This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held August 2, 1995. The record was held open to seek clarification from Dr. W (Dr. W), the Texas Workers’ Compensation Commission (Commission)-selected designated doctor, and was closed on December 11, 1995. The only issue at the hearing was what is the respondent’s (claimant) impairment rating (IR). The hearing officer determined that Dr. W did not properly use the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) and that the claimant’s IR cannot be determined until another designated doctor is appointed to examine the claimant. The appellant (carrier) requested review urging that the hearing officer does not explain in what way Dr. W failed to properly use the AMA Guides and that it was improper for the hearing officer to invalidate the report of Dr. W without detailing the medical evidence he used to make that determination. The carrier requests that the Appeals Panel reverse the decision of the hearing officer to appoint a second designated doctor and render a decision “that Claimant’s [IR] is 13% per the designated doctor, or 14% per his amended report.” A response from the claimant has not been received.
DECISION
We affirm.
There was no testimony at the hearing. Three claimant’s exhibits and three hearing officer’s exhibits are in the record. The record does not contain a Report of Medical Evaluation (TWCC-69) from Dr. W, but it does contain a report from him dated April 29, 1994, that has “DESIGNATED DOCTOR” before the text of the report starts and states that the evaluation was requested by the Commission. However, apparently Dr. W did complete a TWCC-69 because Dr. S (Dr. S) (who, at the request of the carrier, reviewed the IR assigned the claimant by Dr. W), in a letter dated March 3, 1995, stated that the TWCC-69 was included with the medical records she reviewed.
The narrative report of Dr. W contains the results of the two-point discrimination test for sensory loss and the results of the loss of range of motion (ROM) tests for the wrist and the elbow. Dr. W reported that the claimant has the following impairments to the left upper extremity: six percent for loss of ROM of the elbow, two percent for loss of ROM of the wrist, six percent for mild loss of sensation in the distribution of the median nerve, and 12% secondary to ulnar nerve sensory deficit. He stated that he used the combined values chart of the AMA Guides to determine that the claimant has a 23% impairment of the upper extremity which is an eight percent whole body impairment. On pages 29 and 31 of the AMA Guides, persons assigning IRs are instructed to add impairments to determine the impairment of the upper extremity and to use Table 3, Relationship of Impairment of the Upper Extremity to Impairment of the Whole Person, to relate upper extremity impairment to impairment of the whole person. Whether one adds the impairments or uses the combined values chart, the upper extremity impairment should be 24% rather then 23%. Review of Table 3 reveals that both a 23% and a 24% impairment of the upper extremity result in a 14% whole body impairment. A review of the impairments in Dr. W’s narrative shows that Dr. W should have assigned a 14% IR. Also, a 14% impairment of the upper extremity results in an eight percent whole body impairment. It is possible that this led to the mistake by Dr. W of arriving at the eight percent IR, but it would not make the eight percent IR a proper IR.
Dr. S wrote that she concurred with the eight percent IR assigned by Dr. W, but that she disagreed with how he calculated the IR. She opined that Dr. W erred in not rounding ROM measurements for the wrist and the elbow to the nearest 10 as required by the AMA Guides and that with proper rounding to the nearest 10 the impairment for loss of ROM to the wrist should be zero percent and that the impairment for loss of ROM of the elbow should be seven percent. She also stated that the AMA Guides require a comparison of the involved joints and the uninvolved contralateral joints to determine if there should be a reduction for preexisting ROM limitations and that ROM measurements of the right upper extremity are not available for comparison. Dr. S also said that based on the two-point discrimination tests results she would assign a zero percent impairment for sensory loss of the median nerve and an eight percent impairment to the left upper extremity for sensory loss of the ulnar nerve. She reported that the use of the combined values chart results in a 14% impairment to the left upper extremity which converts into an eight percent whole body impairment.
In a letter dated September 7, 1994, a benefit review officer (BRO) wrote to Dr. W advising him that at a benefit review conference held on August 1, 1994, the claimant disputed the IR assigned by Dr. W and requesting that he forward copies of the ROM work sheet to all of the parties listed below. In the letter no parties are listed below, and the record does not reflect whether Dr. W responded to the letter. In a letter dated March 7, 1995, another BRO wrote to Dr. W advising him that he, Dr. W, examined the claimant on April 29, 1994, and assigned an eight percent IR and that the claimant contends that use of the combined values chart and Table 3 of the AMA Guides results in an IR of 14% rather than eight percent. The BRO also provided Dr. W a copy of Dr. S’s letter dated March 3, 1995, and requested that Dr. W respond to the concerns raised by Dr. S. On August 2, 1995, the hearing officer wrote to Dr. W indicating that in a letter dated March 9, 1995, Dr. W indicated that he agreed with Dr. S’s IR of eight percent; that he, the hearing officer, is not sure why Dr. W agreed with the IR of Dr. S since they arrived at the IRs differently; and asking Dr. W to explain how the 23% impairment to the upper extremity equals an eight percent impairment to the whole body. A copy of Dr. W’s March 9, 1995, letter is not in the record. On October 6, 1995, Dr. W wrote to the hearing officer stating:
I am sorry for the confusion in the records regarding [claimant]. Please see the letter I dictated on March 9, 1995. In the last sentence I stated that the 23% upper extremity impairment is incorrect and should have been a combined [IR] of 14% which equals an 8% whole person impairment. As noted in the letter of March 9, 1995 I believe that I transposed numbers when I entered these into my calculations for the Tables from the manuals.
If I can be of further help to you, please do not hesitate to contact me.
The hearing officer could have reviewed the reports of Dr. W and Dr. S and determined that transposing numbers would not result in the mistake.
On October 23, 1995, the hearing officer wrote to the attorney representing the carrier and to Ms. L (Ms. L) providing a copy of the response from Dr. W and advising that if he does not receive a response by October 30, 1995, he will consider the matter to be closed. The address for Ms. L is not the address of the claimant nor of the attorney representing the claimant to which the hearing officer’s decision was sent. The record does not indicate in what capacity Ms. L may have been acting in the claim and does not include any responses to the hearing officer’s letter dated October 23, 1995.
Timely resolution of disputed issues should be accomplished, and when the only disputed issue is IR it is desirable that the designated doctor examine the claimant close to the time that the claimant reached MMI. The Appeals Panel has stated that a designated doctor should not be replaced by a second designated doctor absent a substantial basis to do so. Texas Workers’ Compensation Commission Appeal No. 951922, decided December 28, 1995. Normally, the appointment of a second designated doctor is appropriate only in those cases where the first designated doctor is unable or unwilling to comply with the required AMA Guides or requests for clarification from the Commission or otherwise compromises the impartiality demanded of a designated doctor. Appeal No. 951922, supra. Two BROs and the hearing officer wrote to Dr. W. A review of the reports of Dr. W and Dr. S reveal that transposing numbers would not likely have changed the upper extremity impairment from 23% to 14% but rather that it is more likely that the 14% upper extremity impairment resulted from Dr. W agreeing with Dr. S on the factors of impairment to the left upper extremity and adopting her report. It appears that, based on the responses from Dr. W, the hearing officer determined that Dr. W did not properly use the AMA Guides and was unable or unwilling to comply with requests for clarification. While the hearing officer could have included additional hearing officer exhibits, sought additional clarification from Dr. W by asking specific questions to fully develop the facts required for determinations to be made (Section 410.163(b)), and provided more explicit reasons for directing that a second designated doctor be appointed, we do not find that the hearing officer committed reversible error by ordering the appointment of another designated doctor to assign an IR for the claimant.
Accordingly, we affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Elaine M. Chaney – Appeals Judge