This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 1.01 through 11.10 (Vernon Supp. 1993). On May 5, 1993, a contested case hearing was held in (city), Texas, with (Hearing officer), presiding. He determined that the opinion of the designated doctor, (Dr. L) as to maximum medical improvement (MMI) and impairment rating was entitled to the presumption set forth in Article 8308-6.25 and 6.26 of the 1989 Act. Appellant (claimant) asserted that the great weight of other medical evidence was contrary to that of the designated doctor and that the designated doctor’s opinion was not valid. Respondent (carrier) replied that the hearing officer should be upheld.
DECISION
We affirm.
At the hearing all parties agreed that the issue was whether the great weight of other medical evidence was contrary to the designated doctor’s opinion, with an inclusive question of whether the designated doctor properly complied with the Guides to the Evaluation of Permanent Impairment (Guides), third edition, second printing, dated February 1989, published by the American Medical Association (AMA).
Article 8308-6.42(c) of the 1989 Act states that the Appeals Panel “shall determine each issue on which review was requested.” The claimant asserts that the designated doctor did not comply with the Guides.
The Appeals Panel determines:
That the great weight of other medical evidence was not contrary to the opinion of the designated doctor, and in this instance the designated doctor’s adherence to the Guides in conducting a physical examination was a matter for the hearing officer to weigh in determining whether to apply the presumption set forth in Article 8308-4.25 and 4.26 of the 1989 Act.
Claimant worked for (employer) as a courier. She injured her neck on December 28, 1991, while lifting packages. On May 3, 1993, she returned to work doing lighter tasks. She saw (Dr. H) on December 31, 1991, and he states that claimant reached MMI on December 23, 1992, with a 23% whole body impairment. During the course of claimant’s treatment, Dr. H referred her to (Dr. R) and (Dr. B); he later also referred her to (Dr. Ha). In addition, she was sent to (Dr. Mc).
An MRI dated April 9, 1992, showed a minimal central bulge at T7-T8 that was said not to “significantly indent or approach upon the cord or foramina.” A cervical MRI had been performed on January 7, 1992; it stated that the cervical spine was normal.
Dr. B, upon referral from Dr. H, began seeing claimant in April 1992. He noted that claimant had been on physical therapy and placed her on progressive physical therapy. In his entry of May 26, 1992, Dr. B noted that “(p)atient has excellent ROM.” On November 18, 1992, Dr. B noted that in one month claimant would probably be at MMI. On December 21, 1992, Dr. B found MMI noting, “(w)ork up has been negative for objective evidence of orthopedic pathology. I think the patient’s chronic cervical strain has reached MMI. She does have some mild limitation of motion, and I think her total impairment is 1% of her whole body.” Dr. R’s records indicate he had seen claimant in February and March 1992, and that he, like Dr. B is an orthopedic surgeon. While he found her range of motion at first to be “rigid,” in March he described it as “relatively normal.” He thought she could return to work in May 1992.
In April 1993, Dr Ha, to whom Dr. H also referred claimant, disagreed with Dr. L’s choice of a date of MMI which predated his date of examination. (Dr. Ha did not disagree with the impairment rating.) Dr. L noted in February 1993, when he saw claimant that her current level or status had been reached in October 1992. He points out that he reviewed the reports of Dr. H, Dr. Mc, Dr. R, and Dr. B along with the reports of MRI and x-ray and states that no one recommends surgery. He states, “(t)he range of motion of the cervical spine is tested in flexion, extension, and right and left tilting and turning.” He mentioned other tests that were performed and records that claimant has pain. He diagnoses a cervical strain and says, “(t)he patient has certainly long since reached maximal medical improvement.”
Claimant testified that Dr. L did not employ a goniometer or an inclinometer in checking range of motion. On appeal, claimant asserts that Dr. L’s lack of use of these instruments indicates that his examination was not in accord with the Guides. According to Texas Workers’ Compensation Commission Appeal No. 93039, decided March 1, 1993, a designated doctor’s report should not be rejected “absent a substantial basis to do so.” Appeal No. 93039, supra, involved an allegation that an inclinometer had not been used, but a “measuring tape” had; it discussed Texas Workers’ Compensation Commission Appeal No. 92611, dated December 30, 1992, as limited “to the particular facts” (a designated doctor did not specify specific body parts when his impairment rating was at least five percent). Appeal No. 93039 reversed and remanded the hearing officer’s decision which had rejected the designated doctor’s report.
