This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp 1993). On March 12, 1993, a hearing upon remand was held in (city), Texas, with (hearing officer) presiding, as called for by Texas Workers’ Compensation Commission Appeal No 93001, dated February 19, 1993. He determined that respondent (claimant) had 14% impairment and had reached maximum medical improvement (MMI) on November 19, 1992. Appellant (carrier) asserts on appeal that MMI was not an issue and should not have been determined. Claimant did not respond.
DECISION
Finding that the decision as to impairment rating, which was the reason for the remand, is sufficiently supported by the evidence, we affirm that part of the decision and order. The decision is reformed to include no determination of the date MMI was reached.
The original contested case hearing in this matter was held on October 26, 1992, to determine claimant’s impairment rating and to determine whether claimant should be sanctioned for missing various appointments. The second issue was resolved at the first hearing. The hearing officer at the initial hearing ordered claimant to report for evaluation to a particular designated doctor. The report of that doctor was later received by the hearing officer and became the basis for his decision without having been provided to the parties for comment. On appeal the carrier pointed out that it had not had the report at the hearing and was not provided with it prior to the issuance of the hearing officer’s decision. Carrier further pointed out that the designated doctor had taken two ratings and added them without using the Combined Values Chart found in the AMA Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989 (Guides). The carrier argued that the resulting impairment rating of the designated doctor was 15%, when it should have been 14% based on the applicable Combined Values Chart. The appeal was granted and the case remanded to determine the correct impairment rating; no issue of MMI was specified for consideration on remand.
At the hearing on remand, evidence as to the impairment rating of the designated doctor and the Guides, including the Combined Values Chart was entered. After the date of hearing, the hearing officer received a revised Report of Medical Evaluation (TWCC-69) from the designated doctor which specified that the impairment rating should be 14% (Hearing Officer Exhibit 3). This newly stated impairment rating was provided to both parties for comment by the hearing officer by letter dated May 28, 1993. While there is no appeal as to the impairment rating of 14%, the evidence is sufficient to support that determination.
The record of the hearing on remand also contains discussion by the parties as to a possible agreement between them. Reference was made by the ombudsman, who assisted the claimant, that such agreement included a date of MMI. Later in the testimony the carrier referred to the fact that part of the agreement concerned MMI, but pointed out that MMI was “not an issue.” There was then some talk by the hearing officer of adding an issue as to MMI, but the hearing officer did not advise such a course. After this discussion, the hearing officer did not state an outcome; no agreement was recorded in the form of stipulations or any other manner; no agreement was made part of the record; no statement was made that an added issue of MMI would be considered. The record does not show that MMI was litigated by the parties. To the contrary, in claimant’s closing argument the ombudsman observes that MMI was not an issue.
Carrier asserts that no determination of a date of MMI should have been made in the hearing officer’s decision. Under the circumstances of this case where the basis for remand included no reference to MMI, where there was no issue of MMI, where the parties stated on the record that there was no issue of MMI, where the parties did not litigate MMI, and where the parties discussed an agreement (it was not clear whether a meeting of minds had been reached or whether the parties were simply considering an agreement) with the hearing officer that included MMI, it was not necessary to the resolution of this case to determine when MMI was reached. See Texas Workers’ Compensation Commission Appeal No. 93547, dated August 2, 1993, which reversed and remanded a decision which made a finding that injury was not in the course and scope of employment when there had been no issue on that point. Also see Texas Workers’ Compensation Commission Appeal No. 92693, dated February 8, 1993, which, while observing the connection between MMI and impairment rating referred to in Texas Workers’ Compensation Commission Appeal No. 92366, decided September 10, 1992, did not disagree with the hearing officer’s finding that a party “may dispute one without disputing the other” (in reference to MMI and impairment rating). There was no indication that the issue of impairment was affected herein by the 90 day requirement for disputing the first impairment rating assigned, as provided by Tex. W. C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e).
The decision and order of the hearing officer are affirmed in regard to the impairment rating of 14%, but are reformed to provide no determination of when MMI was reached.
Joe Sebesta – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Philip F. O’Neill – Appeals Judge