Texas Appeal Panel Decision Review 12/2/2009

Texas Appeal Panel Decision Review 12/2/2009

APD 090558 - 2009 TX Wrk. Comp. LEXIS 56
Issue: Disability

Claimant sustained a right ankle injury and was placed on restrictions.  No doctor released claimant back to work full duty.  However, she was able to return back to work with her employer the remainder of her contract term.  After her contract ended, she began searching for other work.  The Hearing Officer found the claimant did not have disability for a certain period of time.  The Appeals Panel disagreed holding that no medical record reflected the claimant was able to return to work full duty and therefore the Hearing Officer must find disability as a matter of law.

APD 090633 - 2009 TX Wrk. Comp. LEXIS 60
Issue: Extent

The Hearing Officer found the claimant sustained a compensable injury which extended to and included MRSA.  The Appeals Panel reversed the finding of MRSA noting there was “no expert medical evidence presented to establish the claimant was infected with MRSA at the workplace or due to a sticking/bite incident. “

APD 090644 - 2009 TX Wrk. Comp. LEXIS 62
Issue: Claimant Waiver

The Hearing Officer found claimant waived his right to activate a dispute or challenge the carrier’s denial of certain extent of injury issues relying upon Appeals Panel Decision 951494.  The Appeals Panel reversed holding “to hold otherwise would deprive claimants of rights specifically afforded to them under the 1989 Act.”  The claimant correctly noted in his appeal there is no statutory authority or rule that prevents a timeframe for the claimant to pursue an extent of injury dispute.

APD 090639 - 2009 TX Wrk. Comp. LEXIS 61
Issue: Disability

The Appeals Panel believed the Hearing Officer made a “mistake” in equating radiculitis with radiculopathy.  Radiculitis is not radiculopathy for purposes of calculating a proper impairment rating.

APD: 091047 - 2009 TX Wrk. Comp. LEXIS 76
Issue: Adding an Issue

The issue before the Hearing Officer was whether or not the claimant’s compensable injury extended to include lumbar instability.  However, the Hearing Officer also found that a five millimeter retrolisthesis was not related to the compensable injury.  The Benefit Review Conference report did not list retrolisthesis as an extent of injury issue.  The Appeals Panel noted that parties may consent to add an issue including instances where the parties actually litigated the issue.  However, in this case, the parties did not discuss, argue or otherwise litigate retrolisthesis.  Furthermore, the Appeals Panel noted there was no discussion how retrolisthesis either differed from or was similar to instability.  Therefore the finding of fact was reversed.