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 was held on February 3, 1997. She (hearing officer) determined that in a Report of Medical Evaluation (TWCC-69) dated March 24, 1992, Dr. S certified that the appellant (claimant) reached maximum medical improvement (MMI) on March 24, 1992, with a five percent impairment rating (IR); that Dr. S’s certification was the first certification of MMI and IR; that the claimant received the first certification in late March or early April 1992; that the claimant did not dispute Dr. S’s certification until March 1996; that the first certification of MMI and IR became final under the provisions of Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)); that the claimant reached MMI on March 24, 1992, with a five percent IR according to the first certification; and that the claimant had disability from March 25, 1992, through April 12, 1992, but that he did not have disability from April 13, 1992, to October 1, 1993. The claimant appealed, stating that all of the findings of fact made by the hearing officer are incorrect, that he was not aware of the first certification of MMI and IR, and that he was misdiagnosed by Dr. S. The respondent (carrier) replied, urging that the evidence is sufficient to support the determinations of the hearing officer, that the evidence establishes the claimant received the first certification of MMI and IR as determined by the hearing officer, that the evidence does not establish the claimant was misdiagnosed by Dr. S, and that the certification of MMI by Dr. S was not prospective. The carrier requested that the decision of the hearing officer be affirmed.
DECISION
We reverse and render in part and reverse and remand in part.
The parties stipulated that the claimant sustained a compensable left shoulder injury on_____. After being taken to an emergency room, the claimant was treated by Dr. S, who specializes in arthroscopic knee and shoulder surgery. The claimant testified that Dr. S performed surgery on him about two or three months after he was injured, but he did not remember the date. The claimant said that he did not receive a copy of a certification of MMI and IR from Dr. S in 1992, that he first became aware of the certification in March 1996, and that he disputed the certification soon after he received it. The claimant was shown a letter from Dr. S dated March 24, 1992, that indicated a copy was sent to him at a certain address and copies of checks with dates from March 9, 1992, to July 6, 1992, from the carrier made payable to the claimant sent to the same address. The claimant denied receiving the letter but acknowledged that he received the weekly checks at that address and stated that he advised the carrier when he moved to another location. The claimant’s testimony concerning the work he did after the injury is not crystal clear; however, he apparently, did not earn his preinjury wage from March 25, 1992, to October 1, 1993. The claimant stated that in 1996 Dr. W became his treating doctor and performed surgery on his shoulder.
The TWCC-69 from Dr. S states that the claimant reached MMI on April 13, 1992, with a five percent IR. In the section entitled BODY PART/SYSTEM appears “0% left shoulder.” The TWCC-69 is not dated; however, a letter attached to the TWCC-69 and addressed to the carrier is dated March 24, 1992. The letter states:
This is a final report from this Orthopaedic Surgeon regarding the above patient who was seen in my office on 3-24-92.
This patient has come in asking me to discharge him and allow him to return to work. He says that he did have some pain about a week ago, but overall he is doing okay. He has been working out a [Gym].
I sent him for work tolerance screening and work hardening. He did the work tolerance screening. His job specifications are classified by the DOT as medium (630.281-018). His evaluation at the time of his testing showed him to be fit to work at the light level.
The patient’s shoulder is stable. He says it no longer comes out. He lacks a few degrees of external rotation. He refuses to do the work hardening.
I have discussed with him that in light of this, at the present time, considering that he is not prepared to undergo further rehabilitation, he has reached maximum medical benefit from treatment. I reviewed AMA Guidelines. In my opinion, he has ten percent permanent partial physical impairment to the left shoulder and five percent to the whole body. He is released to return to work, light duty, on 4-13-92. Should he choose to undergo the work hardening program, this would obviously invalidate my opinion that he has reached maximum medical benefit at the present time and it is my contention that he could elevate himself to the medium job level and return to his original type of employment.
In a letter dated February 9, 1993, Dr. S reported that the claimant said he had been back to work, that the claimant complained of pain behind the shoulder blade, that he diagnosed rhomboid bursitis and prescribed anti-inflammatory medication, and that the claimant may continue working. In a letter to the carrier dated August 8, 1996, Dr. S stated that he saw the claimant on that day; that the claimant had changed his care to Dr. W; that the claimant advised him that about two weeks earlier Dr. W had performed surgery to alleviate impingement syndrome; that the claimant asked him to remove the IR he assigned; and that in light of the subsequent surgery, he thought doing so was reasonable. A report from Dr. W indicates that he performed the surgery on July 15, 1996.
