On April 6, 1993, 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. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). The hearing officer determined that the appellant (claimant herein) has an impairment rating of seven percent as assigned by the designated doctor selected by the Texas Workers’ Compensation Commission (Commission). The claimant contends that the overwhelming weight of the evidence shows that his correct impairment rating is 19% as assigned by his treating doctor. The respondent (carrier herein) responds that the hearing officer’s decision is correct.
DECISION
The decision of the hearing officer is affirmed.
The parties stipulated that on (date of injury), the claimant suffered a compensable injury while in the course and scope of his employment with his employer, (employer), and that the employer had workers’ compensation insurance coverage with the carrier on that date.
The only issue at the hearing was: “What is the claimant’s correct impairment rating?”
On (date of injury), the claimant injured his lower back at work. (Dr. P) has been his treating doctor. On August 4, 1992, the claimant was examined by (Dr. L) at the request of the carrier. In a Report of Medical Evaluation (TWCC-69), Dr. L stated that the claimant had not reached maximum medical improvement (MMI), but estimated that the claimant would reach MMI on September 8, 1992. He indicated that the claimant had a 9.5% whole body impairment rating. In a narrative report dated August 4, 1992, Dr. L noted that Dr. P had diagnosed the claimant as having a lumbar spine strain and possible disc involvement. Dr. L gave the following diagnoses: 1) muscular and ligamentous strain of the lumbar spine; 2) myositis and fascitis of the lumbar spine; and 3) questionable clinical evidence of a herniated nucleus pulposus and/or nerve root compression neuropathy of the lumbar spine. Dr. L noted that his examination disclosed “no definite, confirmatory, clinical, objective physical findings to correspond with any concernful, bone/joint, musculofascial abnormalities of the lumbar spine.” In the physical examination section of his report, Dr. L noted with regard to both right and left straight-leg raising in the lying down position the following: “conducted in such a manner as to obviously be seeking straight-leg raising determinations.” He further noted that the right leg was suddenly and unexpectedly positive at 20-25 degrees and that the left leg was suddenly and unexpectedly positive at 10-15 degrees. He ended the last two notations with “(???)”.
A magnetic resonance imaging scan (MRI) of the claimant’s lumbar spine done on October 20, 1992 revealed degenerative disc disease at L5-S1. There was no evidence of intradural or extradural defect, spinal stenosis, narrowing of the neural foramen, or compression of the lumbar nerve roots. Nerve conduction studies of both lower extremities performed on October 28, 1992, were reported as normal. Needle examination of selective muscles was incomplete because the claimant refused a complete needle examination.
By order dated November 20, 1992, the Commission selected (Dr. A) as the designated doctor to “resolve dispute over: impairment rating.” In a TWCC-69 dated February 10, 1993, Dr. A certified that the claimant reached MMI on December 6, 1992, with a seven percent whole body impairment rating. In a seven page narrative report, Dr. A set out the history of the claimant’s injury, findings on physical examination including range of motion testing with an inclinometer, test results (x-rays, MRI, EMG), summaries of medical reports of Drs. P and L and other doctors who had examined the claimant, and gave the following diagnoses: 1) sprain of the lumbar spine, 2) possible contusion of the lumbar spine, and 3) degenerative disc disease, L5-S1. Dr. A said that he agreed with Dr. P that the claimant reached MMI on December 6, 1992 (a report from Dr. P showing a December 6, 1992 MMI date was not in evidence). Dr. A then assigned the claimant a seven percent whole body impairment rating due to the claimant’s injury to his lumbar spine which occurred on (date of injury). Dr. A stated to the effect that flexion measurement tests were not valid because validity criteria were not met. As previously noted, several months earlier Dr. L had also questioned the results of range of motion testing he had performed on the claimant. We have observed that range of motion testing, while appropriate in assessing impairment, can be open to more subjectivity than would a test such as an MRI. See Texas Workers’ Compensation Commission Appeal No. 92690, decided February 8, 1993; Texas Workers’ Compensation Commission Appeal No. 92335, decided August 28, 1992. In Appeal No. 92335, we observed that “[s]pecifically with regard to ROM of the spine, the Guides set forth the recommended tests and procedures and provide for calculating variability between tests to see whether the measurements fall within reproducibility guidelines; if they do not, the test is determined to be invalid.”
