This appeal arises under the Texas Workers’ compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (formerly V.A.C.S. Article 8308-1.01 et seq.) (1989 Act). A contested case hearing was held on November 5, 1993, in (city), Texas, to determine the issue of what was claimant’s correct impairment rating. Hearing officer (hearing officer) determined that the claimant had a six percent impairment rating as determined by the agreed upon designated doctor. The claimant, who is the appellant in this action, contended at the hearing and on appeal that he did not understand at the time he agreed to see the designated doctor that that doctor’s opinion would be final, and he states he disagrees with the designated doctor’s impairment rating. The carrier responds that there is no evidence that the required procedures of statute and rule were not followed and that the hearing officer’s decision should be affirmed.
DECISION
We affirm in part and reverse in part the hearing officer’s decision and order and render a new decision adopting the designated doctor’s 14% impairment rating for claimant’s compensable injury.
It was not disputed that the claimant had suffered a compensable back injury on (date of injury) while in the employment of (employers). His treating doctor, (Dr. D), originally certified maximum medical improvement (MMI) on February 8, 1993, with a 23% impairment rating. Because he originally used an incorrect version of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Dr. D reassessed the claimant’s impairment rating at 29%, largely due to range of motion.
The claimant testified that an adjuster called him to say carrier was disputing Dr. D’s impairment rating and to ask him whether he would agree to see a designated doctor. The claimant stated that he agreed because he thought it meant he would be getting a second opinion. A letter from the carrier confirmed a March 3, 1993, telephone conversation “where we mutually agreed on MT. of the Impairment Center as the designated doctor to resolve the dispute on your impairment rating.” The letter further gave the date and time of the appointment and instructed claimant to call if he had questions or needed additional information.
On March 3rd the Texas Workers’ Compensation Commission (Commission) sent a “ten-day” letter to claimant and carrier which stated in pertinent part as follows:
The Texas Workers’ Compensation Commission has been notified of a dispute concerning impairment rating. In order to resolve this dispute, a designated doctor must examine the claimant. The carrier is responsible for contacting the above claimant and arranging an agreed upon doctor. The Texas Workers’ Compensation Act allows the carrier and claimant to agree on a designated doctor. If such agreement can be reached concerning a designated doctor, complete the top portion of the box below.
Claimant stated that he checked the blank indicating that an agreement had been reached, and filled out the form giving the name and address of the designated doctor and the date of the appointment.
A follow-up letter from the Commission on March 24th confirmed the appointment with the designated doctor, stating that its purpose was to resolve a dispute on percentage of impairment. It also stated, “If you are unrepresented and have any questions about the agreement, you may contact the Commission OMBUDSMAN at the number shown above . . . . “
The claimant stated that he received and read the above letters and that he did not contact either the Commission, the carrier, or his doctor before going to see (Dr. T), the designated doctor, on April 12th. (He later testified that he contacted someone at the Commission’s field office to ask whether Dr. D’s report was going to be “thrown out” and said he was told the two doctor’s reports would be compared; however, he did not remember who he spoke to and whether the conversation occurred before or after he saw Dr. T.) Dr. T certified claimant as reaching MMI on February 8, 1993, with a six percent impairment rating.
Claimant said he contacted the Commission sometime after receiving Dr. T’s impairment rating, with which he did not agree. He also wrote a letter to the Commission on May 5th. The letter was not in the record but on May 13th the Commission replied that it “has been informed by you and the insurance carrier that you agreed to see [Dr. T]. [Dr. T] indicated on the Report of Medical Evaluation (TWCC-69) that you reached maximum medical improvement on February 8, 1993, with a 3% [sic; should read “6%”] impairment rating. If the parties agree on a designated doctor the Commission shall adopt the impairment rating made by the designated doctor. Therefore, [Dr. T’s] report is final.” The claimant stated that until he received this letter he was not aware that Dr. T had the “final say.”
The 1989 Act provides that if an impairment rating is disputed, the Commission shall direct the employee to be examined by a designated doctor chosen by mutual agreement of the parties; if the parties are unable to agree on a designated doctor, the Commission shall direct the employee to be examined by a designated doctor chosen by the Commission. If the designated doctor is chosen by the parties, however, the Commission “shall adopt” the impairment rating of that doctor. Section 408.125.
