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 March 20, 2012, with the record closing on April 9, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the compensable injury of [date of injury], does not extend to facet syndrome and disc herniations at C5-6 and C6-7, bursitis, ganglion cyst, and acromioclavicular joint arthrosis of the left shoulder; and (2) the appellant (claimant) reached maximum medical improvement (MMI) on February 23, 2011, with six percent impairment rating (IR) as certified by [Dr. T]. The claimant appealed, disputing the hearing officer’s determinations on extent of injury, MMI, and IR. The respondent (self-insured) responded, urging affirmance.
DECISION
Affirmed in part and reversed and remanded in part.
The parties stipulated that the claimant sustained a compensable injury on [date of injury], and that Dr. T was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) on the issues of MMI and IR. The claimant testified that she injured her neck, left shoulder, and left arm at work on [date of injury], when she was lifting a special needs student from a wheelchair to a desk. The evidence, which includes a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) dated October 16, 2010, reflects that the self-insured accepted a cervical, a left shoulder, and a left arm sprain/strain.
In evidence is a cervical MRI dated October 25, 2010, which revealed disc protrusions at C5-6 and C6-7. Also in evidence is a left shoulder MRI dated the same day, and a left shoulder MRI dated June 21, 2011, which revealed bursitis, ganglion cyst, and acromioclavicular joint arthrosis.
EXTENT OF INJURY
The hearing officer’s determination that the compensable injury of [date of injury], does not extend to facet syndrome and disc herniations at C5-6 and C6-7, bursitis, ganglion cyst, and acromioclavicular joint arthrosis of the left shoulder is supported by sufficient evidence and is affirmed.
MMI AND IR
The hearing officer’s determination that the claimant reached MMI on February 23, 2011, is supported by sufficient evidence and is affirmed.
There is only one certification of MMI and IR with the affirmed MMI date of February 23, 2011, which rates the entire compensable injury. It is the amended certification by Dr. T, the designated doctor, in which he performs an IR evaluation of a cervical, a left shoulder, and a left arm sprain/strain. Dr. T assigns six percent whole person (WP) impairment for abnormal range of motion (ROM) of the left shoulder/arm and assigns zero percent WP cervical impairment, placing the claimant in Diagnosis-Related Estimate (DRE) Cervicothoracic Category I: Complaints or Symptoms. Dr. T combines the upper extremity WP impairment with the cervical WP impairment, which results in six percent IR for the compensable injury of [date of injury].
The claimant on appeal contends that Dr. T did not comply with 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 assessing the impairment for the left upper extremity, Dr. T compared the uninvolved contralateral joint with the injured joint. Contrary to the claimant’s contention, there is no provision in the AMA Guides which requires or prohibits that method. It is in the discretion of the certifying doctor.
In assessing the impairment for the cervical spine, Dr. T, in his narrative report, dated June 29, 2011, stated:
The [C]ervicothoracic DRE [Category] II standard for ‘minor impairment’ is stringent, as has been made quite clear in the designated doctor recertification courses. It requires findings objectively ‘compatible with a specific injury’ and (regardless of the wording on page [3/]104 [AMA] Guides) must include ‘significant’ muscle spasm/guarding or dysmetria-neither of which was evident on [the claimant’s] exam. (Emphasis in original.)
The AMA Guides, page 3/104, provide:
DRE Cervicothoracic Category II: Minor Impairment
Description and Verification: The history and findings are compatible with a specific injury and include intermittent or continuous muscle guarding observed by a physician, nonuniform loss of [ROM] (dysmetria, differentiator 1, Table 71, [page] [3/]109), or nonverifiable radicular complaints. There is no objective evidence of radiculopathy or loss of structural integrity.
The AMA Guides, page 3/109, under Table 71, DRE Impairment Category Differentiators, in pertinent part provide that the criteria will help differentiate spine impairments and place them in impairment categories for the cervicothoracic regions; the physician should use these to determine the highest impairment category. It further provides:
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1.Guarding
Paravertebral muscle guarding or spasm or nonuniform loss of [ROM], dysmetria, is present or has been documented by a physician. Radicular complaints that follow anatomic pathways but cannot be verified by neurologic findings belong with this type of differentiator.
In Appeals Panel Decision (APD) 080966-s, decided September 5, 2008, the Appeals Panel reversed an IR determination. In its discussion, the Appeals Panel noted that:
By placing the word ‘or’ between guarding, spasm and nonuniform loss of ROM we read those terms in the disjunctive. We read the Guarding portion of Table 71 to say guarding can be used as a differentiator if guarding or spasm or nonuniform loss of ROM is present or has been documented by a physician, not that all three items of guarding, spasm and nonuniform loss of ROM must be present or documented by a physician before it can be used as a differentiator.
In that case, the Appeals Panel further noted that a claimant’s normal cervical ROM is not inconsistent with a finding of guarding.
A review of the medical records in evidence in this case reflect a history of cervical spasms and guarding documented by the claimant’s treating doctor.
Dr. T applies a more stringent standard than the AMA Guides for placement in Cervicothoracic DRE Category II: Minor Impairment by requiring “must include ‘significant’ muscle spasm/guarding or dysmetria . . .” in the exam. The AMA Guides only require intermittent or continuous muscle guarding as observed by a doctor (which may include documentation of muscle spasm or guarding or nonuniform loss of ROM by a treating doctor). The hearing officer’s finding that Dr. T’s impairment examination was conducted in accordance with the AMA Guides is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. That portion of the hearing officer’s finding that Dr. T’s assignment of IR is supported by the preponderance of the evidence is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is six percent. Because there is no other IR that can be adopted, we remand the IR issue to the hearing officer for further action consistent with this decision.
SUMMARY
We affirm the hearing officer’s determination that the compensable injury of [date of injury], does not extend to facet syndrome and disc herniations at C5-6 and C6-7, bursitis, ganglion cyst, and acromioclavicular joint arthrosis of the left shoulder.
We affirm the hearing officer’s determination that the claimant reached MMI on February 23, 2011.
We reverse the hearing officer’s determination that the claimant’s IR is six percent and remand the IR issue to the hearing officer for further action consistent with this decision.
REMAND INSTRUCTIONS
Dr. T is the designated doctor. On remand, the hearing officer is to determine whether Dr. T is still qualified and available to be the designated doctor. If Dr. T is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed to determine MMI and IR for the compensable injury.
The hearing officer is to advise the designated doctor that the accepted compensable injury of [date of injury], is a cervical, a left shoulder, and a left arm sprain/strain and that the compensable injury does not extend to facet syndrome and disc herniations at C5-6 and C6-7, bursitis, ganglion cyst, and acromioclavicular joint arthrosis of the left shoulder. The hearing officer is to advise the designated doctor that it has been administratively determined that the claimant reached MMI on February 23, 2011.
The hearing officer is to request that the designated doctor rate the entire compensable injury in accordance with the AMA Guides based on the claimant’s conditions as of the date of MMI (February 23, 2011), considering the medical record, the certifying examination and the rating criteria in the AMA Guides, which includes pages 3/104 and 3/109.
The parties are to be provided with the hearing officer’s letter to the designated doctor and the designated doctor’s response. The parties are to be allowed an opportunity to respond. The hearing officer is then to make a determination on 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
SUPERINTENDENT
[ADDRESS]
[CITY], TEXAS [ZIP CODE].
Cynthia A. Brown
Appeals Judge
CONCUR:
Carisa Space-Beam
Appeals Judge
Margaret L. Turner
Appeals Judge