This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). On February 25, 1993, a contested case hearing (CCH) was held in (city), Texas, with (hearing officer) presiding as hearing officer. The issues remaining unsolved were “whether claimant had reached maximum medical improvement, and if so, claimant’s correct percentage of impairment.” The hearing officer determined that the appellant (claimant) reached maximum medical improvement (MMI) on April 22, 1992 with an 11 percent whole body impairment rating, adopting the designated doctor’s report. Claimant expresses disagreement with the various doctors, alleging their ratings were in error and contending he had “100% work disability.”
DECISION
The decision of the hearing officer is affirmed.
Claimant was the only witness at the CCH to testify to the merits of the case. Most of the other evidence being submitted in the form of medical reports. The evidence in this case is fairly and accurately set out in the hearing officer’s statement of evidence and is adopted for purposes of this decision. Succinctly, claimant testified he had been employed as a heavy equipment operator for (employer) for 33 years when, on (date of injury), he fell off a bulldozer when the equipment unexpectedly shifted into gear as claimant was getting on it. Claimant testified he fell to the ground injuring his neck and back. Claimant was treated by (Dr. W) who referred claimant to (Dr. K), a neurosurgeon. Claimant stated that Dr. K was probably more familiar with his case than anyone else because he performed numerous tests and had treated claimant on a long-term basis as opposed to only having examined him once. Because Dr. K recommended surgery, claimant was examined by (Dr. T). There was some confusion whether Dr. T was an agreed upon designated doctor because claimant had agreed to be examined by him. (Ms. H), Texas Workers’ Compensation Commission (Commission) Disability Determination Officer (DDO) was called as a witness. Ms. H stated Dr. T was not an agreed upon designated doctor, and that when the parties were unable to agree on a designated doctor, the Commission appointed (Dr. H) as the designated doctor. Dr. K, on referral from the treating doctor, Dr. W; Dr. T, a “second opinion” doctor; and Dr. H, as the designated doctor all gave opinions on MMI and impairment. Several other doctors treated and/or conducted tests on claimant but did not give an MMI certification or impairment ratings.
Dr. W, the initial treating doctor, did a comprehensive report and history with an assessment of “1. Acute hypertension, rule out cardiac ischemia. Rule out subclavian steel syndrome versus thoracic aneurysm. 2. Lumbar cervical disc disease. 3. Benign prostatic hypertrophy.” In a letter report dated January 12, 1993, Dr. W states “. . . this patient would have 100% impairment regarding a work disability.” Dr. W asks “[w]hy is no effort on the part of the company to find work for this gentleman in compliance with his disability?”
Dr. K, the neurosurgeon to whom claimant was referred by Dr. W, opined claimant needed surgery but nevertheless filed a Report of Medical Evaluation (TWCC-69) showing MMI on 04-22-92 with a 10 percent whole body impairment rating. Dr. K’s original TWCC-69 showed MMI on 04-22-92 with one percent impairment, but Dr. K explained this was an error and filed the TWCC-69 showing 10 percent impairment. Dr. K does state, in a January 19, 1993 letter, “I did not do range of motion in determining [claimant]’s whole body impairment.”
Dr. T, apparently on referral by the carrier, examined claimant and states:
After review of the records and examination of this patient, it is my feeling that he has reached maximum medical improvement at this time. If he declines surgery as has previously been offered to him, I do not expect that he would improve significantly from this point.
I would agree that his employability is unlikely to improve with or without spinal surgery at this time. I see no reason to undertake further diagnostic testing if he declines surgical intervention at this time.
Should he desire to have a decompression surgery of the cervical spine for the cervical stenosis in the future, I would support this and only add that I would expect it to significantly improve his upper extremity neurologic symptoms and not significantly improve his neck pain symptoms.
I have rendered him a permanent partial impairment rating based upon the following: 6% for unoperated intervertebral of other soft tissue lesions from II-C Table 49, Page 73, and 7% for loss of cervical motion. Using the combined values chart, 6+7% equals 13% whole person permanent partial impairment.
Dr. T completed a TWCC-69 showing MMI on 11-12-92 with a 13 percent whole body impairment rating.
Dr. H was the Commission designated doctor. In an annotated TWCC-69, Dr. H notes that “Dr T and [Dr. K] have both suggested a cervical laminectomy but the patient has declined.” Dr. H records claimant’s range of motion, notes tests performed by other doctors, and concludes “I agree [claimant] would have difficulty returning to the same job. He has reached MMI.” Dr. H opines MMI was reached 04-22-92 with 11 percent whole body impairment, specifically referencing the “AMA’s Guide to Evaluation of Permanent Impairment, Third Edition, Second Printing, February 1989 per TWCC law.” Claimant is dissatisfied with Dr. H because he feels Dr. H did not consider all of his ailments and because Dr. H did not spend enough time with him on his one visit.
The hearing officer gave presumptive weight to the designated doctor’s report and adopted the designated doctor’s MMI of April 22, 1992 with an 11 percent whole body impairment. Claimant, on appeal, as at the CCH, emphasized his poor overall condition, his hypertension, anxiety, and depression, and states he should be rated on all his problems. Claimant also reiterated that Dr. H, the designated doctor, “. . . did not seem concerned with [claimant]’s case, nor did he make the time for me until pressured to get the report out.” Claimant, on appeal, submitted a copy of Dr. W’s, the treating doctor, report dated January 12, 1993, quoted earlier. In the copy submitted on appeal, the word “may” has been crossed out with the phrase “in all medical probability would” added. We will not consider the changed January 12, 1992 letter in that we are limited in our review to the record developed at the CCH. Article 8308-6.42.
We would note that in the hearing officer’s discussion portion of her decision, she goes out of her way to explain why the union’s 100 percent rating is not applicable and how claimant’s various other ailments were related to the impairment ratings. We agree with the hearing officer’s statements and further note that all three doctors, including Dr. K, who claimant agrees was most familiar with his case, conducted numerous tests and had treated claimant at length, gave MMI and impairment ratings very similar on both MMI and impairment.
In Texas Workers’ Compensation Commission Appeal No. 93105, decided March 26, 1993, Chief Appeals Judge Sanders rendered a broad review of the designated doctor procedure, noting the report of the designated doctor shall have presumptive weight and the Commission shall base the impairment rating on that report unless the great weight of the other medical evidence is to the contrary. Article 8308-4.26(g). We have further emphasized that MMI does not, in every case, amount to pain-free recovery. See Texas Workers’ Compensation Commission Appeal No. 93007, decided February 18, 1993, and Texas Workers’ Compensation Commission Appeal No. 92670, decided February 1, 1993. While MMI may appear to mean complete recovery to the lay person, that is not necessarily what it means for purposes of workers’ compensation benefits. Appeal No. 93007, supra. When the doctor finds MMI and assesses an impairment, the doctor has determined, based upon medical judgment, that there will likely be no further material recovery from the injury. The doctors in this case have basically concluded that claimant will not be able to go back to being a heavy equipment operator although Dr. W questions why the employer cannot find some kind of light duty for claimant.
We have repeatedly emphasized the unique position occupied by the designated doctor under the 1989 Act. See Texas Workers’ Compensation Commission Appeal No. 92555, decided December 2, 1992, and Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. In Appeal No. 92412, we pointed out that to outweigh the report of a designated doctor requires more than a mere balancing of the medical evidence or a preponderance of medical evidence; rather, such other medical evidence must be determined to be the “great weight” of the medical evidence contrary to the report. In this case the three doctors who gave ratings were in near unanimity of opinion with only slight variations as to MMI and a spread of three percentage points between the high and low on impairment, with the designated doctor’s impairment rating being in the middle. Under these circumstances we cannot say that the great weight of the other medical evidence is contrary to that of the designated doctor, and in fact, most of the other medical evidence would tend to support the findings of the designated doctor, with the exception of perhaps Dr. W who finds “a 100% work disability” regarding claimant’s ability to return to his previous line of work. Even this is not in disagreement with the other doctors who all believe it is highly unlikely or would be difficult for claimant to return to the same job. This subjective assessment does not, however, constitute a valid impairment rating under the AMA Guides as mandated by the 1989 Act, which must be confirmable by objective clinical or laboratory findings. See Article 8308-4.25(a).
We find that there is sufficient evidence to support the hearing officer’s determination which accorded presumptive weight to the designated doctor’s report and found that the great weight of the other medical evidence was not contrary thereto. The decision is affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge