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 7, 2001. In resolving the issues before her, the hearing officer decided that the Texas Workers’ Compensation Commission (Commission) did not abuse its discretion in approving the respondent’s (claimant) request for a change of treating doctors. In addition, the hearing officer determined that the claimant had disability as a result of his _______________ compensable injury from July 25 through the date of the CCH, November 7, 2001. The appellant (carrier) filed a request for review and sought reversal on sufficiency grounds. There is no response in the file from the claimant.
DECISION
Affirmed.
The hearing officer did not err in determining that the Commission did not abuse its discretion in approving the claimant’s request for a change of treating doctors. We have frequently noted that we review a decision of approval on change of treating doctors on an abuse of discretion standard. Texas Workers’ Compensation Commission Appeal No. 970686, decided June 4, 1997, and cases cited therein. An abuse of discretion occurs where the decision maker acts without reference to any guiding rules and principals (Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986)). In this case, whether the claimant was entitled to change treating doctors depended upon the doctor information the claimant forwarded to the Commission for review: that his doctor would not be able to help him reach maximum medical improvement, which is one of the acceptable reasons to change treating doctors.[1] In this case, the hearing officer recognized that the claimant was less than truthful in his representations but found that the Commission Official Actions Officer (OAO) “properly considered the information available to her at the time she approved the request.” We do not require that the OAO go behind every statement made on the Employee’s Request to Change Treating Doctor form (TWCC-53). Accordingly, we cannot conclude that the Commission abused its discretion in approving the claimant’s request to change treating doctors.
Further, the hearing officer did not err in determining that the claimant had disability from July 25 through November 7, 2001. We have reviewed these determinations and conclude that the issues involved fact questions for the hearing officer. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). The hearing officer reviewed the record and resolved what facts were established. We conclude that the hearing officer’s determinations are sufficiently supported by the record and 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).
The true corporate name of the insurance carrier is AMERICAN PROTECTION INSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701
Terri Kay Oliver – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
CONCURRING OPINION:
I concur with the hearing officer’s decision on a change of treating doctor.
However, I would observe that the issue as originally stated was the correct issue, The restatement of the issue, whether the Texas Workers’ Compensation Commission (Commission) employee approving the change abused his or her discretion, does not really answer the dispute over whether a change of doctor is warranted under the facts of a given case. The 1989 Act, Section 408.022(c), specifically provides that the Commission should prescribe criteria which are in turn to be considered in approving a change of treating doctor. By rule, Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9 (Rule 126.9), the Commission has included these criteria: whether treatment by the current doctor is medically appropriate; the professional reputation of the doctor; whether the employee is receiving appropriate medical care to reach maximum medical improvement; whether there is a conflict between the employee and the doctor, to the extent that the relationship is jeopardized; and whether the selected doctor does not want to be responsible for the employee’s health care. The need for Commission employees to be mindful of these considerations and consistent in applying them was reinforced in Advisory 2001-01.
However, the approval at the request level is generally a unilateral process; Advisory 2001-01 speaks of a need to call the claimant, but not the carrier. It is at the contested case hearing (CCH) that the carrier first has an opportunity to present information (evidence). When the carrier presents evidence at the CCH, and was not afforded that opportunity when the Commission approved the request for a change of treating doctor, the hearing officer must weigh the evidence and decide whether the request for a change of treating doctor should be approved or denied.
A starting point for any of this analysis requires the furnishing of accurate information. Being “ignorant” of the process is no more of an excuse than it is for other aspects of the law. However, I can infer that the hearing officer was attempting to articulate, in this case, that the claimant was not attempting to change only to obtain a new medical report.
Susan M. Kelley – Appeals Judge
- Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9(e)(2) (Rule 126.9(e)(2)) provides that the Commission may approve a change in treating doctor when that doctor is not responsible for coordinating the patient’s health care as described in Rule 133.3.The Commission also acted in compliance with Advisory 2001-1, effective on April 1, 2001. ↑