This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 15, 1996. The issues at the CCH were whether the respondent, who is the claimant, was entitled to lifetime income benefits (LIBS) due to an injury to the skull, and his correct impairment rating (IR). The carrier’s request to add an issue on whether the Texas Workers’ Compensation Commission (Commission) abused its discretion in denying a request for a medical examination order (MEO) was denied by the hearing officer. The issue on LIBS was essentially withdrawn when the claimant’s attorney agreed that the claimant had not evidenced incurable imbecility or insanity as a result of his injury, and questioned how this had come to be an issue.
On the matter of IR, the hearing officer determined that the claimant’s IR was 45%, in accordance with the report of the designated doctor, which was not against the great weight of contrary medical evidence. The record included only one other IR for the claimant, that of his treating doctor, which was also 45%.
The carrier appeals, arguing that the opinion of the designated doctor is not based upon objective clinical or laboratory evidence, but upon the subjective statements of the claimant. The carrier argues that the hearing officer abused his discretion by not adding the MEO issue. The carrier argues that denial of an MEO is a denial of due process. Finally, the carrier argues that the claimant should not have been permitted to argue for a higher IR than that of the designated doctor because he waived his right to dispute either his treating doctor’s report or that of the designated doctor. There is no response from the claimant.
DECISION
Affirmed.
Claimant was employed as a welder by (employer) on _________, when he sustained a skull fracture as a result of a bolt, unexpectedly under pressure, flying off the tank car he was working on, into the middle of his forehead. Claimant’s testimony indicated that he was blinded, and slipped in and out of consciousness. The bolt punctured and fractured his skull, and he had a debridement procedure performed at the hospital.
Claimant’s treating doctors were Dr. B and, on referral from Dr. B, Dr. P. Claimant was also treated or consulted with by psychologists Dr. L, ophthalmologist Dr. T, and evaluated by psychologist Dr. D. Claimant’s continuing complaints, essentially uncontroverted, were blurred vision, frontal and severe headaches, and considerable anger and frustration under ordinary stress. Claimant received three medications to control the headaches and emotional outbursts. In addition, Dr. P noted that claimant’s IQ, although in the middle of the normal range, was lower than indicated prior to the accident. Testing done by Dr. L and Dr. D indicated that claimant’s powers of concentration and attention were significantly lower than average. CT scans indicated that there was no structural damage to the brain, although there was a depression in the skull at the point of impact. Claimant said he could drive, but to do so subjected him to stress which then affected his temperament and judgment. While the medical reports and depositions of Dr. R, Dr. P, and Dr. D establish that claimant was not insane, and could perform most functions of daily living, it is also fairly unanimous opinion that he had undergone emotional and personality changes which caused his teenaged sons to move away, and affected his abilities of concentration and judgment. Dr. P opined that claimant’s ability to work was permanently affected and that he should only return to sedentary work with minimal stress. Dr. D reported that, prior to the accident, claimant had been a workaholic, who had taken only a one week vacation in five years, and who worked six days a week when he could. Claimant stated that he enjoyed work and did not enjoy his present off-work status.
After his accident, claimant had returned to light-duty office work, which he performed well, but when reassigned to welding, he was unable to do this. Dr. P noted that because of claimant’s blurred vision, he looked to the side of the object he was welding, which would pose a safety hazard. In any case, it was not disputed that after a meeting with the employer’s human resources director, claimant left work in order to go on workers’ compensation in lieu of continued duty with the employer.
Dr. P certified that the claimant had reached maximum medical improvement (MMI) on November 1, 1995, with a 45% IR. In his deposition, he explained how he derived this percentage from the chapter of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) having to do with impairments of the brain, in which the evaluator must select from four categories of impairment, each of which assigned a range of impairment. Dr. P selected the second category, for mild to moderate impairment, the range of which was 20 to 45%. He stated that he selected the top range based upon his treatment of claimant and the tests that had been done as to cognitive functions.
The carrier promptly disputed the IR, and a designated doctor, Dr. CS, was appointed. Dr. S wrote a narrative report in which she fully described the records she had reviewed, which included the psychological testing that had been performed on the claimant, and she also assigned a 45% IR. The reasons for doing this are explained in her report. We note that none of the doctors in question asserts (nor did claimant) that he is without capability to perform general activities of daily living. The medical evidence indicated that this was due in part to the medications which were administered to control headaches and emotional outbursts.
Through its response to the benefit review conference (BRC) report, and argument at the beginning of the CCH, the carrier sought to add an issue as to whether there was an abuse of discretion for failure of the Commission to grant its request for an MEO. According to the record, a request for a medical examination was presented by the carrier’s attorney for the first time at the February 26, 1996, BRC, and apparently denied later that day. When the hearing officer asked the carrier’s attorney what attempts had been made to secure a MEO prior to the BRC, he answered, somewhat non-responsively, that the carrier had a prior MEO with a psychologist, and the 180 days only ran out “shortly before” the BRC. The carrier argued that it could not have added the MEO issue to the BRC agenda because action had not been taken on its request before the BRC. The hearing officer found no good cause to add the issue and denied the request.
