Following a contested case hearing held on October 6, 1994, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, finding that the determinations of the designated doctor were not contrary to the great weight of the other medical evidence, concluded that the appellant (claimant) reached maximum medical improvement (MMI) on February 22, 1994, with an impairment rating (IR) of one percent. The hearing officer further found that the respondent (carrier) mistakenly overpaid claimant $453.28 in temporary income benefits (TIBS) due to carrier’s incorrect calculation of claimant’s TIBS rate. Based on this finding, the hearing officer concluded that carrier is entitled to a credit against claimant’s impairment income benefits (IIBS) to recoup the $453.28 overpayment. Claimant generally appeals from all three determinations. The carrier responds that the evidence sufficiently supports the findings and that the hearing officer did not err in ordering a credit against IIBS to recoup the overpayment of TIBS.
DECISION
Affirmed.
The parties stipulated that claimant sustained a compensable lower back injury on _____. Claimant, the sole witness, testified she worked on the line for a bottling company. Her medical records indicated she lifted a box, felt a “pop” in her lower back, and experienced pain. At the carrier’s request, claimant was seen by Dr. B who, in his December 21, 1993, report stated his impression as chronic low back pain, marked pain behavior, increased lumbar lordosis, and emotional overlay. Dr. B opined that claimant had reached MMI stating that “it is doubtful, given the patient’s present symptom complex, that anything additional would be of significant benefit.” Dr. B also observed that upon examination claimant “showed disproportion of verbalization, facial expressions and pain behavior.”
Claimant’s first treating doctor, Dr. M, stated in a February 7, 1994, letter his concurrence with Dr. B and in his Report of Medical Evaluation (TWCC-69) signed on February 22, 1994, certified that claimant had reached MMI on February 22, 1994, and assigned an IR of 10% for “low back pain with psychosomatic overlay.”
Dr. C, the designated doctor selected by the Texas Workers’ Compensation Commission (Commission), diagnosed chronic lumbosacral strain with psychosomatic overlay, found claimant’s motor and sensory testing intact and symmetrical, said that she resisted all ROM examination, observed her movements and motions on the examining table to exceed those she generated during ROM testing, and invalidated her lumbar spine flexion and extension ROM measurements. In his TWCC-69 of March 4, 1994, Dr. C stated that claimant reached MMI on “2-22-94” with an IR of “one %.”
Claimant’s evidence showed that on May 7,1994, she requested a change in treating doctors to Dr. G. Dr. G diagnosed chronic low back pain. According to claimant, neither Dr. G nor Dr. H, a doctor claimant mentioned having contact with upon referral from Dr. G, have told her she is at MMI.
Claimant’s position was and remains that she has not reached MMI because she is still under the care of a doctor, still has pain, and is getting better, and, therefore, she should not yet have an IR assigned. In the alternative, claimant said she agreed with the 10% IR assigned by Dr. M. The Commission-selected designated doctor’s determinations of MMI and IR are entitled to presumptive weight and the Commission is to base its determinations on the designated doctor’s report unless the great weight of the other medical evidence is to the contrary. Sections 408.122(b) and 408.125(e). The Appeals Panel has frequently noted the important and unique position occupied by the designated doctor in the resolution of disputes of MMI and IR and has stated that the “great weight” determination amounts to more than a mere balancing or preponderance of the evidence. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992.
In this case, not only did the designated doctor determine that she had reached MMI, but so also did Dr. B and Dr. M, claimant’s first treating doctor. There was no doctor’s opinion in evidence that she had not reached MMI. Claimant’s thesis is that she is not at MMI because she continues to have pain. However, in Texas Workers’ Compensation Commission Appeal No. 92670, decided February 1, 1993, the Appeals Panel observed that while MMI appears to mean complete recovery to the ordinary person, that is not what it means for purposes of workers’ compensation benefits. Under Section 401.011(30)(a), the term means the point at which further material recovery or lasting improvement can no longer be reasonably anticipated according to reasonable medical probability. As that decision stated, “when the doctor finds MMI and assesses an impairment, he agrees, in effect, that the injured worker is likely to continue to have effects, and quite possibly pain, from the injury. However, he has determined, based upon his medical judgement, that there will likely be no further substantial recovery from the injury.”
As for the IR, Dr. C’s report cited the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) which is the version mandated for use by Section 408.124. He determined that claimant had “0% impairment for Specific Disorders of the Lumbar Spine (Table 49, page 73)” but he assessed “ROM impairment of 1%” pursuant to Tables 56-57. Dr. C apparently determined that claimant’s strain had resolved and that, under Table 49, claimant had “0%” impairment from an “unoperated soft tissue lesion with no residuals.” However, he nonetheless felt she had abnormal lateral ROM which he assessed at one percent. The only other IR assigned was the 10% of Dr. M’s for “low back pain with psychosomatic overlay.” Dr. M’s report did not refer to the AMA Guides or to any other source as a basis for assigning permanent impairment for “psychosomatic overlay.” We are satisfied the evidence sufficiently supports the hearing officer’s determinations of the disputed issues of MMI and IR. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); In re King’s Estate, 244 S.W.2d 660 (Tex. 1951).
