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 July 16, 2001. The hearing officer resolved the disputed issue by deciding that the respondent’s (claimant) impairment rating (IR) is 29% as assigned in an amended report by the designated doctor chosen by the Texas Workers’ Compensation Commission (Commission). The appellant (self-insured) appealed and the claimant responded. In Texas Workers’ Compensation Commission Appeal No. 011875, decided September 24, 2001, the Appeals Panel remanded the case to the hearing officer for the hearing officer to have the self-insured provide the required information for its registered agent for service of process in Texas. See Section 410.164(c). In the decision on remand, the hearing officer determined that the claimant’s IR is 29%. The self-insured appealed and the claimant responded.
DECISION
The hearing officer’s decision on remand is affirmed.
The hearing officer did not err in determining that the claimant’s IR is 29%. Section 408.125(e) provides that 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, and that, 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.
The parties stipulated that the claimant sustained a compensable lower back injury in the course and scope of her employment on __________. She had two lumbar spine surgeries, the first in July 1999 and the second in March 2000. On July 25, 2000, a doctor who examined the claimant at the request of the self-insured assigned the claimant a 10% IR. On August 24, 2000, the claimant’s treating doctor assigned the claimant a 14% IR. The designated doctor chosen by the Commission examined the claimant and reported on November 21, 2000, that the claimant reached maximum medical improvement (MMI) on August 24, 2000, with a 15% IR. The parties stipulated that the claimant reached MMI on August 24, 2000. At the request of the claimant and the self-insured, on April 18, 2001, the Commission requested that the designated doctor respond to questions concerning the IR. The designated doctor responded on April 19, 2001, stating that he had incorrectly invalidated lumbar flexion and extension measurements under the straight leg raise (SLR) validity test; that when including the lumbar range of motion (ROM) flexion and extension impairment that he had incorrectly excluded, the claimant’s IR is 29%; and that while the claimant had shown signs of symptom magnification, he had not invalidated ROM measurements for that reason. The designated doctor’s ROM worksheet for the November 21, 2000, evaluation reflects that the claimant met consistency requirements and the SLR validity test.
The hearing officer found that the designated doctor had erred in calculating the claimant’s IR in his initial report, and that the designated doctor’s amended report was not contrary to the great weight of the other medical evidence. The hearing officer concluded that the designated doctor’s amended report is entitled to presumptive weight and that the claimant’s IR is 29%. The self-insured contends that the designated doctor should have invalidated ROM measurements due to symptom magnification. While we have held that a designated doctor may invalidate ROM tests because of observed suboptimal effort (see Texas Workers’ Compensation Commission Appeal No. 002006, decided October 6, 2000), in the instant case, the designated doctor indicated in his amended report that he had validated the ROM testing through measurements. The self-insured contends that the claimant failed the SLR test; however, the designated doctor’s ROM worksheet indicates that the claimant met that test. The self-insured contends that the designated doctor did not properly use Table 49 of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association. The designated doctor’s report reflects that he properly assigned impairment under Table 49. He assigned 10% under Section (II)(E) for a surgically treated disc lesion with residual symptoms, and an additional 2% under Section (II)(G.1) for a second operation.
The hearing officer 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 and determines what facts have been established from the evidence. The hearing officer’s decision is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
The hearing officer’s decision and order on remand are affirmed.
The true corporate name of the insurance carrier is (SELF-INSURED) and the name and address of its registered agent for service of process is
CT CORPORATION SYSTEM
350 NORTH ST. PAUL STREET
DALLAS, TEXAS 75201.
Robert W. Potts – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Michael B. McShane – Appeals Judge