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 August 7, 2000. The record closed on August 25, 2000. The issues at the hearing were whether the __________, compensable injury of the respondent (claimant) extended to and included “carpal tunnel syndrome [CTS] in both wrists and ulnar nerve problems in both forearms”; and (2) what is claimant’s impairment rating (IR). The hearing officer determined that: (1) claimant’s compensable injury did not include bilateral CTS or ulnar nerve problems in her left arm; (2) claimant’s ulnar nerve medical problems in her right arm were the “direct and natural result of her compensable injury”; and (3) claimant’s IR is 24%, in accordance with the report of Dr. B, the designated doctor. Appellant self-insured (“carrier” herein) appeals the IR determination on sufficiency grounds, contending that the IR is incorrect and that the hearing officer should have adopted the report of Dr. T. Carrier also contends that the hearing officer erred in determining that claimant’s right-sided ulnar nerve problems were the “direct and natural result” of her compensable injury. Carrier further asserts that the hearing officer erred in determining that the injury included a “problem with the ulnar nerve” and “muscle shortening,” when an issue regarding extent of injury had not been raised, addressed by the parties, or litigated. Carrier also complains that it was not given an adequate opportunity to obtain evidence to counter and respond regarding the designated doctor’s August 16, 2000, clarification report, which was obtained by the hearing officer after the August 7, 2000, hearing, but before the record closed on August 25, 2000. Claimant responds that the Appeals Panel should affirm the hearing officer’s decision. The determination that the injury did not extend to bilateral CTS or a left ulnar nerve problem was not appealed.
DECISION
We affirm.
Carrier contends that the hearing officer erred in according presumptive weight to the designated doctor’s report. The applicable law and our appellate standard of review in IR cases involving a designated doctor’s report are discussed in Texas Workers’ Compensation Commission Appeal No. 001260, decided July 13, 2000. The hearing officer summarized the underlying facts regarding the injury and the IRs certified in this case. Claimant testified that she had worked for employer for nine years at the time of her lifting injury on __________. She said she lifted a patient while changing adult diapers, when she felt pain in her back, neck, shoulder, right arm, and right leg. Claimant said she experienced numbness in her arms, that she reported problems with her arms to her doctors, and that the doctors treated her with physical therapy and injections, including injections and therapy to her arms. She said she was told she had nerve damage in her arms. Claimant testified that her doctors said they did not know whether she had damage “coming up” from her arms or going down to her arms. Claimant said she told the designated doctor about the numbness and tingling she experienced in her arms.
The parties stipulated that claimant sustained an injury to her neck, thoracic spine, low back, both shoulders, right arm, and right knee and that claimant reached maximum medical improvement (MMI) on January 21, 2000. The hearing officer determined that: (1) claimant’s “ulnar nerve medical problem” in her right arm, but not her left arm, was the direct and natural result of her April 1998 compensable injury; (2) Dr. T supplied an IR report to carrier and certified that claimant’s IR should be zero percent, indicating that she had normal function with no impairment; (3) the designated doctor certified a 24% IR, which rated all the components of the compensable injury, without a rating for CTS or for an ulnar nerve problem in claimant’s left arm; and (4) the great weight of the other medical evidence is not contrary to the designated doctor’s report.
In an April 6, 1998, report, claimant’s treating doctor, Dr. R, stated that: (1) claimant had extra work duties that “strained more tissues of her back, neck, and upper extremities”; (2) claimant has intractable myofascial pain and muscle spasm; and (3) “there is some weakness present.” In a September 1998 report, Dr. R noted that treatment at a pain clinic by Dr. J seemed to be helping; that claimant still had stiffness and tenderness; that she has diffuse mild weakness; and that she has myofascial pain “post injury with weakness, muscle spasm, and some disability.” In an April 20, 1998, report, Dr. R noted severe myofascial pain, muscle spasms, tenderness, and stiffness throughout the shoulder girdles and neck, with some “generalized weakness”; and that claimant is not capable of even sedentary work. Lumbar and cervical MRI reports dated in June 1998 state that no abnormalities were demonstrated. In a June 1998 report, Dr. J stated that: (1) claimant complained of low back pain and specifically focused on her upper extremities and shoulder; (2) claimant complained of bilateral weakness in her arms; (3) claimant had full range of motion (ROM), “5/5” on her motor exam, and normal pinprick in the upper extremities; (4) claimant has myofascial neck pain; and (5) she injected claimant’s neck and shoulder muscles with Marcaine. In an April 25, 2000, report, Dr. A stated that: (1) no electrodiagnostic testing abnormalities suggested radiculopathy, although there were slight increases in certain insertional activity and mild reductions in pattern in the thenar muscles, but not in the ulnar distributions; and (2) “there is an indication of significant slowing of both median nerves at the wrists and the ulnar nerves at the elbows by standard nerve conductions.” In a May 2000 report, Dr. S stated that claimant continues to have neck pain with radiculopathy and paresthesia and that another MRI is needed “to see if herniated disk [sic] has worsened.” In a July 2000 report, Dr. S stated that claimant has bilateral CTS; and that several of her “symptoms are overlapping including her disk injuries in the cervical spine.”
