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 July 9, 1998. The issues concerned whether the appellant, who is the claimant, had disability as the result of his compensable injury, and whether the Texas Workers’ Compensation Commission (Commission) abused it discretion in approving a change of treating doctor from Dr. P to Dr. B.
The hearing officer determined that the claimant had disability as a result of his compensable injury for the period from December 5, 1997, until March 24, 1998, but not for any other time period. Further, the hearing officer held that the request for change of doctor had been made for the purpose of securing a new medical report, and that the Commission had abused its discretion in approving the change.
The claimant appeals. He argues that he did not change doctors for the purpose of securing a new report because he was not aware that Dr. P had released him to full duty. He further argues that the Commission did not abuse its discretion in approving the change. Claimant appeals the determination that he did not have the inability to obtain and retain employment equivalent to his preinjury wage beyond March 24, 1998. The findings of fact and conclusions of law which support these determinations are all appealed. The respondent (carrier) responds by reciting facts in support of the decision and argues that although claimant was injured, it was not an objectively serious injury, and that the compensable injury has not caused an inability to work beyond the day he was released.
DECISION
Affirmed.
The claimant was employed as a stocker by (employer). On _____, in the early morning hours, he was lifting a heavy exercise machine from over his head when it struck him on the head, in the face, and on the right shoulder. Claimant said there was no supervisor on premises until later in the morning. He said he went to the hospital later that day. The emergency room discharge records indicate that the claimant was treated for a minor head injury and strained neck muscles. However, the underlying medical report found no cervical tenderness and full range of motion in the neck and upper extremities. No tenderness over the spine was noted. No contusion or tenderness was found on his head. Claimant was noted to complain of subjective paresthesias along his right side. The listed diagnoses included acute head injury and neck strain.
Claimant said that his family doctor for several years was Dr. P. Claimant asserted that he went to Dr. P’s office on December 5th but was not able to see him personally (but saw an associate) and therefore sought other medical treatment from chiropractor Dr. B on December 9th, 10th, and 11th, when he was advised by the insurance adjuster that he “couldn’t do this,” and then went to Dr. P.
Claimant said that he was not satisfied from the beginning with Dr. P’s treatment and he did not get better. Dr. P’s treatment consisted of medication and physical therapy (PT). Claimant admitted under cross-examination that he did get better through PT, but it was terminated because the carrier would not pay for more. Claimant asserted he still suffered from continual migraines, a shoulder which became very sore at night, and a stiff neck. He agreed that he received a copy of a handwritten report Dr. P wrote on March 24, 1998, although he denied that he had a copy of a March 28th report prior to the benefit review conference (BRC). The handwritten note said that claimant had been through extensive tests and had not been found to have a significant disability. Dr. P stated that claimant needed to return to work and said he could go back on March 30, 1998. He said he did not agree with Dr. P’s assessment. He said he changed doctors because he was not improving. He hired an attorney because he was under stress from being pressured by the employer to return to work when he felt he could not. Claimant’s attorney helped him complete an Employee’s Request to Change Treating Doctors (TWCC-53) on April 2, 1998. The TWCC-53 asserted that the reason for the change was that he was not improving and needed a new doctor who would listen to his concerns and lessen his pain. The request was approved by the Commission on April 7, 1998, and the carrier was ordered to pay for all reasonable and necessary medical care rendered by Dr. B. A notation indicates this was mailed to the carrier on April 8th. Carrier disputed this order on April 21, 1998. The BRC disputing the approval was held on May 19, 1998.
Medical records presented at the CCH are as follows: The claimant had an EMG on January 20, 1998; Dr. L reported the results as normal; an MRI of claimant’s head on January 22nd was normal; a week later, Dr. L commented that he reviewed an MRI of the brain and it was normal; a cervical MRI was conducted on March 9, 1998, which was interpreted as being “grossly normal”; and a lumbar MRI the same day was reported as showing minimal degenerative changes and a bulge at L5-S1 that did not compress the thecal sac. As noted in the decision, Dr. P’s notes and records indicate a belief in January 1998 that claimant’s complaints are primarily functional or psychological.
Dr. B’s initial medical report was dated December 9, 1997, and diagnoses cervical and lumbar strain and related pain syndromes. He took claimant off work and estimated that claimant would reach maximum medical improvement (MMI) in four to 12 weeks. His next report was dated April 13, 1998, and is entitled an amended initial medical report. This time, diagnoses of disc displacement in both areas were made. Claimant was taken off work. A subsequent report by Dr. B, dated April 29, 1998, anticipates that the claimant will achieve MMI and return to work full time by June 29, 1998.
Claimant also went to Dr. G on referral from an associate of Dr. P. He agreed that Dr. G said he could do light-duty work on December 26, 1997, but that claimant disagreed because Dr. G did not know anything about him. Dr. G’s narrative indicates a full examination was conducted and that there were several atypical features to what Dr. G said was an acute back and neck derangement. He opined that claimant had a soft tissue injury. Dr. G’s examination otherwise documents essentially normal conditions. On December 30, 1997, the physical therapist performed a functional capacity evaluation showing claimant performing at the sedentary work level.
Section 408.022 sets out the criteria for selection and changing a treating doctor which are to guide the parties and the Commission. Section 408.022(d) expressly states that a change may not be made to secure either a new impairment rating or a new medical report. 28 TEX. ADMIN. CODE § 126.9(h)(2) (Rule 126.9(h)(2)) allows the Commission, after a CCH, to relieve a carrier of liability for payment of a doctor who is not selected in accordance with “commission rules.” However, Section 408.024 also states that the carrier can be relieved of such liability when the health care provider is selected in a manner that is inconsistent with the subchapter, including Section 408.022(d). Consequently, the reason cited by the hearing officer constitutes a sound basis for setting aside the order allowing the change.
The hearing officer had the opportunity, as the finder of fact, to consider the circumstances surrounding the request for the change. The claimant agreed that he knew Dr. P said he could return to work, through receipt of the March 24, 1998, letter. Although he had earlier seen Dr. B, before this arose, he stayed with Dr. P and did not change until shortly after Dr. P told him he could return to work. The hearing officer could also consider that claimant rejected advice rendered by Dr. G that he could return to light duty and apparently found a conflict in claimant’s assertion that he had no improvement under Dr. P’s care. All in all, we cannot agree that the evidence is against the hearing officer’s disallowance of the change to Dr. B.
Temporary income benefits are due when an injured worker has not reached MMI and has disability. Section 408.101(a). Section 401.011(16) defines “disability” as: “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” The record in this case sufficiently supports the hearing officer’s determination on the period of disability. The finder of fact was not bound by the claimant’s testimony, and, however sincere, it does appear that objective conditions found by a number of health care practitioners are consistent with an acute injury of short duration that could even have led to the inference that the inability to work ended even earlier than the hearing officer in this case found.
We affirm the decision and order.
Susan M. Kelley – Appeals Judge
CONCUR:
Elaine M. Chaney – Appeals Judge
Christopher L. Rhodes – Appeals Judge