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 May 21, 2009, with the record closing on October 23, 2009. The sole disputed issue is: what is the appellant’s (claimant) impairment rating (IR)? In regard to the disputed issue the hearing officer determined that the claimant has a 10% IR due to the compensable injury.
The claimant appealed, contending that the IR was contrary to the preponderance of the evidence and contended that the IR of a doctor acting in place of the treating doctor should be adopted. The respondent (self-insured) responded, urging affirmance.
Reversed and remanded.
It is undisputed that the claimant, a deputy sheriff, sustained a compensable injury on _________, in a motor vehicle accident. The claimant testified that he sustained a cervical injury, hip replacement and knee injuries. The claimant had four cervical spine surgeries, the last being in August 2006.
The record was held open in this case because the initial designated doctor, (Dr. T), “failed to respond to requests for clarification regarding his decision to use the Range of Motion [ROM] [M]odel instead of the Injury Model.” The only other certification in evidence did not assess impairment as of the agreed date of MMI of November 29, 2007. (Dr. J) was appointed as a subsequent designated doctor to assess the claimant’s IR.
We note that correspondence with Dr. J and Dr. J’s reports were not placed in evidence or marked as hearing officer exhibits. The appeal file contains Dr. J’s report, dated August 11, 2009, assigning an MMI date of April 1, 2007, and assessing a 10% IR as calculated for C1/C2 cervical fracture under Table 75. Table 75 of 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) page 3/113 is entitled “Whole-person Impairment Percents Due to Specific Spine Disorders” and is used to assess impairment in the ROM Model. In a letter of clarification dated September 29, 2009 (in the appeal file) the hearing officer writes Dr. J asking him to “elaborate on the basis of your opinion” regarding the 10% IR and pointing out “the agreed date of [MMI]; . . . is November 29, 2007.” Dr. J answers by letter dated September 30, 2009, changing the MMI date to November 29, 2007, but continuing to reference Table 75 as the basis for his rating.
Dr. J’s IR was clearly based on Table 75 of the AMA Guides, assessing the IR without reference to the Injury Diagnosis-Related Estimate (DRE) Model. The self-insured, at the CCH, argued that there was no statute or rule which says that the ROM Model cannot be used and the DRE Model must be used.
Section 408.125(c) provides that the report of the designated doctor shall have presumptive weight, and the Texas Department of Insurance, Division of Workers’ Compensation (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. Section 408.124(a) provides that an award of an impairment income benefit must be based on an IR determined using the IR guidelines described by that section and the appropriate edition of the AMA Guides which in this case, is the fourth edition.
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 states that “[t]he evaluator assessing the spine should use the [DRE] Model, if the patient’s condition is one of those listed in Table 70 (p. 108).”
In Appeals Panel Decision (APD) 030288-s, decided March 18, 2003, the Appeals Panel stated that although there are instances when the ROM Model may be used, such as if none of the categories of the DRE Model are applicable, or as a differentiator, the use of the DRE Model is not optional and is to be used unless there is a specific explanation why it cannot be used. A comment that the evaluator merely prefers “to use the Model that he or she feels is most appropriate” is insufficient justification for not using the DRE Model. In APD 061529-s, decided September 26, 2006, after the claimant reached MMI, the designated doctor assigned a 10% IR under DRE Lumbosacral Category III: Radiculopathy. Subsequently, the designated doctor re-examined the claimant and assessed a 29% IR using the ROM Model. The Appeals Panel held that the hearing officer erred in determining that the claimant’s IR is 29% and rendered a decision that the claimant’s IR is 10%. In that case, the designated doctor failed to specifically explain why the ROM Model should be used to assess the IR and why the DRE Model could not be used to assess the claimant’s IR. See also APD 071818, decided December 6, 2007. The Appeals Panel has held that a designated doctor may utilize the ROM Model as opposed to the DRE Model if the designated doctor gives a specific explanation as to why he or she does so. See APD 033280, decided February 11, 2004. See also APD 061529-s.
28 TEX. ADMIN. CODE § 130.1(d)(1) (Rule 130.1(d)(1)) provides that certification of MMI and assigning an IR for the compensable injury requires “completion, signing and submission of the [Report of Medical Evaluation (DWC-69)] and a narrative report.” No DWC-69 from Dr. J is in evidence and none is in the appeal file correspondence.
The hearing officer erred in adopting the 10% IR assessed by Dr. J because the impairment he assessed was based on the ROM Model rather than the DRE Model without providing any explanation and there is no DWC-69 in evidence or in the appeal file. We reverse the hearing officer’s determination that the claimant has a 10% IR. We remand the IR issue to the hearing officer for further action as directed.
THE OTHER IR
In evidence is a report from (Dr. F), a doctor selected by the treating doctor to act in his place. In a DWC-69 and narrative, both dated January 10, 2008, Dr. F certifies clinical MMI on November 26, 2007 (rather than the agreed upon date of MMI of November 29, 2007) and assesses a 25% IR based on DRE Cervicothoracic Category IV: Loss of Motion Segment Integrity or Multilevel Neurologic Compromise. The hearing officer correctly rejected Dr. F’s report because it did not assess MMI on the agreed upon date of MMI of November 29, 2007.
The hearing officer is to mark all correspondence to and from Dr. J as hearing officer exhibits, admit them into evidence and make them available to the parties. The hearing officer is to further make a determination, or obtain agreement from the parties, on the extent of the compensable injury. The hearing officer is to determine if Dr. J is still qualified and available to be the designated doctor and if so, Dr. J is to rate the claimant’s entire compensable injury as of the agreed date of MMI of November 29, 2007, using the DRE Model or providing a detailed explanation of why he is using the ROM Model. If Dr. J is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Rule 126.7(h) to determine the claimant’s IR for the compensable injury. The hearing officer is to provide the designated doctor’s response to the parties and allow the parties an opportunity to present evidence and respond. The hearing officer is then to make a determination on the claimant’s IR.
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 060721, decided June 12, 2006.
The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is
(CITY), TEXAS (ZIP CODE).
Thomas A. Knapp
Veronica L. Ruberto
Margaret L. Turner