On April 14, 1993, a contested case hearing was held (city), Texas, (hearing officer) presiding, to determine whether the appellant (claimant), (spelled H in prior proceedings), had reached maximum medical improvement (MMI), her correct impairment rating, and whether she should be permitted to select a new treating doctor. At the hearing the respondent (carrier) agreed that claimant should be permitted to be treated by a new treating doctor in Houston, Texas, but disagreed as to whether claimant should receive mileage reimbursement for her visits to that doctor. That travel expense issue was added as a disputed issue at the hearing by agreement of the parties. The hearing officer, giving presumptive weight to the report of the designated doctor selected by the Texas Workers’ Compensation Commission (Commission), concluded that claimant reached MMI on January 12, 1993, with a five percent whole body impairment rating. She further concluded that the carrier was not required to reimburse claimant for more than 77 miles per trip for claimant’s visits to her new treating doctor in (city). In her request for review, claimant essentially challenges the sufficiency of the evidence to support the hearing officer’s determination of the issues. The carrier filed no response.
DECISION
Finding error in the decision of the hearing officer, we reverse and render a new decision.
The parties did not dispute that claimant sustained a compensable back injury on March 20, 1992, while lifting a heavy patient at a nursing home in (city), Texas, where she worked as a nurse’s aide. Claimant, the sole witness, testified that the first doctor she saw was at her employer’s direction. Her first treating doctor was apparently a (Dr. G) whom she said later moved from the area. She commenced chiropractic treatment for approximately four and one-half months with (Dr. W) of (city), Texas, who gave her a seven percent impairment rating.
The Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-4.25(b) and 8308-4.26(g), provides for the selection of a designated doctor to resolve disputes regarding an injured employee’s having reached MMI and the correctness of an impairment rating. Article 8308-4.25(b) provides that the report of the designated doctor shall have presumptive weight and that the Commission shall base its MMI determination on that report unless the great weight of the other medical evidence is to the contrary. As for the impairment rating, if the Commission selects the designated doctor, as it did in this case, the report of that doctor is to have presumptive weight unless the great weight of the other medical evidence is to the contrary, in which case the Commission shall adopt the impairment rating of one of the other doctors. Article 8308-4.26(g).
Claimant introduced a “Progress Report” of Dr. W, dated January 13, 1993, which stated that she was diagnosed with lumbar facet syndrome and lumbar radiculitis, that she still complained of low back and leg pain, that present objective findings were “muscle spasms and tenderness to palpation of the lumbar region; Kemp’s Test,” and that she “has suffered a permanent injury to the lumbar spine, with an impairment rating of seven percent whole person.” Dr. W’s report stated no MMI date. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.2 (Rule 130.2) requires a treating doctor to certify that an employee has reached MMI and assign an impairment rating “as soon as the doctor anticipates that the employee will have no further material recovery from or lasting improvement to work-related injury or illness, based on reasonable medical probability.” The treating doctor so certifying is required to complete the report specified by Rule 130.1 no later than seven days after the examination and send it to the Commission, the employee or the employee’s representative, if any, and to the insurance carrier. Rule 130.1(c) specifies the requirements of the medical evaluation report which Rule 130.1(a) requires be completed and filed by a doctor required to certify, or who determines during the course of treatment, whether an employee has reached MMI or has an impairment. Not only does Dr. W’s report not contain his professional license and federal tax identification numbers, claimant’s claim and social security numbers, or a narrative history of claimant’s medical condition, but it also fails to state an MMI date. We have previously observed that use of the Commission form Report of Medical Evaluation (TWCC-69) for certifying to the achievement of MMI and assigning an impairment rating should greatly increase the prospects of a report’s containing the essential information required by Rule 130.1. See e.g., Texas Workers’ Compensation Commission Appeal No. 92384, decided September 14, 1992.
The hearing officer introduced a TWCC-69 signed by (Dr. H), the designated doctor selected by the Commission, which bore the date of December 28, 1992, and stated claimant’s date of visit as “12-11-92.” As noted above, Dr. W’s report with the seven percent rating was dated January 13, 1993, and that report stated that date as the date of his most recent examination of claimant. The record does not show when and how a dispute arose over MMI and impairment leading to Dr. H’s selection as the designated doctor. According to Dr. H’s report, claimant had not responded to chiropractic or work hardening therapy and complained of low back pain radiating into her left leg. Dr. H’s report refers to an attached MRI report showing claimant has a loss of disc hydration and disc bulge at L5-S1. While no MRI report was attached to the copy of Dr. H’s TWCC-69 in evidence, claimant introduced an MRI report with such information. The MRI report, however, stated the date of the procedure as “01-07-93.” Dr. H stated in his TWCC-69, dated December 28, 1992, that claimant’s MMI date was “01-12-93” and that she had a whole body impairment rating of five percent. Claimant stated she disagreed with Dr. H’s determination that she had reached MMI and with the five percent impairment rating. Claimant argued that she had not reached MMI because her symptoms were getting worse and the MRI report showed she had a disc pathology. She also disputed Dr. H’s impairment rating. The carrier presented no evidence.
Finding that Dr. H “certified” claimant as having reached MMI on January 12, 1993, and as having a five percent whole body impairment, and that Dr. H’s certification of MMI and whole body impairment was not overcome by the great weight of the contrary medical evidence, the hearing officer concluded that claimant reached MMI on January 12, 1993, with a five percent whole body impairment. In her appeal, claimant disagrees with the MMI conclusion because she has been unable to receive treatment for the positive findings revealed by the MRI and because her symptoms continue to intensify. Claimant disagrees with the impairment rating conclusion because of her persistent, severe back pain, and asserts her rating should await an examination and findings by Dr. William Francis (Dr. F), an orthopedic surgeon in Houston, Texas, whom the carrier agreed at the hearing she could begin to see as her treating doctor.
Our concern with the validity of Dr. H’s purported certification of MMI and an impairment rating requires our reversal. Dr. H’s statement on his TWCC-69 of December 28, 1992, that claimant would reach MMI on January 12, 1993, with a five percent impairment rating, amounts to a prospective or anticipated MMI date which we have previously held to be invalid. In Texas Workers’ Compensation Commission Appeal No. 93259, decided May 17, 1993, the claimant’s treating doctor (Dr. C) stated in a TWCC-69, received by the Commission on May 26, 1992, that the claimant would reach MMI on June 19, 1992, with a five percent impairment rating and we stated the following:
Under the 1989 Act, an impairment rating is assigned after there is a certification that MMI has been reached. Article 8308-4.26(d). Where, as here, the determination of MMI is to take place prospectively or in the future, a current date of MMI has not been certified and an impairment rating cannot be assigned. Dr. C’s report, although on a Form TWCC-69, would indicate that there was no current MMI but that MMI would happen in the future. We have stated that an anticipated date of MMI is not a statement or certification that MMI has been reached. See generally Texas Workers’ Compensation Commission Appeal No. 92627, decided January 7, 1993; Texas Workers’ Compensation Commission Appeal No. 92198, decided July 3, 1992; Texas Workers’ Compensation Commission Appeal No. 92127, decided May 15, 1992. With no valid MMI date, there can be no valid impairment rating under the circumstances.
In Appeal No. 93259, supra, because Dr. C’s TWCC-69 was the basis for the hearing officer’s determination that MMI had not been disputed within 90 days (Rule 130.5(e)), we said the decision could not stand and rendered a new decision that the claimant did not fail to dispute the MMI and impairment rating of June 19, 1992, since they had not been properly accomplished, and that the claimant thus did not reach MMI with a five percent rating on June 19, 1992. We must reach the same result in this case for the same reason, namely, that Dr. H’s MMI date and impairment rating determinations were invalid. At this juncture, Dr. W’s impairment rating of seven percent cannot be adopted, as Article 8308-4.26(g) directs, since he did not first certify that claimant had reached MMI as required by Article 8308-4.26(d) and thus his impairment rating too is invalid.
We now turn to the travel expense issue. According to the Benefit Review Conference report, the issue was stated as whether the Commission had abused its discretion in not authorizing claimant to see Dr. F. Claimant’s position was that she should be authorized to change treating doctors to Dr. F in order to obtain another opinion on the impairment rating and for treatment based on the MRI report, while the carrier simply objected to a change in treating doctors at that time. The benefit review officer felt that the primary reason claimant sought to change treating doctors was to obtain a new impairment rating and noted that the law prohibited such. Indeed, Article 8308-4.63(e) provides that any change in doctors may not be made for the purpose of securing a new impairment rating or medical report.
When the disputed issues were being framed at the hearing, the carrier stated it had “no problem” with claimant seeing Dr. F but did not want to reimburse her mileage to see Dr. F because there were other doctors in the Beaumont, Texas, area that claimant could have selected as her treating doctor. Near the conclusion of the hearing, the parties agreed that the hearing officer should add as a disputed issue whether the carrier–having already agreed that claimant could see Dr. F as her treating doctor–should reimburse claimant’s mileage for such visits. Claimant testified that her original treating doctor, Dr. G, had moved from the area, that Dr. H had indicated he would not treat her since he was the designated doctor, and that she has not looked for another orthopedic specialist in the Beaumont, Texas, or “Golden Triangle area” (not further described) because the people she talked to advised that Beaumont doctors don’t really want to help people. She said her girlfriend called around and found out that Dr. F in Houston was the best around. Claimant said she wants to see Dr. F based on his reputation because she “doesn’t want her back messed up” if she has to have surgery. Claimant testified that her husband had a recent heart attack, was drawing disability, and that she could not afford to pay for trips to visit Dr. F without mileage reimbursements from the carrier. The carrier, having presented no evidence, nonetheless argued that it did not want to reimburse claimant’s mileage to see Dr. F because there were other doctors in the Golden Triangle area that claimant could see. Claimant argued that she should be paid her mileage because she would get it if she saw a doctor in the Golden Triangle area.
The hearing officer’s findings and conclusions on this issue are as follows:
FINDINGS OF FACT
9. Claimant is in need of medical treatment which could be provided by [Dr. F].
10.There are orthopedic surgeons practicing in (city), Texas, and (city) Texas, who could provide the medical care which claimant requires.
11.(city), Texas, is located 38.5 miles from Silsbee, Texas.
CONCLUSIONS OF LAW
5.Claimant is entitled to seek treatment from Dr. [F].
6.Carrier is not required to reimburse Claimant for more than 77 miles per trip on the occasions that Claimant seeks treatment from [Dr. F].
We find the record devoid of evidence which would support Findings of Fact Nos. 10 and 11. In the discussion portion of her Decision and Order, the hearing officer commented on a number of facts for which there was no evidence in the record and made some observations in the nature of factual findings. The hearing officer stated she felt it reasonable to permit claimant to select an orthopedic surgeon as her treating doctor, and noted that carrier had agreed that claimant may be treated by Dr. F. The hearing officer then went on to observe that while it appears that claimant required medical care and that Dr. F could provide such care, claimant did not demonstrate that no doctor in the greater Beaumont area could provide equally competent medical care, and that even if claimant obtained medical care in the “Golden Triangle area” she might travel as far as 38.5 miles, the distance between claimant’s home in (city), Texas, and (city), Texas, according to the Official State Mileage Guide (of which official notice was not taken). The hearing officer then stated that it seemed “appropriate” to permit claimant to obtain treatment from Dr. F but not appropriate to require the carrier to reimburse claimant for travel expenses beyond 38.5 miles one-way or 77 miles for a round trip, and that if claimant chose to seek treatment from Dr. F, the carrier would only be required to reimburse claimant for a trip of 77 miles. The hearing officer’s solution of the travel expense issue thus appears to be a completely subjective compromise not requested by either party and based on various factual information without support in the evidence.
It seems to us that when the carrier agreed that claimant could commence treatment with Dr. F, she thereafter became entitled to such travel expenses as are provided for in the 1989 Act and the Commission’s Rules, and that if the carrier desired to limit claimant’s travel expenses to visit a new treating doctor, it should have insisted that claimant find a new treating doctor closer to her residence. Once the carrier agreed that claimant could commence treatment with Dr. F, it followed that claimant became entitled to such travel expenses as are authorized under the 1989 Act and the Commission’s Rules. Rule 134.6(a) provides that “[w]hen it becomes reasonably necessary for an injured employee to travel in order to obtain appropriate and necessary medical care for the injured employee’s compensable injury, the reasonable cost shall be paid by the insurance carrier.” The rule goes on to provide certain mileage reimbursement guidelines including a distance greater than 20 miles one way, use of the shortest route between two points, and reimbursement based on the current travel rate for state employees. We believe the hearing officer erred in deciding that carrier need not reimburse claimant for mileage to and from Dr. F’s office in Houston using the shortest route from her residence and in arbitrarily deciding carrier should reimburse claimant for round trips from her residence to (city) on the apparent assumption that claimant, had she made the effort, could have found an orthopedic surgeon within that distance. While Rule 134.6(a) does require that the travel expenses be reasonable, it does not authorize the hearing officer to cut off or reduce an injured employee’s mileage reimbursement to visit a doctor the carrier has agreed to based on the hearing officer’s assumption, unsupported by the evidence, that the employee could have found a suitable treating doctor less distant. In our view, the hearing officer’s findings on this issue are unsupported by the evidence and her conclusion lacks support in both the Rule and the evidence. Compare Texas Workers’ Compensation Commission Appeal No. 93239, decided May 14, 1993, where we affirmed the hearing officer’s determination that the injured employee should be reimbursed for travel expenses to obtain medical care in a distant city. See also Texas Workers’ Compensation Commission Appeal No. 93264, decided May 7, 1993, wherein we discussed the overall scheme of Rule 134.6(a).
For the foregoing reasons, the decision of the hearing officer is reversed and a new decision is rendered that the designated doctor’s determinations of claimant’s MMI date and impairment rating are invalid, and that claimant is entitled to her reasonable travel expenses to Houston, Texas, to obtain medical care from Dr. F consistent with Rule 130.6(a).
Philip F. O’Neill – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Gary L. Kilgore – Appeals Judge