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 July 1, 1992, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. He found that claimant, appellant herein, reached Maximum Medical Improvement (MMI) when the doctor designated by the Commission so certified. He also ordered payment of Temporary Income Benefits (TIBs) from the time they were suspended, based on another physician’s certification of MMI, until MMI was reached. Appellant states that it seeks a more definitive decision on the law concerning MMI and disputes that MMI has been reached and that no impairment has been assigned.
DECISION
Finding that the decision is based on sufficient evidence of record, we affirm.
Three issues were considered at this hearing: (1) whether a certification of MMI from other than the treating doctor can provide a basis to stop TIBs without a benefit review conference; (2) has MMI been reached; and (3) does claimant have any impairment. There was no dispute that appellant injured his back on the job on (date of injury) while lifting a barbecue grill. After initial treatment at (Hospital) where he was seen by (Dr. P), appellant saw (Dr. C). Appellant testified that he quit seeing (Dr. C) because that physician’s primary treatment involved steroid administration. He also saw (Dr. Ca) for an examination as requested by the respondent. We note that (Dr. Ca) saw appellant on four separate occasions in order to prepare his Report of Medical Evaluation (TWCC form 69) which certified MMI as of November 20, 1991 with no impairment. After (Dr. Ca’s) report, appellant began to see (Dr. H) on November 26, 1991. Appellant testified that (Dr. H) has never told him that he has reached MMI.
The commission then selected (Dr. W) as a designated doctor to determine whether MMI had been reached and if so what, if any, impairment was found. (Dr. W) found that appellant reached MMI on February 17, 1992 with no impairment. Appellant in asserting that (Dr. W’s) certification is contrary to the great weight of other medical evidence, introduced three medical documents–two of which are reports of MRI’s by (Dr. G) dated March 19, 1992, and the other is a short report by (Dr. H), also dated March 19, 1992, commenting on one of those MRI’s. The hearing officer quoted (Dr. G’s) impression completely in his decision. In summary, that impression included an abnormality in the curvature of appellant’s spine, a ringlike bulge at L4-5, and a disc bulge “probably a herniation” at L5-S1 (neither bulge impacted the sheath of the spinal cord). There was no medical report or statement that reviewed and differed from the designated doctor’s report or that purported to reach a different conclusion after examining the various studies considered by that doctor. We note that the designated doctor had MRI’s of the back that obviously were done before March 19, 1992. In addition, the report of (Dr. Ca) commenting “there is no protrusion into the spinal canal,” in certifying MMI on November 20, 1991, is consistent with the designated doctor.
The hearing officer assigns weight to evidence, including medical evidence, and that officer may choose to give great weight to a medical report, such as (Dr. H’s), based on tests repeated subsequently to a designated doctor’s report. However, if prior studies are repeated after a designated doctor’s report and the medical opinion they generate is routinely given “great weight” in contradicting the designated doctor, who did not consider that new round of tests, the process may be unfairly prolonged. A logically explained need to repeat a test for some testing anomaly, even after the designated doctor’s report, may be judged differently. In this case the hearing officer committed no error in not finding that the great weight of other medical evidence was contrary to the designated doctor’s report.
The hearing officer, upon deciding that the designated doctor’s report certifying MMI as of February 17, 1992 was not overcome by other evidence, had sufficient evidence for determining that MMI had been reached at that time. See Article 8308-4.25(b) which provides that when there is a dispute whether MMI has been reached, a designated doctor shall examine the injured employee and report to the Commission which will decide when MMI has been reached.
The only evidence of impairment presented at the hearing was contained in the designated doctor’s report and the report of (Dr. Ca). Both provide that there is no impairment. The decision of the hearing officer as to impairment is also based on sufficient evidence.
We note that the hearing officer states that it was not necessary to decide whether TIBs may be terminated prior to a benefit review conference (BRC) based on certification of MMI by a doctor who was requested by the carrier. The hearing officer in ruling that MMI was reached on February 17, 1992, in effect did rule that the earlier certification of MMI by the doctor requested by the carrier did not meet the requirements of Article 8308-4.23(b) which says that an employer must have “reached MMI” (emphasis added) in order for TIBS to be stopped.
A determination that TIBs cannot be suspended solely by a certification of MMI by a doctor requested by the carrier is consistent with applicable articles of the 1989 Act. Article 8308-4.16(e) states that TIBs cannot be suspended without a BRC when a doctor selected by a carrier says that an employee can return to work. Article 8308-4.25(b) provides that when there is dispute as to when MMI has been reached, a designated doctor is appointed. That article does not give even the designated doctor power to determine MMI, but says the designated doctor will report to the Commission, who will decide. (It would appear illogical to allow a doctor, requested by the carrier, to solely determine when TIBs should be stopped when a doctor designated by the Commission cannot make such a decision). While it may be argued that a suspension of TIBs upon certification of a doctor requested by the carrier is not necessarily a final action such as is a determination concerning a designated doctor’s report under Article 8308-4.25, Article 8308-4.23(b) provides no inroad to the concept that TIBs continue until MMI is reached. No provision is made for even temporary unilateral action by the carrier in regard to MMI as a means to stop TIBs. Again, when a claimant does not agree with a certification of MMI, Article 4.25(b) controls by saying, “[i]f a dispute exists as to whether the employee has reached maximum medical improvement, the commission shall direct . . . a designated doctor” (emphasis added), which makes it implicit that MMI has not been reached solely by a certification from a physician other than the treating doctor.
If the carrier, based on a certification from a doctor requested by the carrier could dictate, solely, when TIBs stopped, the certification of MMI in question would have to be equated to “reached MMI” as found in Article 8308-4.23(b) and 4.25(b)–in addition, there would be no need for that certifying doctor to seek approval of his decision from any other doctor, but Texas W.C. Comm’n, 28 TEXAS ADMIN. CODE §130.3 (Rule 130.3) requires that any certification of MMI by other than a treating doctor be provided to the treating doctor for his agreement or disagreement.
We consider certification of MMI by any doctor to be a serious matter which should call for expedited treatment within the Commission to see that relevant rules and procedures are followed to determine whether MMI has been reached. Certification by a non-treating doctor of MMI, alone, does not constitute a basis for the carrier to stop TIBs.
Finding that the decision and order are not against the great weight and preponderance of the evidence, we affirm.
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Susan M. Kelley – Appeals Judge