Turning to the TIBS overpayment issue, the hearing officer made the following pertinent finding of fact and conclusion of law:
FINDINGS OF FACT
6.Carrier mistakenly overpaid Claimant $453.28 in temporary income benefits due to Carrier’s incorrect calculation of Claimant’s temporary income benefit rate.
CONCLUSIONS OF LAW
4.Carrier is entitled to a credit against Claimant’s impairment income benefits to recoup the $453.28 temporary income benefit overpayment because there is no provision in the Texas Workers’ Compensation Act that would prevent Carrier making an adjustment to Claimant’s impairment income benefits to take into account the amount of temporary income benefits paid to Claimant to which Claimant was not entitled.
The hearing officer’s Decision and Order stated as follows:
Claimant reached maximum medical improvement on February 22, 1994, with an impairment rating of 1%. Claimant is entitled to impairment income benefits beginning on February 23, 1994, at $83.13 for three weeks for a total of $249.39. Claimant’s impairment income benefits began to accrue on February 23, 1994. Carrier has already paid to Claimant the three weeks of impairment income benefits with accrued interest under the Interlocutory Order entered on August 12, 1994. Carrier is entitled to a credit against Claimant’s impairment income benefits to recoup Carrier’s overpayment of $453.28 in temporary income benefits to Claimant from Claimant’s impairment income benefits. This decision supersedes the Interlocutory Order entered on August 12, 1994. Claimant and Carrier are ORDERED to comply in accordance with this decision, the Texas Workers’ Compensation Act and the Commission’s Rules. [Emphasis supplied.]
The carrier represented to the hearing officer in a brief received into evidence that to comply with its obligation to initiate the payment of TIBS not later than the seventh day after receiving written notice of the injury (Section 409.021(a)) and to avoid being subject to an administrative penalty, the carrier presumed, pursuant to Tex. W. C. Comm’n, 28 TEX. ADMIN. CODE 128.2(a) (Rule 128.2(a)), that the employer’s last payment to claimant as stated on its first report of injury, $183.00, accurately reflected claimant’s wages. Rule 128.2(a) provides in part that the carrier, in order to expedite payment of income benefits, shall presume the employer’s last payment to the employee for a full week’s work accurately reflects the employee’s wage until the employer files the employer’s wage statement or the correct wage is determined by other evidence if the employer doesn’t file the wage statement. The carrier further represented that it did not receive the employer’s wage statement indicating the average weekly wage (AWW) was $118.21 until after paying TIBS for 10 weeks. In its hearing brief the carrier stated that “[a]fter paying benefits for ten (10) weeks, Carrier received the Employers’ Wage Statement (TWCC-3),” and that it “continued to pay income benefits based on the incorrect [AWW] of $183.00 until it received the Employer’s Wage Statement during week ten (10) of benefits.” The carrier introduced the Employer’s First Report of Injury or Illness (TWCC-1), signed on June 22, 1993, stating that claimant’s last paycheck was “$183.00 (last week worked)” and identifying the workers’ compensation insurance company as “C.N.A. Insurance Dallas, Texas.” Rule 128.2(b) provides that the employer shall file the employer’s wage statement with the carrier and employee within 30 days of the date benefits begin to accrue (Section 408.082) and within seven days of receiving a request from the Commission. The TWCC-3 introduced by the carrier was signed on “7/9/93” and bears the notation “faxed to CNA 7/9/93.” There was no evidence to explain the relationship between CNA and the carrier, nor did the carrier make any representations in that regard. However, a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) introduced by the carrier shows the carrier’s mailing address to be “CNA Plaza” in Chicago. According to this TWCC-21, dated “7/2/93,” the carrier paid TIBS for the period “6/12/93” to “7/9/93” and requested a “wage statement.” This evidence suggests that the carrier received the TWCC-3 as early as “7/9/93.” In its hearing brief, the carrier argued that its overpayment of TIBS “was not the result of a clerical error or oversight on the part of the carrier,” but rather “was due to carrier’s good faith effort to comply with Rule 128.2 which requires carrier to base income benefits on the employer’s last payment to an employee for personal services based on a full week’s work.”
Also in evidence was a TWCC-21, dated March 22, 1994, reflecting that TIBS had been paid for the periods June 12, 1993, through July 9, 1993, and August 9, 1993, through February 22, 1994; and that IIBS had been paid for the period February 23, 1994, through March 15, 1994, consistent with the designated doctor’s assignment of the one percent IR. (Section 408.121(a) provides that an employee’s entitlement to IIBS begins on the day after the date the employee has reached MMI and ends on the date of expiration of a period computed at the rate of three weeks for each percentage point of impairment. The amount of IIBS is equal to 70% of the employee’s average weekly wage. Section 408.126.) The carrier’s TWCC-21 stated that the carrier converted the IIBS it paid claimant from December 22, 1993, through February 1, 1994, to TIBS and that it also paid additional TIBS through February 22, 1994. The TWCC-21 also stated that such payments resulted in a TIBS overpayment of $453.28, and that such overpayment would be reduced to $205.03 by taking a credit against IIBS. It was not clear from the TWCC-21 whether carrier actually paid claimant the IIBS due based on the one percent IR or merely showed them “paid” by offsetting overpaid TIBS. There was no apparent dispute by claimant concerning the amount of the claimed overpayment.
