A contested case hearing was held in (city), Texas, on October 13, 1992, (hearing officer) presiding as hearing officer, to determine whether appellant (claimant) has reached maximum medical improvement (MMI). The hearing officer concluded that claimant reached MMI on July 23, 1992, and claimant challenges the sufficiency of the evidence to support such conclusion and its related factual findings. The respondent (carrier) urges our affirmance.
DECISION
Finding the evidence sufficient to support the hearing officer’s findings and conclusion, we affirm the decision as modified.
Claimant testified that while at work for (employer) on (date of injury), he was knocked off a stool by a heavy chain and fell on the concrete floor striking his tailbone and twisting ligaments in his ankle. He said his initial complaints concerned his headaches and injured ankle, and later on his neck, shoulders, and back. He said his neck, shoulders, and back are still stiff and sore at times and his right leg gives out. He said he had completed his work hardening and pain management program by about July 1992, may have completed such in May 1992, and has not been advised by his doctor of any impending series of therapy or of another program.
A Magnetic Resonance Imaging test (MRI), obtained on May 7, 1991, by claimant’s treating doctor at the time, (Dr. W), showed a normal lumbar spine as did an earlier venogram. In September 1991, claimant, who originally saw a company doctor and later treated with (Dr. W), requested a change of treating doctor to (Dr. S) at the Texas Back Institute. (Dr. S) obtained a lumbar myelogram on October 21, 1991, which was basically unremarkable except for a slightly ectatic nerve root sleeve on the right consistent with a Tarlov cyst of S1 on the right. A lumbar discogram obtained on October 30, 1991, showed minimal, if any, fissuring at the L2 through S1 spine levels. EMG and nerve conduction studies of the right lower extremity, obtained by (Dr. S) on November 5, 1991, were normal, as were an L5-S1 discogram and a CT scan of the L5-S1 intervertebral disc space obtained by (Dr. S) on November 7, 1991.
On November 4, 1991, claimant was examined by (Dr. Wh), apparently at carrier’s request, for his complaints of back, neck, and bilateral arm and leg pain. (Dr. Wh’s) report indicated he reviewed the MRI (5/7/91), the CT scan of the lumbar spine (10/21/91), the lumbar discography (10/31/91), and the Texas Back Institute records. He also mentioned that (Dr. W’s) records of (date of injury), reflected a normal venogram and an opinion that claimant should be able to return to regular duty with no pathology or objective findings. (Dr. Wh’s) report also noted that (Dr. S’s) diagnosis was radicular syndrome, cervical and lumbar, and that he advised claimant to undergo an aggressive program of strengthening and range of motion and aerobic conditioning. (Dr. Wh’s) impressions were: (1) bilateral hamstring contractures; (2) postural low back pain; (3) aerobic deconditioning; and (4) gross symptom magnification and somatization. He opined that claimant reached MMI as of November 4, 1991, and stated the following:
The patient has no objective lesion which could in any way be attributed to the alleged (date of injury) incident. There is no objective basis for any disability or impairment rating. The patient does have some limitation of range of motion of his lumbar area but, in my opinion, the absence of any lesion in that area makes the 3% limitation of range of motion, based upon an electronic goniometric assessment of the lumbar spine, only attributable to deconditioning and inactivity.”
(Dr. Wh) also stated that claimant could return to work without restrictions but that his prognosis for a return to productivity was poor without a change in attitude and behavior.
Carrier introduced a copy of its letter to (Dr. S), dated December 10, 1991, advising that claimant had an independent medical exam by (Dr. Wh) on November 4th which resulted in an opinion that claimant could return to work and requesting (Dr. S’s) opinions on when claimant could return to work, the need for further medical treatment, claimant’s MMI date, and his impairment rating. Carrier’s attorney asserted that (Dr. S) never responded to its letter but offered no evidence to support such assertion.
Claimant offered a Report of Medical Evaluation (TWCC-69) with an accompanying report signed by (Dr. We) and dated May 8, 1992. According to the August 31, 1992 Benefit Review Conference Report in evidence, (Dr. We) had been designated by the Texas Workers’ Compensation Commission (Commission) to resolve the dispute as to whether claimant had reached MMI. According to (Dr. We’s) TWCC-69, claimant had not yet reached MMI. The accompanying report noted that claimant said he had been in (Dr. D’s) pain management program for three weeks, had one week to go, and then apparently was to commence a work hardening program. (Dr. We’s) report stated the following:
We feel that he has not reached [MMI] at this time for the following reason. He is in a pain management program which he is completing. We feel he should complete that program and the work hardening program and then be evaluated for [MMI] at that time. I think this will give the patient the benefit of the doubt but I also feel that the rating should be given at that time.”
