A contested case hearing was held in (city), Texas, on July 22, 1992, (hearing officer) presiding, to determine whether appellant’s impairment rating awarded by the designated doctor was correct. The hearing officer found that appellant’s treating doctor awarded a 5 percent impairment rating, that respondent assessed a 0 percent rating, and that the doctor designated by the Texas Workers’ Compensation Commission awarded a 2 percent rating. After finding that the designated doctor’s impairment rating was entitled to presumptive weight, and that there was insufficient evidence to overcome such presumption, the hearing officer concluded that appellant was entitled to impairment income benefits based upon a 2 percent whole body impairment rating. In his request for review, appellant asks the Appeals Panel to review the hearing officer’s decision and award him the 5 percent impairment rating assigned by his treating physician. Respondent urges our affirmance.
DECISION
Finding the evidence sufficient to support the hearing officer’s findings and conclusions, we affirm the decision below.
Appellant and his wife testified and together provided the information that on (date of injury), while employed by (employer), appellant fell and sustained an injury to his right upper leg when a walkway gave way. His apparent bruise became worse and in late June he visited (Dr. A) who recommended surgery. Appellant sought a second opinion from (Dr. J) on July 9th. In his letter of July 18th, (Dr. J) described a huge bruise over appellant’s right lateral thigh, diagnosed it as a “walled-off hematoma” and not a muscle tear as appellant suspected, and recommended against surgery. (Dr. J) letter further stated he “anticipated an excellent prognosis without any permanent injury being involved.” The worsening condition of the injury led appellant to proceed with the surgery by (Dr. A) on July 16th. According to appellant, the wound became infected and a second operation was required on August 2nd. A few days later, the second surgical wound, which had been left open, was closed in a third operation, and appellant was discharged from the hospital on August 19th. He used crutches for a time, underwent therapy, and returned to work on November 18th.
Appellant and his wife further testified that (Dr. A) certified that appellant had reached maximum medical improvement (MMI) and awarded him an impairment rating of 5 percent. They said (Dr. A’s) rating was disputed by respondent because the July 18th second opinion report of (Dr. J) (formulated prior to the surgery) had stated that he anticipated an excellent recovery with no permanent injury. Because of respondent’s dispute, the Texas Workers’ Compensation Commission (Commission) designated (Dr. D) to examine appellant and assign an impairment rating. Appellant disagreed with (Dr. D’s) rating of 2 percent for the reasons that he did not perform the surgery, did not know what appellant had gone through, questioned him about the rating awarded by (Dr. A), and said he felt appellant “should get something.” Appellant and his wife said (Dr. D’s) asking for (Dr. A’s) rating and his ensuing discussion with them made them feel “uncomfortable.” Essentially, appellant and his wife contended that (Dr. A’s) 5 percent impairment rating was not reasonably disputable under the circumstances.
(Dr. D’s) Report of Medical Evaluation (TWCC-69), together with an accompanying detailed written report dated January 6, 1992, stated that appellant had reached MMI on January 3, 1992, the date of his examination, and assigned a whole body impairment rating of 2 percent based upon right thigh chronic enlargement, deformity, and scarring. According to (Dr. D’s) report, appellant sustained a right thigh contusion with hematoma formation for which he underwent surgical treatment on July 16th, and was found to have a tear in the IT band which was repaired. His surgery was complicated by infection which required two additional surgical procedures.
(Dr. A) wrote the Commission on January 14, 1992 advising that appellant had an infected hematoma. He disagreed with reports appellant had no tear of the muscle, IT band, or extensor fascia lata stating that when he operated, he found a huge deficit in the IT band, and found that the infected hematoma was “deep to the IT band and into the vastus lateralis muscle, almost down to the femur.” He felt appellant should have a 5 percent rating for the apparent reason that the problem had been a significant one for appellant whom he described as a “good, reliable patient.” (Dr. A’s) letter did not mention (Dr. D’s) report or assignment of the 2 percent rating, nor did appellant adduce any other medical evidence to controvert (Dr. D’s) opinion.
The Texas Workers’ Compensation Act (TEX. REV. CIV. STAT. ANN., art. 8308-4.26(g) (Vernon Supp. 1992) (1989 Act)) provides that if the impairment rating is disputed, the Commission shall direct the employee to be examined by a designated doctor selected by the mutual agreement of the parties, or, in the absence of such agreement, selected by the Commission. If the parties agreed on the designated doctor, the Commission is to adopt the impairment rating made by that doctor. However, if the Commission selected the designated doctor, the report of that doctor is to have presumptive weight and the Commission is to base the impairment rating on that report unless the great weight of the other medical evidence is to the contrary. When the hearing officer sought to be informed as to how (Dr. D) came to be the designated doctor, the parties led him to believe there had been no mutual agreement but rather that the Commission made the selection. Further, respondent introduced a form entitled “Request for Medical Examination Order” (TWCC-22) containing a Commission order signed on December 15, 1991, to the effect that appellant was ordered to attend an examination by (Dr. D). See generally Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.6 (TWCC Rule 130.6). Accordingly, (Dr. D’s) report is to be given presumptive weight and the Commission is to base appellant’s impairment rating on that report unless the great weight of the other medical evidence is to the contrary.
The hearing officer found that (Dr. D’s) impairment rating was entitled to presumptive weight and that there was insufficient medical evidence to overcome that presumption. Article 8308-6.34(e) provides that the hearing officer is the sole judge of the relevance and materiality of the evidence, as well as the weight and credibility to be given the evidence. The hearing officer was satisfied that the great weight of the other medical evidence was not contrary to (Dr. D’s) report, and we do not disagree. See Texas Workers’ Compensation Commission Appeal No. 92126 (Docket No. redacted) decided May 7, 1992, and Texas Workers’ Compensation Commission Appeal No. 92472 (Docket No. redacted) decided October 12, 1992.
The decision of the hearing officer is affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge