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 October 29, 2001. The hearing officer resolved the disputed issue by concluding that the first certification of maximum medical improvement (MMI) and impairment rating (IR) assigned by Dr. F on June 20, 2000, did not become final under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)). The appellant (carrier) appeals, asserting that the determination is against the great weight and preponderance of the evidence. The respondent (claimant) responds, contending that Dr. F misdiagnosed the claimant’s injury; that the requirement of surgery and additional treatment rendered Dr. F’s certification invalid; and that the carrier received the claimant’s treating doctor’s, Dr. B, dispute within 90 days and notice of agency is not required within the 90-day period. The claimant asserts that the decision and order of the hearing officer should be affirmed.
DECISION
Affirmed.
The claimant sustained a compensable injury on ___________. Dr. F evaluated the claimant at the carrier’s request and certified that the claimant reached MMI on June 13, 2000, with an IR of 0%. Rule 130.5(e) provides that the first certification of MMI and IR assigned to an employee is final if the certification of MMI and/or the IR is not disputed within 90 days after written notification of the MMI and IR is sent by the Texas Workers’ Compensation Commission to the parties, as evidenced by the date of the letter, unless based on compelling medical evidence the certification is invalid because of:
(1)a significant error on the part of the certifying doctor in applying the appropriate AMA Guides [Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association] and/or calculating the [IR];
(2)a clear mis-diagnosis or a previously undiagnosed medical condition; or
(3)prior improper or inadequate treatment of the injury which would render the certification of MMI or [IR] invalid.
The hearing officer found that Dr. F misdiagnosed the claimant’s condition and that the claimant had not received adequate treatment at the time of Dr. F’s examination. The claimant testified, and the evidence reflected, that he had surgery on his right shoulder approximately two months after the certification of MMI and IR by Dr. F. The Appeals Panel has held that a subsequent determination for surgery is not, per se, a basis to rule a first certification invalid. Texas Workers’ Compensation Commission Appeal No. 93987, decided December 14, 1993. However, given the medical evidence of the claimant’s diagnoses before and after the first certification, we conclude that the hearing officer’s determination is not against the great weight and preponderance of the evidence.
Whether the claimant’s first certification of MMI and IR assigned by Dr. F on June 20, 2000, became final under Rule 130.5(e) and whether any of the exceptions to Rule 130.5(e) apply are factual issues for the hearing officer to decide. There was conflicting evidence submitted on the disputed issue. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). Nothing in our review of the record indicates that the challenged determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Since the decision could be affirmed for the reasons set out above, we will not address the arguments regarding the 90-day time period for dispute of the MMI and IR.
The decision and order of the hearing officer are affirmed.
The true corporate name of the insurance carrier is ASSOCIATION CASUALTY INSURANCE COMPANY and the name and address of its registered agent for service of process is
C T CORPORATION SYSTEM
350 N. ST. PAUL STREET
DALLAS, TEXAS 75201.
Gary L. Kilgore – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Michael B. McShane – Appeals Judge