In his May 14, 1999, report, the designated doctor stated that claimant was not yet at MMI. In a January 21, 2000, report, the designated doctor stated that claimant reached MMI and that her diagnoses were cervical, thoracic, and lumbar strain or sprain; right shoulder strain; cervical and lumbar radiculitis; right first rib subluxation; and facet syndrome. The designated doctor also said that: (1) claimant could bathe and dress herself; (2) claimant’s cervical exam showed facet and paraspinal tenderness and scattered trigger points; (3) there was no “organized area of spasm”; (4) claimant had decreased grip strength and decreased two-point sensation in the thumb and index finger; and (5) claimant’s ROM in her cervical and lumbar spine was decreased. The designated doctor certified a 24% IR and explained that this included: (1) six percent impairment for loss of cervical ROM; (2) 10% impairment for loss of sensation and nine percent motor impairment, combining to an 18% upper extremity impairment, which converted to an 11% whole person impairment; (3) four percent impairment for loss of ROM in the right shoulder; and (4) six percent impairment for loss of lumbar ROM. The designated doctor indicated that the 11% neurological impairment and six percent impairment for loss of cervical ROM combined to 16%, which was combined with the other regional impairments to arrive at the 24% IR. The designated doctor said there was no ratable impairment for the thoracic spine.
In February 2000, the Texas Workers’ Compensation Commission (Commission) sent a letter to the designated doctor asking for clarification regarding why a “digit impairment process” was not used; why he rated 25% grade loss for the median nerve when claimant has motor function of the median nerve; why the designated doctor had not measured the contralateral uninvolved left arm; and whether ROM was properly measured even though claimant complained of pain. In a March 3, 2000, letter, the designated doctor replied and indicated that: (1) he did not use a digital impairment process because the digital nerves were not involved; (2) the 25% grade loss is correct though claimant can move her hand, noting that she has loss of grip strength and a decrease in strength; (3) he did measure the uninvolved left shoulder and the ROM was normal; and (4) measuring ROM in patients who still have some pain is common.
In a May 2000 letter, the Commission again wrote to ask the designated doctor whether he should have rated sensory loss when there was “no evidence of median nerve damage below the elbows.” The Commission also noted there was evidence that “electro diagnostic studies were normal,” the cervical and lumbar MRIs were normal, and the treating doctor had found no sensory loss. In a May 25, 2000, letter, the designated doctor replied and stated that: (1) in his report to carrier, Dr. T indicated that he never measured claimant’s cervical ROM and claimant indicated that he, Dr. T, did not examine her; and (2) Dr. T had incorrectly stated that Dr. A’s EMG tests showed normal results, when the report stated that claimant had significant slowing in the median nerves and ulnar nerves at the elbows. The designated doctor also said that it is true that the MRI reports were normal studies and noted that he did not include any impairment for specific disorders.
In an August 9, 2000, letter to the designated doctor written after the hearing, the hearing officer: (1) told the designated doctor that he had determined that the compensable injury does not include CTS; (2) said that, at the time the designated doctor certified a 24% IR, there was no study that had indicated CTS; (3) asked the designated doctor whether the impairment included in the 24% was “actually for what later turned out to be [CTS]”; and (4) requested that the designated doctor review the motor and nerve impairments of the right forearm regarding whether the impairment was for something other than CTS. The hearing officer also asked the designated doctor for an explanation regarding the impairment for loss of cervical ROM, given the lack of impairment for specific disorders of the cervical spine. The designated doctor replied in an August 16, 2000, letter, stating that: (1) it is a “very difficult issue” whether the 24% IR included impairment for CTS; (2) he did not have EMG test results when he certified the 24% IR; (3) some of claimant’s upper extremity symptoms were consistent with findings related to CTS; (4) claimant also had upper extremity symptoms that are not due to CTS; (5) he had not included CTS in his diagnoses; and (6) claimant did have a cervical ROM loss, despite a lack of MRI findings, “most likely due to muscle shortening (not spasm) associated with [scarring].” The designated doctor also said:
Since the patient had other than median nerve injury [sic] and there is no way that I know of to separate out the physical findings that were present on January 21, 2000, I do not know how one would apportion the nerve impairment which was present at the time of that evaluation.
