This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On June 22, 1998, a contested case hearing (CCH) was held. The issues at the CCH were whether the appellant, who is the claimant, has reached maximum medical improvement (MMI), the date, and his impairment rating (IR).
The hearing officer gave presumptive weight to the third of three designated doctor opinions, finding that it was not contrary to the great weight of other medical evidence. No findings were made as to whether the first two designated doctor opinions were overcome, or whether the designated doctor amended his report for a proper purpose, although a finding of fact is made detailing the reasons for the change. Accordingly, the hearing officer found that claimant reached MMI on April 18, 1996, with a 12% IR.
The claimant appeals, pointing out the designated doctor’s IRs have ranged greatly, casting doubt on their credibility and the objectives of the designated doctor process. The claimant further argues that the changing IRs reflect lack of training or knowledge in proper application of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides). The claimant argues that the only consistent report properly applying the AMA Guides in this record is that of the treating doctor, which should be adopted on both MMI and IR. The respondent, who is the carrier, responds that the Texas Workers’ Compensation Commission (Commission) was seeking “clarification” from the designated doctor both times it forwarded additional IR opinions to him for review. The carrier points to all the peer reviewers which support the designated doctor’s second amended opinion and the hearing officer’s decision.
DECISION
Reversed and rendered, giving presumptive weight to the designated doctor’s second report of IR and MMI.
Although the claimant is listed as a witness, the CCH was held based upon presentation of documentary evidence and argument thereon. The parties stipulated that the Commission had determined that on May 17, 1995, the claimant sustained a compensable injury. Texas Workers’ Compensation Commission Appeal No. 960296, decided March 29, 1996. (This decision is under appeal in the district court.) He slipped and fell in a puddle of oil and water while employed by (employer).
Various reports of impairment were presented at the CCH. The injury involved the cervical and lumbar spine. It appears that the first IR certified for claimant was by a doctor for the carrier, Dr. K, who examined the claimant on April 18, 1996, and found that he reached MMI on that date with a nine percent IR. This IR was derived entirely from Table 49 of the AMA Guides for lumbar and cervical specific conditions. Dr. K found that neither the cervical nor lumbar range of motion (ROM) deficits were valid under the AMA Guides. Dr. K recited the objective tests that comprised the basis for his IR. This IR was apparently disputed and a designated doctor was appointed by the Commission, Dr. F. On June 25, 1996, Dr. F examined the claimant, certified that he had reached MMI on April 18, 1996, and had a seven percent IR. This was entirely for lumbar specific conditions and ROM; he noted in his report that the claimant told him his neck was “fine,” but it did not appear that he examined the claimant’s neck.
Thereafter, the claimant’s treating doctor, Dr. G, certified that the claimant reached MMI on October 15, 1996, with an 18% IR. Part of his letter accompanying this report to the claimant ‘s attorney critiqued the validity of Dr. F’s seven percent IR. He noted that Dr. F failed to address the cervical part of the injury. His own IR consisted of ratings for ROM and specific conditions in both the cervical and lumbar areas.
On December 19, 1996, the benefit review officer (BRO) wrote to Dr. F and forwarded Dr. G’s report. The BRO did not ask Dr. F to explain or clarify the apparent omission of an IR for the cervical area; rather, she simply forwarded Dr. G’s report and asked Dr. F to “comment as appropriate.” He was then queried as to whether it remained his opinion that claimant reached MMI and had the IR as specified in Dr. F’s first report, and, if not, he was asked to provide an amended report. He was advised that his answers would “directly effect [sic] claimant’s receipt of income benefits.” The BRO explains that she is writing Dr. F because she was “asked by the parties to contact you regarding your examination.”
This appears to have led to another examination of the claimant on January 16, 1997, specifically for ROM. In his January 27, 1997, letter, forwarding a revised 26% IR, Dr. F responded that he had not examined the claimant’s cervical area the first time because claimant said (through an interpreter) that his neck was fine. The amended IR assessed ratings not only for cervical ROM but for specific cervical disorders from Table 49. Dr. F did not change his opinion on the date of MMI.
