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 October 9, 2000. With respect to the single issue before her, the hearing officer determined that the respondent’s (claimant) impairment rating (IR) is 23% as certified by the designated doctor selected by the Texas Workers’ Compensation Commission (Commission). In its appeal, the appellant (self-insured) contends that the hearing officer erred in giving presumptive weight to the designated doctor’s IR because his IR was not calculated in accordance with the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides). The appeal file does not contain a response to the self-insured’s appeal from the claimant.
DECISION
Affirmed.
The parties stipulated that the claimant sustained a compensable injury on _________, and that she reached maximum medical improvement (MMI) for her compensable injury on September 21, 1999. The claimant testified that she injured her neck and low back when she tripped and fell in the course and scope of her employment as a teacher with the self-insured school district. The claimant’s treating doctor for her compensable injury is Dr. V, a chiropractor. Dr. V treated the claimant with manipulations and therapy. The claimant acknowledged that she did not take any medication for her injury and that she did not undergo any invasive procedures during the treatment of her injury. Dr. V referred the claimant to Dr. W for an impairment rating (IR). In a Report of Medical Evaluation (TWCC-69) dated September 28, 1999, Dr. W certified that the claimant reached MMI on September 21, 1999, with an IR of 5%. In the narrative report accompanying his TWCC-69, Dr. W stated that there were no specific disorders documented in the cervical or lumbar spine that warranted a rating under Table 49 of the AMA Guides. In addition, Dr. W noted that the claimant’s lumbar range of motion (ROM) was normal. The 5% rating was assigned for loss of cervical ROM. Dr. V signed the TWCC-69 stating his agreement with Dr. W’s MMI date and the 5% IR.
The self-insured disputed Dr. W’s rating and Dr. A, a chiropractor, was selected by the Commission to serve as the designated doctor. Dr. A’s narrative report of January 21, 2000, states, and the claimant’s testimony confirmed, that the initial appointment with the designated doctor was scheduled for December 2, 1999, but the claimant did not attend that appointment. Dr. A’s office contacted the claimant and asked if she wanted to reschedule and the claimant advised that she did not want to do so. Dr. A’s narrative further provides that a few weeks later the claimant contacted his office and said she did want to schedule a designated doctor evaluation. The claimant’s appointment was rescheduled for January 6, 2000, and she told Dr. A that she “was having an exacerbation” in her neck. Dr. A told the claimant that he could not perform the examination if she was having an exacerbation of her symptoms, so he advised her to return to her chiropractor for treatment and to come back to his office on January 20, 2000, for her examination. Dr. A’s report states that the claimant’s condition had improved; thus, he proceeded with the examination. The claimant testified that she decided to reschedule her appointment with the designated doctor because of the exacerbation of the pain in her neck and also because she was advised by someone that she was subject to a fine if she did not attend the appointment. In a TWCC-69 dated January 21, 2000, Dr. A assigned a 23% IR, which is comprised of 4% for a specific disorder of the cervical spine, 7% for loss of cervical ROM, 5% for a specific disorder of the lumbar spine, and 9% for loss of lumbar ROM.
The self-insured had Dr. D, a chiropractor, review Dr. A’s IR. In a report dated February 29, 2000, Dr. D stated that Dr. A had failed to follow the “procedures and protocols” of the AMA Guides because he did not include his ROM worksheets with his narrative report and TWCC-69. In addition, Dr. D stated that Dr. A failed to properly follow the AMA Guides because he was not permitted to assign cervical and lumbar specific disorder ratings under Table 49 because the claimant reached MMI in less than six months from her date of injury. Thus, Dr. D maintained that the claimant could not satisfy the requirement under Section II.B. of Table 49 of six months of medically documented pain with recurrent muscle spasm or rigidity.
Dr. D’s report was sent to Dr. A and on May 10, 2000, Dr. A responded to the concerns raised by Dr. D. Specifically, he forwarded his ROM worksheets and stated that he had assigned cervical and lumbar specific disorder ratings because at the time of his examination on January 20, 2000, the claimant did have six months of medically documented pain, spasm, and rigidity from her _________, compensable injury.
Dr. A’s ROM worksheets were forwarded to Dr. D for her review and in a report dated July 3, 2000, Dr. D acknowledged that Dr. A’s cervical and lumbar ROM ratings were calculated in accordance with the AMA Guides. Dr. D did not respond to Dr. A’s explanation of his decision to award cervical and lumbar specific disorder ratings. Instead, she stated that Dr. A’s rating “is inconsistent with those of other examiners” and that the “23% rating does not make physiologic common sense based upon the apparent degree of injury and the known pathology present (especially in the lumbar spine).” Dr. D’s July 3rd report was sent to Dr. A for review and he responded in a July 27, 2000, letter that it did not change his opinion regarding the claimant’s IR.