The nerve testing demonstrated problems in both arms. I guess that the left arm could be evaluated and the impairment in the left arm (carpal tunnel) could be subtracted from the right as being due to the carpal tunnel leaving the remaining percentage as due to the other elements of the right arm. Of course, this is not a perfect solution since the [CTS] may not be equal on both sides. This would obviously cause another delay but I do not know of any other way to resolve this issue. I am open to suggestions.
The designated doctor then stated that there was no change in his IR report, so there will not be a new Report of Medical Evaluation (TWCC-69).
The carrier obtained reports from Dr. T in which he certified a zero percent IR and also critiqued the designated doctor’s reports. In a March 25, 1999, letter, Dr. T stated that claimant complains of weakness and pain but has zero percent impairment because she does not have “any specific abnormality on physical exam or diagnostic testing.” In an accompanying report, Dr. T stated that, “due to complaints of pain, I am unable to measure complete [ROM] with a consistent response.” He also stated that claimant had normal sensation and ROM of the digits, wrists, and elbows. In a December 1999 report, Dr. T stated that he evaluated claimant on December 16, 1999; that he saw no demonstrable spasm; that he deferred a cervical ROM exam; that claimant had a normal exam and motion of the shoulders; that ROM of the fingers, wrists, and elbows was normal; that strength and sensation were normal; that Waddell’s signs were negative; and that his impression was “chronic pain syndrome.” In a May 11, 2000, letter, Dr. T indicated that he reviewed the designated doctor’s IR certification and said that: (1) there had been “indefensible abuse” of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides); (2) claimant had dysfunctional pain behavior and did not have any specific injury, but only pain; (3) the medical records do not show any pathological process and MRIs showed there was no disease process in the spine; (4) the medical records of Dr. R and Dr. J show no neurological or muscular deficits; (5) the designated doctor’s reports “enable” claimant and reward her pain behavior; and (6) EMG testing by Dr. A was normal and any suggestion by Dr. A that claimant’s impairment “might be due to pathology in the spine has no medical basis.” Dr. T also stated that he would not argue over “the technical aspects of the inappropriate spine or shoulder [ROM] measurements”; that the medical records show Dr. T’s assessments are right; and that claimant has no impairment.
In its brief, carrier asserts that the Appeals Panel should remand so that it may investigate the “new diagnoses” found by the designated doctor. Carrier contends that the designated doctor found that claimant had “muscle shortening” and ulnar nerve damage that it did not know would be claimed as part of the compensable injury. Carrier asserts that the designated doctor stated these diagnoses for the first time on August 16, 2000, which was after the hearing, and that the hearing officer did not afford it any opportunity to offer evidence showing that the compensable injury did not include muscle shortening or ulnar nerve problems. We first note that “muscle shortening” is not a new injury to a new body part. The designated doctor said muscle shortening probably caused the ROM loss that he documented. The designated doctor did not rate muscle shortening as a new “injury,” but merely sought to explain claimant’s cervical ROM loss. Regarding the “new” ulnar nerve diagnosis, we note that there was an issue regarding extent of injury in this case regarding “ulnar nerve problems.” Carrier had an opportunity to investigate and offer evidence regarding whether claimant had ulnar nerve problems and we perceive no error in this regard.
Carrier contends that the case should be remanded to consider new evidence: a September 7, 2000, report of Dr. T that carrier obtained to respond to the designated doctor’s August 16, 2000, post-hearing clarification report. In a letter to the parties dated August 18, 2000, the hearing officer stated that he had enclosed the designated doctor’s August 16, 2000, report, and that the parties had until August 25, 2000, to respond. The file does not show that carrier responded on or before August 25, 2000. Carrier filed a response on August 30, 2000, and on September 5, 2000, it filed a motion asking the hearing officer to keep the record open. On appeal, carrier asserts that it was not informed that the record would be closed on August 25, 2000. However, because carrier did not file any response or motion whatsoever by August 25, 2000, we perceive no error in this regard. We decline to consider Dr. T’s September 2000 report given that carrier did not timely respond and seek to have the hearing officer consider this report. For the same reason, we also decline to remand this case for the hearing officer to consider the report.
