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 October 18, 2001. The disputed issues were:
1.Has the Claimant [respondent] reached maximum medical improvement [MMI], and if so, on what date?
2.If the Claimant has reached [MMI], what is the impairment rating [IR]?
3.Did the Claimant have disability from 12/13/99 to 9/28/00 resulting from an injury sustained on __________?
The hearing officer decided that the correct date of MMI could not be determined, therefore, the IR could not be determined. He also decided that the claimant had disability from December 13, 1999, through September 28, 2000. The hearing officer, in his Statement of the Evidence, stated that the “Claimant must be re-examined by the designated doctor” and appears to order the dispute resolution officer to “schedule an appointment for Claimant to be examined and evaluated.”
The appellant (carrier) appeals, objecting to the hearing officer “remanding the case” to the designated doctor, and asserting that the hearing officer erred in his determinations that MMI and IR could not be determined. The carrier also generally appeals the disability determination on a sufficiency-of-the-evidence basis. The file does not contain either an appeal or a response from the claimant.
DECISION
Affirmed for the reasons stated.
The parties stipulated that the claimant sustained a compensable (apparently cervical spine) injury on ____________. The claimant had cervical spine surgery (diskectomy, anterior fusion with instrumentation) on May 26, 1999. The parties stipulated that Dr. W, the claimant’s then treating doctor, certified MMI on December 13, 1999, with a 32% IR (9% impairment from Table 49, Section (II)(E) of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association, 17% for loss of range of motion (ROM) combined with a 10% impairment of the upper extremity). The carrier sought to dispute the IR only. The parties stipulated that Dr. M was the Texas Workers’ Compensation Commission (Commission)-selected designated doctor. The Commission EES-14 form indicated that Dr. M was to determine the “[p]ercentage of impairment only.” However, the EES-14 form goes on to state that the designated doctor “shall assess an [IR] assuming [MMI] was reached on 12/13/1999.” Dr. M, in an evaluation dated February 5, 2000, certified the December 13, 1999, MMI date and assessed a 14% IR (based on 9% impairment from Table 49, Section (II)(E), 0% for ROM, and 5% impairment from Chapter 14 for depression). There has been no dispute regarding the 5% impairment for the Chapter 14 component.
The claimant subsequently changed treating doctors, and that doctor and other referral doctors began mentioning in May 2000 the possibility of a second cervical spine surgery. In evidence is an Employee’s Request to Change Treating Doctors (TWCC-53) dated September 12, 2000, where Dr. D recommended a (second) cervical spine surgery. The parties stipulated that the claimant reached “statutory [MMI]” (see Section 401.011(30)(B)) on September 28, 2000. It is apparent that spinal surgery was under active consideration at the time of statutory MMI and, consequently, consideration by the designated doctor would be appropriate. Texas Workers’ Compensation Commission Appeal No. 002929-S, decided January 23, 2001. The claimant did have a second cervical spine surgery on December 21, 2000, to include the C6-7 level.
The claimant was apparently examined by the carrier’s required medical examination (RME) doctor at some date. In a letter dated March 21, 2001, the RME doctor’s report was sent to Dr. M by a Commission benefit review officer (BRO). Dr. M replied by letter dated June 19, 2001, in which he commented that “the operative report dated 12/21/00 was unavailable” to him at the time of his original assessment. Dr. M confirmed his original 14% IR but stated “I would like to change [claimant’s] [MMI] to 9/22/00, which is the statutory MMI.” (Hearing Officer’s Exhibit No. 3.)
While the record does contain at least three notations where the claimant had refused an examination or reexamination by the designated doctor, we note that the first mention in the Dispute Resolution Information System (DRIS) notes is dated January 14, 2000, which is before the designated doctor’s examination of February 5, 2000. However, the BRO, in the benefit review conference (BRC) report of September 6, 2001, comments:
This Officer offered re-examination by the designated doctor as an alternative to CCH but the claimant refused the opportunity to be examined again by [Dr. M]. The claimant prefers to overcome the presumptive weight given the designated doctor by Law.
We note that this was a refusal of an offer for reexamination rather than a refusal to attend a designated doctor’s examination. Also, a DRIS note dated September 7, 2001, stated “CLMT refused re-exam,” but this may well relate to the prior day’s comment. The claimant’s current treating doctor, Dr. H, a chiropractor, has assessed a 26% IR and testified that the claimant is not at “medical MMI.”
The hearing officer commented that the “issues in this case are not ripe for adjudication” and found that the correct MMI date and IR cannot be determined. The carrier contends throughout that it only disputed Dr. W’s IR and not the December 13, 1999, MMI date. Although this is not a Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)) case, the Appeals Panel stated early on that “MMI and [IR] either become final together, or no…..” Texas Workers’ Compensation Commission Appeal No. 93377, decided July 1, 1993; and Texas Workers’ Compensation Commission Appeal No. 93529, decided August 2, 1993. In any event, MMI was eventually disputed, at least at the time of the BRC, and made an issue at this CCH. The carrier agreed at the CCH that one of the disputed issues was whether the claimant had reached MMI. The 1989 Act makes quite clear that when MMI and IR are disputed, a designated doctor, either agreed upon by the parties or selected by the Commission, shall resolve that dispute. Sections 401.011(15), 408.122(c), and 408.125. In this case, the parties stipulated that Dr. M is the Commission-selected designated doctor. The hearing officer has found that the great weight of medical evidence is contrary to the December 1999 MMI date and this is supported in the record.
The carrier contends that because the claimant “expressly refused [the BRO’s] offer of a reexamination” she waived her right for reconsideration by the designated doctor. The carrier speaks in terms that the claimant “refused” to go back to the designated doctor; however, our reading of the BRC report is that the report merely indicated that the claimant refused the BRO’s offer to have her reexamined, something different from refusing to go when ordered.
We do not disagree that the claimant should be reexamined by the designated doctor. We would add that the designated doctor should be advised of the correct date of statutory MMI and should be asked to consider the second surgery in assigning an IR from Table 49.
If the reexamination ordered by the hearing officer in this case has already taken place, then the appropriate Commission personnel may wish to seek clarification from the designated doctor regarding the points raised in this decision.
The hearing officer’s determinations regarding disability are sufficiently supported by the testimony and documentary evidence and are affirmed.
The hearing officer’s decision and order are affirmed for the reasons stated.
The true corporate name of the insurance carrier is FREMONT COMPENSATION COMPANY and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Thomas A. Knapp – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Robert E. Lang
Appeals Panel
Manager/Judge