The carrier’s hearing brief did not indicate that all the IIBS due claimant (based on the designated doctor’s one percent IR) had already been paid. Rather, the brief’s conclusion seemed to suggest that additional IIBS were yet due when stating in part: “To now require Carrier to pay [IIBS] would permit a double recovery by the Claimant. As such, Carrier should be allowed to recoup the overpayment of [TIBS] by suspending income benefits.” However, in its concluding oral argument to the hearing officer, the carrier stated: “I would first like to state that we’re not trying to take money back from [claimant]. We have paid her impairment benefits subject to an interlocutory order. This recoupment would not take any money back from her at this point. If the carrier is successful on this point, that would come from the subsequent injury fund [SIF], not [claimant].”
The Commission’s interlocutory order in evidence, signed by the benefits review officer (BRO) on August 12, 1994, ordered the carrier to pay IIBS, based on an AWW of $118.21, for three weeks (2/23/94 – 3/15/94) in a lump sum, with interest, in accordance with the designated doctor’s one percent IR. Rule 116.11(a)(1) provides in part that a carrier may request reimbursement from the SIF for an overpayment of income benefits when the carrier has paid benefits pursuant to an interlocutory order of a BRO and a hearing officer subsequently reverses the interlocutory order or modifies it by reducing the amount of benefits due. And see Section 410.032(b). While the hearing officer’s order recites that it “supersedes” the interlocutory order, we are not here called upon to determine whether it modified or reversed the interlocutory order.
The carrier stated that while it found no provision in the 1989 Act specifically providing for its recoupment of the overpayment, it grounded its recoupment request, analogously, on two Appeals Panel decisions, namely, Texas Workers’ Compensation Commission Appeal No. 94134 and Texas Workers’ Compensation Commission Appeal No. 94135, both decided on March 16, 1994. In both of these cases, the circumstances of the TIBS overpayments involved the continuation of such payments after the injured employees had returned to work, no longer had disability, and no longer had any entitlement to TIBS during the periods in question. Further, in both cases not only were the amounts of the TIBS overpayments known, but the employees were still due IIBS in known amounts, and there was no attempt to obtain money from the employees directly or otherwise reduce benefits due them. See also Texas Workers’ Compensation Commission Appeal No. 92556, decided December 2, 1992; Texas Workers’ Compensation Commission Appeal No. 93324, decided June 7, 1993; Texas Workers’ Compensation Commission Appeal No. 94262, decided April 15, 1994; and Texas Workers’ Compensation Commission Appeal No. 941292, decided November 9, 1994, where, under varying scenarios, carriers were permitted to take credits for TIBS overpayments against future IIBS still due the employees.
In the case at bar, the carrier represented in oral argument, and its TWCC-21 could be interpreted to state, that based on the designated doctor’s one percent IR, all IIBS due the claimant have already been paid. The carrier states it does not seek to recoup excess TIBS from claimant but rather from the SIF, if recoupment is finally approved. We are not called upon to determine whether the carrier has a meritorious claim against the SIF, such not being a disputed issue in this case.
In Texas Workers’ Compensation Commission Appeal No. 92291, decided August 17, 1992, the Appeals Panel affirmed the hearing officer who denied relief to the carrier. The carrier in that case sought to offset its prior excess TIBS payments, based on its mistaken calculations of the employee’s AWW, against current TIBS payments. While it appears that claimant in the case we here consider received some overpayment of TIBS, such did not occur during periods when she no longer had disability, nor does there appear to have been any act on the part of claimant which resulted in the overpayments. Rather, the only cause suggested on the record was the alleged failure of the carrier’s insured, the employer, to timely file with the carrier the TWCC-3 so that the carrier could adjust the TIBS payments according to the AWW data on that form. However, the evidence seems to indicate that the employer faxed the TWCC-3 to the carrier on July 9, 1993. We find the circumstances in this case more analogous to those in the cases above cited where credits taken against IIBS still due for overpaid TIBS were approved, notwithstanding carrier’s miscalculation or other error. The overriding principle in those cases was that the injured employees were entitled to the income benefits due, no more and no less.
The record does not show that any further payments of IIBS are due claimant against which the carrier could take a credit and the carrier has represented that it does not seek to recoup the excess TIBS directly from claimant. In Texas Workers’ Compensation Commission Appeal No. 94820, decided August 9, 1994, the Appeals Panel found no error in the hearing officer’s order allowing the offset of excess TIBS paid against future income benefits, should there by any, and noted that the parties would have access to the dispute resolution process to determine the legality of such offsets.
We affirm the hearing officer’s decision and order.
Philip F. O’Neill – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Gary L. Kilgore – Appeals Judge