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 February 1, 2016, in Houston, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the appellant’s (claimant) impairment rating (IR) is 1%. The claimant appealed, disputing the hearing officer’s determination of the claimant’s IR. The claimant contends that the evidence establishes that the correct IR is 7%. The respondent (carrier) responded, urging affirmance of the disputed IR determination.
DECISION
Reversed and rendered.
The parties stipulated that the carrier accepted a left elbow sprain/strain and a tear of the distal biceps tendon as the compensable injury and that the claimant reached maximum medical improvement (MMI) on June 13, 2015. The sole issue before the hearing officer was the claimant’s IR. The claimant testified that he injured his left arm when unloading ice cream from a truck.
Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 28 TEX. ADMIN. CODE § 130.1(c)(3) (Rule 130.1(c)(3)) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.
Two certifications with the stipulated date of MMI were in evidence. The parties stipulated that (Dr. F) was appointed by the Division as designated doctor to determine MMI and IR. Dr. F examined the claimant on June 13, 2015, and certified that the claimant reached MMI on June 13, 2015, with a 1% IR, using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. F noted that the claimant showed vast improvement including range of motion and strength. Dr. F stated the IR for the claimant is 1% “based on the compensable injury limited to the left elbow.” In his narrative report, Dr. F listed the following diagnoses: left elbow strain/sprain resolved and tear of distal bicep tendon resolved. The narrative reflects that the examination of the claimant lasted thirty minutes and listed the medical documents he reviewed. In the section of the narrative entitled “Results of the Examination” only the following information was included: General: “The claimant was a cooperative and pleasant gentleman and did not seem as if he was in any obvious pain. He displayed normal gait as he walked into the examination room. The claimant did not utilize the assistance of a device.” No range of motion measurements or other description of physical examination findings were included in the narrative report in evidence.
Rule 130.1(c)(3) provides in pertinent part that the assignment of an IR shall be based on the injured worker’s condition as of the MMI date considering the medical record and the certifying examination and the doctor assigning the IR shall:
(A) identify objective clinical or laboratory findings of permanent impairment for the current compensable injury;
(B) document specific laboratory or clinical findings of an impairment;
(C) analyze specific clinical and laboratory findings of an impairment;
(D) compare the results of the analysis with the impairment criteria and provide the following:
(i) [a] description and explanation of specific clinical findings related to each impairment, including [0%] [IRs]; and
(ii) [a] description of how the findings relate to and compare with the criteria described in the applicable chapter of the AMA Guides. The doctors inability to obtain required measurements must be explained.
The narrative from Dr. F which accompanied the Report of Medical Evaluation (DWC-69) does not document clinical findings from an examination performed to assess impairment. Rather, the narrative simply contains a history and notes some of the records reviewed and then assesses impairment. The narrative does not contain any clinical findings of a physical examination. Because the narrative report from Dr. F does not comply with Rule 130.1(c)(3), his assessment of IR cannot be adopted.
Only one other certification with the stipulated MMI date is in evidence. (Dr. Fr), a referral doctor acting in place of the treating doctor, examined the claimant on September 1, 2015. Dr. Fr certified that the claimant reached MMI on June 13, 2015, with a 7% IR, using the AMA Guides. Dr. Fr certified 2% upper extremity impairment for loss of range of motion of the left elbow based on measurements taken for extension. The AMA Guides provide on page 3/64 under Strength Evaluation that “[i]n a rare case, if the examiner believes the patient’s loss of strength represents an impairing factor that has not been considered adequately, the loss of strength may be rated separately. The loss of strength impairment would be combined with other upper extremity impairments.” In his narrative, Dr. Fr stated that the 1% whole person IR assigned by the elbow extension loss does not adequately describe the claimant’s impairment. Dr. Fr noted that the most significant functional issue the claimant was dealing with as a residual, was loss of strength in his left upper extremity. Dr. Fr noted the claimant had significant left hand strength loss which has an impact on his activities of daily living and that the claimant had significant pain and weakness of approximately 50% of comparative elbow flexion and wrist extension. Dr. Fr ordered functional testing to assess the exact degree of weakness and to determine validity of effort. After testing, Dr. Fr stated the functional assessment results established valid criteria. Based on the results, Dr. Fr then assessed 10% upper extremity impairment using Table 34 on page 3/65 for loss of strength. Dr. Fr then combined the upper extremity impairment assessed for loss of strength with the upper extremity impairment assessed for loss of range of motion for a total of 12% upper extremity impairment which is then converted using Table 3 on page 3/20 of the AMA Guides for a total whole person impairment of 7%.
In evidence is a letter dated November 9, 2015, from (Dr. A) the surgeon who operated to repair the claimant’s left biceps tendon tear. The surgeon opined that the assessment of IR from Dr. Fr was much more comprehensive than that of Dr. F and included strength examination of the entire left upper extremity not just by manual motor testing but by computerized functional evaluation to confirm appropriate effort expenditure and bell shaped force vs. time curves. The surgeon opined that the impairment assigned by Dr. Fr would be “more inclusive of all disability resulting from the injury.” In a medical note dated November 9, 2015, the surgeon stated the claimant continued to have pain and limited strength.
In her discussion of the evidence, the hearing officer stated that the report of Dr. F constitutes a mere difference of opinion concerning the proper IR. The hearing officer found that Dr. F’s assignment of 1% IR is not contrary to the preponderance of the other medical evidence. However, as previously discussed Dr. F’s assignment of 1% IR cannot be adopted because he failed to comply with Rule 130.1(c)(3). Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 1% and render a new decision that the claimant’s IR is 7%.
The true corporate name of the insurance carrier is STANDARD FIRE INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
211 EAST 7TH STREET, SUITE 620
AUSTIN, TEXAS 78701-3218.
Margaret L. Turner – Appeals Judge
CONCUR:
K. Eugene Kraft – Appeals Judge
Carisa Space-Beam – Appeals Judge