In addition, the Commission has adopted a rule to implement this statutory provision. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.6 (Rule 130.6) provides that if the Commission receives a notice of dispute of MMI or impairment rating, it shall notify the employee and the insurance carrier that a designated doctor will be directed to examine the employee. After such notification, the Commission shall allow both parties ten days to agree on a designated doctor, and the Commission must inform unrepresented employees that an ombudsman is available to explain the contents of the agreement for a designated doctor. If the employee and the carrier agree on a designated doctor, the carrier must, within ten days, send a confirmation letter to the employee containing among other things information about the designated doctor; the Commission must also contact the employee to confirm, and shall issue an order directing the employee to be examined by a doctor chosen by the Commission if agreement is not reached by the end of the ten day period.
In prior cases in which an issue was raised as to whether a designated doctor was agreed upon, this panel has examined the procedures followed to see whether they comported with those set forth in the rule. See Texas Workers’ Compensation Commission Appeal No. 92312, decided August 19, 1992; Texas Workers’ Compensation Commission Appeal No. 93912, decided November 22, 1993. This panel has characterized the rule’s procedures as “extra safeguards” which “were apparently deemed necessary by the Commission, because an agreed designated doctor’s report will, according to [Section 408.125], conclusively bind the parties to the impairment rating, and prevent the Commission from considering medical evidence to the contrary.” Texas Workers’ Compensation Commission Appeal No. 92511, decided November 12, 1992. Absence of a showing of compliance with the rule has resulted in determinations that a particular doctor was not a designated doctor. See Texas Workers’ Compensation Commission Appeal No. 92608, decided December 30, 1992, (in which the Appeals Panel found error, among other things, for the Commission to fail to notify an unrepresented claimant that ombudsman assistance was available); Texas Workers’ Compensation Commission Appeal No. 93425, decided July 14, 1993.
Our review of the record in this case shows that the basic elements of Rule 130.6 were complied with, most notably that the parties were given ten days in which to agree on a designated doctor and the claimant was informed of the availability of ombudsman assistance. (While the rule is not entirely clear as to when the latter notice must be given, we note that in this case such notice was given approximately two weeks before the date of the appointment with the designated doctor, which would have been sufficient time in which to contact an ombudsman.) We also observe that the rule does not require, and this panel has not previously held, that a claimant be informed that the Commission must adopt the findings of an agreed upon designated doctor. While such omission does not appear to be fatal, we cite with approval the procedures detailed in Texas Workers’ Compensation Commission Appeal No. 931095, decided January 4, 1994, in which the letter from the Commission contained this information.
In his appeal the claimant also challenges the six percent impairment rating assessed by Dr. T based upon the quality of that doctor’s evaluation. We have held that the requirement contained in Section 408.125(d), that the Commission adopt the impairment rating of an agreed-upon designated doctor, does not mean that the Commission must accept the impairment rating of such doctor irrespective of how he arrived at it. Texas Workers’ Compensation Commission Appeal No. 93001, decided February 19, 1993.
In this case, Dr. T’s report assesses the claimant a 14% impairment rating “based on his injury of (month year).” However, Dr. T goes on to state that there is “a problem with apportionment in trying to arrive at a fair impairment rating,” given the fact that the claimant had earlier had surgery at the same level in 1988. Dr. T wrote that the claimant should have received an eight percent whole person impairment for that injury; he then subtracted this percentage from the 14% to arrive at the six percent he ultimately awarded claimant.
This panel has previously held that the effects of a prior injury should not be discounted in the assessment of an impairment rating for the current compensable injury. Texas Workers’ Compensation Commission Appeal No. 93695, decided September 22, 1993. Also, the statutory provision regarding contribution from prior compensable injuries, Section 408.084, makes clear that it is the Commission, and not a doctor assessing impairment, who is to determine the extent to which any contributing compensable injury is one for which the claimant has already been compensated. Texas Workers’ Compensation Commission Appeal No. 93889, decided November 17, 1993. Therefore, Dr. T’s action in factoring out an amount for the prior injury was improper. However, Dr. T’s report clearly assesses and substantiates a 14% impairment for the current injury, and we hold that that rating was the one which should have been adopted by the hearing officer.
Accordingly, that portion of the hearing officer’s decision stating that claimant’s whole body impairment rating is six percent is reversed and a new decision rendered in appropriate part to state that claimant’s whole body impairment rating is 14%. In all other respects, the decision and order of the hearing officer are affirmed.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Gary L. Kilgore – Appeals Judge