This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 1.01 through 11.10 (Vernon Supp. 1993). On May 11, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. In determining that respondent (claimant) reached maximum medical improvement (MMI) on March 1, 1993, with a 24% impairment rating, the hearing officer found that the great weight of other medical evidence was contrary to the designated doctor’s opinion. Appellant (carrier) asserts that the hearing officer’s selection of MMI was in error because it was based on one EMG report that is essentially the same as another that all doctors considered; carrier also states the rating is incorrect because it adds impairment ratings rather than selecting one or the other. Claimant refutes the assertions of carrier and argues that the evidence is sufficient to uphold the hearing officer.
DECISION
We affirm.
At the hearing the parties agreed that the issues were: when did claimant reach MMI, and what is his correct impairment rating.
Article 8308-6.42(c) of the 1989 Act states that the Appeals Panel “shall determine each issue on which review was requested.”
The Appeals Panel determines:
That the determination that the claimant reached MMI on March 1, 1993, is sufficiently supported by the evidence.
That the determination that the claimant has 24% whole body impairment is sufficiently supported by the evidence.
Claimant worked for (employer) for approximately one year. He was emptying five gallon containers of oil (overflow buckets), when he hurt his back on (date of injury). He went to his knees with the pain. Three days later he was admitted to a hospital and surgery was performed nine days thereafter. (The case file shows a neurosurgeon’s consult dictated on April 19th which calls for “decompressive surgery,” after referring to an MRI and CAT scan that showed herniation at L1-2, with an EMG showing radiculopathy at that level; the herniation at level L1-2 was described as “unusual.” The neurosurgeon pointed out that the “bureaucracy of the Worker’s Compensation” would have to be dealt with because this surgery “cannot wait for weeks”–surgery occurred two days later).
Claimant was treated by (Dr. B), a board certified orthopedic surgeon. His records show that he first saw claimant on April 13, 1992, and was one of the surgeons who operated on claimant on April 21, 1992. His records also show a treatment plan designed to restore claimant’s ability to function.
On November 11, 1992, (Dr. T), who was said at the hearing to be acting on behalf of the carrier, stated on a Texas Worker’s Compensation Commission (TWCC) Form 69, that claimant reached MMI on November 11, 1992, with a 17% impairment. He recognized left thigh atrophy, but believed MMI had been attained. His impairment was based on 10% for the surgery, five percent for loss of strength, and two percent for sensory deficit.
(Dr. B), in January 1993, replied to the evaluation performed by Dr. T. He pointed out that claimant’s EMG and residual weakness indicated that MMI had not been reached. He advised that strengthening exercises would continue to improve his condition.
Dr. H was appointed as the designated doctor. He evaluated claimant on February 5, 1993, prepared a TWCC Form 69 on February 16, 1993, and stated that claimant reached MMI on November 11, 1992. (see the date of Dr. T’s MMI, supra) His impairment rating was 10%. The narrative he provided indicated that claimant had no motor or sensory deficits and stated:
EMG on 10-28-92 showed that there was no EMG evidence to suggest a definite radiculopathy, myopathy, or peripheral neuropathy. . . .
. . . .
Rating based on AMA’s Guide to Evaluation of Permanent Impairment, Third Edition, page 73; table 49 (II. E)
Dr. B had ordered an EMG (see reference to the first EMG at time of surgery, supra) in October 1992. It was accomplished on October 28, 1992, as indicated by Dr. H on his TWCC Form 69. While that EMG found abnormality and lumbar root irritation, it concluded by saying:
There was no EMG evidence to suggest definite radiculopathy, myopathy or peripheral neuropathy at this time.
Dr. B, however, was concerned that the EMG of October 28th did not test the upper leg (see reference to atrophy by Dr. T, supra) as opposed to the lower leg and asked for testing of a wider region. A subsequent EMG was performed by the same physician on November 18, 1992 and its conclusion was significant to the issues of this hearing in stating:
Abnormal EMG consistent with an L2-4 radiculopathy bilaterally, left greater than right.
Dr. B in March 1993 found MMI as of March 1, 1993. On March 1, Dr. B found claimant to be unchanged from his prior visit but retained some muscle weakness. He based impairment on the specific disorder at 10%, range of motion at nine percent, strength and sensory (nerve) at eight percent, which equated to 24% from the combined values chart. (At one point a mistaken report indicated 26% impairment.) On March 25, 1993, Dr. B commented as to Dr. H’s report that said claimant reached MMI in November 1992 with 10% impairment. His points included:
(1)Dr. H said there was no motor or sensory deficit but found claimant’s strength in hip flexors and quadricep muscles to be 4 out of 5.
(2)Dr. H quotes from the October EMG without mentioning the November (more extensive) EMG which found radiculopathy.
(3)As to the impairment rating, Dr. H only considered the table of specific disorders, (See Guides to the Evaluation of Permanent Impairment, Third Edition, second printing dated February 1989, of the American Medical Association (Guides)) which provides 10% for a “surgically treated disc lesion, with residual symptoms;” no range of motion test was mentioned (nor was additional impairment for range of motion or neurological deficits provided).
The carrier asserts that the hearing officer erred in stating that the great weight of other medical evidence was contrary to the designated doctor. It is true that two doctors, Dr. T and Dr. H, found MMI in November 1992. However, neither considered the second EMG test which showed radiculopathy. Medical opinion does not have to be weighed according to the number of doctors who take a position; it should be weighed according to its thoroughness, accuracy, and credibility with consideration given to the basis it provides for opinions asserted. See Texas Workers’ Compensation Commission Appeal Nos. 93119 and No. 93482 decided March 29, 1993, and July 28, 1993, respectively.
As stated, the carrier asserts that the October and November EMGs were essentially the same. With the earlier EMG saying that there was no evidence to suggest a definite radiculopathy and the second saying that it was consistent with bilateral radiculopathy, the hearing officer appropriately gave Dr. B’s opinion, which considered the second EMG, great weight as opposed to Dr. H’s, which did not.
In regard to the impairment rating, the carrier asserts that “(t)he AMA Guidelines provides (sic) two separate and distinct methods, and does not provide for the adding of the two determinations together to come up with a whole body impairment.” The Appeals Panel does not interpret the Guides in this manner and stated that in Texas Workers’ Compensation Commission Appeal No. 93296, decided May 26, 1993. (See paragraph 3.3a A.7 (combining of the diagnosis based impairment with that of range of motion) and 3.3a E (combining nerve impairment to the other impairments of the spine), page 74 of the Guides.) Dr. H’s own reference on his TWCC Form 69 shows that he only considered the diagnosis based impairment in reaching a 10% figure.
The evidence supports the hearing officer’s determination that the great weight of other medical evidence was contrary to the designated doctor’s opinion, both as to the date of MMI and the impairment rating. No basis for invalidating Dr. B’s impairment rating was asserted, other than the attack on Dr. B’s adding of diagnosis based impairment to the range of motion impairment. The decision and order are affirmed.
Joe Sebesta – Appeals Judge
Robert W. Potts – Appeals Judge
CONCURRING OPINION:
I concur in the result reached herein, where the facts clearly show that a repeat EMG was performed, and where the designated doctor demonstrably appeared to have considered only the first EMG, and to have based his determination in part on the results of that study. I believe, however, that there will be many occasions in which a designated doctor fails to set out with great specificity every report and study he or she considered, or every basis for his or her recommendation, and such failure will not necessarily mean that the report is overcome by the great weight of the medical evidence to the contrary.
Lynda H. Nesenholtz – Appeals Judge