A contested case hearing was held in (city), Texas, on June 18, 1993, to consider the sole disputed issue, namely, the appellant’s (claimant) correct impairment rating for her injury of (date of injury). The hearing officer, (hearing officer), gave presumptive weight to the report of the designated doctor pursuant to the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-4.26(g) (Vernon Supp. 1993) (1989 Act) and concluded that claimant’s impairment rating is 11%. In her request for review, claimant contends that her testimony and the medical records she introduced in evidence constituted the great weight of the other medical evidence against the designated doctor’s report and urges us to reverse and render a decision that her impairment rating is 20% as was determined by her treating doctor. The respondent’s reply asserts the sufficiency of the evidence to support the hearing officer’s decision and urges our affirmance.
DECISION
Finding the evidence sufficient to support the challenged legal conclusions, we affirm.
Claimant, the sole witness, testified that she sustained a fractured left elbow and a lower back disc injury when she fell on (date of injury), after making a telephone call and while returning to her car which had a flat tire. At that time she was running late for a flight to another city on business for her employer, the (Employer). The compensability of her injury was apparently undisputed. After arriving in the city of her destination, claimant visited an emergency room and was x-rayed. After returning to her residence, claimant obtained an appointment at a clinic with (Dr. T). She said that at the clinic she was treated by (Dr. W) for her fractured elbow and by (Dr. C) for her back injury. Claimant said that Dr. C, who personally examined her, had a functional capacity evaluation performed on her by a physical therapist and subsequently assigned her a 20% impairment rating. After receiving this rating, it was arranged for her to be seen by (Dr. G). Claimant stated that Dr. G, who gave her an eight percent rating, just walked into the room, looked at her x-rays and records, asked her if she was “ready to retire,” and advised her against surgery. She insisted that Dr. G never touched her.
Claimant said she was subsequently sent by the Texas Workers’ Compensation Commission (Commission) to be examined by (Dr. O), the designated doctor. When she went to his clinic claimant said she knew she was supposed to be seen by Dr. O. However, she said she did not know who Dr. O was. She stated that the first doctor or person to come into the room talked to her, had her do leg raises, and “mashed” her on the head. Claimant said the name of this man did not “stick with” her. Not knowing what Dr. O looked like, she said she could not say whether her initial examination was performed by Dr. O, and that she could have seen Dr. O and he could have examined her but he could not find what he was looking for in the book so she doesn’t know whether or not he was a doctor. This man then sent her to another room where she was given various tests on machines by a person who sat at a computer telling her what and when to move. She described this testing experience as an ordeal, said she did her best, and was eventually taken out by a secretary who told her that Dr. O was not then in his office. Claimant said she later received a call suggesting she return for further testing, that she did so and was tested by a woman, and that still later “the doctor” called her to advise that her impairment rating was 11%.
Following claimant’s testimony, a colloquy ensued between the hearing officer and the parties’ attorneys concerning a potential issue as to whether Dr. O personally examined claimant as the Appeals Panel has previously stated is required. In Texas Workers’ Compensation Commission Appeal No. 93095, decided March 19, 1993, we stated that while a designated doctor may rely on tests performed by others in arriving at his or her final evaluation, the designated doctor must also examine the injured party and not simply review records and rely on examinations by other persons. The hearing officer indicated, correctly, that he had a duty to develop the record on the matter, including possible further contact by the Commission with Dr. O if he felt it necessary after reviewing the evidence. Claimant was adamant in insisting, however, that she did not want to return to Dr. O for further examination. She also objected to the hearing officer having any “ex parte” contact with Dr. O after the hearing closed and urged that he decide the disputed issue on the evidence of record and find from the medical reports in evidence, as well as from claimant’s testimony concerning her examination, that the great weight of the other medical evidence was contrary to Dr. O’s report. That is also the position claimant takes on appeal. The hearing officer stated he would advise the parties after reviewing the evidence should he determine that further Commission contact with Dr. O was necessary. We have previously observed that, unlike a treating doctor, or a doctor requested to examine a claimant by a carrier, a designated doctor serves at the request of the Commission. We have encouraged hearing officers, when called upon to evaluate designated doctor reports, to fully develop the facts required and to seek such additional information as may be necessary for clarification of the reports. We have noted that such contact with a designated doctor by the Commission may discourage unilateral contact by either side which could undermine the perception that the designated doctors are impartial arbiters called upon to finally resolve disputes over maximum medical improvement (MMI) and impairment ratings. See Texas Workers’ Compensation Commission Appeal No. 92595, decided December 21, 1992, and Texas Workers’ Compensation Commission Appeal No. 93045, decided March 3, 1993.
