This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on October 11, 1995, in _______, Texas, with __________ presiding. The hearing officer determined that the claimant did not sustain a right shoulder injury in the course and scope of his employment on _____, but that such injury is compensable because the carrier failed to timely contest compensability. She also held that the claimant’s impairment rating (IR) is 11%, as found by the third report of the designated doctor selected by the Texas Workers’ Compensation Commission (Commission). In his appeal the claimant disagrees with the latter determination, pointing to medical evidence showing injury and impairment to his right shoulder. The carrier responds that the hearing officer correctly accorded the designated doctor’s opinion presumptive weight.
DECISION
Reversed and remanded.
The parties agreed that the claimant, a foreman for a construction company, injured his left arm and low back on _____, when he stepped down from a truck and lost his footing, causing him to have to spring from a loading dock. At the hearing he said he landed on his right shoulder then hit his left hand on concrete to stop his motion, fracturing his left wrist.
The claimant first sought medical treatment in an emergency room on _____, and then began treating with Dr. S (Dr. S). Dr. S’s initial patient notes of _____ state that the claimant fell “onto his left side and back” and mention the injuries to claimant’s wrist and back. He continued to see Dr. S for wrist problems through June 1992. Patient notes of November 18th state that the claimant had returned after a long hiatus, was still symptomatic in his left wrist, and had been overusing his right arm as a result and was experiencing discomfort at the AC joint[1]. Notes of November 24th state that the claimant said he had had “no specific history of injury to either shoulder” but had been carrying his son around with his right arm “and has discomfort in the right arm as a result.” The claimant had wrist surgery in December 1993. Severe pain in the right shoulder was reported on January 14, 1993, for which Dr. S injected the claimant. In a February 3rd letter to the carrier Dr. S wrote that claimant had arthritis in his shoulder joint for which injections had provided “significant relief” of symptoms. On September 9, 1993, Dr. S found claimant to have reached maximum medical improvement (MMI) with a 22% IR related to radial deviation and dorsiflexion and chronic pain in the wrist.
Because the carrier disputed this IR, the Commission selected Dr. L (Dr. L) as designated doctor. His report, dated January 17, 1994, mentions only the wrist injury and assigns an IR of 10%, derived from an upper extremity impairment of 17%. Because Dr. L’s report referred to the “third edition, revised,” on April 27th a Commission benefit review officer (BRO) wrote Dr. L to ask whether he had used the third edition, second printing, dated February 1989, of the Guides to the evaluation of Permanent Impairment published by the American Medical Association (AMA Guides); Dr. L apparently did not respond to this question. On July 13th the BRO again wrote Dr. L that the Commission had decided to schedule a reexamination and that Dr. L was to assess range of motion on the claimant’s left wrist and right shoulder in accordance with the correct version of the AMA Guides. In a July 28th letter Dr. L responded that he had examined claimant’s right shoulder, that claimant had “no restriction of motion on any plain in his shoulder despite much facial grimacing with movements.” Dr. L also wrote that “the movements show no crepitus, he does show some giving way on strength testing, but no clear reproducible weakness” and that his radiographs were negative. He also stated, “My impression is tendinitis of the right shoulder with possible rotator cuff tear” for which he said he would assign a 20% impairment of the shoulder correlating to a seven percent whole person impairment. When combined with a 16% impairment assigned for the left wrist, Dr. L’s amended IR was 22%.
On October 19, 1994, the BRO again wrote Dr. L stating that the Commission had decided to schedule another examination of the claimant “due to our error in requesting that the doctor examine claimant’s left shoulder.” On October 25th Dr. L wrote:
The patient was seen by me again because of a question from a previous report. The impairment rating was used with [the AMA Guides]. Range of motion measurements were made with an inclinometer and there was no significance or variability.
It is my understanding that the impairment of his shoulder is contested. The impairment of his wrist is unchanged from the previous examination.
Assigning impairment for the wrist alone would be 18% of the upper extremity, which is 11% of the whole person.
