do not provide the exceptions only apply if knowledge of the facts giving rise to exception occurs after the 90 day period has expired.”  Therefore, the Appeals Panel found the first impairment did not become final because there was compelling medical evidence of a clearly mistaken diagnosis or previously undiagnosed medical condition.
 
APD 072028
Issue:  Computation of Time

  
The Hearing Officer found the carrier waived its right to dispute the eleventh quarter of supplemental income benefits.  The tenth day was a Sunday.  The Hearing Officer should have extended the time period to the next working day.  Hence, the Appeals Panel reversed the Hearing Officer’s decision and found the carrier timely requested a Benefit Review Conference.  It affirmed the Hearing Officer’s decision that the claimant was entitled to supplemental income benefits.
 
APD 072011
Issue:  Impairment Rating
 
The parties stipulated to a July 10, 2006 maximum medical improvement date.  However, the designated doctor’s first 34% impairment rating was based on an MMI date of July 17, 2006.
 
The Hearing Officer found the designated doctor’s impairment rating was incorrect because he invalidated range of motion.  The Appeals Panel writes, “We have long recognized that a designated doctor can invalidate range of motion based on observation.”  The Court cites Appeals Panel Decision No. 071283-S for discussion of the proper calculation of lower extremities and there may be instances in which elements from diagnostic and examination approaches can apply to a specific case.
 
Therefore, the Appeals Panel reversed the findings of the Hearing Officer and held the designated doctor’s 7% impairment rating was valid and not overcome by the great weight of other medical evidence.
 
APD 072003
Issue:  Impairment Rating
 
The designated doctor’s report is dated June 21, 2006.  However, the maximum medical improvement date of June 21, 2006, was marked out and a new date of maximum medical improvement of July 8, 2006 was substituted with the designated doctor’s initials.  The date of maximum medical improvement was prospective from the date of the report (there is no mention of when the doctor amended the DWC-69).  Furthermore, the parties stipulated the MMI date was June 27, 2006.  Therefore, the designated doctor’s impairment rating is based on the wrong MMI date. 
 
The treating doctor’s 16% impairment rating was based upon a November 9, 2006 MMI date and not the stipulated MMI date of June 27, 2006.  The Appeals Panel remanded for further communication with the designated doctor.
 
APD 072002-S
Issue:  Waiver
 
The carrier received notice of the claimed injury on May 18, 2007.  On June 1, 2007, the carrier filed a PLN-11 disputing liability.  On June 29, 2007, the carrier filed a second PLN disputing compensability of the claim.  The Hearing Officer found waiver.  The preamble to Rule 124.3 states a disputed benefit entitlement such as temporary income benefits is not a dispute of compensability/liability.  Thus, the carrier retains the right to contest compensability and liability within the 60 day time period, even though it has previously filed a dispute to benefit entitlement.   Because the first PLN only disputed temporary income benefits, the carrier still had 60 days to file any compensability disputes.
 
APD 071988
Issue:  Impairment Rating
 
The designated doctor found maximum medical improvement on September 14, 2006.  However, in answers to Depositions on Written Questions, the designated doctor agreed to the May 22, 2007 date of maximum medical improvement. At the contested case hearing, the parties stipulated to the May 22, 2007 date of maximum medical improvement.  However, the designated doctor did not examine the claimant after the first date of maximum medical improvement given, and therefore, the impairment rating was not based upon a physical examination certifying the May 22, 2007 date of maximum medical improvement.
 
The two treating doctor reports admitted in evidence were premised on the belief the claimant had a two-level spinal fusion. The claimant only had a one level spinal fusion.  Thus, neither of the reports could be adopted.  Therefore, the Appeals Panel reversed and ordered the Hearing Officer to contact the designated doctor and determine the claimant’s impairment rating as of the stipulated May 22, 2007 date of maximum medical improvement.
 
APD 071960
Issue:  Timely Filing A Claim for Compensation Form
 
The Appeals Panel affirmed the Hearing Officer’s finding the decedent did not suffer a compensable injury resulting in his death.  The decedent’s beneficiaries filed a lawsuit against the employer on or about November 8, 2006, which was answered on or about December 21, 2006.  The employer did not file a DWC-1 with the Division until February 12, 2007.  The DWC-42 was filed on March 23, 2007.  The Appeals Panel found the employer knew of the claimed death within one year of the date of injury and failed to file the DWC-1.  Because the DWC-1 was not filed timely, the time frame for the claimant to file the claim for compensation form was tolled.  Therefore, the Appeals Panel reversed the finding and held the claimant did timely file her claim for compensation form.
 
APD 071942
Issue:  Issue Determination
 
The Hearing Officer simultaneously held a hearing on two separate claims.  However, the Hearing Officer apparently failed to make a finding of fact or conclusion of law on one of the issues.  The Appeals Panel could not determine if it was a clerical error or oversight.  Therefore, the case was remanded to make further findings of fact and conclusions of law.
 
APD 071925
Issue: Waiver

The Appeals Panel affirmed the Hearing Officer’s findings the carrier waived the right to dispute degenerative arthritis and degenerative joint disease of the left knee.  However, the Appeals Panel reversed the Hearing Officer’s finding the carrier waived chondromalacia, osteoarthritis, and traumatic arthritis.  The Hearing Officer found these conditions were neither worsened nor accelerated by the compensable injury; however, the carrier waived all those conditions because they were alternately referred to as osteoarthritis, traumatic arthritis, degenerative arthritis, and degenerative joint disease.  The Appeals Panel found these conditions were not included in the waiver issue before the Hearing Officer.  They also were not litigated by the parties.  Therefore, the Appeals Panel reversed the findings of fact and conclusions of law that the carrier waived these diagnoses.  The Appeals Panel found the chondromalacia, osteoarthritis, and traumatic arthritis were not waived and were not related to the compensable injury.
 
APD 071919
Issue: Waiver
 
The Appeals Panel affirmed the Hearing Officer’s decision the carrier waived its right to contest thoracic disc protrusion/herniation at T2-3 and thoracic fibromyositis.  The carrier did not dispute extent of injury within the first 60 days after the carrier received notice of the claim and these diagnoses were found in doctor reports authored within the Appeals Panel-created “waiver period.”
 
APD 071880
Issue:  Finality of Impairment Rating in SIBs Cases

 
The Hearing Officer found no party disputed the impairment rating prior to the end of the first quarter of supplemental income benefits, and therefore, under Rule 130.102(g), the 20% impairment rating became final.  The Appeals Panel reversed the finding the first impairment rating was disputed timely by the claimant and the parties were never able to resolve their dispute by the end of the 1st quarter of SIBs.  Therefore, the impairment rating could not become final pursuant to Rule 130.102(g).  The designated doctor awarded 20% impairment rating based upon the range of motion model, presumably at the direction of the TWCC Advisories 2003-10 and 10b.  The designated doctor did not use the range of motion model as a differentiator, but rather, improperly used the range of motion model to calculate the impairment rating.  The case was remanded to find a proper impairment rating. 
 
APD 071872
Issue:  Proper Impairment Rating
 
The first designated doctor issued three reports, each of which was invalid (wrong MMI date, wrong AMA Guides, and using the range of motion model without explaining why the DRE model should not be used).  He refused to provide any more clarifications.
 
The second designated doctor issued two reports, but neither included the MMI date stipulated to by the parties.  Therefore, the Division adopted the carrier RME  doctor's impairment rating of 10% because it rated all of the body parts and had the correct MMI date.  The Hearing Officer felt the RME doctor improperly awarded an impairment rating for radiculopathy without loss of relevant reflexes or atrophy greater than 2 cm.  The Appeals Panel believed the carrier RME doctor did find loss of relevant reflexes, and there was an EMG which suggested right L5 and SI nerve root radiculopathy.
 
APD 071822
Issue: The 90 Day Finality Provisions

 
The designated doctor certified a 0% impairment rating.  He did not provide a diagnosis or impairment for the left knee.  An MRI revealed new diagnoses, including probable tears of the medial and lateral meniscus.  The carrier's RME doctor felt the left knee was related to the claimant's work injury.  The claimant underwent a left knee arthroscopy with a partial medial meniscectomy and a patellofemoral chondroplasty.  The Appeals Panel found compelling medical evidence of a clearly mistaken diagnosis or a previously undiagnosed medical condition. 
 
