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 June 26, 2014, with the record closing on April 8, 2015, in Weslaco, 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), extends to a lumbar strain and bilateral ankle sprains/strains; (2) the compensable injury of (date of injury), does not extend to cervical disc pathology at C5-6, C6-7, and C7-8, thoracic strain, thoracic disc pathology at T7-8 and T12-L1, lumbar disc pathology with stenosis and grade 2 anterolisthesis at L4-5, lumbar disc bulge at L5-S1, lumbar radiculopathy, anxiety, depression, esophageal reflux disease, epigastric abdominal pain, internal bleeding in the stomach, bleeding ulcer, inflamed liver, inflamed gall bladder, hiatal hernia, Barrett’s esophagus, diabetes, a cervical strain, and a left foot sprain/strain; (3) the appellant (claimant) reached maximum medical improvement (MMI) on June 20, 2013; (4) and the claimant’s impairment rating (IR) is 4%.
The claimant appealed the hearing officer’s extent-of-injury determinations that were not favorable to her, as well as the MMI and IR determinations, based on sufficiency of the evidence. The respondent (carrier) responded, urging affirmance of the hearing officer’s determinations.
The hearing officer’s determination that the compensable injury of (date of injury), extends to a lumbar strain and bilateral ankle sprains/strains was not appealed and has become final pursuant to Section 410.169.
DECISION
Affirmed in part and reversed and rendered in part.
The parties stipulated that on (date of injury), the claimant sustained a compensable injury in the form of at least a left thumb fracture, a right shoulder strain, and bilateral knee strains. The claimant testified that she tripped and fell forward to the ground. Also, the parties stipulated that the Texas Department of Insurance, Division of Workers’ Compensation (Division) appointed (Dr. E) as designated doctor to determine extent of the compensable injury, MMI, and IR. Subsequently, the Division appointed (Dr. D) as designated doctor to determine MMI and IR.
EXTENT OF INJURY
The hearing officer’s determination that the compensable injury of (date of injury), does not extend to cervical disc pathology at C5-6, C6-7, and C7-8, thoracic strain, thoracic disc pathology at T7-8 and T12-L1, lumbar disc pathology with stenosis and grade 2 anterolisthesis at L4-5, lumbar disc bulge at L5-S1, lumbar radiculopathy, anxiety, depression, esophageal reflux disease, epigastric abdominal pain, internal bleeding in the stomach, bleeding ulcer, inflamed liver, inflamed gall bladder, hiatal hernia, Barrett’s esophagus, diabetes, a cervical strain, and a left foot sprain/strain is supported by sufficient evidence and is affirmed.
MMI
The hearing officer’s determination that the claimant reached MMI on June 20, 2013, is supported by sufficient evidence and is affirmed.
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.
The hearing officer determined that the claimant’s IR is 4% based on Dr. D’s certification of MMI and IR. In response to a letter of clarification (LOC) dated February 19, 2015, and a Report of Medical Evaluation (DWC-69) dated that same date, Dr. D certified that the claimant reached MMI on June 20, 2013, with a 4% IR using 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).
Dr. D examined the claimant on October 22, 2014, and assessed a 0% impairment for the lumbar spine, 0% impairment for the right shoulder, 0% impairment for the bilateral knee strains, and 0% impairment for the bilateral ankle sprains/strains. For the left thumb fracture, Dr. D assessed a 19% impairment for the left thumb.
Based on Dr. D’s documented range of motion (ROM) and linear measurements, she misapplied the AMA Guides in assessing a 19% impairment for the left thumb. The ROM measurement for flexion of the interphalangeal (IP) joint and linear measurement for lack of adduction of the carpometacarpal (CMC) do not match to the corresponding impairment percent in Tables 5 and 7 on pages 3/28 and 3/29 of the AMA Guides.
However, the Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See Appeals Panel Decision (APD) 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 131670, decided August 29, 2013. Under the facts of this case, the certifying doctor’s assigned IR can be mathematically corrected based on the documented measurements for the left thumb.