In a TWCC-69 dated February 23, 1993, Dr. P certified that the claimant reached MMI on February 23, 1993, with a 19% whole body impairment rating. On the same day, he wrote a letter to the carrier stating that he had reviewed Dr. A’s report and found it to be technically correct, but that he did not agree with Dr. A’s impairment evaluation. He further stated that “[Dr. A’s] disagreement and mine are based mainly on the amount of physical impairment. Otherwise, the patient has reached maximum medical improvement . . . .” Dr. P attached work notes to his letter showing how he arrived at that portion of the claimant’s impairment rating which related to lumbar range of motion.
The hearing officer found that Dr. A was the designated doctor selected by the Commission to resolve a dispute over impairment rating; that Dr. A certified that the claimant had reached MMI with a seven percent whole body impairment rating; and that the great weight of the other medical evidence is not contrary to the report of the designated doctor regarding the claimant’s impairment rating. The hearing officer concluded that the claimant’s impairment rating is seven percent. The only point raised in the request for review is stated as follows: “Claimant believes that the overwhelming weight of evidence shows that his correct impairment rating should be the 19 percent rating that was assigned by his treating physician, [Dr. P].” The claimant does not apprise us as to what he believes comprises the overwhelming weight of the evidence, other than the reports of his treating doctor. The claimant also does not make any specific attack on the report of the designated doctor or on methods or procedures used by the designated doctor in evaluating the claimant’s impairment.
“Impairment rating” means the percentage of permanent impairment of the whole body resulting from a compensable injury. Article 8308-1.03(25). “Impairment” means any anatomic or functional abnormality or loss existing after MMI that results from a compensable injury and is reasonably presumed to be permanent. Article 8308-1.03(24). Pursuant to Article 8308-4.26(g), the report of the designated doctor selected by the Commission concerning the employee’s impairment rating has presumptive weight and the Commission must base the impairment rating on that report unless the great weight of the other medical evidence is to the contrary, in which case the Commission shall adopt the impairment rating of one of the other doctors. It is not unusual to have disagreement or some degree of disparity between the reports of various doctors who have treated or examined an injured worker. See Texas Workers’ Compensation Commission Appeal No. 93105, decided March 26, 1993, and decisions cited therein. In Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992, we pointed out that it is not just equally balancing evidence or a preponderance of the evidence that can overcome the presumptive weight given the designated doctor’s report; rather, such other medical evidence must be determined to be the “great weight” of the medical evidence contrary to the report. Moreover, no other doctor’s report, including that of a treating doctor, is accorded the special presumptive weight given to the designated doctor’s report. See Texas Workers’ Compensation Commission Appeal No. 92366, decided September 10, 1992.
Having reviewed the record, we conclude that there is sufficient evidence to support the hearing officer’s decision 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. We distinguish this case from our decision in Texas Workers’ Compensation Commission Appeal No. 93286, decided May 28, 1993. In Appeal No. 93286 we reversed and remanded the case for further consideration and development of evidence where the evidence showed that the designated doctor, whose impairment rating opinion was given presumptive weight by the hearing officer, had not used an inclinometer in evaluating range of motion. In the instant case, the designated doctor did use an inclinometer. We also distinguish this case from our decision in Texas Workers’ Compensation Commission Appeal No. 93296, decided May 28, 1993. In Appeal No. 93296, we determined that the designated doctor’s report on impairment rating was invalid because he was under the impression that range of motion testing under the AMA Guides was an alternative method for evaluating impairment of the spine. The evidence
does not indicate any such misconception on the part of the designated doctor in the instant case.
The decision of the hearing officer is affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Lynda H. Nesenholtz – Appeals Judge