APD 071788
Issue:  Carrier Attorney Fees
 
The Hearing Officer denied five entries for duplicative service and/or multiple reasons.  The Appeals Panel has previously stated “multiple reasons” is not a "sufficient explanation for denial of fees and that such notation is unacceptable and does not allow a meaningful review."  The Appeals Panel approved these hours.  However, there were additional hours the carrier's attorney requested to attend a proceeding on a date where the Division's records did not indicate a hearing was held.  (The Hearing Officer approved the travel time and attendance time for a contested case hearing held two days before.)  As such, the Appeals Panel upheld the Hearing Officer's Order denying these fees for different dates of service, albeit on different grounds.
 
APD 071770
Issue: Waiver

Within the sixty day “waiver period”, the carrier filed a PLN disputing bilateral shoulder impingement syndromes, bilateral wrist sprains/strains, bilateral elbow sprains/strains, and nerve entrapment.  The PLN did not include any specific language limiting the accepted injuries.  After the PLN was filed but still within the “waiver period”, the claimant had bilateral shoulder, elbow and wrist MRIs with various findings.  The Appeals Panel held carrier waived its right to dispute all the diagnosis found on the MRIs.  Further, the carrier waived shoulder impingement syndrome because there was no evidence as to whether or not the various findings on the shoulder MRI were an impingement syndrome.  The carrier waived those diagnosis as well. 

APD 071721
Issue: Newly Discovered Evidence

The Division set a designated doctor examination on extent of injury and disability.  Rule 126.7(I)(1) states both the treating doctor and insurance carrier shall provide the designated doctor copies of all employee’s medical records in its possession.  It is clear the designated doctor did not have the treating doctor’s initial reports.  In an addendum, the designated doctor indicated he did not have those reports and it would change his opinion.  This report came in after the Contested Case Hearing and was attached to the appeal.  The Appeals Panel held the claimant provided newly discovered evidence on appeal and a remand was warranted based upon that evidence.

APD 071706
Issue:  Good Cause for Failure to Appear at a CCH

The claimant did not appear at the Contested Case Hearing.  The claimant’s attorney filed a response to the “ten day” letter.  It appeared claimant died and therefore the Hearing Officer issued a decision in favor of the carrier on all issues.  The Appeals Panel held the claimant, if alive, or his estate can proceed with the remaining issues pursuing all accrued income benefits.

APD 071703
Issue: Disability

The Hearing Officer found disability ended on a date consistent with the MDA Disability Guidelines.  The Appeals Panel reversed, remanded to the Hearing Officer for findings of the job classification of the claimant, the specific condition or conditions considered to be part of the compensable injury, and any factors she considered pursuant to Rule 137.10(d).  The Appeals Panel is specific as to the information an employer must consider if it is to rely upon MDA Disability Guidelines to end disability.

APD 071697
Issue: Waiver

Claimant sustained a compensable injury in the course and scope of his employment.  Claimant alleged the injury included an infection of the right foot including amputation of the right great toe.  There were records within the first sixty days as well as a conversation with the adjuster wherein claimant expressed concern about the medical bills for the right toe.  The adjuster prepared but did not submit a PLN disputing the great toe because the adjuster felt the law did not require a PLN-1 because there was no disability.  The Appeals Panel reversed and held the carrier waived it’s right to dispute the infection to the right foot and amputation of the right great toe. 

APD 071650
Issue:  Bona Fide Job Offer

The claimant’s treating doctor issued a DWC-73 based upon the claimant’s injury to the left upper and lower extremity.  Thereafter, a referral doctor issued a DWC-73 only for the claimant’s left upper extremity and did not include any restrictions to the left lower extremity.  The employer issued a bona fide job offer based upon the referral doctor’s DWC-73.  The Appeals Panel held the employer should have issued a bona fide job offer based upon the treating doctor’s DWC-73 that considered all the compensable injury and had more restrictions.  Therefore, the Appeals Panel reversed the finding of a bona fide job offer and held claimant was entitled to temporary income benefits.

APD 071642
Issue:  Waiver

The Appeals Panel is importing its newly created “waiver period” to the law in effect prior to September 1, 2003, '409.021 pre September 1, 2003.  Because the MRI did not occur within the first seven days, the carrier did not waive any of the findings found on that MRI. 