Carrier contends that the designated doctor’s “nerve rating” regarding the median nerve and the ulnar nerve is not based on a compensable injury. Carrier asserts that the designated doctor cannot now claim that he did not rate the median nerve because he stated in his May 25, 2000, report that he was rating the motor deficit of the median nerve. Carrier contends that the “upper extremity rating was for the median nerve” and that this is not part of the compensable injury since the hearing officer determined that CTS is not part of the injury. In his August 16, 2000, report, the designated doctor explained that impairment from the compensable injury and impairment from any CTS may overlap. The designated doctor said he did not rate CTS. We note that the effects of a prior injury should not be discounted when a doctor certifies an IR. Texas Workers’ Compensation Commission Appeal No. 931130, decided January 26, 1994. In rating impairment under the AMA Guides, a designated doctor may not “download” the effects of a prior injury from a compensable injury. Texas Workers’ Compensation Commission Appeal No. 94517, decided June 14, 1994. Even though there may be overlap in impairment due to an unrelated CTS injury, we perceive no error in the designated doctor’s failure to “apportion” the impairment between two injuries.
Carrier contends that the designated doctor’s IR is incorrect because it is not based on “reproducible, objective laboratory or clinical findings.” This clearly involves a mere difference in medical opinion and was a medical matter for the designated doctor to consider. We note that when claimant filed a response to the designated doctor’s August 16, 2000, report, she included a report from Dr. BE, in which Dr. BE stated that the designated doctor’s 24% IR was “within the guidelines” of the AMA Guides. Carrier contends the 24% IR is based on a “non-compensable right median nerve injury” and “unconfirmed muscle shortening.” Regarding the median nerve, the designated doctor said he was rating a nerve component that was “other than a median nerve injury.” The designated doctor applied Table 14, which concerns “spinal nerve impairment affecting the upper extremity.” Regarding the muscle shortening, whether claimant had muscle shortening and whether her ROM was limited was a matter for the designated doctor to consider in his medical judgment. That Dr. T disagreed that claimant had any impairment does not mean that the hearing officer was required to reject the designated doctor’s report.
Carrier contends that the designated doctor’s “nerve rating” regarding the median nerve and the ulnar nerve does not comport with the AMA Guides. The record on appeal does not contain a medical report explaining how the designated doctor improperly applied the AMA Guides. A finding that a designated doctor has improperly applied the AMA Guides should be based upon medical evidence. See Texas Workers’ Compensation Commission Appeal No. 92570, decided December 14, 1992; see also Texas Workers’ Compensation Commission Appeal No. 94885, decided August 24, 1994. We have stated that arguments about how the AMA Guides should have been used, or which portions were appropriate to use, are essentially medical determinations, Texas Workers’ Compensation Commission Appeal No. 951969, decided January 4, 1996, and that the burden of proving the great weight of contrary medical evidence will not be met solely by sifting through the designated doctor’s report from a lay perspective and comparing it to the AMA Guides. Texas Workers’ Compensation Commission Appeal No. 960610, decided May 9, 1996. Carrier later obtained a report critiquing the designated doctor’s use of the AMA Guides, but this was not a part of the record and we will not consider it for the first time on appeal.
Carrier contends that claimant did not prove that her “ulnar nerve deficit” was part of her compensable injury. Carrier asserts that there is no medical evidence that the ulnar nerve below the forearm would be affected. Carrier asserts that there is no rated specific disorder of the cervical spine which would cause a nerve injury. Again, this was a matter of medical judgment for the designated doctor and the hearing officer was not required to reject the designated doctor’s report based on Dr. T’s differing medical opinion.
Carrier contends that it was improper for the designated doctor to include impairment for loss of ROM when there was no impairment for specific disorders of the cervical spine. The designated doctor was questioned about this and he did offer an explanation for this ROM impairment. We perceive no reversible error despite the fact that there is no Table 49 impairment and even though Dr. T found that claimant had no impairment. Texas Workers’ Compensation Commission Appeal No. 950727, decided June 22, 1995. We note that Dr. T indicated in his report that he did not test claimant’s cervical ROM.
The hearing officer found, among other things, that the great weight of the other medical evidence is not contrary to the findings of the designated doctor. The hearing officer concluded that claimant has a 24% IR. Whether the great weight of the medical evidence was contrary to the report of the designated doctor was a factual determination to be made by the hearing officer, who is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence. We conclude that the hearing officer’s determinations are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
We affirm the hearing officer’s decision and order.
Judy L. Stephens
CONCUR:
Tommy W. Lueders – Appeals Judge
Philip F. O’Neill – Appeals Judge