Following a contested case hearing held on August 13, 1998, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer resolved the disputed issue by determining that the Texas Workers’ Compensation Commission (Commission) abused its discretion in approving Dr. H as an alternate doctor. The appellant (claimant) has requested our review, asserting that his Employee’s Request to Change Treating Doctors (TWCC-53), which requested the change to Dr. H, stated a valid reason for the change; that in determining whether the Commission abused its discretion, the hearing officer is limited to considering only the information the Commission had when it approved the requested change; and that based on the information stated in the TWCC-53, the hearing officer erred in finding abuse of discretion. In its response, the respondent (carrier) first asserts that claimant failed to exhaust his administrative remedies in not appealing the Commission’s denial of his earlier request to change treating doctors to Dr. B pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9(e) (Rule 126.9(e)) and that he should not be allowed to “end run” the system by simply filing another TWCC-53 asking for Dr. H. In the alternative, the carrier asserts that the evidence is sufficient to support the hearing officer’s decision and that the hearing officer may properly look to the apparent reasons a claimant is seeking to change doctors rather than simply reviewing the verbiage on the TWCC-53 for compliance with the provisions of Section 408.022(c) and Rule 126.9.
DECISION
Affirmed.
The parties stipulated that claimant sustained a compensable lower back injury in the course and scope of employment with (employer) on __________. According to claimant’s Employee’s Notice of Injury or Occupational Disease and Claim for Compensation (TWCC-41), he was working as a lift station worker for the employer; his duties included attaching metal hitches weighing 100 pounds to completed mobile homes; and while lifting a hitch and holding it up to push a metal stand beneath it, he felt a sharp pain in his lower back and injured his back at that time.
Claimant testified that after his injury he saw Dr. Y on one occasion and then treated with Dr. G. Dr. Y’s Initial Medical Report (TWCC-61) dated June 25, 1997, reflects claimant’s visit on that date, findings of claimant in no acute distress with a slightly tender back but with normal motion and neurological functions, and a diagnosis of sprain. Dr. G’s TWCC-61 reflects claimant’s visit of June 26, 1997, and a diagnosis of acute sprain bilateral SI joints. On July 8, 1997, Dr. G released claimant from all light duty to a return to regular duties for one-half the work day and light duty for the remainder. Following claimant’s August 1, 1997, visit, Dr. G reported that claimant was released to normal activity and that he was to continue with exercise and correct lifting techniques and return in four months. Following claimant’s August 29, 1997, visit, Dr. G certified on September 16, 1997, that claimant reached maximum medical improvement (MMI) on “8/29/97” with an impairment rating (IR) of “0%.” Dr. G wrote on September 9, 1997, that claimant “returns for a supposed flare-up of his back pain” and he restarted Lodine and emphasized exercises. Dr. G wrote on October 9, 1997, that claimant did not have the old SI joint sprain but just simple muscle soreness and that he was to continue his same work. On October 16 and on November 7, 1997, Dr. G reported that claimant should be given a job that does not require repetitive bending or twisting at the waist.
On November 12, 1997, claimant signed two TWCC-53 forms, requesting, respectively, to change treating doctors from Dr. Y and from Dr. G to Dr. C. Both forms stated the following reason:
I would like to see [sic] exercise my rights to change doctors. I am unhappy with my doctor. I am not getting better. I just want to get better.
Claimant testified that he had engaged attorney (lawyer 1) and that lawyer 1 selected Dr. C and prepared the TWCC-53 forms. The TWCC-53 forms reflect that on December 4, 1997, a Commission employee denied the request to change from Dr. G to Dr. C but approved the request to change from Dr. Y to Dr. C. A Commission Dispute Resolution Information System (DRIS) note of December 15, 1997, entered by the Commission employee, states that the request to change from Dr. Y to Dr. C was approved because claimant was not happy with the treatment he has received from Dr. Y or referral doctor, Dr. G.
On December 10, 1997, claimant signed a TWCC-53 requesting to change treating doctors from Dr. G to Dr. B. This form stated the following reason:
I have been treating with [Dr. G] since I got hurt. My back continues to hurt and has not responded to his care. I need a new doctor who will listen to my concerns and help me lessen the pain from this injury. I request the opportunity to select an alternate doctor under Section 408.022(b) and Section 408.022(c), Texas Labor Code.
This form reflects that the same Commission employee denied the request on December 22, 1997, stating, “Previous request approved to [Dr. C]. This form is incorrect.”
On December 11, 1997, claimant signed a TWCC-53 requesting to change treating doctors from Dr. G to Dr. B and stating the following reason:
I have been treating with [Dr. G] since I got hurt. I don’t feel that I received appropriate medical care. [Dr. G] had me on light duty and I got terminated. [Dr. G] has since told me that I have to pay him for further treatment myself. I need a new doctor who will listen to my concerns, treat my injuries, and help me get back to work.
