This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on June 26, 1998. With regard to the issues at the CCH, she (hearing officer) determined that Dr. F is not disqualified to serve as the designated doctor and that the respondent (claimant) reached maximum medical improvement (MMI) on April 10, 1997, with a 19% impairment rating (IR), as certified by Dr. F. The appellant (carrier) appeals, seeks a reversal of the decision and argues that Dr. F is disqualified to serve as the designated doctor and that the hearing officer erred in her evidentiary ratings. The claimant does not respond.
DECISION
We reverse and render.
Many of the facts herein are not in dispute. The parties stipulated that the claimant sustained a compensable injury on _____. Dr. K, the claimant’s treating doctor, referred him to center for an impairment evaluation. On December 19, 1996, Ms. F, a licensed physical therapist at the center, conducted an impairment evaluation. On January 13, 1997, Dr. K adopted Ms. F’s evaluation and certified the claimant at MMI, with a 22% IR. The carrier disputed Dr. K’s certification and the Texas Workers’ Compensation Commission (Commission) appointed Dr. F, Ms. F’s husband, to be the designated doctor. Whether Dr. F’s office contacted the Commission and Ms. B, the carrier’s adjuster, subsequent to his appointment is in dispute and will be discussed further below. It is undisputed that Dr. F referred the claimant to the center for an impairment evaluation. On April 14, 1997, Ms. M, an occupational therapist at the center, conducted an impairment evaluation. On April 15, 1997, Dr. F adopted Ms. M’s evaluation and certified the claimant at MMI on April 10, 1997, with a 19% IR.
The hearing officer makes a finding of fact that “[Dr. F], after recognizing an apparent disqualifying association, called the Carrier seeking approval from the adjuster, [Ms. B], to send Claimant back to [center] for another [IR] and approval was given by the adjuster to send Claimant back to [center].” She affords presumptive weight to Dr. F’s report and determines the great weight of the other medical evidence is not contrary thereto. The carrier maintains that the hearing officer erred in admitting documentary evidence which was not exchanged and by deciding the case on an estoppel theory, a theory specifically not advanced by the claimant at the CCH and not the subject of a discrete disputed issue.
A designated doctor shall “not have any disqualifying association as specified in [Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.10(a) (Rule 126.10(a))].” Rule 130.6(b). A disqualifying association is “[a]ny association which may reasonably be perceived as having potential to influence the conduct or decision of the designated doctor.” Rule 126.10(a)(4). A disqualifying association may include “personal or family relationships.” Rule 126.10(a)(4)(A)(v). The hearing officer, in the “Statement of the Evidence” portion of the decision, states: “Evidence that [Dr. K] previously utilized [center] and [Ms. F] sets up a situation that ‘may be reasonably perceived as having potential to influence the conduct or decision of [Dr. F]’.” However, she concludes Dr. F is not disqualified to serve as the designated doctor, because the “Carrier knew of the potential conflict because [Dr. F] called the adjuster seeking her approval.” She rationalizes that “[t]he doctrine of estoppel is properly applied in this case and Carrier is estopped from questioning the designated doctor’s qualifications,” and reasons that “[Dr. F], as a matter of law, is not disqualified to serve as the designated doctor.”
During a discussion surrounding the admission of Dr. F’s September 2, 1997, letter to Ms. L, the Commission’s field office manager, and Dr. F’s telephone records, Mr. T, the carrier’s attorney, pointed out that they may be interpreted as supporting a waiver or estoppel theory. He argued that the issue of whether the carrier waived its opportunity to raise Dr. F’s disqualifying association or is estopped from raising it was not an issue at the benefit review conference (BRC) and, therefore, may not be adjudicated at the CCH. See Section 410.151(b); Rule 142.7(a). In response to the attorney’s argument, the ombudsman stated: “The claimant’s position is not anything that [Mr. T’s] discussing,” and also: “He has no argument that this is any–they’ve waived anything.” The ombudsman argued in closing argument that Dr. F does not have a disqualifying association and neither she nor the claimant argued waiver or estoppel. The BRC report did not address waiver or estoppel. The issue at the BRC and the CCH was: “Is [Dr. F] disqualified to serve as the designated doctor to determine Claimant’s date of [MMI] and [IR]?” In some instances, an issue is deemed to have been subsumed in a more general, related issue. Where the issue at the CCH was whether a first certification of MMI and IR became final by operation of Rule 130.5(e), we held that the issue of whether the carrier was estopped from raising finality was not a subsumed issue. Texas Workers’ Compensation Commission Appeal No. 961265, decided August 9, 1996. Similarly, the estoppel issue herein was not subsumed in the issue at the CCH. We nevertheless address the issue because it is one of importance.
The evidence regarding the carrier’s waiver or estoppel consisted of Dr. F’s September 2, 1997, letter to Ms. L, and Dr. F’s telephone records, which he enclosed with the letter. The claimant moved to admit the documents and the carrier objected to their admission, arguing he did not exchange them with it until the day of the CCH. The claimant responded that he exchanged the documents with the carrier at the March 13, 1998, BRC. The hearing officer did not determine whether he timely exchanged them but stated on the record:
I have no way to determine whether they were or not. I have to take both parties at their word. The [BRC] report has nothing listed on it, and I’m sure there was some kind of document exchanged in there. So, that doesn’t help me at all, either. And because I can’t make a determination of who did what, I’m going to have to go ahead and allow this all in.
According to the decision and order, Dr. F’s letter and telephone records were admitted.
Parties must exchange documentary evidence with each other not later than 15 days after the BRC and thereafter, as it becomes available. Rule 142.13(c). Our standard of review for determining the efficacy of the hearing officer’s good cause finding is one of abuse of discretion. Texas Workers’ Compensation Commission Appeal No. 92165, decided June 5, 1992. Although the hearing officer should have specified whether the claimant had timely exchanged the documents, her “take both parties at their word” statement indicates she concluded he did exchange them at the BRC. Therefore, she did not abuse her discretion in admitting them into the record. The carrier also complains that the hearing officer erred in not allowing the deposition on written questions of Dr. O and Ms. F. She determined that they were not conducted with her approval and were not timely exchanged. We conclude she did not abuse her discretion in so doing.
Dr. F’s September 2, 1997, letter reads:
Enclosed please find a copy of telephone records that my secretary recorded at the time of my evaluation of [claimant]. As you can see, it documents on 4/14/97 that [Ms. S] with [Commission field office] was asked if it was acceptable for [center] to do a second [IR]. She recommended calling the adjuster. My secretary called the adjuster on 4/15/97, which was [Ms. B], and she gave her approval for a second [IR] at [center].
Dr. F’s April 15, 1997, telephone record reflected:
Called back adjuster [Ms. B] – she said that I should be calling [Commission] not her. I explained that [Ms. S] told me to call her. She did give me an O.K. to do a 2nd impairment w/ [center].
Contrary to Dr. F’s recollection, Ms. B’s July 7, 1997, letter to Ms. L stated:
On June 11, 1997, I received a peer review report. . . . In his report, [Dr. O] indicated [Dr. F] referred [claimant] to [center] for his IR assessment.
[Dr. O] stated, ‘The key problem is, [center] did both the treating doctor’s exam and the designated doctor’s exam. As I interpret the rules that would be inappropriate.’
Ms. L’s letter does not mention communication with Dr. F’s office on April 15, 1997, or any other date.
The Commission, not the parties, shall choose a designated doctor to evaluate an employee if the parties are unable to agree on a designated doctor. Section 408.125(b). The Commission shall issue a written order assigning the designated doctor. Rule 130.6(a). “To avoid undue influence on a person selected as designated doctor under this section, only the injured employee or an appropriate member of the staff of the commission may communicate with the designated doctor about the case regarding the injured employee’s medical condition or history before the examination of the injured employee by the designated doctor.” Section 408.125(f); see also Rule 130.6(i). An ombudsman is not considered “appropriate staff” to communicate with a designated doctor. Rule 130.6(i).
The carrier argues that it did not “approve” Dr. F’s referral to the center for evaluation and, in the alternative, if it did approve the referral, it was not aware of Dr. F’s disqualifying relationship until afterward. We must analyze whether Ms. S and the Commission field office erred in inviting Ms. B to “waive” any disqualifying relationship. The record is silent as to whether Ms. S was “appropriate staff” to communicate with Dr. F. What is clear is that Ms. B should not have been communicating with Dr. F and she informed him as well. The Commission’s field office, in effect, impermissibly delegated its responsibility to determine whether Dr. F had a disqualifying relationship and thereby choose the designated doctor.
