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 (CCH) was held on June 17, 1994, in (City), Texas, with (hearing officer) presiding as hearing officer. The only issue at the hearing was did the certification of maximum medical improvement (MMI) and impairment rating (IR) by Dr. H on July 5, 1993, become final under Texas Workers’ Compensation Commission (Commission) Rule 130.5(e). The hearing officer determined that Dr. H’s certification of MMI and IR was disputed within 90 days after the respondent (claimant) first knew of it and it did not become final under Rule 130.5(e). The appellant (carrier) appeals arguing that the neither the claimant nor anyone acting on his behalf disputed the first certification of MMI and IR, and requests that the Appeals Panel reverse the decision and order of the hearing officer and render a decision that the claimant failed to dispute the certification within 90 days as required by Rule 130.5(e). The claimant responds and urges that the hearing officer did not commit reversible error in making his findings of fact and conclusions of law and that Dr. H rescinded his certification of MMI and IR prior to the CCH. The response to the request for appeal was filed on August 18, 1994, and will be discussed below.
DECISION
We reverse the decision and order of the hearing officer; render a decision that the certification that the claimant reached MMI on July 5, 1993, with a seven percent IR was not timely disputed; and has become final.
Before addressing the merits of the request for appeal, procedural issues will be discussed. The carrier certified that the request for appeal was mailed to the attorney for the claimant by certified mail, return receipt requested on July 25, 1994. There is no indication that it was also mailed to the claimant. Rule 102.4 provides:
After the insurance carrier or the commission is notified in writing that a claimant is represented by an attorney or other representative, all copies of notices and reports to the claimant will be thereafter mailed to the representative and the claimant unless the claimant requests delivery to the representative only.
The record is silent on whether the claimant requested delivery to the representative only and does not indicate when the attorney for the claimant received the request for appeal. Under the provisions of Rule 102.5(h), the document is deemed to have been received on July 30, 1994, which is five days after it was mailed. The response to the request for appeal is dated August 18, 1994. The decision and order were mailed on July 7, 1994. There is no indication when it was received by the claimant, so under the provisions of Rule 102.5(h) it is deemed to be received five days after it was mailed. Clearly, the response to the request for appeal dated August 18, 1994, was not filed in time to be considered a request for appeal and thus the issue of whether Dr. H rescinded his certification of MMI and IR is not an appealed issue. Texas Workers’ Compensation Commission Appeal No. 92219, decided July 15, 1992.
The claimant testified that while working for (employer) on __________, he injured his back placing a lawn tractor on the truck of a customer. Dr. H treated him and told him that he needed back surgery. The claimant was afraid to have surgery and told Dr. H he would think about it. He went to Dr. S for a second opinion. Dr. S told claimant he did not need surgery. Claimant went to Dr. M for another opinion. Dr. M told him that he needed to have surgery. The claimant testified that he was hurting, was afraid, and did not know what to do. He was in pain, his legs would give out, and he could barely walk so in November he decided to have surgery. Claimant said that he was then worse than when he had seen Dr. H. Dr. P examined the claimant on November 1, 1993, to render a second opinion on the need for spinal surgery, and reported that he concurred in the proposed surgery, that the claimant was not a candidate for returning to work at that time, and that the claimant had not reached MMI. The claimant testified that he had surgery on January 5, 1994. He said that he made up his mind to have the surgery in less than 90 days from the time Dr. H recommended the surgery and told Dr. M in November that he wanted the surgery. On June 6, 1994, Dr. H rescinded his certification of MMI and IR. On cross-examination the claimant testified that he was represented by an attorney, the carrier representatives would not talk with him so he did not tell the carrier’s representatives he disputed the IR, but he told his attorney that he did not reach MMI. The record does not reveal that his attorney communicated this to the carrier prior to January 1994.
The evidence in this case is not well developed. Section 410.163 provides “[a] hearing officer shall ensure the preservation of the rights of the parties and the full development of facts required for the determinations to be made.” A hearing officer will often not be aware of potential evidence available to the parties and must exercise care and good judgment on making inquiries to develop the facts so as not to lose his impartiality or usurp the authority of a party, counsel representing a party, or a person assisting a party. The response to the request for appeal mentions a medical report from Dr. M dated September 21, 1993, and a letter from the claimant’s attorney to the carrier dated November 15, 1993, neither of which appears in the record nor is attached to the response to the request for appeal.