In contrast to the above decision, Texas Workers’ Compensation Commission Appeal No. 93286, decided May 28, 1993, reversed and remanded a decision giving presumptive weight to the designated doctor when a chiropractor attended the evaluation and testified that the designated doctor did not use an inclinometer. Appeal No. 93286, supra, stated, “(w)ith the medical evidence in this posture and the questioned validity of (designated doctor) report unaddressed by the hearing officer, we must reverse and remand for the further development of the evidence. . . .”
In the appeal under consideration, the hearing officer described Dr. L’s examination as “thorough” and comments that “range of motion studies were made.” He also points out that Dr. L found neurological testing to indicate claimant was normal while claimant’s treating doctor, Dr. H, assigned a 12% impairment to this area, “the greatest difference between the two doctors.” While the hearing officer acknowledges that there was testimony Dr. L used no devices in his examination, he points out the absence of objective findings of injury and observes that Dr. L’s opinion is consistent with other orthopedic surgeons who examined the claimant. (See the comments on range of motion described, supra, by Dr. B and Dr. R.)
A “substantial basis” to reject the designated doctor’s opinion was found in Texas Workers’ Compensation Commission Appeal No. 93296, decided May 26, 1993; the decision that a designated doctor’s opinion was correct was reversed and rendered because that doctor did not consider each of the three criteria applicable to spinal impairment; they include, (1) a diagnosis based percentage of impairment (if applicable), (2) range of motion, and, (3) neurological deficit.
In the appeal under consideration, the hearing officer’s decision indicates that claimant had a normal spine as shown on x-ray and MRI, that the most significant distinction between the treating doctor and the designated doctor was not the range of motion, but was the amount of neurological deficit, that the designated doctor conducted range of motion studies, and that the designated doctor did a thorough examination. Considering these points relative to the designated doctor’s evaluation of the claimant, we do not see “a substantial basis” to reject the designated doctor’s opinion in the testimony of claimant that certain devices were not used. (See Appeal No. 93039, supra)
Claimant, on appeal, quotes from TWCC Advisory 93-04 as follows:
If information is provided to the Commission, which indicates that the evaluation process was not conducted in accordance with the Guides and sound medical practice, the Commission will review the facts to determine what weight to give the report. (emphasis added)
Article 8308-6.34(e) of the 1989 Act provides that the hearing officer is the sole judge of the weight to be accorded to the evidence. In the decision before us, the designated doctor’s report was not invalid; the hearing officer, as part of his determination whether the great weight of other medical evidence was contrary to the designated doctor’s opinion, would assess the thoroughness and credibility of that opinion. In so doing, the hearing officer did weigh the designated doctor’s report in making this comparison. The excerpt from TWCC Advisory 93-04 is not inconsistent with the hearing officer’s decision.
Claimant also points out that claimant was evaluated by Dr. L when in spasm and should have been re-examined. We do not argue with the soundness of this assertion attributed to paragraph 3-3a of the Guides, but point out that the next paragraph cautions that an evaluation when in “neuromuscular inhibition” may limit mobility (which could unduly restrict range of motion). This question, along with whether the doctor repeated his range of motion studies, and the extent of explanation given for the rating, were matters for the hearing officer to judge in assessing weight in this case.
(Upon review of this case, we found that claimant’s exhibits 4, 5, and 7 were not attached. Claimant’s counsel provided copies of exhibit 4 and 5 (Dr. Ha’s opinion and TWCC Advisory 93-04). While exhibit 7 (Guides) was not provided, references to page numbers therein in the record of hearing match copy number 102 of the Guides available to the Appeals Panel so its absence does not require a remand.)
The hearing officer’s determination that the great weight of other medical evidence was not contrary to the designated doctor’s opinion is sufficiently supported by the evidence and is the proper test to apply to the facts of this case. Article 8308-4.25 and 4.26 impose this standard when a designated doctor’s opinion is in issue. (As stated, the facts of this case do not invalidate that opinion.) The opinions of two other orthopedic surgeons are consistent in finding limited objective evidence of injury and little limitation of range of motion. One indicated that MMI had been reached with only one percent impairment. In contrast, the treating doctor, Dr. H, found 23% impairment, and Dr. Ha took issue with the date the designated doctor found that claimant reached MMI; these two opinions do not cause us to find that the great weight and preponderance of the evidence is against the hearing officer’s decision that the great weight of the medical evidence is not contrary to the designated doctor.
We affirm the decision and order of the hearing officer.
Joe Sebesta – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Susan M. Kelley – Appeals Judge