This form reflects that the same Commission employee disapproved the request on December 15, 1997, stating, “Request reflects wrong treating doctor of record.” Dr. G’s letter of December 18, 1997, states that based on his history and physical examination, claimant was provided with appropriate medical care, that he was treated compassionately, and that he was advised that his medical benefits would continue despite the termination of his employment.
Claimant testified that he terminated his relationship with lawyer 1 and retained his current attorney (lawyer 2), apparently in December 1997; that lawyer 2 prepared these TWCC-53 forms and sent him to Dr. B; and that he saw Dr. B in December before being told by the Commission on December 23, 1997, that he was supposed to be treating with Dr. C.
Claimant stated that he first saw Dr. C in January 1998. However, Dr. C’s records reflect the first visit was on December 26, 1997. Claimant said that on his second visit to Dr. C, he was prescribed a course of physical therapy (PT) which he finished in March 1998; that in March 1998, Dr. F examined him for the carrier and assigned an IR of “0%”; that Dr. C agreed with that IR and felt that claimant could return to work; that he disputed the IR; and that the designated doctor, Dr. O, examined him and assigned a five percent IR. Dr. O’s report reflects that on May 4, 1998, he diagnosed chronic low back pain and assigned a “5%” IR.
On April 14, 1998, claimant signed a TWCC-53 form requesting to change treating doctors from Dr. C to Dr. B. This form stated the following reason:
I have been treating with [Dr. C] since I got hurt. My back continues to hurt and has not responded to his care. I need a new doctor who will listen to my concerns and help me lessen the pain from this injury. I request the opportunity to select an alternate doctor under Section 408.022(b) and Section 408.022(c), Texas Labor Code.
This form reflects that the same Commission employee denied the request on April 17, 1998, stating, “Per [Dr. C’s] office, release to return to work, no change in complaints, appears appropriate medical care, claimant has already had alternate choice, has not come in to discuss additional prob.” A DRIS note of April 17, 1998, entered by the Commission employee, states that Dr. C’s last report indicated a return to full-duty work, that there was no change in claimant’s complaints, that claimant had not been to Dr. C to discuss any additional problems, that it appeared that claimant is receiving appropriate medical care and needs to return to Dr. C if he is still having problems, and that claimant has already had an alternate choice of treating doctor. A DRIS note of April 21, 1998, entered by the Commission employee, states that claimant called about the denial of his TWCC-53, and that he was told that if the treating doctor cannot do anything for him, as he contends, he can be referred to another doctor by the treating doctor. Another DRIS note of that date states that lawyer 2 called, that he was given the same information given claimant, that he said that all Dr. C was doing was giving medication, that lawyer 2 was told he could resubmit and indicate what he had just stated, that the Commission would review it when received to see if it meets the requirements and that he had 10 days to dispute the prior denial.
On April 29, 1998, claimant signed a TWCC-53 requesting to change treating doctors from Dr. C to Dr. H. The form stated the following reason:
I have been treating with [Dr. C] soon after I got hurt. My back continues to hurt and has not responded to his care. I have been back to him recently. All he will do is prescribe medicine for my back pain. I do not like or agree with [Dr. C’s] treatment plan. He will not prescribe therapy. I need a new doctor who will listen to my concerns and help me lessen the pain from this injury.
This form reflects that the same Commission employee approved the request on May 4, 1998, for no stated reason. A May 4, 1998, DRIS note entered by the Commission employee states that the TWCC-53 changing from Dr. C to Dr. H was approved, that claimant was unhappy with Dr. C and went in to discuss with Dr. C that all he gets is medication and that he does not agree with Dr. C’s treatment plan. Dr. C’s records reflect that the date of the last record is April 21, 1998.
Claimant testified that while lawyer 2 selected Dr. H, just as he had selected Dr. B, he, claimant, provided the reasons for the request to change; that Dr. C did not examine or do anything to him at the first exam; that he felt Dr. C was verbally abusive to him because when he first told Dr. C about his having had back pain for a while, Dr. C “just told me I was full of BS”; that when he completed the course of PT he wanted more but Dr. C then only treated him with medication; that his April 29, 1998, TWCC-53 states that he had been treating with Dr. C since soon after the injury but, in fact, he did not see Dr. C until January 1998; that the TWCC-53 also says he disagreed with Dr. C’s treatment plan but he had just completed a course of PT prescribed by Dr. C when he filed the form; that he is not presently working; and that he disagreed with Dr. C’s having released him to return to work and that was, variously, “the main reason” and “one of the reasons” he requested to change treating doctors. Dr. C’s records reflect that he prescribed eight weeks of therapy on February 3, 1998, and that on March 17, 1998, he reported that claimant was released for return to work and normal activity.
Claimant also stated that he was given a May 7, 1998, work status report taking him off work until further notice which was signed by Dr. B, even though he had not seen Dr. B since December 1997. In evidence is a work status report dated May 19, 1998, from Dr. H taking claimant off work until further notice. Both work status reports are in evidence, are on identical forms, and reflect that Dr. B and Dr. H are chiropractors with the same address.