The hearing officer cites our decision in Texas Workers’ Compensation Commission Appeal No. 962246, decided December 18, 1996, to support the application of estoppel to a situation involving a designated doctor’s disqualifying association. In that case, the employee raised the designated doctor’s disqualifying association and, in discussing estoppel, we specifically declined to apply it to a designated doctor’s disqualifying association. Similarly, we rejected a carrier’s argument that an employee was estopped from arguing the Commission erred in inadvertently selecting two designated doctors within a week because she allowed herself to be examined by both of them. Texas Workers’ Compensation Commission Appeal No. 951854, decided December 20, 1995.
The hearing officer also cites Texas Workers’ Compensation Commission Appeal No. 980219, decided March 23, 1998, and Texas Workers’ Compensation Commission Appeal No. 980101, decided March 4, 1998, regarding the estoppel theory in general. The former was an appeal from a decision on remand, addressing the employee’s argument that the carrier was estopped from raising the finality of a first certification of MMI and IR under Rule 130.5(e). See Texas Workers’ Compensation Commission Appeal No. 972021, decided November 19, 1997. In remanding the case, we instructed the hearing officer that under the doctrine of equitable estoppel, the party arguing estoppel must show it was deprived of an entitlement or detrimentally relied on the action or inaction on which the estoppel is based. Id. In the decision addressing the appeal after the remand, we affirmed the hearing officer’s determination that no such showing was made. Appeal No. 980219, supra. In the latter of those cases, Appeal No. 980101, supra, we reversed and remanded the case to the hearing officer after she found the employee had not waived the opportunity to dispute whether the designated doctor had been agreed upon. On remand, she again found the employee did not waive the opportunity and we reversed and rendered a decision that the employee did waive the opportunity to raise the dispute, through the employee’s two years of inaction. Texas Workers’ Compensation Commission Appeal No. 981144, decided July 13, 1998.
The bar against disqualifying relationships exists to preserve the unique position designated doctors serve in the workers’ compensation dispute resolution system. Neither Rule 126.10 nor Rule 130.6 contain an exception to the bar against disqualifying relationships. A designated doctor shall not have a disqualifying relationship. Rule 130.6(b). It is disturbing that the hearing officer concludes Dr. F’s use of the center created a disqualifying relationship but nevertheless should serve as a Commission-selected designated doctor. Also of concern is the Commission field office’s invitation of Ms. B to violate the undue influence provisions of the 1989 Act and Commission rules. We note that the imposition of a Class C administrative violation for violating the undue influence provisions is evidence of their importance. Section 408.125(g); Rule 130.6(i).
We are reserved in our application of the doctrine of estoppel to bar a party from raising a disputed issue. Even though we have recognized an estoppel theory in a few limited situations, we decline to recognize one where the designated doctor has a disqualifying relationship. Ms. B raised the issue on July 7, 1997, less than three months after Dr. F’s April 14, 1997, impairment evaluation. The record supports the carrier’s contention that it “approved” his evaluation of the claimant and referral to the center only after Ms. B was erroneously informed she was the arbiter of disqualifying associations. We do not recognize the theory that the carrier waived its opportunity to raise Dr. F’s disqualifying relationship with the center or that it is estopped from raising the issue. Therefore, as the hearing officer essentially found in her discussion, Dr. F is disqualified to serve as the Commission-selected designated doctor. Rule 130.6(b)(3). Accordingly, we reverse the determination that Dr. F is not disqualified to serve as designated doctor and render a new decision that Dr. F shall not serve as the designated doctor in the claimant’s claim.
The report of the designated doctor has presumptive weight. Section 408.125(e). However, since Dr. F shall not serve as designated doctor, we reverse the determinations that his April 15, 1997, report is entitled to presumptive weight and render a new decision that it is not entitled to presumptive weight. The Commission shall base its determinations as to whether an employee has reached MMI and as to the IR on the designated doctor’s report “unless the great weight of the other medical evidence is to the contrary.” Id. Since Dr. F’s report is not afforded presumptive weight, we reverse the determinations that the
claimant reached MMI on April 10, 1997, with a 19% IR and render a new decision that his MMI date and IR cannot yet be determined.
Christopher L. Rhodes – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Elaine M. Chaney – Appeals Judge