This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 9, 2001. In Texas Workers’ Compensation Commission Appeal No. 011779, decided September 18, 2001, the Appeals Panel remanded the case for correction of the carrier insurance information and “an explanation from [Dr. M] on how he arrived at negative [range of motion] ROM figures, or for Dr. M to convert those figures to positive values… .” The hearing officer solicited a corrected Insurance Carrier Information form from the appellant (carrier), which was admitted as Hearing Officer’s Exhibit No. 4. (We note that that form still does not conform to the style of the case used by the hearing officer or the carrier. Consequently, we have reformed the style of the case to conform to the information listed on the corrected Insurance Carrier Information form.)
The hearing officer, in his current decision, recites that “[n]o further hearing [on remand] was necessary and none was held.” The hearing officer lists as additional Hearing Officer’s Exhibits Nos. 4 and 5 “Fax cover and transmittal confirmation” to both the carrier’s and the respondent’s (claimant) attorneys. We are unsure of what was sent to the parties in view of the carrier’s objection in its appeal “that the hearing officer did not make his letter to the designated doctor or the designated doctor’s response available to the parties to allow the parties an opportunity to respond.” This omission would ordinarily result in a remand; however, since we are unable to remand a second time (see Section 410.203(c)), we note the error and conclude that the carrier’s appeal adequately sets out its position and the argument it would have made to the hearing officer. We conclude, under the circumstances of this case, that the carrier’s inability to comment on Dr. M’s report does not constitute reversible error necessitating the rendering of a new decision.
On the merits, the hearing officer determined that Dr. M’s, the designated doctor, maximum medical improvement (MMI) date and 16% impairment rating (IR) were correct as not being contrary to the great weight of the other medical evidence. See Section 408.125(e). The MMI date was not appealed.
The carrier again appeals, arguing that the “designated doctor did not address or explain why the T1 cervical flexion measurements resulted in a 0% impairment, but the other negative figures resulted in a 3% impairment.” (Actually, the use of a -1 for cervical right lateral flexion resulted in a 2% impairment, and the use of a -1 for cervical left lateral flexion resulted in a 1% impairment.) The file does not contain a response from the claimant.
DECISION
Affirmed.
The background facts are set out in Appeal No. 011779, supra, and will not be repeated here. At issue is Dr. M’s 16% IR and the use of negative numbers on the reproduction of Figure 83(a) of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association. The hearing officer sent our decision in Appeal No. 011779 to Dr. M and asked for an explanation of how Dr. M “arrived at negative ROM figures.” Dr. M responded by letter dated October 17, 2001, explaining his procedure and that placement of the inclinometers (which resulted in the negative numbers) “will not affect the overall mobility or consistency factors in any significant way.” We do not consider that a satisfactory explanation regarding the use of negative numbers.
However, in reviewing the Figure 83(a) calculations, we note that the carrier does not object to the use of negative numbers in the cervical flexion portion, which resulted in a 0% impairment. In reviewing the 1 negative number given for the cervical right and left lateral flexion, using Table 52, even if the negative 1 is not used, the impairment would remain the same. For the right lateral flexion, whether the flexion angle is 20 or 27 the impairment would remain 2%. Similarly, for the left lateral flexion, whether the angle is 30 or 32, the impairment will remain 1%. Consequently, we conclude, under the unique circumstances of this case, that the use of the complained-of negative figures did not result in a different IR and were essentially immaterial.
For the stated reason, we affirm the hearing officer’s decision and order.
The true corporate name of the insurance carrier is HARTFORD CASUALTY INSURANCE COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEMS
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Thomas A. Knapp
CONCUR:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge