This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). On April 6, 1993, a contested case hearing (CCH) was held in (city), Texas, with (hearing officer) presiding as hearing officer. The sole issue presented and agreed upon was:
Has CLAIMANT reached maximum medical improvement with a four percent (4%) impairment rating as certified by the Texas Workers’ Compensation Commission designated doctor?
The hearing officer determined that appellant, claimant herein, reached maximum medical improvement (MMI) on August 24, 1992, with a four percent (4%) whole body impairment rating.
Claimant disagrees with the hearing officer contending she cannot work, is still in pain and has headaches. Respondent, carrier herein, does not file a response. (Carrier was faxed a copy of the appeal on May 7, 1993).
DECISION
The decision of the hearing officer is affirmed.
Claimant was assisted by an ombudsman and testified through an interpreter. Claimant testified that she was hit in the back and side of her neck by a pipe while working as a grain loader. Since the date of the injury, she states she has had headaches, and weakness and numbness of her left arm. Claimant testified she saw a number of doctors, but is vague as to dates and names of the doctors. Claimant is clear the last doctor she saw was (Dr. R), the designated doctor. The benefit review conference (BRC) report lists medical reports from three doctors (including (Dr. M), and an MRI, however, the only medical report in the record before us is a Report of Medical Evaluation (TWCC-69) and accompanying narrative from Dr. R. Claimant concedes that all the doctors she saw, with the exception of Dr. M, told her that they could not find anything wrong with her. According to claimant, Dr. M told her she was very sick but that he could not help her.
The bulk of the CCH dealt with whether claimant had timely disputed the designated doctor’s MMI and impairment rating within 90 days after the rating was assigned pursuant to TEX. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)). There was considerable testimony regarding whether the rating was sent to claimant’s former Pecos address or her present Presidio address. The hearing officer found that claimant had not received notice of the designated doctor’s rating or “Form TWCC-21” (Payment of Compensation or Notice of Refused or Disputed Claim) changing claimant’s benefit status until the documents were exchanged at the BRC, where claimant clearly disputed the designated doctor’s report. In that the hearing officer’s finding and decision on this point were not appealed, that issue is not before us and will not be discussed further.
The only medical evidence submitted at the CCH was the designated doctor’s report, in the form of a TWCC-69, which indicated MMI was reached on 08/24/92 with a 4% whole body impairment rating. The attached narrative discusses a brief history (including that the doctor was unable to communicate directly with the patient because of the language barrier and that the history was obtained through an interpreter), tests conducted and a review of the MRI. The doctor finds “Impression: Cervical spondylosis (and) chronic fibrositis of the left shoulder.” The doctor concluded that he does “. . .not think any other treatment is needed. . . . I think some of the pain she may need to learn to live with.” The hearing officer offered to hold the record open to allow claimant to submit any medical reports or evidence she wanted but claimant declined stating she would just rely on the reports submitted.
The hearing officer found the designated doctor’s opinion “correct” and found claimant had reached MMI on August 24, 1992 with a four percent (4%) whole body impairment rating and that rating was not contrary to the great weight of other medical evidence. The claimant’s appeal is brief and states: “I’m not (sic) agree with the judge decition (sic) in my case, because I’m (sic) feel so sick and I’m still needing the insurance aid because I can’t work. I have headache and I’m still having pain in my arm and I can’t do nothing.”
Regarding a small procedural point, we note that the hearing officer’s decision did not reflect that claimant was assisted by an ombudsman, CA, that claimant testified by means of an interpreter, or that CA was called as a witness by the carrier (on the issue of notice of the designated doctor’s report).
The hearing officer in his discussion of the case sums up the situation by stating:
CLAIMANT wishes to dispute the Commission designated doctor. Even with the notice issue resolved in her favor, there is still the requirement that the great weight of the other medical evidence be contrary to the opinion of the Commission designated doctor. It is not. The doctors that have seen CLAIMANT have been almost unanimous in telling her they can find nothing wrong. Without medical evidence to support her position, I must rule the designated doctors’ opinion is correct and CLAIMANT reached maximum medical on August 24, 1992, with a four percent (4%) whole body impairment rating.
In Texas Workers’ Compensation Commission Appeal No. 93105, decided March 26, 1993, the Appeals Panel summarized the designated doctor procedure pointing out that the designated doctor’s report “shall have presumptive weight. . .unless the great weight of the other medical evidence is to the contrary. . . .” Citing Article 8308-4.26(g). In this case, there is no medical evidence to the contrary. Likewise, we have held in Texas Workers’ Compensation Commission Appeal No. 92312, decided August 19, 1992, that lay testimony from the claimant will not overcome the presumption accorded to the designated doctor’s report which can only be overcome by other medical evidence. In Appeal No. 92312, supra, we also pointed out that because the injured employee has reached MMI does not, in every case, mean that the injured employee is completely free of pain or impairment, or that the injured worker is able to go back to his or her previous job or occupation.
Accordingly, we find that there is sufficient evidence to support the decision of the hearing officer and we affirm.
Thomas A. Knapp – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Susan M. Kelley – Appeals Judge