This appeal arises 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 June 23, 1997. The issue at the CCH was whether the carrier was entitled to a reduction of claimant’s impairment income benefits (IIBS) and supplemental income benefits (SIBS) due to contribution from an earlier compensable injury. The claimant did not file a response to the appeal.
The hearing officer determined that the carrier was entitled to contribution at the rate of 10.53 percent.
The carrier has appealed. Arguing that it wishes to make clear that it is not appealing the finding that it is entitled to contribution and is appealing only the percentage found by the hearing officer. The carrier argues that it proved it is entitled to 58.82%. There is no response.
DECISION
Reversed and rendered. The effects of the prior injury having been excluded from the current IR. The carrier has not shown itself entitled to further contribution.
We first note that we do not regard our review as being limited merely to the amount of contribution allowed. A request for our review of the percentage necessarily, in our opinion, compels review of the threshold issue of entitlement to any percentage of contribution. Even under claimant’s argument for a narrower review confined to the percentage amount, we are of course free to consider whether the evidence compels either a higher or lower contribution rather than that found by the hearing officer, including zero.
The hearing officer has fairly stated the evidence concerning the injuries. Claimant sustained a back injury in the course and scope of employment on __________, resulting in a herniated disc at L5-S1, with differing opinions about whether there was also one at L4-5, and had laminectomy and diskectomy at L5-S1 on October 2, 1990. The actual operative report is not in evidence. His surgeon, Dr. J, wrote on February 18, 1991, that he had some persistent pain and diminished range of motion in flexion and extension, but was neurologically intact. Dr. J stated his opinion that claimant had 40% “permanent and partial disability.” Claimant testified, however, as to his activities before that injury and after surgery, and presented evidence that the impact on his life and ability to work was diminished only to a minor degree, and he was able to resume his work and athletic activities.
Claimant was again injured on (date of 2nd injury), while employed by (employer). He was working to disengage a steel beam when he felt a pop in his back. This injury involved the same levels of his lumbar spine. An MRI diagnosed an annular tear. Claimant had surgery fairly described as much more extensive than his previous surgery, involving fusion and the insertion of hardware.
Claimant agreed that a designated doctor, Dr. S, had assessed a 17% impairment rating (IR) which he had not appealed and which became final. Dr. S noted that claimant had been essentially pain free after his first surgery but that he was not able to return to work after the second. Claimant also testified that he had been unable to resume athletic activities (unlike after the first surgery).
In his narrative report, Dr. S noted the following with regard to a specific impairment from Table 49:
There was only one level and one procedure. I am specifically not including the previous surgery done 3 years ago as that appears to have virtually no bearing on this particular injury.
For claimant’s range of motion (ROM) IR, Dr. S invalidated flexion and extension and included only ROM deficits for lateral ROM, 3% each side, for a total of 6%. Finally, he included 2% for sensory loss.
Dr. S was later asked to comment on any effect from the previous injury. Dr. S pointed out that, had he taken in effect the prior injury, claimant’s IR would have been 19%, and he then would have recommended an apportionment of two percent (or 2/19). He stated, however, that because he did not include the first surgery in his IR, he did not need to apportion it out. Dr. S stated:
Thus, I feel that the rating for spine-specific disorders of 10%, the loss of range of motion for 6%, and the loss of sensation for 2% represent the appropriate impairment for this specific injury and do not relate to any previous injury. [Emphasis added].
The carrier presented an opinion from Dr. C, who did not examine the claimant but reviewed the medical records. Dr. C noted that the more accurate way to assess IR would have been to take into account the previous surgery which would have yielded a 19% IR. Dr. C makes clear his own opinion that the ROM and sensory loss for which claimant received six percent and two percent, respectively, were wholly due to the second injury and surgery.
Dr. C, however, essentially starting with the first injury and working forward, stated that 10% IR would have been assigned to the first injury, with two percent assigned for the surgery after the second injury. Based upon this, he performed a simple arithmetical calculation to recommend what amounts to a 10/19 reduction to benefits. Dr. C’s letter otherwise does not describe how, or if, the effects of the first injury or surgery would have been present after the second surgery with respect to a specific condition of the spine. The carrier offered no opinion as to what the claimant’s IR from Table 49 would have been after the second injury had the first injury not taken place.
