This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). In Texas Workers’ Compensation Commission Appeal No. 981042, decided June 25, 1998, the Appeals Panel reversed the determination of the hearing officer that the appellant’s (claimant) impairment rating (IR) was 14% as certified by Dr. B, a designated doctor selected by the Texas Workers’ Compensation Commission (Commission). At the initial contested case hearing (CCH), the hearing officer excluded Claimant’s Exhibit No. 2, a stack of medical records, on the grounds of relevancy and the refusal of claimant’s counsel to abide by the request of the hearing officer to cull through the records in order to remove those that were illegible and irrelevant to the issue before him. The claimant then appealed this determination. Because the exhibit was not included in the appeals file, we reversed and remanded to the hearing officer for reconsideration of this decision and inclusion of the exhibit with the record of proceedings. No testimony was elicited by either party at the original CCH. A hearing on remand was not held. The hearing officer issued a new decision and order on July 29, 1998, in which he again excluded Claimant’s Exhibit No. 2 from admission into evidence and found in accordance with his original decision and order that the claimant’s correct IR was 14%. In her appeal of this determination, the claimant argues only that she was entitled to an additional IR for a specific disorder of the “spine.” She does not pursue her appeal of the exclusion of Claimant’s Exhibit No. 2. For this reason, we need not further address it. The respondent (carrier) replies that the decision on remand is correct, supported by sufficient evidence, and should be affirmed.
DECISION
Affirmed.
Dr. B, the designated doctor in this case, examined the claimant on February 28, 1995. He assigned a 16% IR for loss of range of motion (ROM) and specific disorder of the lumbar spine and for loss of ROM of the thoracic and cervical spine. In a letter of May 20, 1996, to the Commission, Dr. B wrote that “it was elected that [claimant] repeat her lumbar [ROM] studies to confirm their original values and validity.” The circumstances of this “election” appeared to be that the claimant raised some questions about how the ROM tests were performed. There was no evidence that the claimant objected to the repeat ROM testing. Less lumbar ROM deficit was found on the repeat examination on May 28, 1996, and Dr. B amended his IR from 16% to 14%. Again, no objection to this process was raised at the CCH. Rather, the claimant’s position has been that she was entitled to an additional IR for a specific disorder of the “spine.” Dr. B has awarded an IR for a specific disorder of the lumbar spine. We assume in the absence of further specificity from the claimant for purposes of this opinion that the claimant seeks an additional rating for a specific disorder of the cervical spine.
Before the record of the original CCH closed, the hearing officer requested Dr. B to review the claimant’s medical records and assess whether she should be assigned a rating for a specific disorder of the cervical spine. Dr. B responded by letter of April 7, 1998. In this letter, Dr. B noted that Dr. BG, the claimant’s treating doctor, diagnosed multiple problems of the cervical, thoracic, and lumbar regions of the spine, but directed his treatment to the lumbar spine “indicating that her primary symptoms were occurring in the lumbar region . . . .” In light of this treatment history and symptom magnification seen by Dr. B at the time of his examination of the claimant he considered her cervical condition to be a strain without neurological compromise which did not meet the requirements of Table 49 of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) that there be documented pain for at least six months before a specific disorder IR can be assigned for an unoperated disc injury. Dr. B also noted that Dr. BG assigned a specific disorder IR to only the lumbar spine, not to the cervical spine.
Section 408.125(e) provides that the report of a designated doctor selected by the Commission is entitled to presumptive weight and the Commission “shall base the [IR] on that report unless the great weight of the other medical evidence is to the contrary.” The only other medical reports in evidence addressing a spine condition consisted of an Initial Medical Report (TWCC-61) of Dr. R, presumably a prior treating doctor, who diagnosed a lumbosacral strain and hand disorder; an MRI of the lumbar spine which reflects a disc protrusion; a report of Dr. BO, apparently also a treating doctor, who diagnosed a lumbar region disc disorder; and a Report of Medical Evaluation (TWCC-69) completed on December 22, 1994, by Dr. BA at the request of the carrier in which Dr. BA assigned a five percent IR solely for a specific disorder of the lumbar spine.
Whether the great weight of the other medical evidence is contrary to the report of the designated doctor is generally a question of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 93459, decided July 15, 1993. This determination is in turn subject to reversal on appeal only if it is so against the great weight and preponderance of the evidence as to be clearly erroneous and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). The other medical evidence as discussed above fails to diagnose cervical pathology or to assign an IR for a specific disorder of the cervical spine. An assignment of an IR for loss of cervical ROM does not compel an additional assignment of an IR for a specific disorder of the lumbar spine. See Texas Workers’ Compensation Commission Appeal No. 94375, decided May 16, 1994. Applying our standard of review to the record of this case, we find the evidence sufficient to support the determination of the hearing officer that Dr. B’s report was entitled to presumptive weight and that the claimant’s correct IR was 14%.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Thomas A. Knapp – Appeals Judge