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Texas Builders Insurance Company appeals from a summary judgment affirming a decision by the Texas Workers’ Compensation Commission Appeals Panel*fn1 in favor of Calvin Molder. Molder suffered an on-the-job injury to his right shoulder on March 12, 2001 as he worked beneath a bulldozer and the bulldozer pan fell on him. Molder subsequently filed a claim for workers’ compensation benefits. Texas Builders Insurance (TBI) provides workers’ compensation insurance coverage to Molder’s employer, Buzzard Roost Construction. On April 23, 2001, Stephen L. Hall, D.O., performed arthroscopic surgery on Molder’s shoulder and repaired a small full-thickness rotator cuff tear, debrided the glenoid labrum, and performed a subacromial decompression. Dr. Hall noted that the lateral acromion and AC joint had significant spurring which probably led to the rotator cuff tear. Molder continued to have problems with the shoulder and Dr. Hall performed a second surgery on September 12, 2001 for what he termed a “recurrent rotator cuff tear.” He repaired a large rotator cuff tear and again debrided the glenoid labrum. Because Molder continued to suffer from shoulder pain, Dr. Hall referred him to John Sklar, M.D., a pain management doctor. Karl Erwin, M.D., the TWCC designated doctor, examined Molder on May 13, 2002 and determined that he had reached maximum medical improvement (MMI) on that date with a 2% impairment rating (IR).

On September 15, 2002, Molder felt his shoulder pop while lifting his arm over his head to remove his shirt. In significant pain, Molder went to an emergency room where he was diagnosed with incision site opening and an acute shoulder sprain/strain. Molder was instructed to return to Dr. Hall for examination. Dr. Hall determined that all of Molder’s pathology was related to the March 12, 2001 injury. On November 19, 2002, TBI disputed compensability based on its claim that Molder had sustained a new injury. The dispute was submitted to TWCC for resolution and a contested case hearing was held on May 21, 2003. The evidence submitted to the Hearing Officer included the records of Drs. Hall and Sklar. Dr. Hall wrote a letter to Dr. Sklar on January 28, 2003 advising him that Molder continued to have shoulder pain and questioned whether Molder had suffered a new injury or aggravated the injured shoulder. Dr. Hall informed Dr. Sklar that he believed all of Molder’s shoulder pain stemmed from the initial injury and recommended that Molder seek a second opinion. Like Dr. Hall, Dr. Sklar concluded that Molder’s current shoulder problems were related to the original injury. More specifically, he commented: “The way I would explain the current episode is that possibly the previous surgical repair had left his shoulder inheritably (sic) weak and now something has come loose or torn again in his shoulder.” Dr. Sklar concluded that Molder had not reached MMI and the prior determination of MMI should be rescinded. On July 29, 2003, the Hearing Officer determined that Molder had suffered a compensable injury to his right shoulder on March 12, 2001 and the strain which occurred on September 15, 2002 was caused by or was the result of the compensable injury. The Hearing Officer specifically found that “[t]he March 12, 2001 compensable injury includes the condition of the Claimant’s right shoulder after September 15, 2002.” Consequently, the Worker’s Compensation Commission ordered TBI to pay benefits to Molder. TBI did not appeal this decision.*fn2

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