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 September 13, 2007. The hearing officer decided that the appellant’s (claimant) impairment rating (IR) is 8%. The claimant appealed the hearing officer’s IR determination. The respondent (carrier) responded, urging affirmance.
DECISION
Reversed and remanded.
The parties stipulated that: (1) on ___________, the claimant sustained a compensable injury; and, (2) the Texas Department of Insurance, Division of Workers’ Compensation (Division)-selected (Dr. N) as a designated doctor to examine the claimant for maximum medical improvement (MMI) and IR. It was undisputed that the claimant reached MMI on October 25, 2006, pursuant to Dr. N’s certification. The sole issue in dispute is the claimant’s IR. It is undisputed that the compensable injury includes a cervical injury.
On November 12, 2004, the claimant underwent cervical spinal surgery. On May 3, 2006, the designated doctor, Dr. N, examined the claimant and certified that the claimant reached MMI on that same date with an 8% IR. On August 3, 2006, the claimant underwent a second cervical spinal surgery. In a response to a letter of clarification dated October 9, 2006, Dr. N stated that because the claimant had undergone a second spinal surgery, it would be appropriate to rescind the claimant’s “date of MMI and place her not at MMI.” Dr. N noted in his response that the claimant needed to be re-evaluated after post-surgery treatment had been completed. Thereafter, the Division sent another letter of clarification dated November 3, 2006, to Dr. N informing him that the date of statutory MMI was October 25, 2006, and that an IR was needed. In a response dated December 6, 2006, Dr. N noted that “[s]ince [the claimant] reached statutory MMI, her [IR] will remain an 8%, as I do not find any indication to alter this impairment, however, her MMI date will be the statutory date of MMI of October 25, 2006.” Dr. N did not re-examine the claimant after the August 3, 2006, spinal surgery. In a response to subsequent letters of clarification from the Division, Dr. N opined that his certification of MMI/IR remained unchanged.
IR
Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Division shall base the IR on that report unless the preponderance of the other medical evidence is to the contrary, and that, if the preponderance of the medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Division, the Division shall adopt the IR of one of the other doctors. 28 TEX. ADMIN. CODE § 130.1(c)(3) (Rule 130.1(c)(3)) provides that the assignment of an IR for the current compensable injury shall be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination.
In Appeals Panel Decision (APD) 040313-s, decided April 5, 2004, the Appeals Panel wrote that the preamble to Rule 130.1(c) at 29 Tex. Reg. 2332 (2004) stated in a response to a comment that “[i]n the event the MMI date is changed due to a post-MMI change in the injured employee’s conditions, there should be a re-evaluation of the IR as of the new MMI date.” The preamble also noted that in the event the MMI date is changed, the IR would have to be based on the injured employee’s condition as of the changed MMI date. See also APD 010297-s, decided March 29, 2001 (the amended certification of a later date of MMI was done without a medical examination in violation of Rule 130.1(b)(4)(B)). In this case, Dr. N changed the MMI date from May 3, 2006, to October 25, 2006, without re-evaluating the claimant’s condition after her spinal surgery on August 3, 2006, as indicated in his response to a letter of clarification. The evidence establishes that Dr. N did not assign an IR based on the claimant’s condition as of the changed later date of MMI of October 25, 2006. Dr. N assigned an 8% IR based on the date of examination of May 3, 2006. Accordingly, the hearing officer erred in determining that Dr. N’s assigned 8% IR is supported by a preponderance of the evidence.
Review of the record reflects that there is another certification of MMI/IR in evidence by the treating doctor, (Dr. M). The treating doctor examined the claimant on October 25, 2006, and certified that the claimant reached MMI on that date with a 25% IR. Dr. M assessed an IR of 25%, utilizing the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). In a letter dated December 28, 2006, Dr. M explained that he used the range of motion (ROM) model as a differentiator assessing a 26% IR, and then placed the claimant in a Diagnosis-Related Estimate (DRE) category that was in proximity to the 26% IR determined with the ROM model. Using the ROM model, Dr. M assessed 15% impairment for specific spine disorders under Table 75, Subsection IV, 11% impairment for loss of ROM, and 3% impairment for migraines for a combined value of 26% IR. Then Dr. M placed the claimant in DRE Cervicothoracic Category IV: Loss of Motion Segment Integrity or Multilevel Neurological Comprise for a 25% IR because it was in proximity to the 26% IR using the ROM method.
The AMA Guides on page 3/112 states that “[t]he [ROM model] should be used only if the Injury Model is not applicable, or if more clinical data on the spine are needed to categorize the individual’s spine impairment.” The AMA Guides on page 3/99 states that:
If the physician cannot decide into which DRE category the patient belongs, the physician may refer to and use the ROM Model, which is described in Section 3.3j (p.113). Using the procedures of that model, the physician combines an impairment percent based on the patient’s diagnosis with a percent based on the patient’s spine motion impairment and a percent based on neurologic impairment, if it is present. The physician uses the estimate determined with the [ROM] Model to decide placement within one of the DRE categories. The proper DRE category is the one having the impairment percent that is closest to the impairment percent determined with the [ROM] Model.
The AMA Guides on page 3/94 that states “[t]he evaluator assessing the spine should use the Injury Model [the Injury Model is also called the DRE Model], if the patient’s condition is one of those listed in Table 70 (p.108).”
In the instance case, Dr. M references the claimant’s spinal surgeries and states that “[a]lthough the multi-level fusion does not meet the criteria for Category IV” the AMA Guides provide that the ROM model can be used when “[m]ore clinical data on the spine are needed to categorize the impairment” or the IR “is the closest to the [IR] using the [ROM model].” Additionally, Dr. M states that the claimant has spinal stenosis. We note that spinal stenosis is a condition that is listed in Table 70 (p. 3/108) and the applicable categories are DRE I or II. However, as in APD 061455, decided September 13, 2006, it is clear from Dr. M’s letter dated December 28, 2006, that he did not use the ROM model as a differentiator as provided by the AMA Guides, but rather he placed the claimant in a DRE category that was in proximity to the 26% IR using the ROM model. Dr. M does not indicate that he could not decide into which DRE category to place the claimant, and then used the ROM model as a differentiator to decide placement within one of the DRE categories. Accordingly, Dr. M’s certification of MMI/IR cannot be adopted.
We reverse the hearing officer’s determination that the claimant’s IR is 8% and we remand the IR issue to the hearing officer. On remand, the hearing officer is to determine whether Dr. N is still qualified and available to be the designated doctor, and if so, Dr. N is to determine the claimant’s IR as of the stipulated October 25, 2006, MMI date. In the event the designated doctor is no longer qualified to act in that capacity, the record would need to be held open for the appointment of another designated doctor and for a determination on the claimant’s IR. To determine the IR, the designated doctor should re-examine the claimant to assess the IR for the compensable injury. The designated doctor should then assign an IR for the claimant based on the claimant’s condition as of the October 25, 2006, MMI date considering the medical records and certifying examination. The hearing officer is to provide the designated doctor’s assessment of the claimant’s IR to the parties and allow the parties an opportunity to respond, and then make a determination regarding the IR issue.
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 Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 92642, decided January 20, 1993.
The true corporate name of the insurance carrier is THE TRAVELERS INDEMNITY COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY DBA
CSC-LAWYERS INCORPORATING SERVICE COMPANY
701 BRAZOS STREET, SUITE 1050
AUSTIN, TEXAS 78701.
Veronica L. Ruberto
CONCUR:
Thomas A. Knapp – Appeals Judge
Margaret L. Turner – Appeals Judge