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 31, 2001. The hearing officer resolved the disputed issue by concluding that the respondent’s (claimant) impairment rating (IR) is 26% as assigned by the designated doctor, Dr. V on April 17, 2000. The appellant (carrier) appeals, contending that Dr. V amended her report within a reasonable time and that the great weight of the credible evidence is against the finding of the hearing officer. The appeals file does not contain a response to the carrier’s appeal from the claimant.
DECISION
Reversed and remanded.
It is undisputed that the claimant sustained a compensable injury on ______________. The record reflected that the claimant had an anterior discectomy and fusion performed with a bone graft in September 1999. Dr. V initially assigned an IR of 26% on April 17, 2000, with the date of maximum medical improvement (MMI) given as March 6, 2000. A peer review was performed on May 9, 2000, which criticized the initial IR. In response, Dr. V defended her initial rating but agreed to reexamine the claimant. In a medical record dated July 10, 2001, Dr. V assessed the claimant’s IR at 13%, due to improvement in the range of motion (ROM). Dr. V stated that the claimant’s “clinical status appears to have greatly improved during the past year.” Dr. V’s report of July 10, 2001, recognized that the claimant underwent pulse radiofrequency ganglionotomy at the right L4-5 and L5-S1 levels in February and March 2001, with some improvement to her right leg pain and left-sided pain.
The peer review doctor acknowledged that ROM was valid but stated that the measurements should be rejected citing that “the main problem is what appears to be symptom magnification and voluntary restriction with suboptimal effort.” The designated doctor, responded, defending the original IR assessment, noting that, in her opinion, the claimant’s abnormal body mechanics during the examination were involuntary and that she did not believe that the claimant was malingering.
Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.6(i) (Rule 130.6(i)) provides that a designated doctor’s response to any Texas Workers’ Compensation Commission (Commission) requests for clarification is considered to have presumptive weight as it is part of the designated doctor’s opinion. The rule does not provide any time limits, nor does it have any qualifications on it, such as “for a proper purpose.” Texas Workers’ Compensation Commission Appeal No. 013042-s, decided January 17, 2002.
Sections 408.122(c) and 408.125(e) of the 1989 Act provide that the report of a Commission-appointed designated doctor determining the date of MMI and the claimant’s IR shall have presumptive weight and the Commission shall base its determination on such report, unless the great weight of other medical evidence is to the contrary. We have held that a “great weight” determination requires more than a mere balancing or preponderance of the evidence; that no other doctor’s report, including the treating doctor’s report, is accorded the special presumptive status; and that the designated doctor’s report should not be rejected absent a substantial basis for doing so. Texas Workers’ Compensation Commission Appeal No. 960897, decided June 28, 1996. We have also held that it is inappropriate for a designated doctor to amend a certification if surgery was not under active consideration at the time of statutory MMI. Texas Workers’ Compensation Commission Appeal No. 002929-S, decided January 23, 2001. Further, the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) provide for retesting as a method of obtaining a valid IR for ROM, not for invalidating a valid rating. Unless there was a valid reason under the AMA Guides to not apply the original ROM that was validated, that loss of ROM should be utilized in determining the IR.
We reverse and remand this case to the hearing officer with directions that he consider the designated doctor’s amended report and give it presumptive weight as required by Rule 130.6(i). On remand, the hearing officer has to determine whether the great weight of the other medical evidence contradicts the designated doctor’s amended report, considering the presumptive weight afforded to that report under the new Rule 130.6(i), and, if so, he may seek further clarification from the designated doctor or adopt another MMI/IR certification of Dr. V.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Commission’s Division of Hearings, pursuant to Section 410.202 (amended June 17, 2001). See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
The true corporate name of the insurance carrier is LUMBERMENS MUTUAL CASUALTY COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS
AUSTIN, TEXAS 78701.
Gary L. Kilgore
CONCUR:
Elaine M. Chaney – Appeals Judge
Thomas A. Knapp – Appeals Judge