As mentioned above, claimant testified he completed the pain management and work hardening program prescribed by (Dr. D), which he thought were one and the same program, by “about July” 1992, and he conceded it may have been as early as sometime in May. He last saw (Dr. S) in March 1992 and then began seeing (Dr. D), another doctor at the Texas Back Institute, whom claimant understood handled long-term medical problems. Carrier introduced a TWCC-69 signed by (Dr. D) which stated that claimant reached MMI on July 21, 1992. This TWCC-69 also assigned claimant a 6% whole body impairment rating (for spine impairment due to specific disorders). However, impairment rating was not a disputed issue and the hearing officer made no findings concerning an impairment rating.
The hearing officer made the following findings and conclusion:
FINDINGS OF FACT
3.On July 23, 1992, Claimant reached a point after which it could no longer be anticipated that he would experience further material recovery from his compensable injury of (date of injury).
4.Insofar as (Dr. We’s) report of medical evaluation can be interpreted as indicating a [MMI] date after July 23, 1992, it is contrary to the great weight of other medical evidence.
CONCLUSIONS OF LAW
2.On July 23, 1992, Claimant reached [MMI] from his compensable injury of (date of injury).
In the hearing officer’s discussion, he states that (Dr. We’s) report advised that while claimant had not reached MMI as of May 8, 1992, (Dr. We) felt he would reach MMI after completing the pain program with (Dr. D). We agree with the hearing officer’s interpretation of (Dr. We’s) report in this regard. The hearing officer then states that the evidence was undisputed that by July 23 (sic), 1992, when (Dr. D) certified that claimant reached MMI, claimant had completed his pain program. While we agree that the evidence shows claimant had completed his pain management and work hardening program with (Dr. D) by the date (Dr. D) stated that claimant reached MMI, that date, as it appears on (Dr. D’s) TWCC-69, was July 21, not July 23, 1992. This minor error, possibly of a typographical nature, is correctable in our decision.
Article 8308-1.03(32) defines MMI as “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; . . . ” The hearing officer specifically found such point to be July 23 (sic), 1992. Article 8308-4.25(b) provides, in part, that if a dispute exists as to whether an employee has reached MMI, the Commission shall direct the employee to be examined by a designated doctor; and that “the report of the designated doctor shall have presumptive weight, and the commission shall base its determination as to whether the employee has reached [MMI] on that report unless the great weight of the other medical evidence is to the contrary.” The hearing officer found that to the extent that the designated doctor’s report could be interpreted as indicating an MMI date subsequent to July 23 (sic),1992, it is contrary to the great weight of the other medical evidence. We agree. While (Dr. W’s) records were not in evidence, the references in other records to his opinion and to his MRI and venogram results were uncontradicted. In our view, the sum of (Dr. W’s) (month year) venogram and May 1991 MRI, along with his opinion as revealed in other records, the results of the multitude of additional diagnostic tests obtained by claimant’s treating physicians at the Texas Back Institute, the detailed report of (Dr. Wh), the report of (Dr. D), and the actual content of (Dr. We’s) report are sufficient to constitute the great weight of other medical evidence that claimant had reached MMI on July 21, 1992, as (Dr. D) opined. As previously noted, (Dr. We’s) report of May 8, 1992, appeared to simply defer stating an MMI date until after claimant’s completion of the pain management and work hardening program. (Dr. We) not only felt this would give claimant the benefit of the doubt, but also felt that “the rating should be given at that time.” Since claimant testified he had completed the program about July and possibly earlier, and since (Dr. D), who prescribed such program for claimant, opined that claimant reached MMI on July 21, 1992, we are satisfied under the circumstances of this case that the hearing officer’s determination of the MMI date is supported by the evidence.
Finding no reversible error and the evidence sufficient to support the challenged findings and conclusion, we affirm the decision but modify it to read that claimant reached MMI on July 21, 1992.
Philip F. O’Neill – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Susan M. Kelley – Appeals Judge