On September 1, 1992, a contested case hearing was held. The hearing record was closed on September 10, 1992. The issues at the hearing were whether the claimant has reached maximum medical improvement (MMI), and if so, when, and what is the claimant’s impairment rating. The hearing officer determined that the claimant reached MMI on March 4, 1992, as certified by the claimant’s treating doctor, Dr. Ha, and that the claimant has a 30 percent whole body impairment rating as assigned by the claimant’s treating doctor. The hearing officer made her determination based on her conclusion that the impairment rating assigned by the treating doctor had become final, which conclusion was based on her finding that the carrier failed to dispute the impairment rating assigned by the treating doctor within 90 days. The hearing officer also determined that Dr. He was not a designated doctor.
The appellant, hereafter the carrier, contends that certain findings of fact and conclusions of law are not supported by sufficient evidence and are against the great weight and preponderance of the evidence. The carrier requests that we reverse the decision of the hearing officer and render a decision that Dr. He was a designated doctor and that the Commission adopt the date he certified that the claimant reached MMI and adopt the impairment rating of 9 percent which he assigned. In the alternative, the carrier requests that we reverse the decision of the hearing officer and remand the case for the hearing officer to designate a doctor to resolve the impairment rating dispute.
DECISION
The hearing officer’s determination that Dr. He was not a designated doctor is affirmed. The hearing officer’s determination that the impairment rating assigned by Dr. Ha became final is reversed and the case is remanded for further development and consideration of the evidence.
The parties stipulated that the claimant suffered a compensable injury while in the course and scope of her employment with her employer on ___________. According to the history of the injury as recited in various doctors’ reports, the claimant sustained injuries at work when she tried to get a cart through a door, the door hit her, and she fell down. The claimant chose Dr. Ha, M.D., as her treating doctor. He referred her to Dr. V, M.D., who on March 26, 1991 diagnosed the claimant as having a “cervical and thoracolumbar sprain” with “no clinical evidence of a radiculopathy.” The claimant said that Dr. Ha also referred her to Dr. Hr, M.D., for a second opinion. In evidence was an undated TWCC-69 Report of Medical Evaluation which indicated that Dr. Hr signed the report “for [Dr. Ha], M.D.” The report indicated that the claimant had reached MMI on March 4, 1992, with a whole body impairment rating of 30 percent. The claimant testified that Dr. Ha assigned the impairment rating on March 4, 1992.
The claimant testified that she was next examined by Dr. L, M.D., at the request of the carrier. Dr. L examined the claimant on March 16, 1992, and in a TWCC-69 Report of Medical Evaluation dated April 7, 1992, reported that the claimant had not reached MMI, estimated that she would reach MMI in early April 1992, and assigned a whole body impairment rating of 5 percent.
The claimant testified that after she was examined by Dr. L, she received a telephone call from Ms. R, a claims specialist with the carrier, and was told to go to the ____________ Orthopedic Group and see Dr. He, M.D., for an independent medical examination. The claimant said that she agreed to see Dr. He but did not understand that he was a designated doctor. She said that she understood that Dr. He’s examination of her was a “follow-up.” The claimant said that neither Ms. R nor anyone at the Commission explained to her what a designated doctor is, nor did anyone tell her that a Commission Ombudsman was available to explain the role of a designated doctor. The claimant further testified that she was not represented by an attorney at the time she saw Dr. He, that she did not talk to a Commission Ombudsman until after she was examined by Dr. He, and that there was no order from the Commission appointing Dr. He as a designated doctor. The claimant also testified that she had never heard the term “designated doctor” until the June 25, 1992 Benefit Review Conference (BRC). On May 19, 1992, the claimant was examined by Dr. He. In a TWCC-69 Report of Medical Evaluation, he certified that the claimant reached MMI on May 19, 1992, and assigned her a whole body impairment rating of 9 percent.
A BRC was held on June 25, 1992. The issue raised but not resolved at the BRC was, what is the correct impairment rating for the claimant resulting from the injury of ___________? The carrier put into evidence a copy of a memo dated June 29, 1992, from Ms. R to the Benefit Review Officer. Ms. R stated in the memo that the carrier did not pick Dr. He as a designated doctor; that since there was a dispute in the impairment ratings between Drs. L and Ha, the claimant agreed to a designated doctor; that she spoke with the claimant on April 29, 1992 and “explained the designated doctor”; that she advised the claimant that she, Ms. R, would “agree with any physician in ____________ Orthopedic Group if she wanted to pick a doctor”; that “she [the claimant] agreed”; and that she, Ms. R, then received a call from Dr. He’s office on May 6, 1992 requesting approval for an examination of the claimant on May 19, 1992. Ms. R also stated in the memo that the claimant informed her that she had spoken with someone at the Commission. In a Disputed Issue form dated July 27, 1992, the Benefit Review Officer stated that “I recommend the impairment rating of 9% as assigned by Dr. He, the designated doctor.”
