On October 28, 1992, and December 10, 1992, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. The issue heard was whether the claimant, who is the respondent in this appeal, continued to have disability as a result of a compensable injury after (date of injury). The case was continued when, on her own motion, the hearing officer determined that claimant should be examined by a psychiatrist, citing as authority Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. Art. 8308-4.16 (Vernon Supp. 1993) (1989 Act), to explore whether there was an emotional basis to his inability to work. The carrier neither objected to nor appealed this action, and the issue of the extent of the claimant’s injury, although not raised at the benefit review conference, was effectively litigated by consent. See Texas Workers’ Compensation Commission Appeal No. 91016, decided September 6, 1991. The hearing officer, finding that claimant injured his back and neck on (date of injury), further found that he had polysubstance dependence on medications prescribed for treatment of his injury, and further suffered psychogenic pain disorder with depressive feelings as a result of his back and neck injury, and was consequently not capable of returning to work on or after (date of injury). The hearing officer concluded that claimant therefore had disability on and after (date of injury) to the date of hearing.
The carrier has appealed, noting that there is insufficient objective evidence of physical injury, and that claimant consequently did not have disability. The carrier argues against the interpretation of the evidence by the hearing officer as probative of a drug dependence, noting that the medical evidence is contradicted by the claimant’s denial of dependence. No response was filed by the claimant.
DECISION
After reviewing the record, we affirm the decision of the hearing officer, finding no reversible error.
Very briefly, claimant stated he was injured when he fell and hurt his back on (date of injury), during a rainy work day, as he began to climb onto a truck. He had been employed by Harris County (a self-insured governmental entity) as a laborer and truck driver for four years. The fact of an injury in the course and scope of employment was not disputed. The existence of disability prior to (date of injury) was not disputed either.
To very briefly summarize the medical evidence in question, a spinal strain was diagnosed but objective tests of the spine, including MRIs, myelogram, and CT scans, conducted at various times over several months, failed to demonstrate anything but a normal spine. The claimant was seen every two weeks by his treating physician, (Dr. D), over the course of a year and a half, and received pain medication with codeine as well as pain injections. His continuing diagnosis was lumbar and cervical sprain. Dr. D referred claimant in December 1991 to (Dr. S) and (Dr. M), whom claimant said were in practice together. Examinations, including range of motion and leg raising, were normal, but complaints of continuing pain were noted in their reports which are in evidence. A February 14, 1992 note from Dr. S indicates that claimant told him he began to experience lumbar pain after his myelogram. A note from Dr. M dated April 23, 1992 notes complaints of lower left extremity pain and the leg giving out. The claimant also received physical therapy (and was still receiving it at the time of the hearing), as well as pain management and work hardening therapy.
The claimant acknowledged that he was returned to work by Dr. M on (date of injury). (A note from Dr. S of this date also stated that the claimant “recently” turned and fell, but this fact was apparently not pointed out as significant by the carrier.) On September 17, 1992, a doctor for the carrier, (Dr. F), found that claimant did not have a credible objective pathology. He stated that, as a result of his single examination, “I find no demonstrable objective evidence of ongoing neuromuscular/ orthopedic disfunction.” Dr. F also opined that claimant probably reached maximum medical improvement around 90-120 days after his injury, but this was not in issue in the hearing nor does the record indicate action on this issue by the carrier.
On October 2, 1992, Dr. D wrote a letter indicating that claimant was under severe stress and emotional problems, meriting evaluation by a psychiatrist, and said at that time he did not believe that the claimant was ready to return to work. At the end of the first session of the hearing, the hearing officer determined that the record would be held open, based upon the observations in Dr. D’s letter, to have claimant examined by a psychiatrist. This occurred on October 27, 1992 by (Dr. B), who was appointed by the Commission. The claimant said he was examined by Dr. B for an hour.
