This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1992). On December 19, 1991, (hearing officer) presided at the contested case hearing in (city), Texas. He found that claimant, appellant herein, had reached maximum medical improvement (MMI). Appellant appeals, citing medical evidence available after the hearing. He also argues that there is insufficient evidence to uphold the decision since appellant is continuing to improve and since the “treating physician is (employer),” not the physician found to be the treating physician by the hearing officer.
DECISION
Finding that the decision and order are not against the great weight and preponderance of the evidence, we affirm.
Under the 1989 Act, “maximum medical improvement” means the earlier of: (a) the point after which further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated, based on reasonable medical probability; or (b) the expiration of 104 weeks from the date income benefits begin to accrue. Article 8308-1.03(32). An employee who has disability and who has not attained MMI is entitled to temporary income benefits. Article 8308-4.23(a).
Appellant was employed by (employer) on (date of injury), when he was injured. He and another employee were lifting an air conditioner while on a ladder. The other employee apparently changed his support of the air conditioner; it hit appellant in the forehead extending and injuring his neck. Compensability was not an issue. The only issue was whether or not MMI had been reached.
Appellant offered no documentary evidence but testified that he had a previous back injury in July 1990 for which he received compensation. The current incident was said to have injured his neck and aggravated his prior low back injury. Appellant also stated he saw the same doctor for this injury as he had for the other injury, (Dr. C). Dr. C’s records are in evidence indicating that he first saw appellant for the neck injury on (date). Appellant later in his testimony did say that (Dr. P) tried to refer him to Dr. C and, later still, said a (Dr. S), after an initial visit, referred him to Dr. C, for the current neck injury and had referred him to Dr. C for the prior back injury. He said Dr. C treated him more than once for the low back pain and at least three times for the neck injury.
After Dr. C had treated appellant with steroids and physical therapy, he wrote on May 10, 1991, that appellant had “degenerative cervical disc disease aggravated and made symptomatic by an on-the-job injury. He remains somewhat symptomatic, and at this point in time it is felt that on a permanent basis he can not do the kind of work that he has formerly done. He should not be lifting more than 50 pounds, climbing ladders, or doing a lot of overhead work. It is recommended that he consult Vocational Rehabilitation for job retraining.”
Respondent selected (Dr. SU), for appellant to see for a medical evaluation. On September 27, 1991, Dr. SU evaluated appellant using a TWCC-69, “Report of Medical Evaluation.” Dr. SU found MMI had been reached with zero percent impairment. This completed form was received by the Texas Workers’ Compensation Commission at (city), Texas, in October 1991. Thereafter Dr. C wrote the following letter to the (city) office of Texas Workers’ Compensation Commission on December 4, 1991.
This is in reply to your communication dated 26 November, 1991, regarding [claimant]. It is my opinion that [claimant] has reached [MMI] and has a total body impairment rating of 10%. The limitations stated before are recommended as permanent limitations. He also has an additional 10% disability impairment rating for his lumbar spine and should not do repetitive bending, repetitive lifting, chronic maintenance of a single position or lifting more than 45-50 pounds.
Appellant’s testimony contains no reference to the number of times he saw any physician other than Dr. C nor did he identify his “treating” physician or his choice of a treating physician. Appellant’s counsel in final argument did say both that Dr. P was the treating physician and that (Clinic), “a variety of doctors” was the treating physician. Article 8308-1.03(46) provides, “treating doctor” means the doctor who is primarily responsible for the employee’s health care for an injury.” We note that the definition is singular and that “doctor” at Article 8308-1.03(17) is defined in terms of licensure and authorization to practice. The word “clinic” does appear in the definition of “Health Care facility,” at Article 8308-1.03(21), and is defined differently from either “doctor” or “treating doctor.”
