This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On September 23, 1997, a contested case hearing (CCH) was held. The issues concerned the impairment rating (IR) to be assigned to the claimant, as well as whether the carrier was entitled to contribution for the effects of an earlier compensable injury.
The hearing officer held that the IR to be assigned to the claimant was seven percent, in accordance with the report of the designated doctor, whose opinion was not against the great weight of other medical evidence. He further held that contribution from the prior injury would be 100% of the claimant’s current rating.
The claimant has filed a summary appeal, arguing that he is entitled to a higher IR and that the carrier is not entitled to any contribution. There is no response from the carrier.
DECISION
Reversed and remanded.
Because we are remanding for further development of the facts which will impact the evidence developed at the CCH, we will give a very brief summary. Claimant was employed by the (employer) on ____________, when he injured his back dumping a 55-gallon drum into a waste drain. Claimant’s objective testing showed herniated discs in his lumbar spine. He also had herniated discs and a 10% IR following a prior compensable injury on ____________. Claimant did not have surgery (according to the records in evidence) for his 1993 injury. There were no stipulations on maximum medical improvement (MMI) at the CCH, so the hearing officer therefore found MMI on the date of the designated doctor’s certification, which was August 1, 1996.
The designated doctor was Dr. F, the same specialty as the claimant’s treating doctor at the time, who was Dr. M. Dr. M had certified a 15% IR with an August 1, 1996, MMI date. Dr. F’s examination was performed in October 1996 and he was asked to assume MMI had been reached on August 1, 1996, so he did not reevaluate it. Dr. F, noting many exaggerated pain responses by the claimant and the lack of correlation with objective evidence, certified that claimant’s IR was seven percent. He also opined that apportioning out the effects of the earlier injury would yield a five percent IR. Dr. F found that the straight leg raising test invalidated the lumbar range of motion (ROM) testing. Dr. M testified that he was not at that time the claimant’s treating doctor. It was his opinion that anyone with herniated discs would have to have a valid straight leg raising test. Likewise, he felt that such a person must also have some sensory loss as a result. Although the claimant’s attorney argued in a succinct final argument only that the 15% IR should be adopted, the claimant testified that he did not agree with either report. He said he continued to feel bad and felt he deserved a higher rating.
It appears that a dispute resolution officer wrote to the designated doctor on February 10, 1997, pointing out that the left lateral lumbar ROM was not invalid, that Dr. F did not test six times, and that the designated doctor did not have the most current medical records as of that date. The record does not include a response.
The Appeals Panel has generally not allowed post-statutory MMI (that is, 104 weeks after income benefits accrue) amendments to IRs. See Texas Workers’ Compensation Commission Appeal No. 950861, decided July 12, 1995. However, where surgery has occurred prior to statutory MMI but after a designated doctor’s examination, the Appeals Panel has held that in certain cases subsequent surgery may show that the earlier finding of the designated doctor was against the great weight of other medical evidence. See Texas Workers’ Compensation Commission Appeal No. 93702, decided September 27, 1993; and Texas Workers’ Compensation Commission Appeal No. 93207, decided May 3, 1993. And the Appeals Panel has reversed and remanded in cases where Texas Workers’ Compensation Commission (Commission) approved surgery after an MMI certification, to allow the designated doctor an opportunity to consider the fact of surgery. See Texas Workers’ Compensation Commission Appeal No. 93336, decided June 16, 1993; Texas Workers’ Compensation Commission Appeal No. 93518, decided August 5, 1993; Texas Workers’ Compensation Commission Appeal No. 941227, decided October 26, 1994; and Texas Workers’ Compensation Commission Appeal No. 961902, decided November 13, 1996 (the latter case also noted that it might be appropriate to request the designated doctor, who had only been asked to certify IR, to reevaluate MMI). While we stress that surgery after MMI does not per se mandate a revision, we note here that Dr. F assumed that claimant did not have an organic basis for some of his pain complaints and limits on ROM, and the subsequent reports of Dr. Z as well as the surgery performed call into question that basic assumption.
Both of the IRs in question were rendered in 1996, the first right around six months after the injury. The records from that time do not indicate that surgery was contemplated. However, claimant had back surgery, after undergoing the second spinal surgical opinion process, on July 11, 1997, performed by Dr. Z. It appears that the claimant began seeing Dr. Z, a neurosurgeon, in early April 1997. On May 22, 1997, Dr. Z noted that conservative therapy had not been successful and that claimant had reduced ROM and considerable pain. Dr. Z’s admission diagnosis was herniated disc at L4-5 and L5-S1, with post-traumatic radiculopathy in the left lower extremity. The date of injury on the surgical reports is the 1996 injury, not the 1993 injury. The Appeals Panel is without explanation in the record as to why the IR resolution, let alone the contribution issue, would proceed apace without any indication that the involved doctors have considered or evaluated the impact of the surgery, which was performed only shortly before the benefit review conference (BRC). Nor does the hearing officer give any indication that he considered the evidence brought into the record demonstrating that the claimant had back surgery. Therefore, we reverse and remand. If there have been ancillary proceedings which adjudicated the extent of injury, those should be officially noticed or brought forward at the remand. We have before stated that our decisions on IR are not advisory, and disputes over the extent of injury which are not activated prior to determination of IR may be considered as waived. Texas Workers’ Compensation Commission Appeal No. 941333, decided November 21, 1994; Texas Workers’ Compensation Commission Appeal No. 950330, decided April 17, 1995. The designated doctor should be given the opportunity to review the records concerning the surgery and to perform a reexamination of the claimant. If the designated doctor made response to the Commission’s February 1997 letter, it should be included in the record.
We must defer any comment on the appealed issue of contribution, in which the hearing officer essentially cancelled out all payment of impairment income benefits to the claimant and rejected the designated doctor’s suggested apportionment. Until the total IR after remand is known, we will not guess or speculate as to matters that may or may not be found to be part of the cumulative impact on the ultimate IR.
We must comment upon a statement made by the hearing officer in his questioning of Dr. M. He stated his understanding that if an injured worker gave a valid straight leg raising test with respect to lumbar ROM, then an IR for lateral lumbar ROM was not warranted. This is not correct. What the Appeals Panel has said is that even if the straight leg raising invalidates the flexion and extension, it cannot be employed to invalidate lateral lumbar ROM. Texas Workers’ Compensation Commission Appeal No. 950213, decided March 30, 1995. An invalid straight leg raising test does not invalidate lateral lumbar ROM.
For these reasons, we reverse the hearing officer’s decision that the claimant’s IR is seven percent, and that the carrier is entitled to 100% contribution from the prior injury, and remand for further development and consideration of the evidence consistent with this opinion.
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 the 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.
Susan M. Kelley – Appeals Judge
CONCUR IN THE RESULT:
We concur in the result in this case. In doing so, we expressly disassociate ourselves from any suggestion that post-certification surgery in itself requires a reversal.
A reversal, however, is required, we believe, because nowhere does the hearing officer address the Dispute Resolution Officer’s letter of February 10, 1997 to Dr. F. This letter raises important questions about D. F’s compliance with the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association, and requires a response from Dr. F to be considered by the hearing officer before a resolution of the IR issue can be made.
On remand, the hearing officer should obtain a response, or failing same, may wish to refer the matter to a second designated doctor. See Texas Workers’ Compensation Commission Appeal No. 961902, decided November 13, 1996.
Finally, it should be noted that the summary nature of this appeal does little to facilitate review and raises the question of whether some, if not all, plausible points of the appeal have, in effect, been waived.
Alan C. Ernst – Appeals Judge
Tommy W. Lueders – Appeals Judge