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 November 14, 2001. The hearing officer determined that the appellant (claimant) reached maximum medical improvement (MMI) on December 29, 1998. The claimant appealed, claiming various errors. The respondent (carrier) urges affirmance.
DECISION
Affirmed.
On the third day that the claimant worked for the employer, ___________, he made a claim for an injury in the form of bilateral inguinal hernias that was accepted by the carrier. When the claimant was sent to the carrier’s required medical examination (RME) doctor in April 1999, he told the doctor that he was going to have surgery that had been recommended by his treating physician on December 29, 1998. Because the claimant was pending surgery, the RME doctor said that the claimant was not at MMI. When the claimant did not proceed with the surgery, the RME doctor certified the claimant at MMI on April 21, 1999. The claimant disputed the MMI and a first designated doctor, Dr. B, was appointed by the Texas Workers’ Compensation Commission (Commission). Dr. B saw the claimant on November 19, 1999, and found that the claimant was not at MMI, pending surgery. In October 2000, as statutory MMI was approaching, the claimant returned to his treating doctor for the first time in a year and scheduled surgery for December 15, 2000. The spinal anesthetic was not effective, however, and the claimant left the hospital without the surgery having been done. Because the first designated doctor had asked to be removed from the designated doctor list, a second designated doctor, Dr. O, was appointed by the Commission. Dr. O saw the claimant on March 14, 2001, and opined that the claimant reached MMI on December 23, 2000, the statutory date, based on the unoperated hernias. A letter of clarification was sent by the Commission to Dr. O at the request of the carrier advising that the claimant “has either failed to submit to surgery or has refused to submit to surgery for the [injury],” and asking if the claimant was at MMI on December 29, 1998. Dr. O responded “yes,” indicating that the claimant was at MMI on December 29, 1998. A second letter of clarification was sent informing Dr. O that the previous information may have been misleading because the claimant had submitted to have surgery on December 15, 2000, but surgery was not performed because of problems with the anesthesia, and asked “When you examined the claimant on 3/14/01 was he at [MMI] in terms of whether [sic] could further recovery be anticipated as of that date?” Dr. O responded that “‘further material recovery’ was still possible, namely in the performance of the surgery… .”
We note that the CCH was held nearly three years after the claimant was injured and that surgery had been recommended since December 29, 1998. As of the date of the CCH, the claimant had never had surgery to correct the hernias even though he had indicated on several occasions that he was in the process of obtaining the surgery. The case manager handling the claimant’s file on behalf of the carrier testified that she contacted the claimant’s treating physician who stated that the type of surgery the claimant needed only takes about two weeks to schedule. In the present case, the claimant has not had surgery due to his own inaction.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.6(i) (Rule 130.6(i)) provides that the designated doctor’s response to a request for clarification is considered to have presumptive weight as it is part of the doctor’s opinion. Whether the great weight of the other medical evidence was contrary to the opinion of the designated doctor is a factual determination. Texas Workers’ Compensation Commission Appeal No. 93459, decided June 15, 1993. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). When reviewing a hearing officer’s decision for factual sufficiency of the evidence, we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We are satisfied that the evidence sufficiently supports the hearing officer’s determination that the great weight of the medical evidence is not contrary to the designated doctor’s decision that the claimant’s correct MMI date is December 29, 1998. Accordingly, no sound basis exists for us to reverse the determination that the claimant’s correct MMI date is December 29, 1998.
We affirm the decision and order of the hearing officer.
The true corporate name of the insurance carrier is THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS, SUITE 750, COMMODORE 1
AUSTIN, TEXAS 78701.
Michael B. McShane – Appeals Judge
CONCUR:
Judy L. S. Barnes – Appeals Judge
Thomas A. Knapp – Appeals Judge