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 January 28, 2000, in (city 1), Texas. With respect to the issues before her, the hearing officer determined that the Texas Workers’ Compensation Commission (Commission) did not abuse its discretion in approving Dr. P, a chiropractor, as a treating doctor and that the respondent (claimant) had disability resulting from the injury sustained on __________, from August 27, 1999, to September 27, 1999, and from November 1, 1999, through the date of the hearing. In its appeal, the appellant (carrier) asserts that the hearing officer erred in determining that the Commission had not abused its discretion in approving Dr. P as a treating doctor and that the claimant had disability from November 1, 1999, through the date of the hearing. In his response to the carrier’s appeal, the claimant urges affirmance. The claimant did not appeal the hearing officer’s determination that he was only entitled to partial temporary income benefits (TIBS) for the disability period from August 27 to September 27, 1999, when he had been released to part-time light duty and the employer offered him a part-time, light-duty position. In addition, the claimant did not appeal the hearing officer’s determination that he did not have disability for the period from September 28 to October 31, 1999. Thus, those determinations will not be further discussed on appeal.
DECISION
Affirmed in part and reversed and remanded in part.
The parties stipulated that the claimant sustained a compensable injury on __________, while he was working in (city 2), Texas. Initially, the claimant began treating with Dr. L, a chiropractor. On July 26, 1999, the claimant signed an Employee’s Request to Change Treating Doctors (TWCC-53) seeking to change treating doctors from Dr. L to Dr. H. On August 2, 1999, the Commission approved that change. On August 9, 1999, the claimant submitted a letter to the Commission on letterhead from Dr. L’s office asking to rescind the TWCC-53 and requesting that he be permitted to continue treating with Dr. L. The Commission canceled the order approving Dr. H as the treating doctor. Dr. L released the claimant to part-time, light-duty work and in a letter dated August 20, 1999, the employer offered the claimant a part-time job within the restrictions outlined by Dr. L. The claimant declined that offer of employment. On August 23, 1999, the claimant signed a second TWCC-53 requesting to change treating doctors from Dr. L to Dr. S, a chiropractor. The claimant testified that a nurse from Dr. L’s office completed the form for him to sign because he does not read and write English. The section of the TWCC-53 which asks for the reason for the request states:
was uncomfortable with [Dr. L] because he didn’t take x-rays and he is still in a lot of pain. He also wanted to send him back to work before he thought he was ready. He still has a lot of back pain.
On August 26, 1999, the Commission approved the change to Dr. S. Thereafter the claimant moved from city 2 to city 1. Thus, he submitted another request to change treating doctors from Dr. S in city 2 to Dr. G, a chiropractor, in city 1. On September 20, 1999, the Commission approved that request. Dr. G released the claimant to return to full-time, light-duty work and the employer again offered the claimant a light-duty position, which he declined. On October 1, 1999, the claimant another TWCC-53 seeking to change treating doctors from Dr. G to Dr. P. The reason listed for the change is “I am not happy with treatment from current treating doctor. I have severe pain at this time. I would like to switch to [Dr. P] B I would like to switch to a rehabilitation specialist.” On October 7, 1999, an Official Actions Officer (OAO) with the Commission approved the change to Dr. P.
The claimant has his initial appointment with Dr. P on October 13, 1999. In his report, Dr. P diagnosed lumbar radiculopathy, thoracic segmental dysfunction, and thoracic and lumbar myofascitis. Dr. P also stated that he had to rule out lumbar herniation; thus, he referred the claimant for a lumbar and thoracic MRI. The October 19, 1999, lumbar MRI revealed a “moderate size right posterior subligamentous herniation at L4-5,” which “mildly indents the sac and moderately narrows the right foramen and abuts the emanating right L4 root.” The thoracic MRI demonstrated bulging at T6-7, T8-9, and T9-10. On November 1, 1999, the claimant was examined by Dr. B, an orthopedic surgeon, to whom he had been referred by Dr. P. Dr. B confirmed that the MRI demonstrating bulging discs in the thoracic spine and herniation at L4-5 and diagnosed a thoracic strain and lumbar herniation, stated that the claimant’s injury was caused by his “accident at work on ________” and opined that the claimant “is unable to work.” Dr. P also referred the claimant to Dr. D, another orthopedic surgeon, who requested a lumbar myelogram and post-myelogram CT scan. The myelogram and post-myelogram CT scan were performed on January 24, 2000, which confirm the herniation at L4-5. In a letter dated January 25, 2000, Dr. P stated that he had discussed the results of the claimant’s myelogram and CT scan with Dr. D and that Dr. D has agreed that the claimant is a surgical candidate. On January 27, 2000, a recommendation for spinal surgery was submitted.
The carrier argues that the hearing officer erred in determining that the Commission did not abuse its discretion in approving the change from Dr. G to Dr. P. We have frequently noted that the question of whether the Commission improperly denied a request to change treating doctors is reviewed under an abuse of discretion standard. Texas Workers’ Compensation Commission Appeal No. 970686, decided June 4, 1997, and the cases cited therein. An abuse of discretion occurs where the decision maker acts without reference to guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). In addition, we have stated that in making the determination of whether the Commission abused its discretion the hearing officer should consider the information available to the Commission’s employee at the time the decision was made. Texas Workers’ Compensation Commission Appeal No. 990328, decided April 5, 1999; Texas Workers’ Compensation Commission Appeal No. 982552, decided December 2, 1998; Texas Workers’ Compensation Commission Appeal No. 962570, decided February 5, 1997. In Finding of Fact No. 3, the hearing officer states “[t]here was no evidence establishing what the Commission employee had at the time she made her decision other than the . . . TWCC-53 dated October 7, 1999.” We cannot agree with the hearing officer’s determination in that regard. The carrier introduced the file-stamped copies of the claimant’s three prior TWCC-53s, which establish that those documents are in the claims file. We are unprepared to say that a carrier has to do more than establish that a document is in the Commission’s files to prove that the information contained in that document was “available” to the OAO in this instance at the time she made the decision to approve Dr. P as an alternate treating doctor. And, while we do not believe the fact that the three prior TWCC-53s were in the file is determinative of the issue of whether the Commission abused its discretion in approving the change to Dr. P, we believe that the hearing officer must resolve that issue bearing in mind that the information in the Commission’s file was available to the OAO at the time she made her decision. Accordingly, we reverse the hearing officer’s determination that the Commission did not abuse its discretion in approving Dr. P as an alternate treating doctor and remand the case for further consideration of that issue.
The carrier also asserts error in the hearing officer’s determination that the claimant had disability from November 1, 1999, through the date of the hearing. The carrier argues that the only evidence supporting the hearing officer’s disability determination is from Dr. P and Dr. B and Dr. D, the orthopedic surgeons to whom the claimant was referred by Dr. P. The carrier argues that the evidence from those doctors is entitled to no weight because of the question of whether Dr. P was properly approved as a treating doctor. We find no merit in this assertion. Even if the hearing officer were to determine on remand that Dr. P was not properly approved, such a determination would not render his report of no force on the issue of disability. Rather, such a determination would effect Dr. P’s status and potentially the carrier’s liability for medical treatment provided by Dr. P and the referral doctors. However, their opinions on the claimant ‘s ability to work could still be considered. The claimant had the burden to prove by a preponderance of the evidence that he had disability as a result of his compensable injury. That issue presented a question of fact for the hearing officer to resolve. The hearing officer is the sole judge of the relevance and materiality of the evidence and of its weight and credibility. Section 410.165. The hearing officer resolves conflicts and inconsistencies in the evidence and decides what weight to give to the evidence. Texas Employers Ins. Ass’n v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). To this end, the hearing officer as fact finder may believe all, part, or none of the testimony of any witness. Generally, disability may be proven by the testimony of the claimant alone, if it is believed by the hearing officer. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394 (Tex. 1989). However, the testimony of a claimant as an interested party raises only an issue of fact for the hearing officer to resolve. National Union Fire Ins. Co. v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer’s decision we will reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
The hearing officer determined that the claimant had disability from November 1, 1999, through the date of the hearing. The claimant’s diagnostic testing revealed that he had herniation at L4-5 and on November 1, 1999, Dr. B, an orthopedic surgeon, took the claimant off work. He has not been released to return to work since that date. The hearing officer was acting within her province as the fact finder in deciding to credit the evidence from Dr. B and in determining that the claimant had disability from November 1, 1999, through the date of the hearing. Nothing in our review of the record demonstrates that the challenged determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Accordingly, no sound basis exists for us to reverse that determination on appeal. Cain; Pool.
The hearing officer’s determination that the claimant had disability from November 1, 1999, through the date of the hearing is affirmed. The determination that the Commission did not abuse its discretion in approving Dr. P as a treating doctor is reversed and that issue is remanded for further consideration in accordance with this decision. Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Elaine M. Chaney – Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
Dorian E. Ramirez – Appeals Judge