This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act) (formerly V.A.C.S., Article 8308-1.01 et seq.). A contested case hearing (CCH) was held on October 14, 1993, with (hearing officer) presiding as hearing officer. In his decision the hearing officer lists two issues at the CCH: 1. whether the respondent (claimant herein) had reached maximum medical improvement (MMI), and if so, on what date; and 2. what was the claimant’s proper impairment rating. The hearing officer determined that the claimant reached MMI on August 20, 1991, with a seven percent impairment rating, based on the opinion of a designated doctor selected by the Texas Workers’ Compensation Commission (Commission). The appellant (carrier herein) files a request for review contending that the hearing officer failed to address an issue that was before him as to whether the Commission properly used its authority in approving the claimant’s request to change doctors. The carrier requests that we remand the case to the hearing officer to make a ruling in accordance with the evidence and argument presented by the parties. The claimant does not file a response to the carrier’s request for review.
DECISION
Finding that the hearing officer failed to determine an issue which was before him, we remand the case to him to determine the issue of whether the Commission properly used its authority in approving the claimant’s request to change doctors.
The report of the Benefit Review Conference (BRC), which was admitted into evidence as Hearing Officer Exhibit No. 1, stated that an issue raised but not resolved after the BRC was “[d]id the Commission properly use it’s authority in approving the change of doctor to (Dr. Z).” The hearing officer announced and the parties agreed that this was an issue before the hearing officer at the CCH. In his Decision and Order the hearing officer neither mentioned nor in any way decided this issue.
This controversy stems from the filing by the claimant of an Employee’s Request to Change Treating Doctors (TWCC-53). In his undated TWCC-53 the claimant lists (Dr. G) as his treating doctor and “lower back” as his type of injury. The claimant requests on this TWCC-53 that he be allowed to change treating doctors to Dr. Z because Dr. G did not want to treat him because he had a kidney disease. This request was approved on the TWCC-53 by “(Ms. S), Disability Determination Officer” on July 15, 1993.
The claimant testified at the hearing that he suffers from kidney failure, is undergoing dialysis, and is on a waiting list for a kidney transplant. He testified that Dr. G had treated his back injury but had released him from treatment after finding out about his kidney condition, telling him that there was nothing further he could do for him. The claimant testified that after being released by Dr. G, he consulted Dr. Z who told him that he could benefit from an exercise program. The claimant testified that he came to the Dallas field office of the Commission, explained his situation, and was advised to file a request to change treating doctors. The claimant testified that he had been happy with the treatment he had received from Dr. G and got along with Dr. G, but needed to change doctors because Dr. G did not want to treat him further.
The carrier took a deposition by written questions of Dr. G in which the following dialogue took place:
4.Have you refused to treat [the claimant]?
No
5.Has [the claimant] continued to seek treatment from you?
Had been discharged on October 5, 1992
6.State all your opinions why [the claimant] is not treating with you or has stopped treating with you?
See #5
7.State all reasons told to you by [the claimant] that he is not treating with you or has stopped treating with you?
This patient has very serious medical problems (chronic renal insufficiency, history of splenectomy). He is no candidate for further physical therapy nor surgery for his back problems.
The claimant also submitted into evidence a report from Dr. Z which states as follows:
[The claimant] has chronic persistent pain generalized to the low back region suffered from an injury that occurred on (date of injury). The patient has been treated by a physician who, according to the patient, does not wish to further treat him because of an underlying complicating medical condition; the patient is on dialysis and has early renal failure.
[The claimant] has come here to the [clinic] wishing to undergo therapeutic exercise and medical massage and kinetics to help improve his back condition. He has asked me to comment on whether this type of treatment would be effective and would not be contraindicated in light of his renal status.
I find no contraindications for treatment of this nature. If [the claimant] wishes to undergo treatment and care here at this facility we will be able to assist him.
Tex. W. C. Comm’n, 28 TEX. ADMIN. CODE § 126.9(g) (Rule 126.9(g)) provides:
With good cause, the injured employee or carrier may dispute the order regarding a change to an alternate treating doctor within 10 days after receiving the order [approving or denying a change of doctor request]. That dispute will be handled through the dispute resolution process described in Chapters 140 through 143 of this title (relating to Dispute Resolution/General Provisions, Benefit Review Conference, Benefit Contested Case Hearing, and Review by the Appeals Panel).
It is unclear from the record whether the carrier disputed the order changing treating doctors in compliance with the 10 day time limit of this rule.
We have recently discussed the importance of a hearing officer’s determining all the issues before her or him. See Texas Workers’ Compensation Commission Appeal No. 931017, decided December 20, 1993. We find the hearing officer’s failure to address this issue somewhat inexplicable. We feel that some fact finding may be necessary in reaching a determination in this matter. Nor would we feel particularly comfortable rendering on an issue apparently not even considered by the hearing officer. Relevant law on this point includes Section 408.022 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9 (Rule 126.9). Recently the Appeals Panel has spoken on change of treating doctors in Texas Workers’ Compensation Commission Appeal No. 93753, decided October 7, 1993.
We remand this case to the hearing officer to determine the issue of whether the Commission properly used its authority in approving the claimant’s request to change doctors.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Gary L. Kilgore – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Thomas A. Knapp – Appeals Judge