It appears that the carrier then embarked upon seeking a series of reactions to the amended report from four medical consultants, two of them doctors, based upon a review of medical records. In February 1997, three opinions were rendered. Nurse Ms. B reworked Dr. F’s computation and reduced it to 21% based upon her reading of the AMA Guides. Dr. L stated that the proper IR was 15%, 13% of which was for the cervical region. Dr. GG said he would give no rating for specific disorders because he was not provided with records showing six months of documented pain, muscle spasm, or rigidity. He said that cervical ROM should not be awarded “unless it was substantiated by x-ray changes in the cervical spine, or objective physical evidence of muscle contracture or spasm.” Dr. GG opined that there should be a zero percent IR. In April 1997, Dr. GG filed an addendum, he added back some lumbar IR which yielded an eight percent IR. On October 20, 1997, another BRO forwarded copies of Dr. GG’s reports and Ms. B’s reports (but not Dr. L’s), reciting again that he was doing so at the request of the parties at a benefit review conference. No new medical evidence was forwarded, and Dr. F was asked to, “in light of the above reports, could you please advise whether this changes your opinion,” and, if so, to amend his Report of Medical Evaluation (TWCC-69). On January 16, 1998, Dr. F agreeably stated that he had read the report and would amend his report in light of Dr. GG’s comments. Dr. F amended his report by taking out all cervical ROM. He added one point to the Table 49 figure for specific lumbar condition, and derived a total whole person IR of 12%. Thereafter, on June 1, 1998, another reviewer for the carrier agreed with Dr. F’s 12% amended report. This reviewer, Mr. A, agreed that there was objective evidence of a specific cervical condition. However, noting that the designated doctor had eliminated all cervical ROM ostensibly for want of objective cervical injury, Mr. A nevertheless found in Dr. F’s second report some “concerns” relative to the amount of effort put forth by the claimant during his ROM testing. These concerns are not evident, however, in the narrative report to Dr. F’s second IR that is in the record. The other figures actually used by Dr. F in his 1998 amendment were commented upon with approval by Mr. A. The rest of Mr. A’s letter took issue with Dr. G’s 18% IR.
We agree that the Appeals Panel has endorsed providing a designated doctor with medical records or information that he had plainly not seen before or could not have considered, rather than setting aside his report for want of consideration of those records. Texas Workers’ Compensation Commission Appeal No. 92570, decided December 14, 1992. We have also stated that a dispute resolution officer may seek to clarify matters relating to the designated doctor’s assessment that are not evident from his report, rather than reject that report for information readily obtainable. Id. Appeal No. 92570; Texas Workers’ Compensation Commission Appeal No. 93055, decided March 11, 1993; and Texas Workers’ Compensation Commission Appeal No. 92595, decided December 21, 1992. We have held that a designated doctor may be asked to revise his report to take into account the full scope of an injury where it is apparent that only part of a compensable injury was considered. See, most recently, Texas Workers’ Compensation Commission Appeal No. 981613, September 1, 1998. And we have held that a designated doctor may amend his report of IR or MMI for a proper purpose and within a reasonable amount of time. Texas Workers’ Compensation Commission Appeal No. 92441, decided October 8, 1992; Texas Workers’ Compensation Commission Appeal No. 941518, decided December 29, 1994. Where an amendment is not done for a proper reason or within a reasonable time, the adoption of a subsequent report of a designated doctor has been reversed and the earlier report given presumptive weight. Texas Workers’ Compensation Commission Appeal No. 960274, decided March 28, 1996.
Added to this is the prohibition on direct contact with a designated doctor that is not made through appropriate staff of the Commission, now codified as Section 408.125(f), but earlier a matter of Appeals Panel decisions. Furthermore, the sole provision requiring any doctor to review the IR of another is set forth in Section 408.123(a), which requires a doctor who certifies IR and is not the treating doctor to forward his or her report to the treating doctor, who then must indicate agreement or disagreement. There is no counterpart provision for forwarding certifications to a designated doctor for his review and comment.
