This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On December 12, 1995, a contested case hearing was convened in _______, Texas, with ____________presiding. The sole issue was whether____________, claimant, was entitled to a subsequent choice of treating doctor pursuant to Section 408.022(c). The claimant had injured her upper back on _________.
The hearing officer determined that the Texas Workers’ Compensation Commission (Commission) had not abused its discretion in approving a change of claimant’s treating doctor, and the previously-issued order of the Commission was upheld.
The carrier appeals, arguing that this determination is against the evidence and arguing further that “abuse of discretion” should not be the standard. The carrier argues that the issue was one of claimant’s entitlement to change her treating doctor and that she bore the burden of proof but did not discharge such burden. There is no response.
DECISION
We affirm.
Claimant injured her thoracic spine on _________. Claimant’s first treating doctor for her injury was JL (Dr. L). The reasons for a change to Dr. GF (Dr. F) were not developed in the testimony. Claimant said that when Dr. F left her practice and did not indicate where she was going, claimant changed in November 1993 to Dr. PF (Dr. FL). She had normal MRIs on November 6, 1991, and November 15, 1993.
The record indicated that claimant had a course of physical therapy in 1993 and 1994 and that she was recommended for additional pain management therapy in 1995 by Dr. FL. However, one doctor who had coordinated her earlier physical therapy, Dr. PP (Dr. P), wrote on January 5, 1995, that claimant had already received some pain management therapy and had, in his opinion, received the maximum medical treatment necessary to treat her condition.
Although carrier argued that claimant had been treated by numerous doctors, these were either referral doctors or colleagues of Commission-approved treating doctors, and there was essentially no dispute that claimant had only four treating doctors by the time of the hearing, including the doctor whose approval was in issue. This was a change approved on June 23, 1995, by the Commission, to Dr. RS (Dr. S). The basis for the change was claimant’s asserted dissatisfaction that Dr. FL was placing primary responsibility on her for seeking carrier approval of recommended medical treatment and would not fill out his required paperwork. Claimant testified that such treatment included an MRI and a course of pain management. Claimant also testified that she had a personality conflict with Dr. FL.
On September 21, 1995, Dr. FL wrote, in response to an inquiry from the carrier’s attorney, that he had filed all necessary medical reports for claimant. He stated that claimant required additional pain management therapy which had been suggested to her on several occasions. Dr. FL did not otherwise respond to the attorney’s question as to whether he had assisted claimant with filling out forms which would enable her to challenge denials by the carrier of recommended treatment. He indicated no objection to claimant’s requested change to Dr. S.
Claimant was assigned to have an eight percent impairment rating (IR) on December 7, 1993, by a designated doctor. The carrier asked her if this report was a motivation for her change in that Dr. FL had not assisted her in disputing it, and claimant denied this. There was otherwise nothing in the record to connect the December 1993 IR report with the June 1995 request to change to Dr. S.
Referrals are not considered changes of treating doctor, pursuant to Section 408.022(e), and it therefore is not of consequence in evaluating the request for change whether claimant saw several doctors on a referral basis. Claimant’s basis for requesting a change was specific, and although failure by Dr. FL to assist with approval of a third MRI would not, in and of itself, be something for which Dr. FL could be faulted, her testimony that he also would not assist in approval of the pain management therapy (and the resultant personality conflict) are matters that the hearing officer could consider in determining whether a change was authorized.
The procedure for review of Commission orders approving (or denying) a change of doctor is established by administrative rule, and is not specifically described in the statute. See Texas Workers’ Compensation Commission Appeal No. 93433, decided July 7, 1993; and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9(g) (Rule 126.9(g)), effective July 1, 1993.
The Commission is directed in Section 408.022(c) to establish criteria to be used to grant approval for changing doctors when a claimant is dissatisfied with his initial choice. The criteria may include:
(1)whether treatment by the current doctor is medically inappropriate;
(2)the professional reputation of the doctor;
(3)whether the employee is receiving appropriate medical care to reach maximum medical improvement; and
(4)whether a conflict exists between the employee and the doctor to the extent that the doctor-patient relationship is jeopardized or impaired.
The Commission, through Rule 126.9(e), incorporated these criteria. Rule 126.9(h)(2) provides that a carrier may be relieved of liability for health care if the employee failed to comply with Commission rules regarding a change in treating doctor. We do not agree that abuse of discretion is not the proper standard of review. Although the carrier asserts that this analysis deflects the issue away from statutory bases for approving a change, we believe that this analysis necessarily involves scrutiny by a hearing officer of the reasons for which a change was sought and is not simply a review of procedures or a paperwork exercise as the carrier argues. We have consistently applied an abuse of discretion standard in previous decisions. See Texas Workers’ Compensation Commission Appeal No. 950232, decided April 4, 1995; Texas Workers’ Compensation Commission Appeal No. 951943, decided January 2, 1996. However, the hearing officer is not powerless to deny or revoke an approved change when the facts do not establish the existence of a reason for change such as those allowed in Section 408.022. Texas Workers’ Compensation Commission Appeal No. 950144, decided March 8, 1995.
In this case, there is sufficient support for the hearing officer’s decision in that she believed, as finder of fact, that Dr. FL had not assisted claimant with respect to a recommended course of therapy that the carrier had denied and that this led to a personality conflict detrimental to the treatment relationship. Although future changes of doctor would appear to be a lot harder to justify, given that the injury is essentially a strain and pain syndrome that Dr. S would appear to be competent to treat effectively, we do not find reversible error in the hearing officer’s agreement with the approval of the change from Dr. FL to Dr. S. We therefore affirm the decision and order of the hearing officer.
Susan M. Kelley – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Elaine M. Chaney – Appeals Judge