This appeal arises under 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 conducted by (hearing officer), hearing officer, in (city), Texas, on May 18, 1993, to determine the correct impairment rating for the compensable injury the respondent (claimant) sustained on (date of injury), when his left hand received a crush injury in a trash compactor resulting in partial amputations of his left index and long fingers. The hearing officer, finding first that the designated doctor did not conduct an adequate examination of claimant and did not correctly apply the impairment guidelines mandated by the 1989 Act, found that the designated doctor’s whole body impairment rating of eight percent was contrary to the great weight of the other medical evidence and adopted the 17% rating assigned to claimant by another doctor. In its request for review, the appellant (City) challenges the findings that the designated doctor failed to conduct an adequate examination of claimant, incorrectly applied the required impairment guidelines, and that the designated doctor’s report was contrary to the great weight of the other medical evidence, as well as the corresponding conclusion that claimant’s impairment rating is 17%. The City contends that the record contains no medical evidence to show that the designated doctor failed to appropriately apply the impairment guidelines in determining the rating and further complains that the report of the doctor whose report was adopted added an additional percentage of impairment for a mild carpal tunnel syndrome (CTS) which was not shown to be part of the compensable injury. The claimant’s response urges the sufficiency of the evidence to support the challenged findings and conclusion.
DECISION
The decision of the hearing officer is reversed and the case remanded for further consideration and development of the evidence.
Claimant, the sole witness, waived the assistance of a Texas Workers’ Compensation Commission (Commission) ombudsman and testified he was a maintenance electrician for the City and that he sustained the partial amputation of two fingers of his left hand on (date of injury), and was off work for three to four weeks thereafter. According to the records of claimant’s treating doctor, (Dr. R), claimant received a crush type injury to his left, nondominant hand in a trash compactor accident and Dr. R performed surgery that day. According to the surgical record, the preoperative diagnosis was “amputation left long finger at DIP joint level with tip amputation of the index finger and laceration of the radial side of the finger.” The records show that claimant complained in February and March 1992 of the sensitivity of his long finger stump which Dr. R attributed to a scar neuroma, and that claimant underwent day surgery on March 10, 1992, to remove the neuroma and revise the stump. On July 13, 1992, Dr. R signed a Report of Medical Evaluation (TWCC-69) stating that claimant had reached maximum medical improvement (MMI) on “7-13-92” with a whole body impairment rating of 20% which Dr. R specified as constituting “15% for the index finger or 8% for the whole body, 60% for the long finger or 12% for the whole body, or 20% for both fingers.” Another TWCC-69 by Dr. R, undated, stated a 16% impairment rating with no statement of the rating for each finger.
On September 24, 1992, claimant was examined for a second opinion by (Dr. E), a Diplomate of the American Board of Orthopedic Surgery and a hand surgeon. In his detailed narrative report of September 24, 1992, Dr. E noted that claimant complained of difficulties in making a fist, of a weak grip, and of difficulties with fine dexterity skills, especially thumb pinch, and further noted that he still had some pain in the long finger stump. Dr. E also said that claimant had “some evidence . . . of a possible [CTS],” which “does not appear to be of great significance.” Dr. E’s report did not relate the possible CTS to the crush type left hand injury which was not in dispute, and there was no disputed issue before the hearing officer concerning the scope and extent of claimant’s compensable injury. Dr. E’s narrative report of the physical examination stated that claimant had “diminished light touch sensibility of the amputation stump also in the small finger as well as in the ring,” and “significant sensitivity over the amputation stump,” and he observed that claimant “makes a very poor fist and cannot flex the PIP joint of his long finger and lacks attaining the distal palmar crease with the long finger by approximately 6 cm., the index finger by approximately 7 cm,” that claimant “does have essentially full extension throughout,” that with “attempting to make a fist he cannot flex the PIP joint of the index finger today more than 60 degrees and there is no active flexion of the PIP joint of the long finger.” Dr. E concluded his narrative report indicating he would provide an impairment rating if called upon to do so.