In addition to appellant’s testimony of the multiple times he was seen by Dr. C, both for this injury and for his previous one, the only medical records in evidence showing treatment of appellant were those of Dr. C. From Dr. C’s response of December 4, 1991 to a letter dated November 26, 1991 from the Texas Workers’ Compensation Commission at (city), Texas, it can be inferred that the TWCC letter inquired of Dr. C as to his opinion whether appellant had reached MMI. Harrison v. Harrison, 597 S.W.2d 477 (Tex. App.-Tyler 1980, writ ref’d n.r.e.). Also see Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.4(e)(f) as to a request to treating doctor regarding status of his patient. Again, there is no other document in evidence showing that TWCC inquired of any doctor at (Clinic) or (employer) as to MMI for appellant. The only medical document besides Dr. C’s in evidence is that of Dr. SU who, on behalf of the respondent, evaluated appellant and found that MMI had been reached. The evidence was sufficient to find that Dr. C was the treating physician as stated in Finding of Fact 4.
When appellant argued that the case involved two doctors who said MMI had been reached and another who did not, the other doctor referred to was identified, in response to a question from the hearing officer, as (Dr. SP), who appellant had not yet seen. Even though appellant pointed out at hearing that a medical appointment with Dr. SP was scheduled for January 10, 1992, he never requested a continuance. Appellant enclosed in its appeal two medical documents of Dr. SP plus his billing statement. These will be considered herein to see whether they warrant remand for consideration with evidence of record by the hearing officer. See Texas Workers’ Compensation Commission Appeal No. 91015 decided September 18, 1991. The two medical notes consist of one (Clinic) note that gives appellant’s name and then contains the following script:
Work Restrictions:
(1)no lifting more than 30 pounds
(2)no overhead work
(3)no carrying while climbing ladders
(signed)
1-10-92
The other document from Dr. SP is a “Specific and Subsequent Medical Report” referring to appellant with boxes checked that say “released to return to work” and “limited activity” and the date as 1-10-92. Item 17 “Changes in Condition” states “referred for second opinion about neck pain, from Dr. P.” Item 18 “Treatment Plan” says “Will discuss with referring physician.” Item 21 “Prognosis” says “disabled from work.”
Neither document contradicts the determinations of MMI made by Dr. C and
Dr. S; they simply do not address it. The most that can be said relative to MMI by these documents is that one says “will discuss with referring physician.” There is no contradictory evidence or even a reasonable indication that specific tests that had not been done should be done or that some other assessment or treatment plan is warranted and should be explored further. The documents provide no more than an open-ended suggestion that appellant’s condition be evaluated once more. While due diligence may not have made them available prior to hearing, they probably would not produce a different result if considered. TEIA v. Evers, 242 S.W.2d 906 (Tex. Civ. App.-Amarillo 1951, writ ref’d n.r.e.); Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ). They do not provide sufficient basis for remand particularly since appellant, knowing when they would be available, never requested a continuance at hearing.
The only evidence that appellant was still continuing to improve came from appellant himself. The hearing officer is the sole judge of the weight and credibility of evidence. Article 8308-6.34(e). As trier of fact he could weigh the opinions of two physicians as greater than that of appellant. See Highlands Ins. Co. v. Clements, 422 S.W.2d 218 (Tex. Civ. App.-Corpus Christi 1967, writ ref’d n.r.e.). Since Article 8308-1.03(32) of the 1989 Act defines MMI in terms of “reasonable medical probability,” any weight given to appellant’s opinion would be questionable. “Reasonable medical probability” was addressed in Ins. Co. of N.A. v. Myers, 411 S.W.2d 710 (Tex. 1966) as follows:
Reasonable probability, in turn, is determinable by consideration of the substance of the testimony of the expert witness and does not turn on semantics or on the use by the witness of any particular term or phrase.
More recently, citing Myers, supra, Hernandez v. TEIA, 783 S.W.2d 250 (Tex. App.-Corpus Christi 1989, no writ) said:
The cause, progression and aggravation of disease requires expert testimony to establish a “reasonable probability” that the disease is causally connected to the employment.
Since we determine that the challenged findings are not against the great weight and preponderance of the evidence and that no new evidence warrants remand, we affirm.
Joe Sebesta – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Robert W. Potts – Appeals Judge