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 May 5, 2000. With regard to the only issue before him, the hearing officer determined that the first certification of maximum medical improvement (MMI) and impairment rating (IR) assigned by Dr. G on September 25, 1999, did not become final under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)). The appellant (carrier) appealed, contending that the hearing officer’s decision is not supported by the evidence and requests that we reverse the hearing officer’s decision and render a decision in its favor. The appeals file does not contain a response from the claimant.
DECISION
Affirmed.
This is a Rule 130.5(e) case. Rule 130.5(e) has been interpreted to provide that the first IR assigned is considered final if it is not disputed within 90 days of receipt of written notice. There is no dispute that the claimant sustained a compensable repetitive trauma injury on __________; that Dr. G was the carrier’s independent medical examination doctor; and that Dr. M was the claimant’s treating doctor. The parties stipulated that the claimant first received written notice of Dr. G’s first certification of MMI (being September 1, 1999) and 11% IR on October 8, 1999 (all dates are 1999 unless otherwise noted).
The claimant testified that she received Dr. G’s report, together with the carrier’s cover letter dated October 5, on October 8; that she called Dr. M shortly thereafter to ask what the 11% IR meant; that Dr. M or someone in his office, Atold me that he had received copies of it [Dr. G’s report] and that it was to be disputed because I hadn’t had any treatment. The claimant testified that Awithin three or four days she Amarked it [the form] disputed . . . signed it and mailed it back to the insurance company. The claimant testified that she did not keep a copy and that she sent the form regular mail and did not call or follow up with the carrier to see if it had been received.
In evidence is a copy of Dr. G’s Report of Medical Evaluation (TWCC-69) and narrative, showing on the front of the TWCC-69 where Dr. M had marked that he disagreed with both the assessment of MMI and the IR. The form is signed by Dr. M and dated A10-7-99,” which the carrier argues is actually the day before the claimant received her copy. The report has perforated markings showing AREC’D and what appears to be a number 99 285. The claimant speculates that means that the disputed report was received by the carrier in 1999 with 285 being the Julian date (which would have been October 12). Also in evidence is a Texas Workers’ Compensation Commission (Commission) Dispute Resolution Information System note of January 18, 2000, indicating that the claimant called saying her temporary income benefits had stopped; that the claimant had disputed Dr. G’s report with the carrier but not the Commission; and that the carrier’s adjuster Astates she never recd ltr from clmt disputing IR.
The hearing officer found, in disputed findings:
FINDINGS OF FACT
4.On October 11, 1999, three days after October 8, 1999, Claimant disputed the first assignment of [MMI] and [IR] by [Dr. G] by mailing a form indicating her disagreement with the [IR] to Carrier.
5.On October 7, 1999, acting on behalf of Claimant, [Dr. M] disputed the first assignment of [MMI] and [IR] by [Dr. G] by noting his disagreement on the TWCC 69 form, the report of medical evaluation, and by mailing a copy of the form with the notations indicating disagreement to Carrier and to the [Commission].
6.The first assignment of [MMI] and [IR] by [Dr. G] was disputed by Claimant and by [Dr. M] on Claimant’s behalf within 90 days after the rating was assigned.
The carrier appeals those findings and the conclusion on which the findings are based, contending that the claimant Afailed to produce any documentation of her dispute; that the claimant had not confirmed or followed up her alleged dispute; and that the claimant had not disputed Dr. G’s report with the Commission as directed in a ATWCC EES-19 letter. What the carrier argues may be correct; however, the claimant testified that she discussed the matter with Dr. M, disputed Dr. G’s report on the form; and then mailed the form back to the carrier. The claimant points out that the carrier’s cover letter had a place for her to dispute, sign and date the form, and did not direct the dispute be made with the Commission or that she was to send it certified mail or keep a copy. The claimant contended that she completed the form, signed it, and returned it as directed. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and may believe all, part, or none of the testimony of any witness, including that of the claimant. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). The hearing officer obviously found the claimant’s testimony credible and accepted it as fact. The hearing officer’s decision is supported by sufficient evidence.
Regarding Dr. M’s dispute Aon behalf of claimant of Dr. G’s report, the carrier argues that Athere is no independent evidence of Dr. M’s Atimely execution of the TWCC-69. We disagree. While there may be conflicting evidence whether Dr. M disputed on October 7, 8, 12, or some other date, the perforated receipt date on the carrier’s copy of the TWCC-69 fairly clearly shows it was received by the carrier sometime in 1999 and, hence, would have been timely.
Regarding the carrier’s argument that Athere must be evidence of agency and Athere is no evidence presented from [Dr. M] indicating that he was disputing the rating . . . with the permission and authority of the claimant the carrier citing Texas Workers’ Compensation Commission Appeal No. 982956, decided January 29, 1999, which suggested that the doctor indicate he/she is acting for the claimant. That suggestion, unfortunately, has not been followed and, as a result, there have been mixed results. In Texas Workers’ Compensation Commission Appeal No. 992228, decided November 22, 1999, we commented:
The Appeals Panel has grappled with the question of whether the status of a treating doctor in disputing, with the involvement and authority of the claimant, be established and made known to the self-insured at the time of the filing or notification of dispute of an IR. [Appeal No. 982956, supra] and cases cited therein. However, to resolve the obvious opposing views, a consensus has been generally accepted that the key factor for the fact finder is that the doctor was acting with the involvement and authority of the claimant in disputing the first certification of IR, whether the involvement or authority is specifically shown at the time. Texas Workers’ Compensation Commission Appeal No. 990046, decided February 25, 1999.
In this case, the claimant testified, and it appears relatively uncontroverted, that she discussed the IR and its implications with Dr. M on or about October 8 and that Dr. M’s dispute was with the claimant’s concurrence and/or on her behalf. The claimant’s testimony and the absence of evidence to the contrary allowed the hearing officer to find that Dr. M disputed Dr. G’s IR on the claimant’s behalf.
Upon review of the record submitted, we find no reversible error. We will not disturb the hearing officer’s determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Dorian E. Ramirez – Appeals Judge
Susan M. Kelley – Appeals Judge