APD 071637
Issue:  Bona Fide Job Offer

The Appeals Panel reversed for a reconstruction of the record.  Although the record had to be reconstructed, the Appeals Panel nevertheless expressed its opinion on the bona fide offer.  There are two DWC-73s in evidence.  The first was not signed by the doctor.  The second is signed by the medical doctor with words that state, “in lieu of treating doctor’s signature” signature of the “Medical Director”.  The Appeals Panel stated Rule 129.5(c) indicates the DWC-73 must be signed by the doctor.

APD 071615
Issue:  Coverage

The employer had insurance coverage with both “Carrier A” and “Carrier Z”.  Apparently, Carrier A had coverage for the employer on a specific project and “Carrier Z” had coverage at all relevant times.  The Hearing Officer found both Carrier A and Carrier Z had coverage for the claimant’s work related injury.  On appeal, Carrier A and Carrier Z stated that Carrier A had coverage if the date of injury is the first date of injury and Carrier Z had coverage if the claimant sustained an injury on the second date of injury.  The Appeals Panel reversed and held that Carrier A is the proper carrier and Carrier Z is not.

APD 071599-S
Issue:  MMI & IR

The designated doctor certified maximum medical improvement (MMI) on October 6, 2005 with a 14% impairment rating.  The Appeals Panel reversed the finding of maximum medical improvement holding the claimant experienced significant and steady improvement of his condition.  However, the Appeals Panel then accepted the 20% impairment rating given by the treating doctor.  The Appeals Panel felt the designated doctor did not properly calculate the impairment rating because he did not assign an impairment rating for sensory deficit of the medial antebrachial cutaneous nerve according to the AMA Guides.  Therefore, the Appeals Panel found the proper impairment rating was 20% as certified by the treating doctor with a statutory maximum medical improvement date.

APD 071571
Issue:  Timely Notice & Jurisdiction of the Appeals Panel

The claimant alleged a repetitive trauma injury.  She went to her doctor in Mexico complaining about wrist pain.  The Hearing Officer found the date of injury in accordance with her visit to the Mexican doctor but was told her problems were due to high cholesterol.  The Appeals Panel reversed the Hearing Officer’s date of injury finding it is against the great weight and preponderance of the evidence as to be clearly wrong and unjust. 

The Appeals Panel decision noted compensability and disability issues decided in carrier’s favor were not appealed.  However, the Appeals Panel remanded the repetitive trauma injury, timely notice and disability issues to the Hearing Officer to make a determination consistent with the evidence in this case.

APD 071433
Issue:  Attorney Fees in a Supplemental Income Benefits  Case

 
The Hearing Officer found the claimant was not entitled to supplemental income benefits for the first, second, and third quarters, but was entitled to the fourth.  Subsequently, the Hearing Officer issued an Order on attorney fees.  The carrier appealed, indicating the Order should have allocated fees among the different quarters, and the carrier was only liable for the portion of the fees attributable to the fourth quarter of supplemental income benefits.  The Appeals Panel could not determine which of the fees were attributable to the fourth quarter because there was no justification or log text submitted.  Therefore, the Appeals Panel reversed and remanded to the Hearing Officer for the parties to present evidence on the matter.
 
APD 071277
Issue:  Agreements

The claimant sustained a traumatic brain injury.  His wife was acting under statutory power of authority and entered into a DWC-25 which indicated claimant and his beneficiaries are not entitled to additional income benefits, including lifetime income benefits and death benefits. 

However, the Appeals Panel found upon the claimant’s death, his beneficiaries had a new cause of action and therefore the DWC-25 did not preclude a finding of death and burial benefits.

APD 070903-S
Issue: Waiver

The Hearing Officer found the carrier waived its right to dispute carpal tunnel syndrome.  There were several possible diagnosis of carpal tunnel syndrome but no doctor provided a carpal tunnel syndrome diagnosis.  The designated doctor appointed on extent of injury held claimant did not have carpal tunnel syndrome.  The Appeals Panel considered by analogy Continental Casualty Company v. Williamson, 971 SW 2d 108, (Tex. App. Tyler 1998, no pet.).  The Appeals Panel seemed to draw a distinction as to whether or not the claimant ever had the injury of carpal tunnel syndrome.  If claimant never had the injury of carpal tunnel syndrome, the carrier cannot waive something claimant did not have.