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 May 15, 2000. The issues at the CCH were extent of injury, disability, maximum medical improvement (MMI) and impairment rating (IR). The hearing officer found that the respondent’s (claimant herein) injury was limited to her low back and that the claimant did not have disability. The hearing officer determined that the issues of MMI and IR were not ripe for adjudication because the designated doctor had failed to properly certify MMI and IR. The hearing officer stated this was the case after multiple requests for clarification and ordered the appointment of a second designated doctor. The appellant (carrier herein) files a request for review arguing that the MMI and IR certification of the designated doctor was entitled to presumptive weight. The carrier argues that the hearing officer should have determined MMI and IR based upon the designated doctors’ report and should not have appointed a second designated doctor. The claimant responds that the hearing officer did not err because the designated doctor failed to follow the protocols of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) in assessing the claimant’s impairment even after repeated requests for clarification.
DECISION
Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.
The hearing officer summarizes the evidence in her decision and we adopt her rendition of the evidence. We will only touch on the evidence germane to the appeal, which deals with the MMI and IR certification of the designated doctor. It was undisputed that Dr. R was the designated doctor selected by the Texas Workers’ Compensation Commission (Commission). Dr. R certified on a Report of Medical Evaluation (TWCC-69) dated December 19, 1997, that the claimant attained MMI on October 8, 1997,[1] with a zero percent IR. The designated doctor was queried as to why he did not rate multiple-level, herniated discs that were shown by various diagnostic procedures. He responded that he did not believe the herniated discs were the result of the claimant’s compensable injury. After the CCH the hearing officer sought clarification from Dr. R as to the reasons for this opinion; he responded in a letter dated June 19, 2000, in which he stated as follows:
I am puzzled by your letter. I was able to examine [the claimant] on December 19, 1997, just four months after her injury, when I found her to be without range of motion restriction. I determined her to have 0% impairment based on both table 49 and physical examination. I do not think it appropriate that I speculate on subsequent events for the purpose of expeditious resolution of the case.
The hearing officer stated in part as follows in the portion of her decision which is labeled “DECISION”:
Since, despite numerous requests for clarification, the designated doctor appointed by the Commission did not account in some fashion for the result of diagnostic testing procedures which revealed that Claimant has sustained herniated nucleus pulposus at multiple spinal levels, a new designated doctor will need to be need to be appointed to address the matters of Claimant’s [MMI] date and correct whole body [IR].
Section 408.122(c) provides:
If a dispute exists as to whether the employee has reached [MMI], the commission shall direct the employee to be examined by a designated doctor chosen by mutual agreement of the parties. If the parties are unable to agree on a designated doctor, the commission shall direct the employee to be examined by a designated doctor chosen by the commission. The designated doctor shall report to the commission. The report of the designated doctor has presumptive weight, and the commission shall base its determination of whether the employee has reached [MMI] on the report unless the great weight of the other medical evidence is to the contrary.
Section 408.125(e) provides:
If the designated doctor is chosen by the commission, the report of the designated doctor shall have presumptive weight, and the commission shall base the [IR] on that report unless the great weight of the other medical evidence is to the contrary. If the great weight of the medical evidence contradicts the [IR] contained in the report of the designated doctor chosen by the commission, the commission shall adopt the [IR] of one of the other doctors.
Under the 1989 Act, the hearing officer is the trier of fact at the CCH and is the sole judge of the relevance and materiality of the evidence offered and the weight and credibility to be given to the evidence. Section 410.165(a). It is the province of the hearing officer to resolve conflicts in the medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The 1989 Act requires that any determination of IR be based upon the AMA Guides. Section 408.124. We have specifically held that in its terms the AMA Guides provide that impairment should be assessed for herniated discs and that the failure of a designated doctor to do so requires that he specifically explain why the AMA Guides do not require such an assessment. Texas Workers’ Compensation Commission Appeal No. 93875, decided November 15, 1993. Here, the designated doctor had been given a number of opportunities to provide such an explanation and has simply failed to do so. Even though we have stated that the appointment of a second designated doctor should be rare, the failure of the designated doctor to cooperate and provide an explanation as to how his IR is consistent with the protocols of the AMA Guides is certainly a valid reason for appointing a second designated doctor. We perceive no error in the decision of the hearing officer.
The decision and order of the hearing officer are affirmed.
Gary L. Kilgore – Appeals Judge
CONCUR:
Kathleen C. Decker – Appeals Judge
Susan M. Kelley – Appeals Judge
- The hearing officer stated in one finding of fact that Dr. R certified MMI on October 27, 1997. As the carrier points out this is clearly a typographical error and we reform the decision of the hearing officer to reflect that Dr. R certified the claimant attained MMI on October 8, 1997. ↑