This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1993) (1989 Act). A contested case hearing was held on April 6, 1993, in (city), Texas, before hearing officer (hearing officer), to decide three issues: whether the appellant, hereinafter claimant, has reached maximum medical improvement (MMI); if claimant has reached MMI, what is the correct impairment rating; and whether the claimant has continued disability as a result of his injury, and whether he is entitled to additional temporary income benefits (TIBS). The claimant appeals the decision of the hearing officer which finds that claimant reached MMI on January 31, 1992, with an impairment rating of five percent as found by the designated doctor, and that since claimant has reached MMI he is not entitled to additional TIBS. The respondent, hereinafter carrier, urges that the decision of the hearing officer be upheld; in the alternative, should the Appeals Panel reverse the decision below, the carrier has filed a timely request for review alleging error in the hearing officer’s failure to make findings of fact and conclusions of law on the issues of disability and whether the claimant timely disputed the first certification of MMI and impairment.
DECISION
Upon our review of the record in this case, we affirm the decision and order of the hearing officer.
The claimant, who was employed as a truck driver and furniture mover for (employer), suffered a back injury when the truck he was driving was struck from behind on May 8, 1991. The hearing officer’s decision thoroughly sets forth the doctors seen by claimant and the treatment received, and such will not be repeated in detail here. At the carrier’s request, claimant was examined by carrier’s doctor, (Dr. S), on October 28, 1991. Dr. S noted normal lumbar and cervical spine series, cervical MRI, and nerve conduction studies, as well as a lumbar MRI which showed degenerative disc disease at L3-4 and L5-S1 with mild to moderate degenerative changes. At that time Dr. S wrote that claimant’s prognosis to return to work without restrictions was “guarded,” and he estimated claimant would reach MMI six months from the date of injury (November 8, 1991). On November 4, 1991, claimant’s treating doctor, (Dr. H), also noted degenerative changes with diminished disc spaces at L4 and L5 and no evidence of herniation. Dr. H found that the claimant had reached MMI on that date with a five percent impairment rating. At claimant’s request, Dr. H referred him to (Dr. E) who recommended surgery; however, no second opinion on surgery was received and surgery was never performed.
In February 1992, Dr. S became claimant’s treating doctor. On April 3, 1992, Dr. S reported that the claimant had reached MMI on that date, with a ten percent impairment rating. (Dr. S stated that claimant’s “employability is not likely to improve with further active medical treatment or surgical intervention.”) Because the carrier disputed Dr. S’s date of MMI and impairment rating, the Commission appointed (Dr. G) as designated doctor.
Dr. G examined claimant once, on September 28, 1992, but he filed four separate reports of medical evaluation (Form TWCC-69). Dr. G’s first report found claimant had reached MMI on September 28 with a five percent impairment rating. (This report was accompanied by a lengthy narrative detailing claimant’s history and Dr. G’s examination.) Dr. G subsequently filed a second TWCC-69 which was received by the Commission on October 23, 1992, showing MMI as of January 31, 1992, with a five percent impairment rating. A third TWCC-69 from Dr. G, received by the Commission on December 23rd, certified MMI as of April 3, 1992, with a ten percent impairment rating. On March 12, 1993, the Commission received a fourth TWCC-69 from Dr. G certifying MMI on April 3, 1992, with five percent impairment.
In response to an inquiry from the carrier as to claimant’s exact date of MMI and impairment rating,[1] Dr. G on April 2, 1993, wrote that he initially felt MMI had been reached on April 3, 1992, but “upon further review of records, it was clearly identified that, in fact, this gentleman had been declared to be at MMI on 1-31-92 which I concur with.” Dr. G concluded that he believed claimant reached MMI on January 31, 1992, with a five percent impairment.
Subsequent to claimant’s visit to Dr. G, Dr. S filed a second TWCC-69 certifying MMI as of December 14, 1992, with a ten percent impairment rating. At that time Dr. S wrote that claimant was “status quo with respect to his injury on-the-job on 5/8/91, and reflects status as he was evaluated here on 4/3/92 and subsequent evaluations.”
The claimant testified at the hearing that he continues to treat with Dr. S, and that his back pain has only worsened with time, although he said Dr. S has not recommended surgery. He has been released to work with restrictions, but stated that employer could not give him light duty work.
The hearing officer found that the designated doctor’s multiple Forms TWCC-69 indicated an initial indecisiveness on his part, but that the great weight of the other medical evidence does not outweigh Dr. G’s clarification report of April 2, 1992 (sic). Thus, she determined that claimant reached MMI as of January 31, 1992, with an impairment rating of five percent. She also held that claimant was not entitled to further TIBS because MMI has been reached.