In a TWCC-69 of October 28, 1992, Dr. E assigned a 17% whole body impairment rating. In that report Dr. E stated the following:
Examination reveals poor fist, amputation of long finger at middle phalangeal neck, evidence of [CTS] and decreased motion PIP long finger 0 degrees and range of motion [ROM] of index PIP 0/60. Using the AMA Guideline amputation chart the amputation of the long finger is a 50% impairment of the long finger. The [ROM] of the PIP is a 60% impairment of the long finger giving a total impairment of the long finger using the combined values of 80% long finger impairment. The index impairment is 24% due to loss of PIP motion. This equates to a 16% impairment of the hand due to the long finger and a 5% impairment of the hand due to the index. These to a 21% hand impairment or a 19% upper extremity impairment. In addition, patient has evidence of a [CTS.] Using Table 15 this is a mild [CTS] and equivalent to 10% upper extremity impairment. These combined give a 29% upper extremity impairment. The AMA Guidelines equates this to a total of 17% whole person impairment.
Claimant introduced certain portions (25 pages) of the Guides to the Evaluation of Permanent Impairment (AMA Guides), published by the American Medical Association, and the parties as well as the hearing officer appeared to treat the exhibit as being a copy of the second printing, dated February, 1989, the version of the AMA Guides mandated for the determination of impairment by the 1989 Act. See Article 8308-4.24. Claimant testified that only Dr. E “walked me completely through” and performed the tests required by the AMA Guides. Claimant said he agrees with Dr. S’s 17% rating.
In December 1992, claimant was directed by the Commission to be examined by (Dr. S), also a Diplomate of the American Board of Orthopedic Surgery and a hand surgeon. Claimant was examined by Dr. S on January 25, 1993. In his narrative report of January 28th date, Dr. S stated in part:
Examination does show marked hypesthesia and dyesthesia at the tips of the index finger with incomplete digital flexion leaving a space of 4.0 centimeters between the tip of the pulp of the distal phalanx and the distal palmar flexion crease. The PIP joint flexion is fifty-five degrees and DIP joint flexion is thirty-five degrees with complete extension at both joints. The PIP joints of the long finger flexes twenty-five degrees and the entire middle phalanx remains cyanotic. Both ring and little fingers are normal. X-rays show amputation of the long finger through the junction of the middle and distal thirds of the middle phalanx. I would estimate permanent partial impairment of the index finger to be thirty percent primarily because of the dysesthesia and hypesthesia at the tip with limited PIP and DIP joint flexion. Permanent partial impairment of the long finger would be approximately fifty percent because of marked cold intolerance and limited motion in addition to the amputation. This would total an eight percent permanent partial impairment of the whole body for both digits.
Dr. S followed up that report with a TWCC-69 dated February 15, 1993, assigning the eight percent rating and stating that the “left index finger has hypesthesia at the tip with limited PIP and DIP joint flexion,” and that “the left long finger has marked cold intolerance and limited motion in addition to the amputation.” The TWCC-69 stated that the left index finger rating was 30% and the left long finger rating was 15%. However, the carrier and the hearing officer treated the 15% reference as a mere transcription error given Dr. S’s preceding narrative report stating his rating for the long finger as 50%. Claimant, in his response, does take note of this inconsistency however.
Shortly after Dr. S’s examination, claimant wrote the Commission complaining of what he regarded as the brevity and inadequacy of Dr. S’s examination including Dr. S’s failure to ask him about his education, training, and job skills. Claimant asserted that the AMA Guides concerning “degree of mobility, dexterity, strength, touch, feel or sensitivity were not tested,” and that he did not understand how an evaluation could be made “without asking questions, using measuring equipment, or testing hand dexterity.” In later undated notes claimant wrote that Dr. S did not measure various degrees of motion as required by the AMA Guides. Claimant testified that Dr. S spent about five minutes with him, had him make a fist, held his ink pen, which he also referred to as a “straight edge,” across claimant’s knuckles and did not use a protractor, had him roll his hand twice, tapped his index finger stump, and sent him for x-rays. Claimant asserted that had Dr. S asked him more questions, he might have picked up on the CTS as Dr. E did.
A Benefit Review Conference was held on March 23, 1993, and the benefit review officer recommended a finding that claimant’s rating was eight percent as found by the designated doctor. In an April 1, 1993, letter to the City’s attorneys, Dr. S stated he was responding to the attorney’s correspondence of March 26th and stated, in part:
A thorough examination of [claimant’s] left hand was carried out including [ROM] and sensory loss and all the findings are in my correspondence of January 28, 1993, addressed to [the Commission]. Measurements were taken with a protractor.