We do not agree that our previous decisions or the statutory prohibition should give rise to the practice of sending a designated doctor a barrage of contrary opinions on a claimant’s IR or how it should have been calculated. The BRO is not in place simply to act as a conduit for, or do the bidding of, either party by forwarding everything the parties request to the designated doctor, most especially “peer review reports” that amount to no more than a mere critique of the designated doctor’s report without the benefit of actual examination of the claimant. The BRO should independently evaluate the matters presented and forward only true requests for clarification or additional medical evidence, significant to the case, which was not heretofore reviewed. Even then, the dispute resolution officer must use caution so that his or her request for an appropriate amendment does not appear as a mandate for one. To do otherwise invites a misuse of the process whereby a designated doctor may be contacted by the Commission. While a party attacking the use of the AMA Guides or the opinion of the designated doctor is certainly entitled to develop and present evidence in support of its position, this should be done by the parties in an open CCH under the great weight analysis, and not through the “back door” of seeking a change in the designated doctor’s original opinion that can then be given presumptive weight. There is no requirement for the designated doctor to consider alternative computations of IR as part of his or her own opinion. Although the carrier argues that the Commission should not dismiss a designated doctor in favor of a second doctor without giving the first doctor the opportunity to “explain his actions,” the record is devoid of any indication that a dismissal of Dr. F was either considered or warranted.
In this case, we cannot agree that Dr. F’s third opinion on IR 1) done without examination, 2) nearly two years after MMI and a year after his previous amendment, and 3) merely in response to another computation, as opposed to medical evidence not considered before, was an amendment done for a proper purpose, within a reasonable time. Because of this, the hearing officer erred by giving it presumptive weight. We further note that the recited basis for Dr. F’s elimination of all cervical ROM, that there was no x-ray corroboration to support it, is not based upon the AMA Guides and therefore was not undertaken in compliance with them. Dr. F had agreed, a year earlier, that there was a specific objectively-based cervical impairment ratable under Table 49, which remained in his IR and was in fact endorsed by Mr. A.
There were four opinions of IR based upon actual examination of the claimant: Dr. K (nine percent), Dr. F (seven percent, but omitting the cervical area), Dr. G (18%), and Dr. F again (26%). The reports of Dr. K and Dr. G (or any of the “desk audits” of his report which were performed in 1997 and 1998) do not constitute a great weight of medical evidence contrary to Dr. F’s MMI date of April 18, 1996, and his IR of 26%. Accordingly, the statute gives presumptive weight to his report; Section 408.122(c) and 408.125(e), are applicable and we hereby affirm the hearing officer’s decision giving presumptive weight to the MMI date, and reverse and render an opinion according presumptive weight to Dr. F’s only valid evaluation of IR, which was 26%.
Susan M. Kelley – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
CONCURRING AND DISSENTING OPINION:
I concur with the majority’s decision to reverse the hearing officer’s decision and order, and to afford presumptive weight to Dr. F’s April 18, 1996, report. The Texas Workers’ Compensation Commission’s (Commission) practice of allowing parties to send medical reports to it and then forwarding them to the designated doctor, without limitation, is needless. If there is medical evidence subsequent to the designated doctor’s impairment evaluation that is contrary to his report, the evidence should be considered in determining whether the great weight of the other medical evidence is contrary to the designated doctor’s report. Instead of allowing the endless shuttling of reports to the designated doctor, the Commission’s hearing officers should exercise their power to determine that the great weight of the other medical evidence is contrary to the designated doctor’s report.
However, I would remand the case to the hearing officer for her to determine whether the great weight of the other medical evidence is contrary to Dr. F’s April 18, 1996, the date of maximum medical improvement and the impairment rating.
Christopher L. Rhodes – Appeals Judge