At the carrier’s request, and without objection from the claimant, the hearing officer on the date of the hearing, September 1, 1992, held the hearing record open until September 8, 1992, for the carrier to secure an affidavit from Ms. R and file it with the hearing officer, and gave the claimant until September 10, 1992 to file a “controverting affidavit.” The hearing officer said that she would close the hearing record on September 10, 1992. In her decision, the hearing officer noted that the hearing record was held open for receipt of an affidavit from the carrier and claimant’s response, that no such documents were received, and that the hearing record was closed on September 10, 1992. Attached to the carrier’s request for review is an affidavit from Ms. R dated September 8, 1992. The affidavit bears a September 8, 1992 “received” stamp from the Commission field office where the hearing was held.
On appeal, the carrier disputes the following finding of fact and conclusions of law:
Finding of Fact
No. 10.More than 90 days has elapsed since Dr. Ha issued his impairment rating (Tex. Workers’ Comp. Comm’n, 28 TEX. ADMIN. CODE. Sec. 130.5(e)), which was the first impairment rating assigned to claimant, and the carrier has not disputed this rating.
Conclusions of Law
No. 3.The impairment rating assigned by Dr. Ha has become final.
No. 4.Under the Act, there can be no assessment of impairment rating until MMI has been reached; therefore, because the impairment rating has become final, the certification of MMI supporting that impairment rating must also be deemed final.
No. 5.Claimant reached MMI on March 4, 1992, with a 30% whole body impairment rating.
Rule 130.5(e) provides that the first impairment rating assigned to an employee is considered final if the rating is not disputed within 90 days after the rating is assigned.
On appeal, the carrier contends that the hearing officer erred in making Finding of Fact No. 10 and Conclusions of Law Nos. 3, 4, and 5 because “the disputes did not place in issue whether or not the carrier properly contested the impairment rating, but rather sought resolution as to the correct impairment rating of those presented in evidence.” We agree with that contention. The claimant’s position at the hearing was that Dr. He was not a designated doctor agreed to by the parties or selected by the Commission and urged that the hearing officer not follow the recommendation from the BRC, but instead, allow the parties to agree on a designated doctor, and if they are unable to do so, that the Commission appoint a designated doctor. The claimant did not assert that the carrier failed to dispute the impairment rating assigned by Dr. Ha, the treating doctor, within 90 days after the rating was assigned. There is also no indication in the BRC Disputed Issue form that the claimant took such a position at the BRC. The carrier’s position at the hearing was that Dr. He was a designated doctor agreed to by the parties and that the Commission must adopt the 9 percent impairment rating which he assigned the claimant. The first time that the matter of the finality of the treating doctor’s impairment rating is mentioned is in the hearing officer’s decision. Since neither party touched upon the issue of the finality of the treating doctor’s impairment rating, neither party offered evidence at the hearing as to the date the carrier disputed the treating doctor’s impairment rating. We conclude that Finding of Fact No. 10 is not supported by sufficient evidence and that the issue as to whether the carrier timely disputed the impairment rating of the treating doctor was not an issue properly before the hearing officer under the circumstances presented in this case. Since Conclusions of Law 3, 4, and 5 are based on Finding of Fact No. 10, which is not supported by the evidence and which pertains to an issue not properly before the hearing officer, such conclusions of law were made in error. See Texas Workers’ Compensation Commission Appeal No. 92330, decided August 31, 1992 where we reversed a hearing officer’s determination that the employee sustained a compensable injury where that determination was based on a finding that the carrier had waived its right to contest compensability of the claimed injury and the issue of whether the carrier waived its right to contest compensability was not an issue properly before the hearing officer for resolution. In deciding that the 90-day provision in Rule 130.5(e) was not an issue properly before the hearing officer in this case, we do not mean to imply that a party is precluded from asserting that the other party failed to meet the time limit imposed by that provision in a dispute concerning an injured employee’s impairment rating. However, where the dispute concerns the injured employee’s impairment rating and neither party asserts that the other party failed to comply with Rule 130.5(e), it is error for the hearing officer to base her decision on that rule.
The carrier attached to its request for review a TWCC-21 Payment of Compensation or Notice of Refused/Disputed Claim form dated April 1, 1992, in which the carrier stated in part that it “disputes impairment rating of 30%. Paying IIB [impairment income benefits] in dispute. MMI 3/4/92.” This document was not introduced into evidence at the hearing. While we have consistently ruled that our review of the evidence is limited to the record developed at the contested case hearing, and accordingly we do not base our decision on this document, we observe that had the 90-day provision in Rule 130.5(e) been raised as a matter for resolution at the hearing, presumably the carrier would have introduced this document into evidence to show that it disputed the treating doctor’s impairment rating within 90 days of March 4, 1992, the date the treating doctor assigned the impairment rating.