Our review of the evidence and consideration of previous Appeals Panel decisions lead us to conclude the determination of the hearing officer that Dr. P’s report to the carrier is sufficient to raise a dispute of the IR given by Dr. H is against the great weight and preponderance of the evidence. We have held that a notice of a dispute of MMI and IR from the claimant to the carrier would constitute sufficient notice despite the claimant’s failure to notify the Texas Workers’ Compensation Commission (Commission). Texas Workers’ Compensation Commission Appeal No. 93200, decided April 14, 1993. However, communicating the dispute of MMI and IR to persons other than the carrier and the Commission is not sufficient. In Texas Workers’ Compensation Commission Appeal No. 94379, decided May 12, 1994, the claimant told her treating doctor and her attorney that she disagreed with the MMI and IR, neither the attorney nor the doctor disputed MMI and IR on behalf of the claimant, and we held that the claimant did not timely dispute MMI and IR. We have also held that others may act on behalf of the claimant and that a treating doctor may dispute the MMI and IR on behalf of the claimant. Texas Workers’ Compensation Commission Appeal No. 94519, decided June 14, 1994. In the case before us the hearing officer determined that the claimant knew of Dr. H’s IR by September 1, 1993, therefore, we do not need to determine if the letter dated December 21, 1993, from Dr. M to the carrier disputes MMI and IR on behalf of the claimant because it is dated after the 90-day period to dispute had expired. The claimant’s attorney in the claimant’s appeal mentions a report from Dr. M dated September 21, 1993; however, that report is not in evidence. The claimant’s appeal also indicates that his attorney sent a letter dated November 15, 1993, to the carrier in which he disputed MMI and IR on behalf of the claimant. That letter is not in evidence. Although another attorney may have handled the case differently, we have previously stated that an attorney employed to represent a claimant before the Commission is the agent of the claimant and that such attorney’s actions or inactions within the scope of his employment are attributable to the claimant. Texas Workers’ Compensation Commission Appeal No. 93644, decided September 8, 1993. Dr. P examined the claimant to render a second opinion on the need for spinal surgery. He was not the claimant’s treating doctor. Dr. P concluded his report with “He will return then to [Dr. M] and [Dr. H’s] care and to this examiner as he desires and/or his symptoms necessitate.” A review of the evidence does not reveal that Dr. P was acting on behalf of the claimant to dispute MMI and IR.
Whether a request to change treating doctors also disputes a certification of MMI and IR is decided on the facts of each case. Dr. M performed surgery on the claimant. It can be inferred that the claimant changed treating doctors from Dr. H to Dr. M, but there is little evidence in the record on changing treating doctors. We have held that if a claimant merely requests a change of his treating doctor in writing after the initial certification of MMI and IR, this, without anymore, is not notice of a dispute under the 90-day rule. Texas Workers’ Compensation Commission Appeal No. 93729, decided September 29, 1993. But if the claimant requests a change of his treating doctor in writing and the primary concern from the surrounding facts in requesting the change is a disagreement with the certification of MMI and IR, then a written request to change doctors and the surrounding circumstances may be enough to create a dispute of MMI and IR. Texas Workers’ Compensation Appeal No. 93666, decided September 15, 1993. Whether a request for a second treating doctor reasonably conveys a dispute over MMI and IR must be determined based on the facts of each individual case. Texas Workers’ Compensation Commission Appeal No. 93684, decided September 21, 1993. In this case, there is not sufficient evidence of a request to change treating doctors to determine that the claimant disputed the certification of MMI and IR by requesting a change of treating doctors.
For the reasons set forth above, we reverse the decision and order of the hearing officer and render a decision that the claimant did not timely dispute the certification of Dr. H that the claimant reached MMI on July 5, 1993, with a seven percent IR and the certification became final under Rule 130.5(e).
Tommy W. Lueders – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Alan C. Ernst – Appeals Judge