AP Reverses ALJ Who Decided an Issue Outside the Record

The appeals panel has reversed an ALJ’s decision and order and remanded the case for further development after the ALJ was determined to have decided an issue that had not been certified for resolution. The ALJ also considered evidence that had not been admitted during the CCH.

The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 191919, decided December 11, 2019.

The ALJ determined that: (1) the compensable injury did not extend to a C3-4 moderate left foraminal stenosis from uncovertebral joint spur and mild facet arthrosis; and (2) the compensable injury did extend to C5-6 and C6-7 central left side disc herniations, cervical spondylosis, C4-5 mild to moderate circumference central canal stenosis from a disc osteophyte complex, and C4-5 moderate facet arthrosis with moderate bilateral neural foraminal stenosis. The carrier appealed that portion of the ALJ’s extent-of-injury determination that was favorable to the claimant. The carrier contended, in part, that the ALJ’s determination on the C5-6 and C6-7 herniations was based on evidence outside the record and that the ALJ had adjudicated a waiver issue that was neither certified nor actually litigated by the parties. The appeals panel agreed with the carrier.

The sole issue before the ALJ was the extent of the compensable injury. In her discussion of the evidence, the ALJ stated that Dr. C certified that the claimant reached MMI on June 17, 2002, with a 15% IR, considering the claimant’s cervical strain with herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6-7. The ALJ further stated that there was no dispute regarding the MMI date or IR assessed by Dr. C prior to the expiration of the first quarter of SIBs and therefore, “it is determined that the compensable injury extends to C5-6 and C6-7 central left side disc herniation.”

The appeals panel observed that there was no finality issue before the ALJ to decide. The BRC Report did not list an issue of finality pursuant to Rule 130.102(h). Neither party at the CCH requested the addition of an issue regarding finality pursuant to Rule 130.102(h). the appeals panel wrote that although the ALJ had not expressly added the issue in her decision and order, her extent-of-injury determination was premised on her determination that the certification of Dr. C became final pursuant to Rule 130.102(h) and that Dr. C’s certification considered and rated herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6- 7.

Accordingly, the appeals panel reversed the ALJ’s decision and order, writing:

We note that the MMI/IR certification from Dr. C was not in evidence. There was no certification of MMI/IR from any doctor in evidence. There was no stipulation or testimony regarding the date of MMI or the IR based on the claimant’s compensable injury. No SIBs applications were in evidence. Further, there was no stipulation as to the dates of the SIBs quarters applicable to the claimant. No testimony or documentary evidence was provided regarding whether or not a dispute of the claimant’s MMI and IR occurred prior to the expiration of the first quarter of SIBs. Neither party argued that the certification that assigned a 15% IR for the compensable injury considering the claimant’s cervical fusion became final. It is clear from her discussion and the above referenced Findings of Fact that the ALJ’s determination of the extent of the compensable injury was based on facts that were not in evidence and the adjudication of an issue that was not before her to decide.

The case illustrates the importance of understanding the issue-driven nature of the Texas workers’ compensation system.