We will only briefly summarize Dr. B’s comprehensive four page report, which was based upon records from Dr. D, radiological exam results, and records from another psychiatrist whom claimant had seen. Dr. B notes that the claimant had become dependent on medication, and that some of his psychological and emotional problems were related in part to withdrawal he experienced during the day. Dr. B opined that treatment of claimant should emphasize his living with some pain, and she suggested a medically supervised detoxification from the “pain, sedative, and hypnotic medications” that had been prescribed, which she characterized as “significantly addictive.” Dr. B’s primary diagnostic impression was iatrogenic polysubstance dependence and psychogenic pain disorder with depressive features. She said that this diagnosis in no way suggested that claimant was “faking” his symptoms, but then documented a cyclical syndrome in which such a person would not acknowledge a psychological component to pain, but would continue to seek out treatment and medication although assured that there was no significant physical condition.
The carrier deposed Dr. B by written questions. Dr. B answered “yes” when asked if this mental or nervous disorder was related to, and traceable to, the accident of (date of injury). Dr. B answered “no,” however, when asked if the mental or nervous disorder, setting aside his physical injuries, adversely affected his ability to retain and obtain employment.
The hearing officer included in the record a letter from (Dr. SG), a psychiatrist, who consulted with claimant as part of his attendance at the pain management clinic. Dr. SG stated that on October 23, 1992, claimant, in his opinion,
“does suffer significant and disabling depression.” Dr. SG did not find indications that claimant was fabricating his symptoms.
There was no evidence presented that claimant had any nervous or emotional problems prior to the accident.
Claimant denied Dr. B’s conclusion that he was dependent on medication, although he was willing to undergo the detoxification suggested. He stated that he was attempting to cut down on the amount of medication he took. He stated that he could not work because of continuous sharp pain in his back, which ranged from five to eight on a “10 scale.” The claimant testified to inability to sleep a full night or participate in activities around the house, although he had attempted yard work on a few occasions, picked his children up from school, and ran errands during days when he did not have physical therapy. The claimant said he felt sore in the morning as through he had played football. The claimant also testified during the first session of the hearing that he felt pretty good in the morning when he would go to therapy, but after therapy felt bad and was in pain. His wife testified that, since the accident, all of his physical abilities had been affected and he could essentially do nothing around the house. His wife said she didn’t think claimant was addicted to drugs because he had lasted as long as three days without them before he needed them. She also indicated that claimant could assist her if he had his pain medication, but she was concerned that he took so much and would therefore rather have him do nothing. The claimant indicated that he had been terminated from his job with the employer in June 1991 because his leave time was used up.
The hearing officer did not find that claimant suffered a compensable mental trauma injury, but such a finding was not necessary as the scope of “injury” can incorporate ancillary conditions such as those diagnosed, and connected to the injury, by Dr. B. See Colonial Penn Franklin Insurance Co. v. Mayfield, 508 S.W.2d 449 (Tex. Civ. App.-Amarillo 1974, writ ref’d n.r.e; Hood v. Texas Indemnity Insurance Co., 209 S.W.2d 345 (Tex. 1948). It can also include consequences that flow from medical treatment of the compensable injury. Sutherland v. Illinois Employers Insurance Co. of Wausau, 696 S.W.2d 139 (Tex. App.-Houston [14th Dist] 1985, no writ); Hartford Accident & Indemnity Co. v. Thurmond, 527 S.W.2d 180 (Tex. Civ. App.-Corpus Christi 1975, writ ref’d n.r.e.). The evidence here was sufficient to support the findings that the drug dependence and psychogenic pain syndrome were included as part of the “injury” which could in turn result in disability.
