Pursuant to the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act), a contested case hearing was held in (city), Texas, on May 12, 1993, (hearing officer) presiding as hearing officer. She determined that the treating doctor’s determination of maximum medical improvement (MMI) effective April 16, 1992, became final at the end of 90 days from the date the claimant received his report by operation of Tex. W. C. Comm’n, 28 TEX. ADMIN. CODE § 130.5 (Rule 130.5). The appellant finds fault with two of the hearing officer’s conclusions of law which essentially apply the provisions of Rule 130.5 to this case and which deny additional income benefits. The respondent (carrier) urges there is sufficient evidence to support the decision of hearing officer and that she correctly applied Rule 130.5 to the facts of the case.
DECISION
Finding no error in the hearing officer’s conclusions of law and sufficient evidence to support her findings, the decision is affirmed.
The matter that the claimant suffered a compensable knee injury on (date of injury), was not in dispute. She treated with a (Dr. M), an orthopedic specialist, who subsequently performed arthroscopic medial meniscectomy and chondroplasty on November 19, 1992, followed by a period of physical therapy. In a report dated “1/13/92” Dr. M indicates that the claimant did not complete physical therapy, and also that she has patellofemoral crepitation. She went back to work on March 24, 1992, performing her usual duties “as I was able to.” She continued treating with Dr. M and on April 16, 1992, Dr. M certified MMI with a six percent impairment rating; however, claimant stated she did not receive a copy of his report until sometime in May. (She stated that she did not dispute Dr. M’s report and that she was not aware of any rule which required that she dispute an MMI or impairment rating within 90 days until she subsequently hired an attorney in December.) The claimant testified that she was still having problems with swelling and pain in her knee and that she informed Dr. M about it. Dr. M told her that she could expect that and that it would hurt for a while, that “there wasn’t anymore wrong with it and it wasn’t going to get any better.” In July, claimant states that she was unable “to work more than three hours at a time without a great deal of pain.” She stated she tried to contact the claims adjuster about getting a “second opinion” but was unsuccessful. However, she finally contacted the Texas Workers’ Compensation Commission (Commission) in September to get paperwork to change doctors. She obtained approval and started treating with a (Dr. G), an orthopedic specialist, sometime in late November and he took her off work. She testified that Dr. G changed the “anti-imflamatory but continued with the anti-imflamatory therapy” and started her back on a physical therapy program. Subsequently, Dr. G had a “Right Knee Arthrogram and AP/Lateral Scout Films” performed on the claimant and according to her testimony and the medical records, it showed no tears and everything within normal limits. A medical report dated “1-6-93” from one of the doctors claimant was treating with states that the claimant “called yesterday afternoon with a complaint of a fall at home while walking” and that she landed on her knee and that the knee was swollen but that “she was able to bear weight with some pain.” A Report dated January 26, 1993, indicates a diagnosis of “Patellofemoral Syndrome” and states the “[w]e discussed the possibility of patellar shaving with lateral retinacular release” and that “[a]t this time, she feels she is capable of tolerating the pain and we will, therefore, order a functional capacity evaluation and an impairment rating, as she has reached maximum medical improvement as far as conservative therapy is concerned.” According to the claimant’s testimony, she was still having a lot of pain, and in February it was decided to have another arthropscopic exam and patellar shaving. Dr. G. performed an arthroscopic examination and patellar shaving of claimant’s knee on February 26, 1993. She stated that her knee improved dramatically and continued to improve up to the date of the hearing and that she was able to work four to six hours a day. Dr. G did not feel that she had yet reached MMI.
Texas Workers’ Compensation Commission Rule 130.5 provides that “[t]he first impairment rating assigned to an employee is considered final if the rating is not disputed within 90 days after the rating is assigned.” Texas Workers’ Compensation Commission Appeal No. 92670, decided February 1, 1993, cited by the hearing officer in her decision, held that the 90 day dispute provisions in Rule 130.5 apply to MMI determinations in that once an impairment rating is made, both MMI and impairment rating become final if neither is disputed within the 90 days provided under the rule. See also Texas Workers’ Compensation Commission Appeal No. 93377, decided July 1, 1993. Appeal No. 92670, supra, provides:
This rule affords a method by which the parties may rely that an assessment of impairment and MMI may safely be used to pay applicable benefits, by providing the time limit in which such assessment will be open to dispute. On the other hand, the rule also allows a liberal time frame within which the parties may ask for resolution of a dispute through the designated doctor provisions of the Act. This rule applies with equal force to the carrier and the claimant.
Although the 1989 Act contains no express deadline for raising these disputes [MMI and impairment rating], this does not render the rule (Rule 130.5) fatally defective. The Commission has the general grant of authority to make rules to implement and enforce the Act. Article 8308-2.09(a). The Commission has evidently determined the point at which both parties may rely on an MMI and impairment rating to ensure stable payment of benefits. It is not up to the Appeals Panel to second-guess the wisdom of this rule, nor do we have the power to invalidate it. See Bullock v. Hewlett-Packard Co., 628 S.W.2d 754 (Tex. 1982); Article 6252-13a, § 12 (Texas Administrative Procedure and Texas Register Act.)