Claimant’s medical records indicated her left elbow fracture was surgically repaired on December 13, 1991, and that she made good progress in recovering her elbow range of motion (ROM). She continued to seek treatment for her back pain in 1992 and was seen in consultation by (Dr. L), a neurosurgeon. Dr. L reported to Dr. W that claimant’s lumbosacral studies showed Grade I spondylolistheses and that examination revealed no evidence of radiculopathy.
Dr. C’s unsigned Report of Medical Evaluation (TWCC-69) noted that claimant had sustained a comminuted fracture of the olecranon and a Grade I spondylolisthesis with symptomatic pain in her lower extremities for which she declined surgery and opted for additional physical therapy and a functional capacity evaluation (FCE). Dr. C stated that claimant reached MMI on “9/28/92” with a 20% whole body impairment rating for her lumbar spine. Claimant also introduced the FCE report of September 15, 1992, signed by the physical therapist and sent to Dr. C.
In a letter of October 16, 1992, Dr. G stated that claimant’s diagnosis was Grade I spondylolisthesis, L5-S1 with aggravation, that claimant had decided to forego surgery for the time being, and that he told her that without surgery she would reach MMI by December 6, 1992, with a whole body impairment of eight percent.
By letter of December 16, 1992, the Commission directed that claimant be examined by Dr. O for the determination of percentage of impairment only. Dr. O’s undated but signed TWCC-69 stated that claimant’s whole body impairment rating was 11%. Dr. O’s TWCC-69 was accompanied by an extensive narrative report to the carrier which was dated January 29, 1993, which contained signature blocks for Dr. O and (Dr. B), as well as a review of findings, a history and physical examination of January 7, 1993, over the signature block of (Dr. RB), and various test results including ROM measurements. The narrative report stated, in essence, that claimant’s underlying spinal disorder was assigned an eight percent rating, that she did not qualify for additional spinal impairment for loss of ROM, that there was no evidence of persistent neuronal dysfunction associated with aggravation of the underlying spondylolisthesis, and that claimant did qualify for a three percent impairment associated with lack of ROM of the olecranon for a total whole body impairment rating of 11%.
The hearing officer found that the other medical evidence, including the reports of Drs. C and W, and the FCE report, were insufficient to rebut the presumptive weight given Dr. O’s report and did not constitute the great weight of the other medical evidence. While not mentioned by the hearing officer in his findings, we would also note that Dr. G’s report stating that claimant would reach MMI on December 12, 1992, with an eight percent impairment rating for her back would not appear markedly inconsistent with Dr. O’s 11% rating for claimant’s spine and wrist injuries. The hearing officer also found that claimant’s testimony concerning alleged defects in Dr. O’s examination including the possibility that Dr. O did not actually examine her was insufficient to require additional clarification from Dr. O. In his discussion of the evidence, the hearing officer commented that claimant’s testimony in this regard was speculative and not credible probative evidence. Based on these findings and on other unchallenged findings the hearing officer concluded that the designated doctor’s report was entitled to be given presumptive weight, that the great weight of the other medical evidence was not to the contrary, and that claimant’s impairment rating was 11%.
The hearing officer is the sole judge of the weight and credibility to be given the evidence. Article 8308-6.34(e). As the trier of fact, the hearing officer resolves conflicts and inconsistencies in the evidence, including medical evidence, is not bound to accept the testimony of a claimant at face value, and is privileged to believe all or part or none of the testimony of any witness. Texas Workers’ Compensation Commission Appeal No. 93540, decided August 10, 1993.
Article 8308-4.26(g) provides that “[i]f the commission selects a designated doctor, the report of the designated doctor shall have presumptive weight and the commission shall base the impairment rating on that report unless the great weight of the other medical evidence is to the contrary in which case the commission shall adopt the impairment rating of one of the other doctors.” The ultimate determination of the extent of impairment must be made upon medical and not lay evidence. Texas Workers’ Compensation Commission Appeal No. 92394, decided September 17, 1992. We have frequently noted the important and unique position occupied by the designated doctor in the resolution of disputes over MMI and impairment ratings. See e.g. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. And we have often stated that a “great weight” determination amounts to more than a mere balancing or preponderance of the medical evidence. Appeal No. 92412, supra. We are satisfied here of the correctness of the hearing officer’s having accorded presumptive weight to Dr. O’s impairment rating. While Dr. C felt the rating should be 20%, Dr. G felt the rating should be eight percent. These two variances do not constitute the great weight of the medical evidence against Dr. O’s 11%.
The challenged findings and conclusions are not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 751 S.W.2d 629 (Tex. 1986).
The decision of the hearing officer is affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge