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 June 13, 2000. The hearing officer determined that the respondent’s (claimant) impairment rating (IR) was 38% as certified by Dr. P, a designated doctor selected by the Texas Workers’ Compensation Commission (Commission), in a fourth amended Report of Medical Evaluation (TWCC-69). The appellant (carrier) appeals, contending both legal and factual insufficiency, and requests that the 14% IR certified by Dr. P in his first TWCC-69 be adopted by the Commission. The claimant replies that the decision is correct, supported by sufficient evidence, and should be affirmed. The parties stipulated that the claimant reached maximum medical improvement (MMI) on September 3, 1996.
DECISION
Affirmed.
The claimant sustained a low back injury on __________. He continued working until surgery on March 29, 1996. On September 9, 1996, Dr. T, the treating doctor, completed a TWCC-69 in which he certified MMI on September 3, 1996, and assigned a 12% IR for a specific disorder of the spine and loss of lumbar range of motion (ROM). Dr. T noted no motor or sensory deficit. This IR was disputed and Dr. P was appointed designated doctor.
On December 5, 1996, Dr. P examined the claimant and completed a TWCC-69 in which he agreed with Dr. T’s date of MMI and assigned a 14% IR for a specific disorder of the spine and loss of ROM. In his report, Dr. P stated that it appeared the claimant’s medical condition was “stable.” He awarded zero percent IR for loss of strength and loss of sensation.
The claimant testified that after his first surgery on March 29, 1996, he developed bladder and sexual dysfunction. Extensive Dispute Resolution Information System (DRIS) contact data notes were introduced by the carrier with little assistance in pointing to those of significance. In any case, a DRIS note of January 22, 1997, describes the claimant’s visit to the field office with an “other physical problem” not otherwise specified, but presumably impotence. By April 11, 1997, these notes reflect that he had an appointment with a urologist; on August 5, 1997, he was still complaining about urinary and sexual dysfunction problems. Later DRIS notes deal with discussions with Dr. T about the process of referrals to specialists.
The claimant had a second surgery on May 17, 1998, and stated he was told that the first surgery failed. His sexual impotence continued. A DRIS note of June 24, 1998, indicated that the Commission employee would ask Dr. P to address the effect, if any, of the impotence on the IR since there was no record of the carrier’s disputing the compensability of this condition. On July 21, 1998, Dr. P examined the claimant and assigned a 37% IR, the additional IR being primarily assigned for the impotence (20%) and abnormal bladder function (5%). No IR was given for loss of sensation in the lower extremities.
A DRIS note of November 23, 1998, reflects that the carrier agreed that the claimant should return to the designated doctor “after New Years” to determined if the bladder and sexual dysfunction should be assigned an IR and indicating that the carrier never disputed that these conditions were part of the compensable injury. Another DRIS note reflects that the date of the reexamination was set to allow the claimant time to recover from his second surgery. On February 2, 1999, Dr. P again examined the claimant and completed a new TWCC-69 in which he assigned a 34% IR. This IR was reduced from the previous one to eliminate a rating for the bladder because Dr. P considered the bladder problem “improved.”
On January 13, 2000, the claimant again returned to Dr. P for another examination. As a result of this visit, Dr. P completed a TWCC-69 in which he assigned a 38% IR with the additional rating for loss of sensation in the toes which affected the claimant’s gait. DRIS notes leading up to this reexamination generally deal with the need for further nerve testing. The claimant also testified to continuing discussions with the carrier over whether Dr. P would do an evaluation of nerve loss in the feet. A DRIS note of January 28, 2000, reflects that the carrier complained that this amendment “has taken place too long after MMI date.”
The position of the carrier both at the CCH and on appeal was that any amendment of Dr. P’s report after the first one which certified a 14% IR was done too late and not for a proper reason. The hearing officer disagreed with the position of the carrier and afforded presumptive weight to Dr. P’s final report because of what she considered to be “complex secondary conditions brought on” by the compensable injury and the existence of “constant medical intervention” in this case.
In its appeal, the carrier argues that the amendments were not done in a reasonable amount of time or for a proper reason and that the Commission is without authority to allow an amendment to a designated doctor’s report based on a substantial change of condition.
With regard to these arguments, we observe that the carrier has not directly or indirectly challenged the sexual dysfunction, bladder condition, or loss of nerve function in the feet as not part of the compensable injury. We can only assume that they are part of the compensable injury. In our opinion, the fact that these conditions were not initially rated by Dr. P provided a proper reason to amend his report. With regard to the timeliness of these amendments, we note that throughout the DRIS records–several of which are quoted above–there is evidence that the carrier was involved in the requests for reexamination and concurred in them with the possible exception of the last examination. Because of this evidence of concurrence, we find no merit in an 11th-hour assertion by the carrier that none of the previous amendments were proper or timely. In this regard, we also note that we are not persuaded by the carrier’s assertion that a second surgery after MMI is never a proper reason for amending a designated doctors report.
Finally, the carrier argues that the case of Rodriguez v. Service Lloyds Insurance Company, 997 S.W. 2d 248 (Tex. 1999) stands for the proposition that the Commission has no authority to permit the amendment of a designated doctor’s report based on a substantial change of condition. See Section 410.307. We disagree and decline to apply the holding of Rodriguez to this case. See Texas Workers’ Compensation Commission Appeal No. 000589, decided May 8, 2000.
For the foregoing reasons, we affirm the decision and order of the hearing officer.
Alan C. Ernst – Appeals Judge
CONCUR:
Kathleen C. Decker – Appeals Judge
Thomas A. Knapp – Appeals Judge