Section 408.084(b) requires the Texas Workers’ Compensation Commission (Commission) to consider the “cumulative” impact of two or more injuries on the employee’s “overall impairment” to determine whether and in what proportion the claimant’s IIBS and SIBS may be reduced. We have stated that this will not in every case equate to simple arithmetic. Texas Workers’ Compensation Commission Appeal No. 950735, decided June 22, 1995.
Recognizing that the hearing officer rejected the “simple arithmetic” approach argued by the carrier, we nevertheless must determine, after careful review of the evidence, that his decision is against the great weight and preponderance of the evidence so as to be manifestly unfair or unjust, and we reverse. The hearing officer’s approach would have been appropriate if Dr. S had included in his IR the increment for an additional surgery that he said he excluded. Dr. S gave effective “contribution” to the carrier by not including the 2% for the prior surgery, and this was not appealed. (We note that we have before reversed where a physician has, sua sponte, effectively allowed for contribution at the “front end” by deducting it from his IR. Texas Workers’ Compensation Commission Appeal No. 941405, decided December 1, 1994.) Dr. S otherwise stated that there was no effect of the prior injury on what he observed during his examination. He clearly stated that the current injury would account for, and support, the entirety of his 17% IR.
However, the hearing officer appears to have misread Dr. S’s opinion as supportive of cumulative effect because he used Dr. S’s discussion of his hypothetical rating, and hypothetical apportionment, and then applied it in this case. Noting that Dr. S’s opinion is the “best evidence” on cumulative effect, the hearing officer overlooked Dr. S’s opinion that there was no impact of the prior injury and surgery on the rating that Dr. S actually assigned (as opposed to the hypothetical rating he could have given). The hearing officer otherwise noted correctly numerous facts which support a complete disallowance of contribution in this case, including the superimposition of extensive hardware surgery over the prior surgery.
The carrier is liable for benefits due to the injury which occurs in the course and scope of employment of its insured. We have before stated that the purpose of contribution is to assure that the carrier is liable only for benefits which it would have to pay had the earlier compensable injury not occurred. Texas Workers’ Compensation Commission Appeal No. 92610, decided December 30, 1992. Simply proving the occurrence of a previous compensable injury will not sustain the carrier’s burden to prove the interaction of that injury with the current one on the present impairment. See Texas Workers’ Compensation Commission Appeal No. 961211, decided August 7, 1996. As the carrier also correctly notes, whether benefits were or were not paid for the prior injury is also not dispositive. However, where the effect of a second injury is to essentially obliterate the effects of a first injury, there can be no “contribution.” For example, an injured worker could be left with a five percent upper extremity impairment after a hand injury. If a second injury resulted in amputation, it is clear that the previous hand injury would have no bearing on the residual effects of the amputation. The analysis of cumulative effect must be made by taking the current condition and then “working back,” not by taking the person at his previously uninjured state and working forward. See Texas Workers’ Compensation Commission Appeal No. 941338, decided November 22, 1994. It is worth repeating an oft-quoted provision from Appeal No. 941338:
We believe that consideration of the “cumulative impact” requires not only some assessment of previous injuries but an analysis of how the injuries work together, i.e., the extent to which prior injuries “contribute” to the present impairment. An earlier injury could well have a rating compared to the whole person that does not parallel its impact on a subsequent injur….. this [analysis] would carry out what appears to be the intent of the statute; that the present carrier should not have the amount it pays increased by the effect of an earlier work-related injury that is part of the current impairment. By the same token, a current carrier should not receive a windfall for obtaining credit for an impairment that does not effect the current impairment for which it is liable.
The flaw with Dr. C’s analysis upon which the carrier bases its case is that by “working forward,” he has effectively disallowed any liability for the carrier for the impairment resulting from the annular tear except for the surgical procedure itself. The hearing officer correctly did not credit this approach because he did not base his decision at all on Dr. C’s opinion. Dr. J’s “40% disability” rating is unexplained, but appears also to have considered decreased lumbar flexion and extension that was not part of Dr. S’s IR.
Because the hearing officer credited Dr. S’s opinion, and Dr. S’s opinion, although misread by the hearing officer, is that the first injury and surgery had no effect on his 17% IR for the current injury, we reverse the hearing officer’s decision to allow a 10.532% reduction of income benefits as contribution, and render a decision that the appropriate
percentage of contribution is, under the facts of this case, zero percent. The carrier is liable for the full monthly benefit payable as IIBS or SIBS.
Susan M. Kelley – Appeals Judge
CONCUR:
Christopher L. Rhodes – Appeals Judge
CONCUR IN THE RESULT:
Joe Sebesta – Appeals Judge