The claimant raises the following points on appeal: the designated doctor’s report was invalid because he issued subsequent evaluations without re-examining the claimant, and Dr. G failed to follow the American Medical Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides) by not evaluating range of motion and by improperly applying Table 49, Impairment Due to Specific Disorders of the Spine. The claimant also contends that Dr. H used the wrong impairment rating, and that the only correct evaluation was that performed by Dr. S, who found MMI as of December 14, 1992, with a ten percent impairment rating.
The 1989 Act provides that the report of a designated doctor as to MMI and impairment shall have presumptive weight and the Commission shall base its determination as to whether the employee has reached MMI, and the impairment rating, on that report unless the great weight of the other medical evidence is to the contrary. Article 8308-4.25(b) and 4.26(g). This panel has commented many times upon the “unique position” and “special presumptive status” that the designated doctor’s report is accorded under the Texas workers’ compensation system, and the fact that to overturn such report requires more than a mere balancing of the evidence. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. This panel also has many times noted that a designated doctor may amend his original opinion. Texas Workers’ Compensation Commission Appeal No. 93428, decided July 5, 1993. (We note parenthetically that claimant’s treating doctor, Dr. S, also revised his initial opinion.)
It appears highly unusual for the designated doctor in this case to have revised his opinion so many times, and we do not intend by this decision to necessarily endorse such repeated revisions by a designated doctor whose opinion is meant to resolve disputes once and for all. However, the hearing officer gave presumptive weight to Dr. G’s final conclusion, and our review of the record does not convince us that this was error. The claimant does not contend that Dr. G did not examine him initially, as the September 28, 1992 report indicates. As the claimant notes in his appeal, Dr. G’s initial assessment of impairment (five percent) was based upon the AMA Guides Table 49, II-B (“unoperated with medically documented injury and a minimum of six months of medically documented pain, recurrent muscle spasm or rigidity associated with none-to-minimal degenerative changes on structural tests.”) However, Dr. G’s December 8, 1992, TWCC-69 gives ten percent impairment and handwritten notes on that document state “On basis of the Guides Third Edition, Chapter 3.3, including table 49, Disorder II-C lumbar spine.” Table 49’s description of the disorder under II-C is the same as II-B, but with the addition of the words “including unoperated herniated nucleus pulposus, with or without radiculopathy.” We note that Dr. G subsequently returned to his original assessment of five percent. The fact that Dr. G at different times assessed claimant’s impairment rating under two different, but closely related, portions of the AMA Guides is an insufficient basis on which to invalidate his report; and the fact that Dr. S assessed claimant’s impairment pursuant to II-C also does not constitute the great weight of the other medical evidence, especially as Dr. H evaluated claimant pursuant to II-B.
Dr. G’s narrative also shows that he measured claimant’s range of motion, and included the results of his tests on a copy of the AMA Guides’ Figure 83c, but that he invalidated those tests under the validity formula of the Guides. This panel addressed the question of a designated doctor’s proper use of range of motion testing in Texas Workers’ Compensation Commission Appeal No. 93328, decided June 2, 1993. In the face of other medical evidence criticizing the designated doctor’s report, the hearing officer found the designated doctor’s opinion not to be overcome by the medical evidence to the contrary. This panel affirmed based on “the fact that [the designated doctor] used the correct version of the AMA Guides. . .and that he thoroughly explained the basis for his rating (with reference to testing methods and results, and to the Guides themselves), rebutting. . .contentions that his report was faulty. . . .” A similar situation exists in this case, and we likewise do not find reason to overturn the hearing officer’s determination on this account.
With regard to claimant’s arguments for and against the reports of Dr. S and Dr. H, respectively, the hearing officer’s decision makes clear that she considered and evaluated all the medical evidence in the record and determined that the other medical evidence did not outweigh the ultimate opinion of the designated doctor. We find this determination supported by the record below.
In light of our determination of the foregoing issues, we will not address the carrier’s conditional appeal points.
The decision and order of the hearing officer are affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Thomas A. Knapp – Appeals Judge
- We do not by this decision endorse such unilateral communication between a carrier and a designated doctor, because of its potential to compromise the perception of impartiality. We have frequently commented upon this in past decisions, and have encouraged any party seeking clarification of a designated doctor’s opinion to communicate such need to the Commission. See Texas Workers’ Compensation Commission Appeal No. 93272, decided May 24, 1993. ↑