According to the several pages of the AMA Guides introduced by claimant (Exhibit 6), “[t]echniques of measurement should be simple, practical, and scientifically sound.” For the examination of the upper extremities, which may be divided into the hand, the wrist, the elbow, and the shoulder, a large and a small goniometer “are useful.” Despite the hearing officer’s reference in his decision to the “plain wording” of the AMA Guides, the provisions in the exhibit do not appear to obviate the type of abnormal motion and sensory loss examinations conducted by Dr. S insofar as they can be discerned from the evidence. Exhibit 6 notes that a system for evaluation of physical impairment in the hand due to amputation, sensory loss, abnormal motion, and ankylosis has been developed, that the system includes values for impairment from amputation, sensory loss, and abnormal motion, and that “a method to combine and relate various impairments to the whole person is presented.” Exhibit 6 includes a suggested chart upon which to record for each impaired digit the results of abnormal motion testing (measured angles), the level of amputation, the region of sensory loss, and other disorders so as to obtain the total of a digit impairment. Table 1 in Exhibit 6 converts the digits impairment to the hand impairment. Table 2 converts the hand impairment to the upper extremity impairment. Table 3 converts the upper extremity impairment to the whole person impairment.
Exhibit 6 states that “[a]mputation through each portion of a digit is given a relative value loss to the entire digit,” and that “[b]y principal of progressive multiplication of percentage values, impairment of each digit or portion thereof can be related to the hand, to the upper extremity, and eventually to the whole person. (Tables 1, 2 and 3.)” The exhibit also states: “[w]hen there is more than one impairment (e.g., abnormal motion, sensation, or amputation) to a given unit, such as the finger, these impairments must be combined before the conversion to the larger unit, such as the hand, is made. These can then be related to the hand, upper extremity, and the whole person.” The examiner is instructed to combine the determined finger amputation, sensory, and abnormal motions impairments, to combine multiple digit involvement, and then to use Table 1 to find the hand impairment, Table 2 to find the upper extremity impairment, and Table 3 to find the whole person impairment.
The following Findings of Fact are pertinent to the challenged conclusion that claimant’s impairment rating is 17%.
FINDINGS OF FACT
4.[Dr. S] did not conduct an adequate examination of the Claimant and used only a “straight edge” to determine [ROM].
5.[Dr. S] did not correctly apply to the Claimant’s injury the provisions of the second printing, dated February 1989, of the Guides to the Evaluation of Permanent Impairment.
6.The impairment rating report by [Dr. S] was contrary to the great weight of other medical evidence.
7.[Dr. E] examined the Claimant thoroughly, correctly applied the AMA Guides referred to in Finding 5., above, and determined that the Claimant had an impairment rating of 17%.
The hearing officer’s Decision and Order states: “Claimant’s main point was that [Dr. S] did not do the tests necessary to determine whether there was more than one impairment to each of his two injured fingers. Specifically, he did not consider abnormal motion and sensation.” The hearing officer then goes on to state that Dr. E determined that claimant had a 50% impairment to his long finger based on partial amputation and then added to that value a 60% impairment based on abnormal ROM, for a combined value of 80% long finger impairment.
As for Dr. S, the hearing officer stated: “[Dr. S’s] report, on the other hand, does not indicate the percentage of impairment he found based on partial amputation alone. His rating reflects only a 50% impairment for the long finger based on partial amputation, cold intolerance, and limited motion. ([Dr. S’s] TWCC-69 indicates a 15% impairment for the left long finger but his report clarifies that this figure should have been 50%).” The hearing officer reasons that because the AMA Guides chart (Figure 18) and the evidence of the extent of amputation indicate that the impairment to the long finger based on the amputation alone should be 50%, and since Dr. S’s rating is 50% and he reported both sensory and motion loss, “it is clear that he did not add any value for sensory loss and restricted motion.” The hearing officer views Dr. S’s report as “internally inconsistent in that he agreed that there was a [ROM] deficit in the long finger, but did not consider this [ROM] deficit in computing his impairment rating for that digit.” The hearing officer further states that had Dr. S included Dr. E’s ROM value for the long finger, Dr. S’s whole person rating would have been 11%. We note, however, that Dr. S’s narrative report contains detailed findings on both sensory loss and abnormal motions, and that his TWCC-69 makes reference to such. We further note that Dr. E does not appear to add a sensory loss value although he made reference to such in his narrative report.
