This appeal arises under the Texas Workers’ Compensation Act of 1989 (1989 Act), TEX. REV. CIV. STAT. ANN. arts. 8308-1.01 through 11.10 (Vernon Supp. 1993). On April 21, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding, to determine the issues of whether the claimant, Alfonso Orozco, who is the appellant in this case, had reached maximum medical improvement (MMI), and, if so, the extent of permanent impairment as a result of his compensable injury sustained on (date of injury), while claimant was employed by (employer). The record was held open so that the hearing officer could seek clarification of the designated doctor’s report. After affording the parties the opportunity to respond, the hearing officer closed the record of the case on June 4, 1993. The hearing officer determined that the opinion of the designated doctor regarding MMI was not contrary to the great weight of other medical evidence, and she accorded it presumptive weight by finding that claimant reached MMI on November 9, 1992 with a 12% impairment.
The claimant has appealed this decision, arguing about the thoroughness of the designated doctor’s examination, that the doctor’s examination failed to follow the American Medical Association Guides to the Evaluation of Permanent Impairment (Guides) and arguing further that he failed to take into account his neck injury, vertigo, and emotional stress. The claimant complains that the hearing officer wrongfully excluded some of his evidence. The claimant questions the integrity of the designated doctor. The claimant asks that the decision be reversed and that he be found not to have reached MMI. The carrier responds that the decision of the hearing officer is correct.
DECISION
The decision of the hearing officer is affirmed.
The claimant was injured on (date of injury), when he assisted a coworker with carrying a sheet of metal. He felt pain in his lower back and went to the doctor. Ultimately, his treating doctor became (Dr. P). The claimant contended that he also hurt his neck in this incident as well, but acknowledged that he did not have neck pain until sometime in early or mid-January 1992. Claimant was treated with physical therapy; surgery has not been recommended. Dr. P’s initial diagnosis was posttraumatic lumbar spondylogenic discogenic pain syndrome.
On February 18, 1992, the claimant was examined by a doctor for the carrier, (Dr. A). Dr. A commented about previous back injuries that claimant had, although, according to claimant, he erroneously listed a 1989 car accident as “1987.” Dr. A noted a diagnosis of sprain of the lumbar spine. Dr. A also stated that claimant had begun to complain of neck pain in 1992; Dr. A indicated that this related to the emotional stress and tension that claimant had as a result of his injury and unemployment. Dr. A found that claimant had reached MMI with a five percent impairment.
Apparently, as a result of a dispute over this, claimant was examined by a designated doctor appointed by the Texas Workers’ Compensation Commission (Commission) on July 14, 1992. This was (Dr. O), and he determined after this examination, noting that claimant had yet to complete work hardening therapy, that he had not reached MMI.
On October 16 and 19, 1992, claimant had MRIs of the lumbar and cervical spine performed. He was 57 years of age at that time, according to the report. The cervical spine indicated degenerative changes, mild to moderate bulging of a disc at one level, and mild bulging at another. No stenosis was observed. The spinal cord in this area was also observed to be normal in caliber and spinal intensity. The lumbar MRI also indicated degenerative disc disease, mild to moderate bulging at one level, no “appreciation” of any previously described herniated disc, and mild spinal stenosis throughout the lumbar spine. No significant narrowing of the foramen was observed.
Dr. O re-examined claimant on November 9, 1992. The claimant argued that this examination, which he stated lasted only 15 minutes, was not in compliance with the Guides. He stated that the doctor did not observe him undress (in spite of comments to the contrary made in Dr. O’s report). Claimant said that Dr. O applied a pricking device to various areas of his lower extremities and asked how it felt. He said that Dr. O only had him bend forward twice, used an inclinometer, but did not conduct a straight leg raising test. Dr. O determined that MMI was reached effective November 9, 1992, and he assessed seven percent for claimant’s objective lumbar injury plus five percent for limitations on range of motion. Dr. O’s narrative report recites a “raising leg test” and notation that claimant removed his shirt and shoes with no difficulty. In later correspondence to the Commission, Dr. O pointed out that although his report cited use of the revised Guides, the portions of the revised Guides he used were the same as corresponding portions of the version of the Guides described in Art. 8308-4.24. He also commented that he did not consider claimant’s neck condition to have resulted from his accident on (date of injury), pointing to the fact that claimant was initially treated only for his lower back, that his manifestation of neck pain was at least two months after the injury, and that he had prior injuries to his neck. Dr. O indicated that he considered claimant’s EMG testing essentially normal.