We first address the determination of the hearing officer that the first certification of MMI and IR by Dr. S became final. Rule 130.5(e) provides that the first IR assigned to a claimant is considered to be final if the rating is not disputed within 90 days after the rating is assigned. The 90-day period begins to run when the party receives written notice of the first certification of MMI and IR. Texas Workers’ Compensation Commission Appeal No. 93691, decided September 15, 1993. The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). The trier of fact may believe all, part, or none of any witness’s testimony because the finder of fact judges the credibility of each and every witness, the weight to assign to each witness’s testimony, and resolves conflicts and inconsistencies in the testimony. Taylor v. Lewis, 553 S.W.2d 153 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.); Texas Workers’ Compensation Commission Appeal No. 93426, decided July 5, 1993. Receipt of the first certification of MMI and IR may be established by circumstantial evidence. Texas Workers’ Compensation Commission Appeal No. 962190, decided December 13, 1996. The determination of the hearing officer that the claimant received the first certification of MMI and IR in late March or early April 1992 is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
Receipt of the first certification of MMI and IR and the fact that it was not disputed within 90 days after receipt alone do not resolve the issue of whether that certification became final under the provisions of Rule 130.5(e). In Texas Workers’ Compensation Commission Appeal No. 952230, decided February 12, 1996, the Appeals Panel stated that an ambiguous first certification cannot become final under Rule 130.5(e). In that case, the doctor listed the claimant’s IR as five percent in two places and in the blank next to the date of MMI indicated two percent. The Appeals Panel affirmed a determination that the first certification of MMI and IR did not become final. A prospective certification of MMI is invalid. With no valid MMI date there can be no valid IR, there is nothing for the claimant to dispute, and there is nothing to become final under the 90-day rule. Texas Workers’ Compensation Commission Appeal No. 93259, decided May 17, 1993. In Texas Workers’ Compensation Commission Appeal No. 93965, decided December 10, 1993, the report of the first certification of MMI and IR dated December 11, 1992, contained “[u]nless the patient participates in an active work hardening program, I believe that he has achieved [MMI] at this time.” Another exhibit indicated that at some time prior to March 26, 1993, the claimant was referred to a work hardening program. The Appeals Panel stated that the certification of MMI was conditional and that without a valid determination of MMI, no IR was assigned to the claimant which he could fail to dispute within the 90 days.
In the case before us, the TWCC-69 in evidence has a five percent IR and a zero percent for the left shoulder on the form itself and a letter dated March 24, 1992, attached to the TWCC-69, states that he has a five percent whole body impairment and a 10% permanent partial physical impairment to the left shoulder. The TWCC-69 itself states that the claimant reached MMI on April 13, 1992; while the letter does not state the date the claimant reached MMI, it states that he is released to return to work at light duty on April 13, 1992, and contains:
I have discussed with him that in light of this, at the present time, considering that he is not prepared to undergo further rehabilitation, he has reached maximum medical benefit from treatment. . . . Should he choose to undergo the work hardening program, this would obviously invalidate my opinion that he has reached maximum medical benefit at the present time and it is my contention that he could elevate himself to the medium job level and return to his original type of employment.
Considering the TWCC-69 and the attached letter dated March 24, 1992, the first certification of MMI and IR by Dr. S is conditional and ambiguous and may also have a prospective MMI date, there was nothing for either party to dispute, and the first certification did not become final under the provisions of Rule 130.5(e). We reverse the determinations that the first certification of MMI and IR became final under the provisions of Rule 130.5(e) and that the claimant reached MMI on March 24, 1992, with a five percent IR. We render a decision that the first certification of MMI and IR did not become final under the provisions of Rule 130.5(e).
We next address the determination that the claimant did not have disability from April 13, 1992, to October 1, 1993. The hearing officer made the following finding of fact:
FINDING OF FACT
4.The claimant was unable to obtain and retain employment at wages equivalent to his wage before September 24, 1991 from March 25, 1992 through April 12, 1992 as a result of his injury of _____. He had no such inability from April 13, 1992 to October 1, 1993.
In his letter dated March 24, 1992, Dr. S stated that the claimant asked him to discharge him and allow him to return to work. Dr. S also stated that the claimant’s job specifications are classified as medium and his evaluation at the time of testing showed him to be fit to work at the light level. Dr. S wrote:
He is released to return to work, light duty, on 4-13-92. Should he choose to undergo the work hardening program, this would obviously invalidate my opinion that he has reached maximum medical benefit at the present time and it is my contention that he could elevate himself to the medium job level and return to his original type of employment.
Dr. S released the claimant to return to light duty, not to the medium-duty job at which he was working at the time he was injured. At an unspecified date the claimant began working at wages less than his preinjury wage. In Texas Workers’ Compensation Commission Appeal No. 941092, decided September 28, 1994, the Appeals Panel cited Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991, and stated that when a claimant has a conditional medical release, such as a release for light duty, disability has not ended unless evidence shows that employment was reasonably available which met the conditions of the release and that when there is a conditional medical release in effect there is no positive requirement on the claimant to seek employment. As stated earlier, the activities of the claimant concerning work from March 24, 1992, to October 1, 1993, are not crystal clear. The determination of the hearing officer that the claimant did not have disability from April 13, 1992, to October 1, 1993, is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. King, supra, and Pool, supra. We reverse that determination of the hearing officer and remand for further consideration and development of the evidence.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file the request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s Division of
Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Tommy W. Lueders – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Joe Sebesta – Appeals Judge