A contested case hearing was held in Dallas, Texas, on May 18, 1993, pursuant to the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1993) (1989 Act). Two issues were before hearing officer (hearing officer): what is the date the claimant reached maximum medical improvement (MMI), and what is the claimant’s impairment rating. The appellant, hereinafter claimant, appeals the hearing officer’s determination that the great weight of the other medical evidence was not contrary to the report of the designated doctor appointed by the Texas Workers’ Compensation Commission (Commission). The respondent, hereinafter carrier, basically responds that the hearing officer properly accorded presumptive weight to the designated doctor’s finding of MMI and impairment.
DECISION
We affirm the hearing officer’s decision and order.
The claimant was employed by (employer) on (date of injury), when the vehicle he was driving was rear-ended by another vehicle. He was first seen at Baylor Medical Center and on October 8th began treating with (Dr. L), whose initial impression included cervical, thoracic, and lumbosacral strain, and strains of trapezius muscles, scalene musculature, left groin musculature, and right hip and ankle areas. An October 25th cervical spine MRI disclosed a herniation at C5-6 with compression of the thecal sac and mild posterior annular disc bulges of C3-4 and C4-5. The claimant underwent physical therapy, consultation and treatment with Dr. K for chronic pain, and EMG and nerve conduction velocities which revealed mild changes in left C-6 and C-7 distribution and minimal changes in the right C-5 and C-6 distribution. He also was referred to (Dr. N), a neurosurgeon, for surgical evaluation. On March 12, 1992, Dr. N wrote that “at the present time, [claimant] does not wish to be considered a surgical candidate. He would like to continue conservative therapy and I agree with this plan of action.”
On October 22, 1992, claimant was seen by carrier’s doctor, (Dr. M) for an independent medical examination. Dr. M filed a Report of Medical Evaluation (Form TWCC-69) and accompanying narrative in which he characterized claimant’s injury as a sprain or strain rather than a neurological injury, and stated his belief that claimant’s present problems were not amenable to reasonable or appropriate surgical care. Dr. M found the claimant to have reached MMI on October 22, 1992, with a nine percent impairment rating. (This rating apparently did not include any percentages for range of motion [ROM], as Dr. M wrote that claimant had a “very inconsistent active cervical range of motion but generally demonstrates a moderate limitation in all directions” and stated that “Because of the inconsistent nature of the patient’s active cervical motion and the marked discrepancy between active range of lumbar motion and hidden straight leg raising, I would not say that the patient has an objective physical impairment related to loss motion (sic).”
Sometime thereafter, (Dr. W) was appointed as designated doctor by the Commission. Dr. W filed a TWCC-69 and narrative report finding the claimant had reached MMI on December 22, 1992, with an 11% whole body impairment rating. Dr. W also assigned no impairment for ROM, finding the lumbar ROM to be normal (zero percent), and stating that the cervical ROM was invalid. (Elsewhere in the report Dr. W states that the claimant’s cervical spine showed five degrees loss of extension and flexion, and states, “[h]e refuses to tilt to the side at all and will go through no lateral bending. He has normal right and left lateral rotation. He has voluntary splinting and guarding, no involuntary spasm.” Dr. W also mentioned the claimant’s “subjective lack of response.”)
On February 15, 1993, Dr. L wrote carrier stating that he believed claimant reached MMI on February 5th, with a 38% impairment rating. This rating included 21% impairment due to cervical ROM. No Form TWCC-69 from Dr. L was included in the record.
On April 6th claimant was evaluated by (Dr. C), who did not certify that claimant had reached MMI, but who assigned a 32% impairment rating. Like Dr. W, Dr. C assigned six percent and five percent, respectively, to cervical and lumbar intervertebral disc or other soft tissue lesions, with the balance of the impairment rating attributable to cervical and lumbar ROM. Dr. C attributed some of claimant’s stiffness to an undiagnosed rheumatological condition and stated that the claimant would benefit from a rheumatological workup. Dr. C’s findings were contained in a letter dated April 6, 1993.
The hearing officer found that the other medical evidence in the record was not sufficiently great to overcome the presumptive weight given the designated doctor’s report, and accordingly found that the claimant had reached MMI on December 22, 1992, with an 11% whole body impairment.
The claimant argued at the hearing, and contends on appeal, that the designated doctor’s report should be rejected because he invalidated ROM testing without explanation and despite the results of three computerized biomechanical evaluations performed for Dr. L showing ROM deficiencies (claimant said Dr. W had these evaluations but apparently did not consider them, as they are not mentioned in his report). He further argues that Dr. W’s one-time visit of 15 minutes is outweighed by the opinion of Dr. L, who treated claimant over approximately a 1 1/2 year period. The claimant also contends that the report of Dr. M, carrier’s doctor, should be rejected because that doctor accepted a public reprimand by the State Board of Medical Examiners on August 20, 1992. Finally, he argues that the hearing officer’s statement of evidence misstates facts in the record. He asks that the 1989 Act be liberally construed in his favor, citing case law, and urges that Dr. L’s date of MMI and Dr. C’s impairment rating be adopted.
With regard to the hearing officer’s statement of evidence, we have reviewed the entire record in this case, including the recording of the proceedings, and find the hearing officer’s recitation of facts a necessarily truncated summary, but not one that is inaccurate. See Texas Workers’ Compensation Commission Appeal No. 92206, decided July 6, 1992.
Turning to the issue of the designated doctor’s report, the 1989 Act provides that such report shall have presumptive weight and shall be the basis for MMI and impairment rating unless the great weight of the other medical evidence is to the contrary. Article 8308-4.25(b) and 4.26(g). As we have previously commented, no other doctor’s report–including that of a treating doctor–is accorded such special, presumptive status. Texas Workers’ Compensation Commission Appeal No. 92366, decided September 10, 1992. Further, it is not just through equally balancing the evidence or a preponderance of the evidence that such report can be outweighed, but only by the great weight of other medical evidence. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992; Texas Workers’ Compensation Commission Appeal No. 92570, decided December 14, 1992.
In Texas Workers’ Compensation Commission Appeal No. 92335, decided August 28, 1992, we had occasion to discuss the assignment of impairment ratings and ROM assessment in the context of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. Noting that the AMA Guides address both the protocols for measurements and the evaluative processes, we stated:
[s]pecifically with regard to ROM of the spine, the Guides set forth the recommended tests and procedures and provide for calculating variability between these tests to see whether the measurements fall within reproducibility guidelines; if they do not, the test is determined to be invalid. . . Thus the AMA Guides contain safeguards to validate the tests and make them more reliable.
While this panel has held that doctors must follow the entire protocol prescribed by the AMA Guides, we have also noted that the Guides acknowledge there is a possibility some ROM measurements may reflect inconsistencies even after repeated measurements and accordingly they provide that “if inconsistency persists, the measurements are invalid and that portion of the examination is then disqualified.” Texas Workers’ Compensation Commission Appeal No. 93296, decided May 28, 1993. Thus the AMA Guides recognize that under certain conditions these tests will be attempted but the results ultimately invalidated. That is what appears to have happened in this case, and we believe Dr. W’s narrative provides a minimal, but acceptable, explanation. As we have previously held, the AMA Guides do not require that an ROM test, within the validity requirements, is necessary before a doctor can assign an impairment rating of the whole body. Texas Workers’ Compensation Commission Appeal No. 92494, decided October 29, 1992. Dr. W’s report also does not specifically mention the results of previous ROM testing, which claimant said were provided to Dr. W. Dr. W’s review of records in his narrative specifically mentions the studies performed on claimant, and also states that “various reports from the various doctors were noted.” While this notation could have been more specific, we do not believe there is any reason to presume that Dr. W ignored any records or reports that were before him. We further note that Dr. L did not find claimant to have reached MMI and assign an impairment rating until after Dr. W had done so.
Because we find the evidence in this case sufficient to support the hearing officer’s determination that the great weight of the medical evidence is not to the contrary of the designated doctor’s report, it is not necessary to discuss in detail the agreed order issued to Dr. M by the State Board of Medical Examiners. As stipulated by the parties, Dr. M’s actions which were the subject of this order were not related to his examination of claimant. We are satisfied that this piece of evidence went to the weight and credibility of Dr. M’s report, which was a matter for the hearing officer to determine. Article 8308-6.34(e).
Finally, with regard to claimant’s argument that the 1989 Act should be liberally construed in a claimant’s favor, we have held that the weight of case law authority under the pre-1989 Act does not extend a liberal construction to questions of fact, as opposed to law. See Texas Workers’ Compensation Commission Appeal No. 93057, decided February 25, 1993. In this case the hearing officer correctly applied the appropriate legal standard to the medical evidence in the record. Where, as here, there is sufficient evidence to support the hearing officer’s determinations, there is no sound basis to disturb them. Texas Workers’ Compensation Commission Appeal No. 93062, decided March 1, 1993.
We affirm the hearing officer’s decision and order.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Thomas A. Knapp – Appeals Judge