This appeal arises under the Texas Workers’ Compensation Act, TEX. CIV. REV. STAT. ANN. arts. 8308-1.01-11.10 (Vernon Supp. 1993) (1989 Act). A contested case hearing was held in (city), Texas, on May 3, 1993, and was continued on May 19th with the record closed on that date. The issues before hearing officer (hearing officer) were whether the claimant had reached maximum medical improvement (MMI); if claimant had reached MMI, what is claimant’s impairment rating; and whether claimant had disability from April 2, 1992 to the present. The hearing officer determined that the claimant reached MMI on July 15, 1992, with a three percent impairment rating, as found by the designated doctor. He also held that the claimant had disability from April 2, 1992, through the date of the hearing.
Both parties appeal the hearing officer’s decision. The claimant contends that the hearing officer’s finding of MMI and impairment is contrary to the great weight of the other medical evidence, and that the hearing officer erred in giving presumptive weight to the report of the designated doctor; the claimant alleges that the evidence shows the claimant has not reached MMI. The carrier contends that the hearing officer’s finding on MMI is in error, based on the fact that the designated doctor concurred with the treating doctor’s MMI date of April 2, 1992. Neither party filed a response.
DECISION
We affirm the decision and order of the hearing officer.
The claimant, who was employed by (employer), was injured on (date of injury), when the ladder he was standing on fell and he landed on the ground on his outstretched hands. Claimant’s injury was to his left hand and wrist, and his complaints included pain, numbness, and loss of control in that hand. He was initially seen in an emergency room, and had an EMG in November of 1991 which was not made a part of this record. On January 2, 1992, he began treating with (Dr. L), who stated his impression as “ulnar nerve compression in Guyon’s canal.” A second EMG and nerve conduction study was read as showing carpal tunnel compression neuropathy on the left side. The claimant underwent ulnar and median nerve decompression surgery on January 21st and also had occupational therapy from January to March, 1992. In a February 6th specific and subsequent medical report Dr. L found claimant to have “marked relief of symptoms” postsurgery. Dr. L subsequently found claimant to have reached MMI on April 2, 1992, with a three percent whole body impairment. On that report (Form TWCC-69) Dr. L wrote in part as follows: “Some swelling still present over the central portion of the wrist incision after median nerve decompression on the left side but this is normal and will gradually go down with time . . . He is back at work, virtually no pain, numbness is gone. . . .” Despite Dr. L’s statement, claimant said he had not gone back to work. He also said he told Dr. L after surgery that his hand felt weak, but that Dr. L told him that it would continue to be weak for a little while. The claimant said he did not see Dr. L again after April 2nd.
Dr. (Dr. J) was thereafter appointed by the Texas Workers’ Compensation Commission (Commission) as designated doctor. He certified that claimant reached MMI on July 15, 1992, with a three percent whole body impairment rating. Dr. J’s attached narrative noted that the claimant “complains of occasional tingling sensations in the fingers and has some weakness.”
At the hearing the claimant testified that, notwithstanding the fact that Dr. L had released him to return to work, employer did not offer him a position. He looked unsuccessfully for work, then took another job working in a warehouse in August 1992. However, he said his symptoms of pain, numbness, shaking, and lack of control persisted after he last saw Dr. L, and he said he was fired from the warehouse job in December of 1992 because he could not work with the requisite speed or accuracy.
Because he continued to have problems with his hand, and because Dr. L had temporarily stopped practicing medicine, claimant began treating with (Dr. N) in November 1992. Dr. N ordered a repeat EMG and nerve conduction study in December and noted that the test demonstrated persistent entrapment of the median nerve, with the ulnar nerve within normal limits. (The report stated, “nerve conduction studies were significant in that the left median motor conduction through the left carpal tunnel is still somewhat slowed, although not as slow as in January. The conduction time now is 4.16 and was 4.26 in January with the upper limits of normal being 4.0 ms.”) At a December 21st visit Dr. N discussed surgery with the claimant, and wrote in patient notes: “. . . re-exploration of the carpal tunnel would most likely have success in about 25% of the cases. It would not surely account and cure problems with regards to throbbing. It may help some with the numbness that he experiences. It would not help with regards to the shaking that he is experiencing as well. He may indeed have increased pain over the palmer (sic) aspect of his hand after follow-up surgery . . . I . . . would be somewhat hesitant to indicate to the [claimant] that he would obtain good relief from a follow-up procedure. . . .” Patient notes show that on subsequent visits in January Dr. N again discussed surgery and “no warranty or guarantee as to result or outcome has been given or implied.”
Nevertheless, on February 3, 1993 the claimant underwent a reexploration and decompression of the median nerve. The operative report noted the presence of scar tissue and said “the nerve was scarred to the remnant of the transverse carpal on the radial aspect.” Postsurgical patient notes of Dr. N did not really comment on claimant’s condition except to note swelling and numbness on February 9th and moderate swelling on February 16th. The claimant testified that his hand now does not hurt as much, is not as numb and that he has no shaking and more control in his wrist and fingers. Dr. N has not rendered any opinion regarding MMI or impairment.