Dr. D testified by telephone at the hearing. She stated that Dr. A’s report did not comport with the AMA Guides and the Commission’s rules because it did not include a list of the documentation reviewed, it did not include findings of previous examinations, and it did not include findings of the claimant’s clinical response to treatment. In addition, Dr. D noted that the designated doctor’s findings were not consistent with the findings of the previous doctors who had examined the claimant and assigned an IR, and that the 23% IR is “physiologically inconsistent with the objectively demonstrated injury sustained by the claimant.” Finally, Dr. D testified that Dr. A did not properly assign a specific disorder rating to the claimant because she reached MMI in less than six months from her date of injury and thus, did not satisfy the requirement of six months of medically documented pain, spasm, or rigidity to qualify for a rating under Section II.B. of Table 49 of the AMA Guides. On cross-examination, Dr. D admitted that she did not have actual knowledge that the claimant’s medical records were not reviewed by Dr. A. Dr. D also stated that it would be appropriate for the designated doctor to consider medical records between the date of MMI and the date of his examination, along with the findings of his own examination of the claimant, in determining the claimant’s IR.
Initially, the self-insured contends that the hearing officer erred in giving presumptive weight to the designated doctor’s IR because he did not properly apply the AMA Guides in assigning cervical and lumbar specific disorder ratings because the MMI date was earlier than six months past the date of injury. In Texas Workers’ Compensation Commission Appeal No. 992244, decided November 23, 1999 (Unpublished), we rejected a similar argument from the carrier that the designated doctor could not assign a Table 49 rating because the claimant reached MMI in less than six months from the date of injury. In so doing, we noted that Table 49 of the AMA Guides addresses IR, not MMI and that “[i]t does call for a minimum of six months of medically documented pain, spasm, or rigidity coupled with certain degenerative changes, but it does not reference MMI at all.” Appeal No. 992244 concluded that the “fact that MMI was reached in less than six months does not preclude an IR for specific disorders . . . .” See also, Texas Workers’ Compensation Commission Appeal No. 982196, decided October 30, 1998 (for another case affirming a hearing officer’s decision giving presumptive weight to a designated doctor’s IR, which included a specific disorder rating under Table 49 where the claimant reached MMI in less than six months but the designated doctor examined the claimant after six months had passed from the date of injury).
The self-insured also contends that the hearing officer erred in giving presumptive weight to the designated doctor’s rating because he did not review the claimant’s medical records. There is no evidence to support the self-insured’s assertion in this regard. Dr. D stated that she thought the designated doctor may not have reviewed the claimant’s medical records because he did not specifically reference them in his narrative report. However, she acknowledged that she had no personal knowledge of whether the designated doctor had reviewed those records. In addition, we note that despite the fact that the self-insured asked the Commission to seek clarification from the designated doctor on two occasions in this case, it did not ask that the Commission inquire as to whether the designated doctor had reviewed the claimant’s medical records in determining the claimant’s IR. We have previously recognized that it is incumbent upon the party seeking clarification of a designated doctor’s rating to speak up early. Texas Workers’ Compensation Commission Appeal No. 960352, decided April 8, 1996. The self-insured failed to do so in this instance and it now cannot be heard to complain that a question remains as to what medical records of the claimant the designated doctor reviewed in assigning the IR. In the absence of evidence to support its assertion that the designated doctor failed to review the claimant’s medical records in this case, we reject the assertion as without merit.
Finally, the self-insured contends that the 23% IR should not be given presumptive weight because it is “physiologically inconsistent” with the objective injury demonstrated by the claimant. In so arguing, the self-insured emphasizes the fact that the claimant did not miss any time from work in this case, that her medical treatment did not include invasive procedures or medication, and that she testified that her injury did not significantly impact her ability to perform the activities of daily living. While it does seem that a 23% IR would more likely correlate to a more severe injury, our review of the record does not demonstrate that the hearing officer erred in determining that the medical evidence contrary to the designated doctor’s report does not rise to the level of the great weight so as to defeat the presumptive weight accorded to the designated doctor’s IR in Sections 408.122(c) and 408.125(e). Rather, it represents a marked difference of opinion as to the appropriate rating to assign for cervical and lumbar specific disorder and ROM impairments. We have long held that by giving presumptive weight to the designated doctor, the 1989 Act provides a mechanism for accepting the designated doctor’s resolution of such differences. Texas Workers’ Compensation Commission Appeal No. 001659, decided August 25, 2000; Texas Workers’ Compensation Commission Appeal No. 001526, decided August 23, 2000.
The hearing officer’s decision and order are affirmed.
Elaine M. Chaney – Appeals Judge
CONCUR:
Kathleen C. Decker – Appeals Judge
Philip F. O’Neill – Appeals Judge