Appeals Panel Decisions (March 14, 2008)
APD 071770Subject: 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 the 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 071721Subject: 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 071703Subject: 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 071697Subject: 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 071650Subject: 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 the claimant was entitled to temporary income benefits.
APD 071642Subject: Waiver
The Appeals Panel is importing its newly created “waiver period” to the law in effect prior to 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 071637Subject: 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 071615Subject: 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-sSubject: 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 071571Subject: 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 071277Subject: 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 071706Subject: 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 070903-sSubject: Waiver
The Hearing Officer found the carrier waived it’s 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 she never had the injury of carpal tunnel syndrome, the carrier cannot waive something she did not have.