This appeal arises pursuant to the Texas Workers’ Compensation Act of 1989, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On April 30, and September 2, 1997, a contested case hearing was held. He (hearing officer) determined that appellant’s (claimant) impairment rating (IR) is zero percent and that he is not entitled to lifetime income benefits because he did not sustain an injury to the skull that resulted in incurable insanity or imbecility. Claimant asserts that he disagrees with the IR of zero percent based on the limited examination conducted by Dr. R. He asserts that the designated doctor’s 90% IR should be given presumptive weight, and states that he is entitled to LIBS. Respondent (carrier) replies that the decision should be affirmed.
DECISION
We reverse and remand.
While the decision of the hearing officer shows that the claimant testified, the record reviewed does not reflect testimony by claimant. The medical records reflect that claimant received a blow to the head in _________. There was no issue as to compensability; the only issues were as to IR (maximum medical improvement (MMI) was stipulated to have occurred on June 4, 1994) and whether claimant was entitled to lifetime income benefits based on an injury to the skull resulting in incurable insanity or imbecility.
There were many medical records for the hearing officer to review and weigh. We do not comment on any particular record; weight to be assigned is for the hearing officer to decide. However, the hearing officer decided that the great weight of credible medical evidence is contrary to the findings of the designated doctor. No findings were made that explain this determination. The Statement of Evidence does say:
Apparently, claimant was able to deceive the designated doctor. There is no objective evidence to support brain dysfunction or impairment. [Emphasis added.]
The above is the explanation for not determining the IR based on the opinion of the designated doctor. Texas Workers’ Compensation Commission Appeal No. 92522, decided November 9, 1992 (Unpublished), and many opinions that follow it, provide that when the designated doctor’s opinion is not followed, the hearing officer should:
detail the evidence relevant to the issue in consideration, clearly state why the great weight of the other medical evidence is contrary to the report of the designated doctor, and state in what regard the contrary evidence greatly out-weighs the designated doctor’s report.
The comments from the Statement of Evidence do not provide such an explanation. In particular, the carrier provided the testimony of Dr. G, D.C. who testified at length about a video of claimant that showed his functioning in carrying groceries, driving, and unloading groceries. Dr. G indicated that observations of those movements indicated no impairment. While the designated doctor did not himself evaluate the claimant as to impairment relative to the head injury, he accepted the report of Dr. J and incorporated Dr. J’s IR into that of his own. This practice is allowed. We believe the hearing officer is referring to claimant having deceived Dr. J, not Dr. W personally, the designated doctor. In addition to providing the requisite explanation, the hearing officer should also comment as to how there can be no objective evidence when Dr. J observed claimant in his examination when Dr. G described his observations of a video as providing objective evidence as opposed to subjective evidence, said by Dr. G to be the patient’s report of what he could or could not do. (Dr. G did not examine claimant.) We also note, without commenting upon this evidence either, that Dr. JJ noted in May 1995 that claimant “based on clinical observations” does “have a brain injury.” See Section 408.122 which calls for objective clinical or laboratory findings.
During the hearing the hearing officer decided to send claimant to “another doctor”, Dr. R. He made it clear that when claimant would be examined by Dr. R that if Dr. R’s report was thought correct, it could only replace the designated doctor’s report based on the great weight of the medical evidence. Neither party objected to the use of “another doctor.” We also do not comment upon the efficacy of Dr. R’s opinion.
This remand is based on the requirement to substantiate the use of an IR by a doctor other than the designated doctor. The remand calls for the hearing officer to weigh the medical evidence and if he again finds that the great weight of the medical evidence is contrary to the designated doctor’s opinion, to explain why, as set forth above in Appeal No. 92522, supra. While we do not remand specifically on the issue of whether lifetime income benefits based on an injury to the skull which resulted in incurable insanity or imbecility should be paid, the hearing officer in reviewing and explaining the weight of the medical evidence may, if such evidence indicates that this issue should also be addressed, readdress this issue also.
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 a 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.
Joe Sebesta – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Gary L. Kilgore – Appeals Judge