The hearing officer was somewhat inaccurate in advising the carrier that it still had a remedy in that it could take the MEO issue through another BRC process, because it was clear that carrier’s motive for seeking an MEO would be to use as evidence in its burden to overturn the designated doctor’s IR, which it is no longer free to do in another proceeding. However, it is clear that there was no good cause for adding the issue under the facts here. The hearings system is not required to accommodate eleventh hour requests for discovery and deferred preparation of cases at the expense of bringing disputes to a swift and orderly resolution. The only psychologist who examined claimant a single time was Dr. D, whose examination was performed on August 14, 1995. Assuming that this was the prior MEO doctor referred to by carrier’s attorney, the period of 180 days from this date is February 10, 1996, which cannot, in our opinion, be accurately described as “shortly before” the BRC, and carrier failed to assert any other reason for waiting until the day of the BRC to even request an MEO. Carrier’s inability to raise an issue of denial of the MEO was solely a function of its choice to delay the MEO request.
Carrier contends on appeal that an MEO was required so that it could analyze and dispute the designated doctor’s IR, and that it has been deprived of due process by denial of the MEO. Dr. CS’s report was dated January 8, 1996. Although the 180-day MEO period might not have been up at that time, the grass need not have grown under carrier’s feet, but the record is devoid of medical opinions offering any contrary interpretation of the Guides or drawing any contrary conclusions from claimant’s objective testing results which had been available to the carrier well before Dr. CS’s report. We note that the carrier did not seek to take depositions of any of the doctors until March 14, 1996.
The carrier’s point of appeal concerning the ostensible “waiver” by the claimant of a dispute to the treating doctor’s report appears based on Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE 130.5(e) (Rule 130.5(e)). However, as the carrier itself disputed Dr. P’s IR within 90 days, Rule 130.5(e) was no longer even colorably applicable to Dr. P’s report. A report disputed by one party does not become final under Rule 130.5(e) against the party that did not dispute. As to whether there can be said to be any “waiver” by claimant of a right to argue that the IR was higher than Dr. CS’s report, we believe that either party has a right to dispute a designated doctor’s report, subject to the provisions on exchange of evidence. In any event, the claimant offered no evidence to support his generalized argument that his IR “should” be higher and the hearing officer obviously did not accord a “greater weight” to unsupported argument.
The report of a Commission-appointed designated doctor is given presumptive weight. Sections 408.122(b) and 408.125(e). The amount of evidence needed to overcome the presumption, a “great weight,” is more than a preponderance, which would be only greater than 50%. See Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. Medical evidence, not lay testimony, is the evidence required to overcome the designated doctor’s report. Texas Workers’ Compensation Commission Appeal No. 92164, decided June 5, 1992. The lack of medical evidence against Dr. CS’s report is striking. While there may be some differences in some of the details of the reports, the medical assessments have more consistency than differences. The fact that claimant has abilities to do activities of daily living does not undercut the reasons that Dr. CS explained as underlying her assessment of impairment resulting from the brain injury. The record supports an inference that claimant is dependent upon medication to alleviate the emotional outbursts, anger, and headaches that otherwise diminish many abilities to undertake daily living tasks.
We do not agree that Dr. CS’s report of impairment is not based on objective clinical or laboratory findings required by Section 408.122(a). The designated doctor ‘s report is not based solely upon claimant’s subjective recitation of pain, but upon the course of his treatment, clinical observation, analysis of test results, and etiology of the injury. We observe that, in the area of mental trauma or brain injuries, use of the AMA Guides to assess impairment has been assailed on the basis of the “subjectivity” of the matters used to evaluate impairment. We have consistently rejected this argument. Texas Workers’ Compensation Commission Appeal No. 951574, decided November 2, 1995; Texas Workers’ Compensation Commission Appeal No. 950104, decided March 7, 1995. As stated in Appeal No. 950104:
The second reason we reject carrier’s argument is that it too narrowly defines “objective clinical or laboratory findings”. . . . . [the doctor] administered numerous psychological tests on which . . . . [the doctor] relied, at least in part, in assigning the IR. The carrier produced no evidence that any of these tests were not well standardized, professionally recognized tests administered by or under the direction of medical health professionals, including psychologists and psychiatrists. . . . The key to the use of Chapter 14 to assign an IR lies in the exercise of best clinical judgment. In this regard, Chapter 14, although it lacks specific numerical rating guidance, is not totally unlike other chapters of the AMA Guides which rely ultimately on the professional judgment of the examining doctor and the interpretation of symptoms, primarily pain, which are inherently subjective, but which can be given some collateral verification from clinical observation of the patient . . . These clinical observations together with the acceptance of the testing procedures by the medical community as valid indicia of mental and behavioral disorders constitutes, in our opinion, the required objective clinical and laboratory findings on which this IR is based.
In considering all the evidence in the record, we cannot agree that the findings of the hearing officer are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The hearing officer’s decision is sufficiently supported, and his decision and order are affirmed.
Susan M. Kelley – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Gary L. Kilgore – Appeals Judge