Dr. J, the designated doctor, responded to questions raised by the claimant and the carrier in letters dated March 2nd and May 13th, respectively.[1] In the March 2nd letter Dr. J said he had reviewed his records and those of Dr. N, and wrote that “. . . the symptoms which [claimant] reported were consistent with post surgical changes. Based on that examination, I felt that he had reached maximal (sic) medical improvement. None of the symptoms of physical findings lead me to believe that any further diagnostic tests or intervention were needed at that time. The physical findings which [Dr. N] described probably developed since the time that I saw him. Based on the information that I have now and based on the physical findings that I saw then, it would be impossible for me to change my decision on his reaching maximal (sic) medical improvement. . . .”
On May 13th Dr. J wrote that at the time he examined claimant he did not have access to Dr. L’s records including, apparently, Dr. L’s TWCC-69 giving an MMI date of April 2, 1992. Dr. J stated, “I concur with [Dr. L’s] timing of this maximum medical improvement as being consistent with the usual time period following median nerve decompression for reaching [MMI]. Since I did not have access to this date, the only date that I could give was the date July 15, 1992.”
The hearing officer found that the great weight of the other medical evidence was not contrary to Dr. J’s report, and accordingly he determined that the claimant reached MMI on July 15, 1992, with a three percent impairment rating. In support of his argument on appeal that MMI has not been reached, claimant notes that the repeat EMG and the observations of Dr. N in connection with the surgical reexploration of the median nerve established that claimant continued to suffer from carpal tunnel syndrome and persistent entrapment of the median nerve. He says that this diagnosis was ultimately confirmed by Dr. N’s finding of scar tissue along the median nerve at the site of the previous surgical release. Claimant contends that he continued to be in need of medical treatment, including surgical intervention, in order to effect further material recovery from or lasting improvement to his injury.
Carrier, on the other hand, does not dispute that the claimant reached MMI; however, it argues that in light of the fact that both Dr. L and Dr. J concurred that April 2, 1992, is the date upon which the claimant reached MMI, any finding to the contrary is against the great weight and preponderance of the evidence.
The 1989 Act defines “maximum medical improvement” as the earlier of (a) the point after which further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated, based on reasonable medical probability; or (b) the expiration of 104 weeks from the date income benefits begin to accrue. Article 8308-1.03(32). This panel has in the past noted that MMI does not mean that there will not be a need for some further or future medical treatment for the claimant, and such need for additional or future medical treatment does not mean that MMI was not reached at the time it was certified. Texas Workers’ Compensation Commission Appeal No. 93489, decided July 29, 1993. We have also emphasized that MMI does not, in every case, amount to pain-free recovery. Texas Workers’ Compensation Commission Appeal No. 92670, decided February 1, 1993. Neither does it necessarily equate to complete recovery. When a doctor finds MMI and assesses impairment, he or she agrees, in effect, that while the injured worker may continue to have consequences, and quite possibly pain, from the injury, the doctor has determined, based upon medical judgment, that there will likely be no further material recovery from the injury. Texas Workers’ Compensation Commission Appeal No. 93007, decided February 18, 1993.
In this case, both claimant’s treating doctor and the designated doctor found claimant had reached MMI. The 1989 Act provides that a designated doctor’s report shall have presumptive weight, and the Commission shall base its determination as to whether the claimant has reached MMI on that report, unless the great weight of the medical evidence is to the contrary. Article 8308-4.25(b). We have consistently held that it requires more than a mere balancing of the evidence to overcome this special, presumptive status. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. While it would not be impossible for subsequent medical diagnosis and/or treatment to constitute the great weight of other medical evidence to overcome the designated doctor’s report, such is not the case here, where our examination of the record reveals sufficient evidence to support the hearing officer’s finding of MMI and impairment in accordance with the designated doctor’s opinion. The evidence shows that Dr. N’s medical records demonstrate his reluctance to perform additional surgery, and that he was guarded in his predictions as to what such surgery could accomplish. His postsurgical notes do not indicate any compelling or material disagreement with that position. The only evidence to the contrary was in the form of claimant’s own, lay testimony which, standing alone, cannot equate to “reasonable medical probability” as required by the statute. Texas Workers’ Compensation Commission Appeal 92164, decided June 5, 1992. Compare Texas Workers’ Compensation Commission Appeal No. 93207, decided May 3, 1993, which reversed the hearing officer’s determination of MMI and impairment in accordance with the designated doctor’s finding, and remanded for development of further evidence, “where a subsequent diagnosis and resulting treatment clearly resolves a compensable injury and is inconsistent with a designated doctor’s earlier and seemingly inconsistent diagnosis and determination of MMI.” Of some significance in this case is the fact that Dr. J, upon review of Dr. N’s records, does not retreat from his original certification of MMI. Appeal No. 93207 also noted the presence of “significant medical evidence” from the post-MMI treating doctor which, as we noted earlier, was not present here.
We also do not agree with carrier that there was no evidence to support the MMI date as found by the designated doctor. Dr. J’s May 13th letter, standing alone, demonstrates his agreement with Dr. L’s assignment of an earlier date, but does not necessarily amend or invalidate the previous date assigned by Dr. J. We find the hearing officer’s acceptance of this date supportable by the evidence of record.
Based upon the foregoing, the decision and order of the hearing officer are affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Philip F. O’Neill – Appeals Judge
- We do not in any way endorse such unilateral communication between parties and the designated doctor because of the potential such communication has to compromise the perception of impartiality on the part of the doctor. This panel has encouraged parties seeking clarification of a designated doctor’s opinion to communicate such need to the Commission. Texas Workers’ Compensation Commission Appeal No. 93272, decided May 24, 1993. ↑