This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On January 14, 1997, a hearing was held. The (hearing officer) determined that respondent (claimant) did not have shingles as a result of a compensable injury of ______, that claimant had disability during four periods of time, and that claimant’s initial assignment of an impairment rating (IR) did not become final. Appellant (carrier) asserts that certain findings of fact that support a conclusion of law indicating that the initial IR did not become final were made in error; carrier also takes issue with the determination as to disability. Claimant replies that the decision should be affirmed.
DECISION
We affirm in part and reverse and render in part.
Claimant works for (employer) as a flight attendant. She testified that on ______, she fell on stairs at an airport. She saw Dr. H, who treated her conservatively; an MRI he requested showed “right sided disc herniation at C5-6” according to claimant. In a report dated May 19, 1995, in evidence, Dr. H stated that a cervical MRI showed “C5/C6 soft disc herniation.” She said that in June, Dr. H told her that when she reached maximum medical improvement (MMI) he would have an IR assigned to her. Thereafter, in July 1995, claimant said that Dr. H had another doctor, Dr. M, with Dr. H in attendance, perform an IR evaluation on her. MMI was certified as of July 3, 1995, with a four percent IR, by Dr. M with Dr. H in agreement. The parties stipulated that no dispute was made within 90 days.
Claimant thereafter returned to work and from time to time would have a “setback” in which she would be off work approximately 10 days. In March 1996 she was removed from work and has not been back. She stated that in April 1996 she had another MRI performed which showed (at the same level) “a disc herniation on the left side.” She subsequently had fusion surgery at the C5-6 level.
The hearing officer found that the compensable injury “which included a left posterior herniation that continued to worsen,” was not “fully diagnosed” by Dr. M or any other physician within 90 days of the initial assignment of IR. He also found that there was a “substantial change” in claimant’s medical condition after the initial assignment of IR. The relevant conclusion of law then stated that the initial assignment of IR did not become final.
Dr. M’s narrative accompanying the Report of Medical Evaluation (TWCC-69) refers to the MRI showing a herniation at C5-6 “on the right.” Dr. M then gave four percent based on range of motion because claimant did not have six months of pain, etc., required by Table 49, Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides). Prior to determining that claimant was at MMI, Dr. H had referred her to a neurologist, Dr. F in May 1995. Dr. F wrote that claimant had some numbness, but that he could not relate the pathology to the symptoms and questioned whether the herniation was “asymptomatic.” He noted that she had improved with chiropractic care.
On April 2, 1996, claimant saw Dr. C, a neurosurgeon, at the referral of Dr. H. Dr. C referred to the claimant’s MRI of a herniation at C5-6 as “lateralized somewhat more to the left side than to the right.” Dr. C called for another MRI to see if “the disk is still present.” He considered a ligamentous injury but in an addendum said that “flexion/extension views” showed no abnormal movement. On April 9, 1996, Dr. C referred to claimant’s recently made MRI as showing, “the disk protrusion that was there between C5 and C6 previously has now resolved.” He added, “I think it is still an area of weakness that could result in her having root-like symptoms from time to time.” (Emphasis added.) He called for strengthening and a return to work. The MRI Dr. C read as showing resolution was made on April 4, 1996, and reported by Dr. Me as, “In particular, there is no evidence for focal herniation at C5-6.” He added that the “cervical spine is satisfactory.”
Thereafter, in July 1996, carrier sent claimant to another neurosurgeon, Dr. T, for a medical examination. He states that after claimant returned to work she had a “re-aggravation of her symptoms.” He reviewed the 1995 MRI which he said indicated “a disc herniation at the C5-6 interspace in the right.” He said that the April 1996 MRI showed no evidence of a disc herniation, saying it had resolved. He noted no other disc disease. He was of the opinion that claimant’s treatment “to date” had been appropriate for the injury.
Dr. R, a neurosurgeon, in August 1996, also read the 1995 MRI as showing a “central and right C5-6 protrusion.” He then refers to the April 1996 MRI which was reported as normal and says it shows a “definite left-sided C5-6 protrusion abutting the spinal cord.” He adds that the left protrusion was missed by the radiologist (Dr. Me) and also indicates that he asked Dr. S, “a neuroradiologist,” to “re-read” the scan. On August 15, 1996, Dr. S addressed the April 1996 MRI and said there was a left posterior C5-6 disc herniation, “small but distinctly focal and asymmetric, with evidence of annular tearing, rostrocaudal extension, and spinal cord impingement.” Dr. R’s operation report of October 1, 1996, indicated that the disc was torn with herniation on the left, which was removed.
