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 September 10, 2007. The hearing officer resolved the disputed issues by deciding that the respondent’s (claimant) impairment rating (IR) is 27% and that the Texas Department of Insurance, Division of Workers’ Compensation (Division) did not abuse its discretion in appointing (Dr. A) as the third designated doctor. The appellant (carrier) appealed, disputing the hearing officer’s determination that the claimant’s IR is 27%. The appeal file does not contain a response from the claimant. The hearing officer’s determination that the Division did not abuse its discretion in appointing Dr. A as the third designated doctor was not appealed and has become final pursuant to Section 410.169.
DECISION
Reversed and rendered.
The parties stipulated that the claimant sustained a compensable injury on ___________; the claimant reached maximum medical improvement (MMI) on December 18, 2006; on December 18, 2006, Dr. A (the third designated doctor) assigned a 27% IR; and on March 22, 2007, a carrier-selected required medical examination (RME) doctor assigned a 7% IR. Dr. A examined the claimant on December 18, 2006, and certified that the claimant reached MMI on that date. Dr. A assessed an IR of 27%, utilizing 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). The 27% IR was comprised of the following: (1) 5% whole person impairment for the cervical injury with disc abnormalities, placing the claimant in Diagnosis Related Estimate (DRE) Cervicothoracic Category II; (2) 20% whole person impairment for the lumbar injury with radiculopathy and disc protrusions noted at L4-5 and L5-S1, placing the claimant in DRE Thoracolumbar Category IV; (3) 2% whole person impairment for the left knee, under Table 64 for supracondylar or intercondylar undisplaced fracture; (4) no permanent impairment assessed for the left ankle; and (5) 1% whole person impairment for the left elbow using Figure 35. A letter of clarification was subsequently sent to Dr. A and he responded in correspondence dated January 31, 2007. Dr. A explained that he rated the claimant’s lumbar injury under the Thoracolumbar Category rather than a Lumbosacral Category because the 1993 printing of the AMA Guides states that “[f]or the purposes of this book, the cervical region may be considered to represent the cervicothoracic region, the thoracic region to represent the cervicothoracic region, and the lumbar region to represent the thoracolumbar region.” Dr. A acknowledged that this was changed in later printings of the AMA Guides but maintained that the 1993 printing was still valid for assessing IRs. Dr. A further explained that his findings in the claimant’s clinical examination indicated radiculopathy based on reflex changes, atrophy and strength loss. Additionally, Dr. A clarified that although the claimant did not have a fracture to the bone of her left knee, there was a condylar fracture. Dr. A went on to state that he had discussed this with the surgeon who operated on the claimant’s knee and that the surgeon considered this a “fracture.”
The carrier argues that Dr. A used an improper printing of the AMA Guides, resulting in an incorrect IR. We agree. 28 TEX. ADMIN. CODE § 130.1(c)(2)(B)(i) (Rule 130.1(c)(2)(B)(i)) provides that the appropriate edition of the AMA Guides to use for certifying examinations conducted on or after October 15, 2001, is the fourth edition of the AMA Guides (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the AMA prior to May 16, 2000). The preamble discussing the adoption of Rule 130.1(c)(2) (25 Tex. Reg. 5354, June 2, 2000) specifically noted a change in the language referencing the fourth edition of the AMA Guides to avoid any confusion regarding what fourth edition AMA Guides should be used. If the 1st printing is used it should include corrections and changes as issued by the AMA prior to May 16, 2000. The AMA Guides reflect that the 1st printing of the fourth edition was in June 1993, the 2nd printing was in January 1994, the 3rd printing was in August 1995, and the 4th printing was in October 1999. The October 1999 printing reflects that a change was made to the language relied upon by Dr. A (in the 1993 printing) in assessing impairment for the claimant’s lumbar spine using the DRE Thoracolumbar Category. In the October 1999 printing on page 95 the AMA Guides (4th edition) states that “[f]or the purposes of this book, the cervical region may be considered to represent the cervicothoracic region, the thoracic region to represent the thoracolumbar region, and the lumbar region to represent the lumbosacral region.” In Appeals Panel Decision 051306-s, decided August 3, 2005, the Appeals Panel applied this language and held as follows:
Applying the language from the bottom of page 3/95 of the AMA Guides, if the injury is primarily to the cervical spine the rating would be under part 3.3h, page 3/103 cervicothoracic spine impairment, if the injury was primarily to the thoracic area of the spine the rating would be under part 3.3i page 3/106 for thoracolumbar spine impairment and if the injury is primarily to the lumbar portion of the spine, the impairment would be under part 3.3g page 3/101 lumbosacral spine impairment. Pursuant to part 3.3f, page 3/101, paragraph 8, if more than one spine region is impaired, the doctor is to determine the impairment of the other regions and combine the regional impairments using the Combined Values Chart to express the patients total spine impairment.
In both the 1993 and 1999 printing of the fourth edition AMA Guides DRE Thoracolumbar Category IV: Loss of Motion Segment Integrity or Multilevel Neurologic Compromise allows placement in this category if the claimant has loss of motion segment or structural integrity or bilateral or multilevel radiculopathy. In his narrative report, Dr. A specifically stated that the claimant was being placed for his lumbar injury in DRE Thoracolumbar Category IV because of bilateral and multilevel radiculopathy, noting that flexion/extension films of the lumbar spine were not available for evaluation of loss of motion segment integrity. DRE Lumobsacral Category IV: Loss of Motion Segment Integrity allows placement in this category for a lumbar injury if the claimant has loss of motion segment or structural integrity as specifically defined but does not provide for placement in this category based on bilateral or multilevel radiculopathy.
The hearing officer notes that “pursuant to the AMA Guides, if a patient is to be placed in DRE Category IV because of radiculopathy, the latter must be bilateral or involve several levels. This appears to be the basis of [Dr. A’s] certification and consistent with the AMA Guides, any printing.” This is correct regarding placement for a thoracic injury in DRE Category IV in the Thoracolumbar Category, however, in the instant case the claimant’s lumbar spine was injured and placement should have been in the DRE Lumbosacral Category. The AMA Guides do not provide for placement in DRE Lumbosacral Category IV based on radiculopathy even if it is bilateral and/or multilevel.
We reverse the hearing officer’s determination that the claimant’s IR is 27% because the IR does not comply with the AMA Guides for rating a lumbar spine injury and is not supported by the evidence.
Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the 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. There is only one other certification of IR in evidence which was assessed by the carrier-selected RME doctor. The RME doctor examined the claimant on March 22, 2007, and noted that he did not find evidence of radiculopathy on examination or by review of records. He noted that the claimant had extreme evidence of symptom magnification. The RME doctor certified that the claimant reached MMI on December 18, 2006, and assessed an impairment of 7% under the AMA Guides as follows: (1) 5% whole person impairment for the lumbar spine, placing the claimant in DRE Lumbosacral Category II: Minor Impairment; (2) 0% whole person impairment for the left elbow for range of motion and other disorders; (3) 0% whole person impairment for the left ankle for range of motion or other disorders; and (4) 2% whole person impairment for the left knee from the footnote from Table 62 for pain with patellofemoral compression. The RME doctor noted in his narrative report that he did not find permanent impairment for the claimant’s cervical spine. We render a new determination that the claimant’s IR is 7% as certified by the RME doctor.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
RUSSELL OLIVER, PRESIDENT
6210 HIGHWAY 290 EAST
AUSTIN, TEXAS 78723.
Margaret L. Turner
CONCUR:
Thomas A. Knapp – Appeals Judge
Veronica L. Ruberto – Appeals Judge