We may, however, interpret agency rules to the facts at hand. Rule 130.5 does not expressly refer to MMI. But an impairment rating cannot be assigned, and made final, absent a certification of MMI. See Article 8308-4,26(d). It would be inconsistent to interpret the rule to bind a claimant or carrier to the percentage of impairment, but allow an “end run” around this finality through an open-ended possibility of attack on the MMI. Such an interpretation would read the rule out of existence. Therefore, in this case, the impairment rating and MMI certification are intertwined, and either became final together, or not. See Texas Workers’ Compensation Commission Appeal No. 92561, decided December 4, 1992.
The claimant in both the instant case and Appeal No. 92670, indicated they were not aware of the 90 day rule. We have held, in accordance with Texas case authority, that ignorance of law or, in this situation, rules of the Commission, does not provide a basis to be excused from complying with the law or rules. See Texas Workers’ Compensation Commission Appeal No. 92657, decided January 15, 1993. (Claimant’s testimony suggested that she may have labored under a mistake of fact concerning the reaching of MMI as a result of her doctor’s assurances; however, this came to an end in July 1992 by her own testimony when she decided she wanted a second opinion yet did not dispute the MMI determination). While giving a strict application to the provisions of Rule 130.5 and recognizing that the application of time limits can, by their very nature, appear to be harsh in a given case, there is a sound basis, as apparently determined by the Commission, to require some definitive finality in resolving claims.
Nevertheless, the application of Rule 130.5 is not absolute and Appeal No. 92670 does not so hold. For example, if an MMI certification or impairment rating were determined, based on compelling medical or other evidence, to be invalid because of some significant error or because of a clear misdiagnosis, then a situation could result where the passage of 90 days would not be dispositive. (Compare to substantial change of conditions during judicial review under Article 8308-6.62(e).) However, the particular circumstances must be evaluated in such a situation. We do not find that to be the case here. Rather, we find there is sufficient evidence to support the hearing officer’s decision.
In Texas Workers’ Compensation Commission Appeal No. 93207, decided May 3, 1993, a factual situation not involving Rule 130.5, we addressed the matter where subsequent medical treatment appeared to invalidate an earlier medical determination of MMI, and remanded. Concerned with the proven success of the subsequent medical treatment and surgery and the potential misdiagnosed and unsuccessful earlier treatment culminating in a certification of MMI, we stated, after recognizing the special position accorded a designated doctor, that:
What is of great concern to us in this particular case is the medical evidence, buttressed by other evidence, contrary to the opinion of the designated doctor which rather convincingly shows that claimant’s CTS [carpel tunnel syndrome] was the, if not merely a primary, compensable injury involved in this case. The unresolved conflict that we are presented with here is, namely, a finding of MMI and impairment rating based upon a diagnosis that is subsequently disputed by convincing medical evidence showing successful treatment, resolution of symptoms and ultimate restoration to work.
We pause to observe here that MMI does not mean there will not be a need for some further or future medical treatment and that the need for additional or future medical treatment does not mean that MMI was not reached at the time it was certified. Likewise, we have held that pain is not, in and of itself, an indication that MMI has not been reached and that a person assessed with a permanent impairment may continue to experience some pain as a result of an injury. Texas Workers’ Compensation Commission Appeal No. 93007, decided February 18, 1993.
In the case at hand, there is no compelling medical evidence of a new, previously undiagnosed, medical condition or prior improper or inadequate treatment of the claimant’s injury which would render the certification of MMI invalid. The injury and medical diagnosis have not changed in any material respect from the beginning, arthroscopic surgery was performed to correct tears found in the right knee, notations in Dr. M’s report indicate that claimant did not complete physical therapy, the claimant was placed back into physical therapy by the second treating doctor, the claimant was working at least part-time both at the time of the MMI determination and subsequently until she had her first visit with Dr. G in November and again commenced at least part-time work following the February procedure and up to the time of the hearing, MRI and arthrogram procedures in October and December were determined to be basically normal, and the exploratory arthroscopic procedure performed by Dr. G apparently was negative and he performed a patellar shaving. The claimant, according to a medical report dated “3-25-93,” continued on physical therapy and continued on pain medication as needed. Under this state of evidence, we do not find compelling medical or other evidence to invalidate the MMI. The failure to dispute the MMI or impairment rating within 90 days resulted in MMI becoming final as determined by the hearing officer.
Determining the evidence sufficient to support the findings of the hearing officer and that her conclusions reflect a correct application of the law to those findings of fact, the decision is affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Susan M. Kelley – Appeals Judge