The hearing officer is the sole judge of the weight and credibility of the evidence. See Section 410.165. The medical evidence is very much in conflict as to whether claimant’s condition “substantially changed,” but there is evidence of a change between the MRIs of 1995 and 1996. We will not say that the determination of the hearing officer as to a substantial change is against the great weight and preponderance of the evidence. See Texas Workers’ Compensation Commission Appeal No. 941709, decided January 31, 1995, which said that such a criterion was sometimes used in questions of revision of an IR after statutory MMI had been reached, not in addressing the 90-day rule. The finding of fact regarding a substantial change of condition does not control whether the initial IR became final or not. See also Texas Workers’ Compensation Commission Appeal No. 960854, decided June 13, 1996, where we said that a substantial change of condition is not in itself a reason for not applying in the finality provisions of Rule 130.5(e) “especially where the change in condition is not tied to a clear misdiagnosis at the time the initial IR was assigned.”
The finding of fact that claimant’s compensable injury included a left herniation that was “not fully diagnosed” does not address the test for an initial IR not to become final under Rule 130.5(e). Texas Workers’ Compensation Commission Appeal No. 93489, decided July 29, 1993, said that if there was “compelling medical or other evidence” showing “significant error” or “clear misdiagnosis,” then a “situation could result where the passage of 90 days would not be dispositive.” (Emphasis added.) In the case before us, we see no doctor indicating that claimant had not been treated appropriately at the time that the initial assignment of IR was made. Dr. C and Dr. T say that the 1996 MRI showed the herniation to have resolved; Dr. M was consistent with that view in saying there was no evidence of focal herniation. In contrast, Dr. R read the 1996 MRI as showing a herniation at C5-6 on the left and he obtained a reread from Dr. S that agreed there was a small herniation on the left. Dr. R did not read the 1995 MRI as showing a herniation on the left. Neither Dr. R nor any other doctor stated that the 1995 MRI was improperly made or unclear and that another MRI or other tests should have been made at the time. Dr. F and Dr. T both read the 1995 MRI as showing herniation at C5-6 on the right. The only indication of any question is by Dr. C, who interpreted the 1995 MRI as saying that the disc herniation shown at C5-6 “lateralized somewhat more to the left side than to the right”; Dr. C is the same doctor who then read the 1996 MRI as showing no herniation at all.
The medical evidence discussed above does not reach the standard required by Appeal No. 93489, supra. There is insufficient evidence to support any implied finding (from the finding of fact that claimant was not fully diagnosed) that there is compelling medical evidence of a clear misdiagnosis or significant error. Even if there had been compelling medical evidence of a left herniation at C5-6 rather than a central or right herniation, that does not necessarily mean that the determination would have been affirmed as a “clear misdiagnosis.” In addition, when a finding of such a clear misdiagnosis is sustained, that only means that a situation “could” result in which passage of the 90 days without a dispute would not control. See Texas Workers’ Compensation Commission Appeal No. 960963, decided July 3, 1996, and Texas Workers’ Compensation Commission Appeal No. 961764, decided October 16, 1996.
The carrier also attacks the finding of disability. Disability may be found regardless of MMI, but temporary income benefits (TIBS) that are paid based on disability are not authorized after MMI is reached. With the determination that the initial IR was not final reversed and a new decision rendered that the initial IR became final, MMI was reached on July 3, 1995, with a four percent IR. As a result, no TIBS are due for any period after July 3, 1995, which are all the periods in which TIBS were found to be due.
The decision found at the end of the opinion of the hearing officer is affirmed as to shingles not being part of the compensable injury, as to a compensable injury having occurred on ______ (not 1996), and as to disability. The remainder of the decision is reversed and a new decision is rendered that the initial IR became final and that no TIBS are due based on the periods of disability found in this decision. The order is affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Elaine M. Chaney – Appeals Judge