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 November 15, 2001. The hearing officer determined that the respondent (claimant) had disability from May 3, 2001 (all dates are 2001 unless otherwise noted), until the date of the CCH and that the claimant was “entitled to change treating doctors to [Dr. W] . . . .”
The appellant (carrier) appeals, asserting that the claimant “had no problems with his treating physician, [Dr. A] . . . until after [claimant] quit work” and that the claimant did not have disability based on the report of a Texas Workers’ Compensation Commission (Commission) required medical examination (RME) doctor. The claimant responds, urging affirmance and arguing that the carrier’s appeal was inadequate.
DECISION
Affirmed.
It is undisputed that the claimant sustained a compensable left shoulder injury on _______ when he picked up a paint bucket at work. The claimant reported his injury, went to a hospital emergency room (ER), came back to the employer, and asked the employer’s assistance in finding another doctor because the claimant did not like the ER doctor. The employer’s safety facility manager testified that the employer’s nurse “called several different places and found [Dr. A] was available . . . to see him then.” The safety manager then took the claimant to Dr. A’s office. Dr. A diagnosed a left shoulder strain, prescribed medication, placed the claimant in a physical therapy program, and released the claimant back to light duty with restrictions on the use of his left arm. What the claimant was expected to do on light duty is in dispute. In a note dated May 2, Dr. A noted that the claimant “remains off of work for now.” On May 3 there was a “miscommunication” between the claimant and the safety manager, which led to the claimant leaving the job (the claimant said he thought he had been fired). That same day, the claimant apparently retained an attorney, and someone in the attorney’s office recommended Dr. W, a chiropractor. In an Employee’s Request to Change Treating Doctors (TWCC-53) dated May 22, the claimant sought to change treating doctors from Dr. A to Dr. W. In the narrative, giving the reasons for the request to change doctors, the claimant recited that Dr. A “refused to be cooperative,” that he is “unable to communicate” with Dr. A, that Dr. A did not respond to the claimant’s concerns, and that the claimant’s condition had “not improved under [Dr. A’s] course of treatment.” The Commission approved the requested change on May 24. Dr. W took the claimant off work beginning May 3 and referred the claimant to various specialists. The claimant was examined by a Commission RME doctor, who, in a report dated August 1, opined that the claimant’s left shoulder strain had resolved, that the claimant had “symptom magnification,” and that the claimant could return to work. The claimant was scheduled for arthroscopic surgery on November 27 by one the specialists.
DISABILITY
The hearing officer’s decision, finding disability from May 3 and continuing, is supported by the evidence, namely Dr. A’s May 2 note, Dr. W’s reports, the claimant’s scheduled surgery, and the claimant’s testimony. The hearing officer, as the sole judge of the weight and credibility of the evidence could, and did, find that the Commission RME doctor’s opinion is “without credibility.”
CHANGE OF TREATING DOCTOR
Although not mentioned in the hearing officer’s decision, the claimant, at the CCH, argued that Dr. A was the employer’s choice of doctor, and that in fact Dr. W was the claimant’s first choice of treating doctors. In Texas Workers’ Compensation Commission Appeal No. 011723, decided September 17, 2001, in a similar situation, the Appeals Panel held:
Section 408.022 provides that an injured worker is entitled to an initial choice of treating doctors and may request to change treating doctors if unsatisfied with the initial choice. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9(c)(2) (Rule 126.9(c)(2)) states that a doctor recommended by the employer is not the employee’s initial choice of treating doctors “unless the injured employee continues . . . to receive treatment from the doctor for a period of more than 60 days[.]” The carrier’s argument that the claimant was told she could choose any doctor does not negate the evidence that Dr. S was recommended by the employer.
In this case, the employer’s nurse called “several different places” and told the claimant that Dr. A could see him. Therefore, the argument that Dr. A was recommended by the employer and that the claimant had not treated with Dr. A for more than 60 days has considerable merit. That aside, there is sufficient evidence to support the hearing officer’s decision. The carrier’s argument that there is “absolutely no evidence in the record to support the hearing officer’s statement that “[Dr. A] refused to give records to [Dr. W]” is incorrect. See Claimant’s Exhibit No. 7, the narrative for the TWCC-53.
The hearing officer’s decision is not so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. 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 TRAVELERS INDEMNITY COMPANY OF CONNECTICUT and the name and address of its registered agent for service of process is
C.T. CORPORATION
350 N. ST. PAUL
DALLAS, TEXAS 75201.
Thomas A. Knapp
CONCUR:
Robert W. Potts – Appeals Judge
Edward Vilano – Appeals Judge