We next consider the carrier’s contention that Finding of Fact No. 9 and Conclusion of Law No. 2 are against the great weight of the evidence and are factually insufficient to support the decision of the hearing officer. The contested finding and conclusion are as follows:
Finding of Fact
No. 9.Dr. He was not a designated doctor because Tex. Workers’ Comp. Comm’n, 28 TEX. ADMIN. CODE Sec. 130.6 was not followed.
Conclusion of Law
No. 2.Dr. He was not a designated doctor.
The carrier contends that the evidence showed that the parties agreed on Dr. He as a designated doctor. Rule 130.6 provides, among other things, for notice from the Commission to the employee and the carrier that a designated doctor will be directed to examine the employee, for the Commission to inform an unrepresented employee that an Ombudsman is available to explain the contents of the agreement for a designated doctor, for the carrier to send a confirmation letter to the employee with a copy to the Commission within ten days of an agreement on a designated doctor, and for the Commission to contact the employee to confirm the agreement. The claimant’s testimony provided ample evidence that the aforementioned provisions of Rule 130.6 were not complied with. In essence, the claimant testified that she did not agree on Dr. He as a designated doctor; that she was not informed that Dr. He was a designated doctor; that no one explained to her, or told her that an Ombudsman was available to explain to her what a designated doctor is; and that she did not know what a designated doctor was at the time she was examined by Dr. He. The carrier presented some evidence to the contrary in the form of Ms. R’s memo to the Benefit Review Officer of June 29, 1992. However, this memo was written 41 days after Dr. He examined the claimant, does not indicate that the Commission notified the claimant that she was to be examined by a designated doctor, does not indicate that a confirmation letter was sent to the claimant concerning an agreement on a designated doctor, and does not reflect that the Commission confirmed the purported agreement. The hearing officer is the sole judge of the relevance and materiality of the evidence offered and of the weight and credibility to be given the evidence. Article 8308-6.34(e). The following excerpt from our decision in Texas Workers’ Compensation Commission Appeal No. 92511, decided November 12, 1992 is applicable to the present case:
While an agreement on a designated doctor need not be a signed contract, Rule 130.6(c) plainly requires that any verbal agreement be memorialized in a written letter of confirmation. Moreover, the Commission’s confirmation of the agreement is envisioned. Rule 130.6(d). While we understand that there could be a situation where a clear agreement for a designated doctor is documented but the Commission is inadvertently left “out of the loop,” we would point out that parties who did not seek confirmation could run the risk that the trier of fact will not give effect to an agreement. Such extra safeguards were apparently deemed necessary by the Commission, because an agreed designated doctor’s report will, according to Art. 8308-4.26(g), conclusively bind the parties to the impairment rating, and prevent the Commission from considering medical evidence to the contrary.
Having reviewed the record we conclude that Finding of Fact No. 9 and Conclusion of Law No. 2 are sufficiently supported by the evidence and are not against the great weight and preponderance of the evidence. While the carrier did not assert at the hearing and does not assert on appeal that Dr. He was a designated doctor chosen by the Commission, we observe that there is no evidence that the Commission issued an order directing the claimant to be examined by a designated doctor chosen by the Commission.
Finally, the carrier contends that the hearing officer erred in not considering the September 8, 1992 affidavit of Ms. R which was apparently filed with the Commission field office on September 8, 1992, the date the hearing officer gave for filing of that affidavit. Since the hearing officer stated in her decision that no affidavit was received by her in the time allowed for filing same, we can only surmise that the affidavit was, according to the date stamp on the document, filed timely but did not reach the hearing officer’s file. In any event, on review of the affidavit, which was attached to the request for review, we conclude that it does not add anything of material value to Ms. R’s memo of June 29th which was in evidence. Accordingly, we do not find that the hearing officer committed reversible error in failing to consider the affidavit.
In summary, we conclude that the hearing officer did not err in determining that Dr. He was not a designated doctor and her finding and conclusion relating to that determination are affirmed. However, we conclude that the hearing officer did err in determining that the impairment rating assigned by Dr. Ha became final and we therefore reverse her findings and conclusions as to that determination and reverse her decision that the claimant reached MMI on March 4, 1992 with a 30 percent whole body impairment rating. We remand the case for further development of the evidence, as appropriate, and consideration of the evidence in order to resolve the issues of whether, and when, the claimant reached MMI, and what, if any, permanent impairment she may have. We suggest that the Commission consider prompt appointment of a designated doctor in order to resolve the issues. If the parties are unable to agree on a designated doctor, the Commission should direct the claimant to be examined by a designated doctor selected by the Commission all in compliance with Article 8308-4.26(g) and Rule 130.6. Pending resolution on remand, a final decision has not been made in this case.
Robert W. Potts – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Thomas A. Knapp – Appeals Judge