This appeal is brought 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 March 3, 1997. He (the hearing officer) determined that the appellant (claimant herein) reached maximum medical improvement (MMI) on September 5, 1995, with a 10% impairment rating (IR) as certified by Dr. O, a designated doctor selected by the Texas Workers’ Compensation Commission (Commission). The claimant appeals these determinations, expressing his disagreement with them. The appeals file contains no response from the respondent (carrier herein).
DECISION
Affirmed.
The claimant sustained a compensable lumbar injury on _____. Dr. L, the claimant’s former treating doctor, performed a microdiscectomy on March 29, 1995. In a report of June 2, 1995, Dr. L projected a healing period of about six months before an IR would be assigned. At the request of the carrier’s case manager, Dr. L completed a Report of Medical Evaluation (TWCC-69) on October 6, 1995, in which he found the claimant reached MMI on August 11, 1995, and assigned a 10% IR.
On October 16, 1995, Dr. O examined the claimant and on October 25, 1995, completed a TWCC-69 in which he certified that the claimant reached MMI on September 5, 1995. He assigned a 10% IR for a specific disorder of the lumbar spine. He invalidated range of motion (ROM) and found no neurological deficit. In his examination, Dr. O observed that three of eight Waddell signs were positive. He also described in his report the various records of past treatment that he reviewed.
The claimant then changed treating doctors to Dr. ZB. In a progress note of December 4, 1995, Dr. ZB recorded complaints of recurrent left radiculopathy and low back pain. He recommended a post-surgery MRI which was done on December 12, 1995, and showed scar tissue of L5-S1 with a “prolapsed nonherniated disc at L5-S1.” On January 8, 1996, Dr. ZB recommended a “re-operation at L5-S1 with lumbar arthrodesis.” He concluded that the claimant had not reached MMI, but would likely improve with further treatment. Neither the carrier’s nor the claimant’s second-opinion doctor concurred in the proposed surgery. Dr. S, the carrier’s second-opinion doctor, suggested in a report of May 21, 1996, more physical therapy and believed that the claimant was “not truly” at MMI pending more therapy. Dr. D, the claimant’s second-opinion doctor, in a report of June 25, 1996, also suggested further therapy and a multidisciplinary pain management program, as did a Dr. Sy as a precondition for possible surgery.
Dr. O reexamined the claimant at the request of the Commission. In a letter of May 22, 1996, he reaffirmed his prior certification of MMI and IR. In a letter of October 31, 1996, Dr. L also reaffirmed his prior opinion about the date of MMI and IR, noting that he would have to reexamine the claimant if he were to rescind his prior report. He concluded that “I do not think that [claimant] is going to improve either with further treatment, either surgical or conservative” and that he did not have “any element of instability the last time I saw him.”
Section 401.011(30)(A) defines MMI, for purposes of these proceedings, as “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.” We have observed that the achievement of MMI does not mean that a claimant has reached a pain-free status or that further medial care is no longer necessary. See Texas Workers’ Compensation Commission Appeal No. 961244, decided August 12, 1996, and cases cited therein. Rather, MMI signifies that the claimant’s condition is more or less stable and significant improvement cannot reasonably be expected. Texas Workers’ Compensation Commission Appeal No. 931010, decided December 16, 1993. An IR is to be assigned as of the time a claimant is at MMI. Texas Workers’ Compensation Commission Appeal No. 94149, decided March 16, 1994. Sections 408.122(c) and 408.125(e) provide that the report of a designated doctor selected by the Commission is to be given “presumptive weight” and the Commission is to base its determination of MMI and IR on this report unless the “great weight of the other medical evidence is to the contrary.” We have repeatedly commented on the special status afforded the report of the designated doctor and that great weight means more than an equal balancing or preponderance of the evidence. See, e.g., Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. In this regard, only medical evidence, not lay testimony, can be considered in determining whether the presumptive weight given the report of the designated doctor has been overcome. Although a claimant may testify as to how a designated doctor conducted an examination, the claimant’s opinion as to the validity of that examination is not medical evidence and problems or discrepancies identified by the claimant must generally be given medical significance by a medical expert before they can be weighed against the report of the designated doctor. See Texas Workers’ Compensation Commission Appeal No. 93870, decided November 10, 1993, and cases cited therein. Whether the report of the designated doctor has been overcome by the great weight of the other medical evidence is basically a question of fact to be determined by the hearing officer. Texas Workers’ Compensation Commission Appeal No. 93459, decided July 15, 1993.
The claimant in his appeal challenges Dr. L’s opinion, arguing that he was unduly influenced by the carrier’s case manager to certify a date of MMI and IR before medically indicated. While not medical evidence, this argument ignores the fact that Dr. L stood by his opinion a year later, after Dr. O reconsidered and reaffirmed his opinion. Similarly, the claimant contends that Dr. O did not have all his medical reports, particularly x-rays, and because he did not, his report should not be given presumptive weight. In his reports, Dr. O referred to an extensive list of medical reports which he used in conjunction with his examinations to determine the date of MMI and assign an IR. From this, we conclude that Dr. O was satisfied that he had sufficient information on which to base his opinion. The claimant produced no medical evidence to support his contention that Dr. O’s report was fatally defective for lack of prior test data or reports of other doctors.
Ultimately, the claimant’s contention comes down to the disagreement between Dr. O (and Dr. L) that the claimant was at MMI and Dr. ZB’s view that the claimant needs further surgery and more therapy before he can be considered at MMI. This latter view is shared, with the exception of the surgery recommendation, at least by Dr. S and Dr. D. We have observed that a designated doctor’s report is not to be rejected absent a substantial basis to do so, Texas Workers’ Compensation Commission Appeal No. 93039, decided March 1, 1993, and that the medical evidence should be weighed not according to the number of opinions, but according to their “thoroughness, accuracy and credibility with consideration given to the basis [a report] provided for opinions asserted.” Texas Workers’ Compensation Commission Appeal No. No. 93494, decided July 22, 1993.
The medical evidence in this case was contradictory. The opinions of the various doctors suggesting that more therapy was appropriate before making a determination of MMI was weighed by the hearing officer against the adamant view of Dr. O, supported by Dr. L, that the claimant was unlikely to improve significantly as of the date he originally found the claimant to be at MMI. The hearing officer concluded that the presumptive weight afforded the report of the designated doctor was not overcome in this case. We will reverse a factual determination of a hearing officer only if it is so against the great weight of the evidence as to be clearly erroneous and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Having reviewed the evidence, we cannot conclude that the decision of the hearing officer was not supported by sufficient evidence, and, under our standard of review, we decline to reverse that decision.
Finally, we note that the claimant in his appeal asserts that he was not given the opportunity to agree upon the choice of designated doctors. See Section 408.122(c). This argument was not raised at the CCH and will not be considered for the first time on appeal. Texas Workers’ Compensation Commission Appeal No. 91100, decided January 22, 1992. The claimant also requests another Benefit Review Conference to address the issues of MMI and IR. Such relief is not available under the 1989 Act. The claimant may, however, seek judicial review of this decision. See Section 410.301.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Susan M. Kelley – Appeals Judge