On July 1, 1994, a contested case hearing was held in (City), Texas, with (hearing officer) presiding as the hearing officer. The hearing was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issues at the hearing were: (1) does good cause exist to relieve the appellant (claimant) from the effects of the benefit review conference (BRC) agreement approved on June 10, 1993; (2) was the first date of maximum medical improvement (MMI) and impairment rating (IR) assigned by the claimant’s treating doctor disputed within 90 days by the respondent (carrier); (3) on what date did the claimant reach MMI; and (4) what is the claimant’s IR. The hearing officer concluded that the claimant is not relieved from the effects of the BRC agreement; that the first date of MMI and IR assigned by the treating doctor were disputed by the carrier within 90 days; that the claimant reached MMI on February 1, 1993; and that the claimant’s IR is 11%. The claimant disagrees with the hearing officer’s decision and requests that we reverse the decision and remand the case for further proceedings. The carrier requests affirmance.
DECISION
Affirmed.
The claimant, who is 56 years of age, testified that she does not know or understand English. A Spanish-speaking interpreter translated the hearing. The parties stipulated that the claimant suffered a compensable injury on (1991 injury), while working for (employer). According to a report from the employer, the claimant was off work until January 27, 1992. The claimant testified that she was again injured at work on (1992 injury). The hearing was in regard to the injury of (1991 injury). The claimant filed a claim for compensation for the 1991 injury claiming that she injured her back, neck, and left arm and shoulder when she lifted a sewing machine at work. An MRI of the lumbar spine done on April 29, 1991, showed desiccation (drying) at the L3-4 and L4-5 levels. An EMG and nerve conduction studies of the lower and upper extremities done in May 1991 revealed no evidence of lumbosacral or cervical radiculopathy or of any sensory neuropathy.
At the request of the carrier, the claimant was examined by Dr. K in July 1991. Dr. K reported that there were no objective findings to support the claimant’s complaints. He noted that the claimant can read, write, and speak Spanish and English. In Report of Medical Evaluation (TWCC-69) dated September 16, 1992, which references a date of injury of (1991 injury), the claimant’s treating doctor, Dr. P, reported that the claimant reached MMI on September 16, 1992, with a 28% IR.
By letter dated December 21, 1992, the Texas Workers’ Compensation Commission (Commission) notified the parties that it had received notice of a dispute over MMI and/or IR, and that it had selected Dr. A as the designated doctor to determine whether MMI had been reached and the IR. In a TWCC-69 dated February 4, 1993, Dr. A reported that the claimant reached MMI on February 1, 1993, with a 22% IR. Then, in a TWCC-69 dated April 19, 1993, Dr. A reported that the claimant reached MMI on February 1, 1993, with an 11% IR. In a narrative report attached to the second TWCC-69, Dr. A noted that he had met with a Mrs. B to review the claimant’s case. He identified Mrs. B as a rehabilitation nurse with (corporation). Both of Dr. A’s reports reference a date of injury of (1991 injury).
In evidence was a BRC agreement which references a date of injury of (1991 injury). The disputed issues are set forth as MMI and IR. The resolution of those issues is stated to be “Feb. 1, 1993 is the correct [MMI] date and the correct impairment is 11% as reported by [Dr. A] the designated doctor.” The agreement notes that the claimant was being represented at the BRC by attorney Mr. H. The agreement is dated June 10, 1993, and is signed by the benefit review officer (BRO), the claimant, and the carrier’s representative. There is also a signature in the space for the signature of the employee’s representative.
In a TWCC-69 dated January 21, 1994, which references a date of injury of (1991 injury), Dr. P, the treating doctor, again reported that the claimant had reached MMI on September 16, 1992, but he increased the IR to 33%.
The claimant testified that Mr. H was her attorney. She said that Mr. H was not at the BRC, but that he sent another attorney to represent her at the BRC. However, in an affidavit dated June 30, 1994, the claimant swore that “my attorney” was present at the BRC held on June 10, 1993. She testified that she doesn’t know whether or not the signature in the space on the BRC agreement for the signature of the employee’s representative is that of Mr. H. The claimant further testified that the BRC agreement was not explained to her at the BRC, that she did not ask for an explanation of the agreement, that the BRC proceeding and the agreement were not translated into Spanish so she did not understand the agreement, that there was a Spanish-speaking secretary from Mr. H’s office at the BRC who was to translate but did not, and that she, the claimant, signed the agreement. The claimant also testified that the day after she signed the agreement, her son and Mr. H’s secretary explained the agreement to her and that she told Mr. H’s secretary that she did not agree with the agreement. However, the claimant said she was paid all benefits in accordance with the agreement and that she did not “dispute” the agreement until sometime in 1994.
At the hearing the claimant argued that she should be relieved of the effects of the BRC agreement because: (1) her attorney was not present at the BRC (contrary to her sworn statement of June 30, 1994, and the notation on the BRC agreement itself); (2) the BRC agreement was not explained to her (she freely admitted she asked for no explanation); (3) the BRC agreement was not translated into Spanish (as previously noted, the claimant said she does not know or understand English, but Dr. K reported that the claimant can speak, read, and write English); and (4) Dr. A, the designated doctor, did not evaluate her entire injury and he improperly reduced her IR from 22% to 11% after a unilateral communication from Mrs. B, whom the claimant represented was an employee of the carrier (the claimant did not allege that she was unaware at the BRC of Dr. A’s second report upon which the agreement is based, and which sets forth the body parts for which impairment was assigned, his reason for reducing the IR, and his contact with Mrs. B). Although the 90-day dispute provision of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) was stated to be an issue at the hearing, the claimant did not urge at the hearing that the carrier had failed to timely dispute the first IR assigned to her by her treating doctor.
Section 410.030(b) provides in pertinent part that “the agreement is binding on the claimant, if represented by an attorney, to the same extent as on the insurance carrier.” Section 410.030(a) provides that:
An agreement signed in accordance with Section 410.029 [relating to Resolution At BRC; Written Agreement] is binding on the insurance carrier through the conclusion of all matters relating to the claim, unless the commission or a court, on a finding of fraud, newly discovered evidence, or other good and sufficient cause, relieves the insurance carrier of the effect of the agreement.
The hearing officer made a number of fact findings, including the following:
FINDINGS OF FACT
9.At the [BRC] on June 10, 1993, all parties, including claimant and her attorney, signed a [BRC] agreement wherein it was agreed that claimant had reached [MMI] on February 1, 1993, with an 11% whole body [IR], in accordance with the amended report of the designated doctor.
10.An agreement is binding on the claimant while represented by an attorney, to the same extent as on the carrier (Texas Labor Code, Section 410.030(b)).
The hearing officer concluded that the claimant is not relieved from the effects of the BRC agreement, that the claimant reached MMI on February 1, 1993, and that the claimant’s IR is 11%. The hearing officer also concluded that the carrier disputed Dr. P’s first IR within 90 days, and that determination has not been appealed by the claimant.
On appeal, the claimant contends that the BRC agreement is invalid because it was not translated for her, that the attorney who signed the agreement is an “imposter,” that the report of the designated doctor is incomplete; that the designated doctor had unilateral communication with the carrier through Mrs. B, and that the carrier owes her 51 more weeks of temporary income benefits (TIBS) if she reached MMI on February 1, 1993.
The claimant had the burden to show good and sufficient cause to be relieved of the effects of the BRC agreement. The hearing officer is the judge of the weight and credibility of the evidence. Section 410.165(a). The hearing officer determines what facts have been established from the conflicting and contradictory evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref’d n.r.e.). Having reviewed the record, we conclude that the hearing officer’s failure to find that the claimant had good and sufficient cause to be relieved of the effects of the agreement was not an abuse of discretion, and that his findings are supported by the evidence. The claimant’s contention that she is entitled to another 51 weeks of TIBS was not an issue at the hearing and will not be considered for the first time on appeal. See Texas Workers’ Compensation Commission Appeal No. 91100, decided January 22, 1992. We observe that entitlement to TIBS is predicated on both having disability and not having reached MMI. Section 408.101(a). Thus, simply not having reached MMI until February 1, 1993, would not automatically entitle the claimant to TIBS up until that date.
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Philip F. O’Neill – Appeals Judge