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 commenced on September 25, 2001, and concluded on November 5, 2001. The hearing officer determined that the appellant (claimant) reached maximum medical improvement (MMI) on November 26, 1996, with a 6% impairment rating (IR), as assessed by the designated doctor.
The claimant appeals, contending that “later opinions” contradict the designated doctor’s report and that her MMI date should be “later” with a “higher” IR. (Presumably the 11%, as assessed by the current treating doctor in a stipulation.) The respondent (carrier) responds, urging affirmance.
DECISION
Affirmed.
The claimant was a home health aide, and the parties stipulated that she sustained a compensable (apparently cervical spine) injury on ___________, moving a patient. The claimant testified that she sought medical treatment either that day or in the next few days and was off work for one week after which she returned to work at light duty. During the summer of 1996, the claimant saw various doctors, and the medical reports (including an MRI) are conflicting as to whether the claimant had a neck strain and degenerative disc disease or a herniated disc. The claimant apparently began losing time from work in July 1996.
The claimant was evaluated by Dr. O, the carrier’s required medical examination doctor, who, in a report dated November 26, 1996, assessed the claimant at MMI on that date with a 6% IR (from Table 49 of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association) with a diagnosis of “degenerative and traumatic arthritis of the cervical spine.” The claimant disputed that report, and the parties stipulated that Dr. T was appointed as the designated doctor. In a Report of Medical Evaluation (TWCC-69) and narrative dated in April 1997, Dr. T adopted the November 26, 1996, MMI date and assessed a 6% IR, based on 4% impairment from Table 49, Section (II)(B) and 2% impairment for loss of range of motion. Dr. T commented that the “MRI scan of the cervical spine showed degenerative disc with minmum [sic] bulging without herniation.”
The claimant saw several other doctors and was eventually referred to Dr. P, who, in August 1998, recommended further diagnostic testing and, in a report dated October 20, 1998, recommended spinal surgery, which was performed on February 18, 1999.
Much of the CCH and the claimant’s position dealt with when the claimant received a complete report of the designated doctor. However, the claimant admitted that she received a letter dated May 15, 1998, from her then attorney, which stated that Dr. T had assessed a November 26, 1998, date of MMI and a 6% IR, and that the claimant had received her impairment income benefits and that “you have been paid all the benefits due you on this claim.” The hearing officer commented that the date of statutory MMI (see Section 401.011(30)(B)) was “not clear” and that the claimant “stated that, although she did miss time from work in May 1996, she continued to work light duty until July 24, 1996,” and, therefore, giving the claimant “the benefit of the doubt,” statutory MMI would be “on or about July 24, 1998.”
The hearing officer found, and is supported by all the evidence, that spinal surgery was not being considered at either Dr. T’s assessment in April 1997 or on the date of statutory MMI of July 24, 1998 (giving the claimant the benefit of a doubt). Spinal surgery was not mentioned until August 1998, when Dr. P ordered additional testing, and was not recommended until October 20, 1998.
Sections 408.122(c) and 408.125(e) of the 1989 Act provide that the report of a designated doctor determining the date of MMI and the claimant’s IR shall have presumptive weight and the Texas Workers’ Compensation Commission shall base its determination on such report, unless the great weight of other medical evidence is to the contrary. We have held that the designated doctor’s report should not be rejected absent a substantial basis for doing so. Texas Workers’ Compensation Commission Appeal No. 960897, decided June 28, 1996. We have also held that it is inappropriate for a designated doctor to amend a certification if surgery was not under active consideration at the time of statutory MMI. Texas Workers’ Compensation Commission Appeal No. 002929-S, decided January 23, 2001.
In this case, spinal surgery was not under active consideration until well after statutory MMI. We conclude that the hearing officer did not err in his decision and that the decision is not against the great weight and preponderance of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Accordingly, the hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is ATLANTIC INSURANCE 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
CONCUR:
Elaine M. Chaney – Appeals Judge
Philip F. O’Neill – Appeals Judge