Although another finder of fact could question why the hearing officer would accept Dr. B’s diagnosis and her assessment of causal connection to the (date of injury) accident, but reject Dr. B’s conclusion that the emotional condition did not result in a situation amounting to the 1989 Act definition of “disability,” such weighing of the evidence is also supportable under the Hood case cited above, as well as Bullard v. Universal Underwriters’ Insurance Co., 609 S.W.2d 621 (Tex. Civ. App.-Amarillo 1980, no writ). The finder of fact could accept the testimony of the claimant and his wife, and the letter from Dr. D and Dr. SG, as establishing disability over and above Dr. B’s opinion. Objective medical evidence is not required to establish “disability.” Texas Workers’ Compensation Commission Appeal No. 92167, decided June 11, 1992. The decision of the hearing officer is not so against the great weight and preponderance of the evidence so as to be manifestly wrong or unjust, in light of applicable case law and the record from the contested case hearing.
It is not explained in the record how a back strain, uncomplicated by disc injury, was permitted to progress to a diagnosed drug dependency and psychogenic pain syndrome, or how it came to be that the first independent medical examination apparently conducted in this case by the carrier occurred in September 1992. We would also note that although Article 8308-8.01(g) authorizes the Commission to provide for periodic review of medical care in claims in which lost-time guidelines are exceeded, there are currently no rules for such a program or guidelines in effect. By the time of this decision, claimant will have reached statutory maximum medical improvement according to Article 8308-1.03(32)(A) and no longer be eligible for temporary income benefits. Article 8308-4.23(b). Absent permanent objective impairment, no further income benefits will be due. Given that the right to lifetime medical benefits for reasonable treatment of the injury continues, such future treatment should be geared to enhance the ability of the claimant to return to employment, as that objective is set forth in Article 8308-4.61(a)(3).
We affirm the hearing officer’s decision.
Susan M. Kelley – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
FILING A DISSENTING OPINION:
I respectfully dissent from the majority holding in this case. In my opinion, the great weight and preponderance of the evidence establishes that the claimant did not suffer disability after (date of injury).
As set out above, this case involved a back sprain/strain which occurred on (date of injury). After considerable medical examination and treatment (including MRIs, myelogram and CT scans) spanning some year and a half, there was nothing to indicate anything but a normal spine. The claimant was treated conservatively, administered painkilling medication, and received physical therapy. Claimant was returned to work by one of his referral doctors on (date of injury) and a carrier requested doctor filed a September 17, 1992 report, which indicated the claimant did not have objective pathology, opined he reached MMI some 90 to 120 days from (date of injury). There was evidence that the claimant was under stress, had emotional problems following his injury and that he was dependent on the painkilling drugs prescribed by his treating doctor. His treating doctor also opined on October 2, 1992 that he didn’t believe the claimant was ready to return to work and that he merited evaluation by a psychiatrist. As indicated in the majority opinion, the hearing officer, sua sponte, recessed the contested case hearing and directed the claimant be sent for a psychiatric evaluation. The result of this evaluation was the opinion that the claimant did have some mental or nervous disorder but that the mental or nervous disorder, setting aside his February 4th injury, did not adversely affect his ability to obtain and retain employment. For some reason, the hearing officer did not find this to be persuasive or compelling evidence. Rather, the hearing officer found that the claimant was not physically or mentally capable of returning to work on (date of injury).
As I evaluate the medical evidence, it is overwhelming in establishing that the claimant was not incapable of returning to work because of any physical problem. And, regarding any mental impairment to returning to work, the psychiatric evidence resulting from the hearing officer’s order clearly shows the claimant’s mental condition is not adversely affecting his ability to work. This to me overwhelmingly outweighs any of the evidence that the claimant suffered disability after (date of injury).
In the Hood, supra, case, cited in the majority opinion, the court upheld recovery for an injured employee where a disabling neurosis was induced by a physical injury. The court indicated that the evidence amply supported the finding that the neurosis was a proximate result of the physical injuries, and that such neurosis is disabling. In the instant case, this second facet is not met.
I would reverse and hold that the claimant ceased suffering disability, as defined in Article 8308-1.03(16) on (date of injury).
Stark O. Sanders, Jr. – Chief Appeals Judge