The designated doctor under the 1989 Act is an impartial doctor selected to resolve finally disputes over MMI and impairment rating. Only the great weight of the other medical evidence can overcome the presumptive weight given the designated doctor’s report. The Appeals Panel has stated that a finding of great weight requires more than a mere balancing or preponderance of the evidence (Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992), and that “[a] claimant’s lay testimony does not constitute medical evidence that may be considered in determining whether the `great weight’ rebuts the presumptive weight accorded to the designated doctor’s report. Texas Workers’ Compensation Commission Appeal No. 92164, decided June 5, 1992.” Texas Workers’ Compensation Commission Appeal No. 93007, decided February 18, 1993. The Appeals Panel has also stated that when a hearing officer determines that the great weight of the other medical evidence is contrary to the designated doctor’s report, the hearing officer should detail the evidence relevant to the issue in consideration, clearly state why the great weight of the other medical evidence is contrary to the designated doctor’s report, and state in what regard the contrary evidence greatly outweighs the designated doctor’s report. See Texas Workers’ Compensation Commission Appeal No. 93072, decided March 12, 1993.
We are unable to determine from the record the correctness of the challenged findings (Findings of Fact Nos. 4-6), which appear largely conclusory, without further development of the evidence. See Texas Workers’ Compensation Commission Appeal No. 93123, decided April 5, 1993, where we remanded for similar evidentiary problems related to the hearing officer’s rejection of the designated doctor’s report. That case returned to us after reconsideration upon remand. See Texas Workers’ Compensation Commission Appeal No. 93485, decided July 22, 1993. Finding of Fact No. 7 was not specifically challenged by the City and we are thus not required to determine whether it finds sufficient support in the evidence. Not having to rule on Finding of Fact No. 7, however, should not be taken as indicating our agreement with it. Dr. S assigned a rating of 50% to the long finger while Dr. E assigned 80%. Dr. S’s narrative and TWCC-69 both refer to the sensory and motion losses in the long finger as well as to the amputation. Dr. S’s narrative report contains specific flexion measurements and notes finding both hypesthesia and dysesthesia. The hearing officer was concerned by Dr. S’s not having specifically stated the separate values he may have assigned not only to the amputation of the long finger but also to the sensory and motion losses he found in that finger. Apparently, the hearing officer was not similarly troubled by the lack of clarity concerning Dr. S’s impairment components of the index finger rating nor by the similar lack of clarity in Dr. E’s report as to his specific amputation, abnormal motion, and sensory loss impairment ratings for each of the two injured fingers. It would seem that apparent problems concerning the clarity of such reports could be reconciled before the conclusion of the contested case hearing. See Texas Workers’ Compensation Commission Appeal No. 93045, decided March 5, 1993, and Texas Workers’ Compensation Commission Appeal No. 92595, decided December 21, 1992.
We certainly do not agree with the hearing officer that Dr. E’s report alone constitutes the great weight of the other medical evidence to the contrary of Dr. S’s report. Dr. E’s report, as previously noted, while referring to sensory loss findings in the narrative report, apparently fails to add a value for sensory loss. Further, and certainly more significantly, Dr. E’s report adds a 10% rating for the CTS he described as “mild” and “not significant” when such CTS, noted only by Dr. E, was not even shown to be connected to the crushed hand injury which was the undisputed compensable injury. Were the 10% for CTS backed out of Dr. E’s computation, the conversion of his ratings for the two fingers would yield an 11% whole body rating.
The hearing officer stated that Dr. R’s reports with both 16% and 20% whole body impairment ratings were not a factor in his determination since the hearing officer could not determine from the reports how Dr. R arrived at the ratings. The City suggested, however, that were Dr. R’s ratings of 60% for the long finger and 15% for the index finger converted through Tables 1 through 3 in Exhibit 6 to determine the hand, upper extremity and whole person ratings, they would result in a whole body rating of eight percent, the same rating assigned by Dr. S. However, we need not decide whether the City is correct in its speculation since the hearing officer did not consider Dr. R’s report as part of the great weight of the other medical evidence he found contrary to Dr. S’s report.
For the foregoing reasons, the decision of the hearing officer is reversed and the case is remanded for the expedited development of additional evidence, as appropriate, and for such additional findings and consideration as are appropriate and not inconsistent with this opinion.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Article 8308-5.41. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Philip F. O’Neill – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Thomas A. Knapp – Appeals Judge