The AMA Guides on page 3/25 states that the thumb has five functional units of motion as follows: (1) flexion and extension of the IP joint; (2) flexion and extension of the metacarpophalangeal (MP) joint; (3) adduction; (4) radial abduction; and (5) opposition. Dr. D examined the claimant on October 22, 2014, and documented ROM and linear measurements for the five functional units of motion for the left thumb on the date of the examination. However, Dr. D states in the narrative report and response to a LOC that she utilized ROM and linear measurements from (Dr. M), the treating doctor, because those measurements were taken closest in time to the MMI date of June 20, 2013. We note that Dr. M did not document a ROM measurement for lack of radial abduction of the left thumb, however Dr. D measured and recorded 36degrees for lack of radial abduction[1] on October 22, 2014, as documented in his narrative report dated that same date.
In reviewing Dr. D’s assigned impairment for the left thumb, we note that Dr. D misapplied the AMA Guides in assessing an impairment for the IP joint and lack of adduction of the left thumb by incorrectly assigning an impairment percent using Figure 10 on page 3/26 and Figure 14 on page 3/28 of the AMA Guides. Based on the ROM and linear measurements documented in Dr. D’s narrative report she incorrectly assigned 19% left thumb impairment based on measurements for flexion and extension of the IP joint, flexion and extension of the MP joint, lack of adduction, lack of radial abduction, and lack of opposition, as follows:
Flexion and extension of the IP joint of the thumb
Dr. D utilized Dr. M’s ROM measurements for the IP joint. Dr. M measured 10degrees of flexion resulting in a 6% impairment for the left thumb using Figure 10 on page 3/26. Dr. D incorrectly noted in the narrative report that 10degrees of flexion results in a 7% impairment, however Figure 10 on page 3/26 reflects that a measured 10degrees of flexion results in a 6% thumb impairment due to flexion of the IP joint. We correct Dr. D’s flexion impairment from 7% to 6% thumb impairment to conform to the impairment percent for flexion of the IP joint using Figure 10 on page 3/26, based on the documented ROM measurements.
Dr. M measured 10degrees for extension resulting in a 0% impairment using Figure 10 on page 3/26, which is correct. Combining 6% impairment for flexion with 0% impairment for extension, results in a 6% thumb impairment for the IP joint, as corrected.
Flexion and extension of the MP joint of the thumb
Dr. D utilized Dr. M’s ROM measurements for the MP joint. Dr. M measured 30degrees for flexion resulting in a 3% thumb impairment using Figure 13 on page 3/27. Dr. M measured 10degrees for extension resulting in a 0% thumb impairment using Figure 13 on page 3/27. Combining 3% impairment for flexion with 0% impairment for extension results in a 3% thumb impairment for the MP joint, as assessed by Dr. D.
Radial abduction of the CMC of the thumb
As previously mentioned, Dr. M did not document a ROM measurement for lack of radial abduction. However, Dr. D measured and recorded measured 36degrees for lack of radial abduction on October 22, 2014, the date he examined the claimant. Dr. D utilized that ROM measurement to assess an impairment for radial adduction of the left thumb, Using Table 6 on page 3/28, Dr. D assessed a 1% thumb impairment due to lack of radial abduction.
Adduction of the CMC of the thumb
Dr. D utilized Dr. M’s linear measurements for lack of adduction. Dr. M measured 2 centimeters (cm) for lack of adduction and assigned a 10% impairment using Figure 14 on page 3/28, rather than assign an impairment percent from Table 5 on page 3/28 as instructed in the AMA Guides. This case is similar to APD 132388, decided December 9, 2013, where the certifying doctor used Figure 14 on page 3/28 to assess 10% impairment for the claimant’s lack of thumb adduction, when according to the directions on page 3/28 he should have used Table 5 on page 3/28. In that case the Appeals Panel recalculated the correct IR from the figures provided in the certifying doctor’s report and rendered a new decision as to the correct IR. In APD 132388, the Appeals Panel reference the directions of the AMA Guides and stated that the directions make clear that while the certifying doctor is to refer to Figure 14 on page 3/28 when measuring a claimant’s thumb adduction, the certifying doctor is to actually use Table 5 on page 3/28 to assess thumb impairment due to lack of thumb adduction.
In this case, Dr. D utilized Dr. M’s linear measurement of 2 cm for lack of adduction and assessed an 8% thumb impairment. We note that Figure 10 on page 3/26 reflects that a measured 10degrees of flexion results in a 6% thumb impairment. Although Dr. D references Table 5 on page 3/28 in his narrative report, a measured 2 cm for lack of adduction results in a 1% thumb impairment. We correct Dr. D’s impairment from 8% to 1% thumb impairment to conform to the impairment percent for lack of adduction using Table 5 on page 3/28 based on the documented 2 cm linear measurement.
Opposition of the CMC of the thumb
Dr. D utilized Dr. M’s linear measurement for lack of opposition. Dr. M measured 8 cm for lack of opposition and assigned a 0% impairment using Figure 16 on page 3/29. However, Dr. D specifically references Table 7 on page 3/29, and assesses a 0% impairment due to lack of opposition. We note Table 7 on page 3/29 reflects that 8 cm linear measurement for lack of opposition results in a 0% thumb impairment, as assessed by Dr. D.
Mathematically corrected IR
Accordingly, the claimant’s left thumb impairments for the IP joint (6%), MP joint (3%), radial abduction (1%), adduction (1%), and opposition (0%), are combined resulting in an 11% left thumb impairment, as mathematically corrected. Dr. D’s assigned 19% left thumb impairment is not supported by the evidence, as explained above.
The 11% left thumb impairment, converts to a whole person impairment (WPI) as instructed in the AMA Guides as follows. Using Table 1 on page 3/18, 11% left thumb impairment results in 4% impairment of the left hand. Using Table 2 on page 3/19, 4% left hand impairment, results in 4% left upper extremity (UE) impairment. Using Table 3 on page 3/20, 4% left UE impairment converts to 2% UE WPI for the left thumb injury.
The claimant’s IR for the entire compensable injury is assessed by combining 0% impairment for the lumbar spine, 0% impairment for the right shoulder, 0% impairment for the bilateral knee strains, 0% impairment for the bilateral ankle sprains/strains, and 2% WPI for the left thumb, which results in a 2% IR. The hearing officer found that the preponderance of the other medical evidence is not contrary to Dr. D’s assigned IR, and after a mathematical correction, that finding is supported by the evidence. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 4% and we render a new decision that the claimant’s IR is 2%, as mathematically corrected.
SUMMARY
We affirm the hearing officer’s determination that the compensable injury of (date of injury), does not extend to cervical disc pathology at C5-6, C6-7, and C7-8, thoracic strain, thoracic disc pathology at T7-8 and T12-L1, lumbar disc pathology with stenosis and grade 2 anterolisthesis at L4-5, lumbar disc bulge at L5-S1, lumbar radiculopathy, anxiety, depression, esophageal reflux disease, epigastric abdominal pain, internal bleeding in the stomach, bleeding ulcer, inflamed liver, inflamed gall bladder, hiatal hernia, Barrett’s esophagus, diabetes, a cervical strain, and a left foot sprain/strain.
We affirm the hearing officer’s determination that the claimant reached MMI on June 20, 2013.
We reverse the hearing officer’s determination that the claimant’s IR is 4%, and we render a new decision that the claimant’s IR is 2%, as mathematically corrected.
The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is
RICHARD J. GERGASKO, PRESIDENT
6210 EAST HIGHWAY 290
AUSTIN, TEXAS 78723.
Veronica L. Ruberto – Appeals Judge
CONCUR:
Carisa Space-Beam – Appeals Judge
Margaret L. Turner – Appeals Judge
- We note that Dr. D mistakenly refers to radial “adduction,” rather than radial “abduction” because he correctly references Table 6, Thumb Abduction Due to Lack of Radial Abduction, on page 3/28 of the AMA Guides. ↑