Other medical evidence included an October 4, 1994, peer review report by Dr. S (Dr. St), who wrote that she was unable to tell from which area of the portion of the AMA Guides relating to upper extremity disorders the right shoulder impairment had been derived; she also stated that based upon Dr. L’s examination results she would have assigned zero percent impairment for the right shoulder, questioning whether it was compensable. A Dr. (Dr. Y) who, like Dr. St, did not examine the claimant, opined on April 17, 1995, that the claimant had a shoulder complaint “sometime following his fall and shortly thereafter (not eight or nine months after the fall)” but that the shoulder injury was not a part of the _____, compensable injury.
On March 10, 1995, the claimant had an MRI of the right shoulder, which found “marked AC joint hypertrophy with local impingement” and “evidence of a probable distal supraspinatus tendinitis as well as proximal tendinitis or partial thickness tear in the rotator cuff.” In June 1995 the claimant was seen by Dr. K (Dr. K), apparently at the direction of the Commission. On June 9th Dr. K wrote that the claimant complained of bilateral shoulder pain, but he found no loss of range of motion of either shoulder, and mild tenderness on the right. He also said, “With regards to his right shoulder impingement syndrome, I would recommend EMG and nerve conduction studies to rule out a contribution of cervical radiculopathy to the shoulder pain.” In an addendum note of June 28th Dr. K wrote that he had received medical records from Dr. L and Dr. Y’s report stating that claimant’s shoulder was not a part of the injury. He went on to assign the claimant a 20% IR due to loss of range of motion in the cervical spine (lumbar range of motion had been invalidated), specific disorder of the spine (spondylitic disk disease), and loss of range of motion in the left upper extremity (with zero impairment assigned to the right shoulder and right upper extremity).
In determining that the claimant’s IR was the 11% assigned by Dr. L in his third report, the hearing officer reasoned that “the great weight of the medical evidence in the record establishes that the claimant only has permanent whole body impairment relative to his left arm.”
In his appeal the claimant points out that Dr. L had assessed an impairment for his right shoulder, that the MRI shows a possible rotator cuff tear, and that the BRO’s October 19, 1994, letter mistakenly tells Dr. L to disregard the left, and not the right, shoulder. He also says that Drs. K and Y did not check his shoulder, which was examined only by Dr. L.
The 1989 Act defines “impairment” as “any anatomic or functional abnormality or loss existing after [MMI] that results from a compensable injury and is reasonably presumed to be permanent.” Section 401.011(23). Thus, not only must there be some loss existing after MMI, it must be judged likely to be permanent. Texas Workers’ Compensation Commission Appeal No. 92270, decided August 6, 1992. Further, the designated doctor’s opinion as to impairment is entitled to presumptive weight and is to be rejected only if it is overcome by the great weight of the other medical evidence. Section 408.125(e).
In the instant case, the hearing officer determined the claimant’s right shoulder injury to be compensable due to the carrier’s failure to timely dispute; this unappealed determination has become final. And, as we stated in Texas Workers’ Compensation Commission Appeal No. 941052, decided September 19, 1994, the fact that a carrier has thus become liable for an injury does not mean it is foreclosed from disputing other benefit issues, including IR, and the fact that a compensable injury was sustained “does not automatically mean there was necessarily some degree of permanent impairment flowing from the injury.” Had Dr. L made that determination in this case, we believe the hearing officer’s decision would be affirmable. What troubles us is the fact that, in his third report, Dr. L appears not to have rated claimant’s right shoulder due to his belief that it was not part of the compensable injury rather than the fact that there was no permanent impairment of the shoulder. This problem is further exacerbated by the fact that Dr. L’s second report did assign impairment to the shoulder, despite stating that claimant had no restricted motion. Under the particular circumstances of this case, we believe the better alternative would be to remand to inform Dr. L that claimant’s right shoulder is part of his compensable injury and to allow him to finally determine whether, and if so, to what degree, there is permanent impairment from that injury. Given Dr. L’s earlier concern that claimant might have had tendinitis or rotator cuff tear, and the fact that an MRI subsequently contained these diagnoses, we believe that the hearing officer should make this report, and any other reports she deems pertinent, available to the designated doctor.
The decision and order of the hearing officer are reversed and remanded, pursuant to this decision. Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Robert W. Potts – Appeals Judge
- Apparently, from other notations in Dr. S’s report, the acromioclavicular joint. ↑