Claimant has challenged findings that he was receiving appropriate medical treatment from Dr. C at the time he requested to change treating doctors from Dr. C to Dr. H; that claimant was receiving appropriate medical treatment from Dr. C to reach MMI at the time he requested to change treating doctors from Dr. C to Dr H; that there was no conflict that existed between claimant and Dr. C to the extent that the doctor-patient relationship was jeopardized or impaired at the time claimant requested to change treating doctors from Dr. C to Dr. H; and that claimant requested to change treating doctors from Dr. C to Dr. H because Dr. C had released him to return to work and claimant wanted a new medical report taking him off work. Based on these findings, the hearing officer concluded that the Commission abused its discretion in approving Dr. H as an alternate doctor, a conclusion claimant likewise appeals.
The Appeals Panel has consistently applied an abuse of discretion standard in reviewing requests to change treating doctors. See Texas Workers’ Compensation Commission Appeal No. 941475, decided December 16, 1994, and cases cited therein. In determining whether there has been an abuse of discretion, we look to see whether the hearing officer acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).
Section 408.022(b) provides, in part, that if an employee is dissatisfied with the initial choice of a doctor from the Commission’s list, the employee may notify the Commission and request authority to select “an alternate doctor.” Section 408.022(c) provides, in part, that the Commission shall prescribe criteria to be used by the Commission granting the employee authority to select an alternate doctor and that the criteria may include whether treatment by the current doctor is medically inappropriate, the professional reputation of the doctor, whether the employee is receiving appropriate medical care to reach MMI, and whether a conflict exists between the employee and the doctor to the extent that the doctor-patient relationship is jeopardized or impaired. Section 408.022(d) provides that a change of doctor may not be made to secure a new IR or medical report. And see Rule 126.9(e). Rule 126.9(g) provides that with good cause, the injured employee or carrier may dispute the order regarding a change to an alternate doctor within 10 days after receiving the Commission’s order approving or denying a change of treating doctor and that the dispute will be handled through the dispute resolution process. The carrier contended, both below and on appeal, that claimant failed to dispute the order denying his request to change to Dr. B and instead simply “ran an end run” by filing a new TWCC-53 requesting Dr. H, who offices with Dr. B.
In Texas Workers’ Compensation Commission Appeal No. 961187, decided July 31, 1996, the Appeals Panel affirmed a decision that the employee was not entitled to a change of treating doctors where it was found that the reason for the request was the employee’s disagreement with the treating doctor’s release to return to work and attempt to secure a new report from another treating doctor. In Texas Workers’ Compensation Commission Appeal No. 972480, decided January 16, 1998, we affirmed the hearing officer’s determination that the Commission abused its discretion in authorizing the employee to change treating doctors, noting that the hearing officer “made clear that he believed that the evidence showed that the reason the claimant requested a change of treating doctors to Dr. B on May 16, 1997, was because the claimant did not want to return to work after having been released to return to work by Dr. T on May 12, 1997.”
In the case we consider, claimant’s request to change to Dr. H could be read to be alleging his failure to improve under the care of Dr. C. The Appeals Panel has previously recognized the contention of failure to improve as a basis for an employee’s request to change treating doctors. Texas Workers’ Compensation Commission Appeal No. 950252, decided April 5, 1995. However, claimant also testified that his disagreement with Dr. C’s returning him to work was, variously, “the main reason” and “one of the reasons” for requesting to change to Dr. H. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)).
As claimant states, our decisions in Texas Workers’ Compensation Commission Appeal No. 950232, decided April 4, 1995, Texas Workers’ Compensation Commission Appeal No. 950252, decided April 5, 1995, Texas Workers’ Compensation Commission Appeal No. 961336, decided August 26, 1996, and Texas Workers’ Compensation Commission Appeal No. 970568, decided May 13, 1997, refer to the hearing officer’s looking at the information in the TWCC-53 in determining whether the Commission abused its discretion in approving or denying a request to change treating doctors.[1] While the information in claimant’s TWCC-53 requesting Dr. H does not indicate his disagreement with Dr. C’s returning him to work nor infer that he seeks a new report in this regard, the hearing officer could and did consider that several statements in the TWCC-53 are at best inaccurate, such as claimant’s having treated with Dr. C since soon after the injury and Dr. C’s only prescribing medications and not therapy when the evidence showed claimant had completed an eight-week course of therapy shortly before filing the TWCC-53 in question, and the evidence indicates the Commission knew or should have known this information was incorrect. Under these circumstances, where claimant’s own testimony at least partially impeached the rationale stated in his TWCC-53, and the TWCC-53 contained certain misinformation which the Commission knew or should have known was not correct, the hearing officer could properly consider such in determining the abuse-of-discretion issue. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a).
We are satisfied that claimant has not shown that the hearing officer abused his authority in determining that the Commission exceeded its authority in authorizing the change of treating doctors from Dr. C to Dr. H and we further conclude that the hearing officer’s decision is supported by sufficient evidence and is not against the great weight and preponderance of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge
- We note that the decision in Appeal No. 961187, supra, is silent in this regard. ↑