Medical evidence presented by the claimant in opposition to Dr. O’s report was primarily from Dr. P. Dr. P’s opinion prior to the October 1992 MRI was that claimant had a ruptured lumbar disc. In May 1992, Dr. P began tying a diagnosis of related cervical discogenic pain syndrome to his lumbar injury diagnosis. Dr. P assessed MMI effective October 13, 1992, and gave claimant a 42% impairment rating for his cervical and lumbar areas, which appears to have been calculated by adding up various components of impairment, rather than by employing the Combined Values Chart as the Guides indicate should be done to compute a final rating. Dr. P’s rating was based upon range of motion limitations and specific disorders, and did not assess impairment due to any peripheral nerve damage. Dr. P, in a letter dated December 29, 1992, reasserted his 42% rating in response to Dr. O’s 12% rating, and forwarded information to the carrier to demonstrate his calculation. However, Dr. P later stated that the MMI assessment had been given in error, and he had assessed an impairment in response to inquiry from the claimant as to how much impairment he had at that time. Dr. P revoked his determination that claimant reached MMI. In a letter dated April 15, 1993, Dr. P maintained that the claimant’s cervical pain was a result of the (date of injury), injury and stated that a delayed manifestation of the neck injury for two months was not unusual. Dr. P also stated that claimant had mentioned the neck when he was first treated by Dr. P, but that the neck was “inadvertently disregarding (sic) in favor of the more obvious lower back injury.”
Other doctors have diagnosed claimant with emotional stress, a hand rash related to emotional stress, hiatal hernia, and vertigo related to the neck condition. There is no medical evidence, however, that any of these conditions are permanent, or have resulted in a permanent impairment to claimant.
EVIDENCE EXCLUDED
The hearing officer excluded, as not relevant to the claimant’s claim, testimony and records he attempted to present regarding Dr. O’s treatment of other injured workers. We find no error in these rulings. As the hearing officer explained, the issues involved in the hearing were whether claimant had reached MMI and had impairment. Claimant was permitted to offer evidence as to how he felt about Dr. O’s treatment of his own case. We agree that what did or did not occur in other cases evaluated or treated by Dr. O had no bearing on claimant’s case.
WHETHER THE GREAT WEIGHT OF OTHER MEDICAL EVIDENCE
WAS AGAINST THE DESIGNATED DOCTOR’S REPORT
The use of a designated doctor is intended under the Act to assign an impartial doctor to finally resolve disputes over MMI and impairment rating. To achieve this end, the report of a Commission appointed designated doctor is given presumptive weight. Article 8308-4.26(g). Only the great weight of medical evidence can reverse this presumptive status. Art. 8308-4.25(b). As the Appeals Panel has stated before, this requires more than a mere balancing of the evidence. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. A claimant’s nonmedical testimony or evidence about her condition does not alone provide a sufficient basis to overcome this presumption. We have also noted before that late filing of a report by a doctor does not detract from its weight as a medical opinion. Texas Workers’ Compensation Commission Appeal No. 92132, decided May 18, 1992.
We would respectfully point out to the claimant that although a person who is not medically trained may read through and come to certain conclusions about the Guides and their use, the determination about which portions of the Guides to use, and how to use them, is essentially a medical determination. For example, the claimant has interpreted certain portions of the Guides that talk about the use of straight leg raising tests in measuring loss of lumbar range of motion as mandatory. However, it is possible to read those same provisions and form an impression that the straight leg raising is proposed as a way to validate lumbar range of motion measurements that were observed using other tests. We cannot find error in the hearing officer’s decision not to credit the claimant’s alternative computations of impairment over those of the designated doctor.
The hearing officer is the sole judge of the relevance, the materiality, weight, and credibility of the evidence presented at the hearing. Art. 8308-6.34(e). The decision of the hearing officer will be set aside only if the evidence supporting the hearing officer’s determination is so weak or against the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Atlantic Mutual Insurance Co. v. Middleman, 661 S.W.2d 182 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.). There were conflicts and inconsistencies among the doctor’s reports, and claimant’s testimony. It was up to the hearing officer to weigh the importance of these matters. There was dispute over whether the cervical condition resulted from the (date of injury), accident. It was evident that Dr. O did not believe that it was. Claimant pointed out that he had raised complaints about his neck pain earlier in time than Dr. O stated. However, the hearing officer evidently determined that other evidence in the case, as well as Dr. O’s assessment, pointed to the conclusion that an injury to the neck did not occur on (date of injury). Dr. A had concluded that neck pain was stress related, and the MRI indicated that the condition observed in the neck was degenerative. We would observe that all pains experienced at any time after an accident occurs can not automatically be attributed to an accident, especially when pain occurs several weeks or months after an injury.
“Maximum Medical Improvement” is defined, as pertinent to this case, as “the point after which further material recovery from or lasting improvement to an injury can no longer be reasonably anticipated, based on reasonable medical probability.” Art. 8308-1.03(32)(a). We have stated many times that the presence of pain is not, in and of itself, an indication that an employee has not reached MMI; a person who is assessed to have lasting impairment may indeed continue to experience pain as a result of an injury. See Texas Workers’ Compensation Commission Appeal No. 93007, decided February 18, 1993. We would point out that the hearing officer evidently considered as persuasive the fact that Dr. O did not simply rush to judgment on finding claimant had reached MMI at the date of his first examination, but allowed claimant to complete therapy. Dr. O’s determination that claimant reached MMI is consistent with Dr. A’s earlier determination to this effect; Dr. O’s impairment rating is substantially higher than that of the carrier’s doctor.
WHETHER FAILURE TO GIVE IMPAIRMENT RATINGS FOR EMOTIONAL
DISTRESS, VERTIGO, RADICULOPATHY AND HAND RASH
IS A GREAT WEIGHT OF MEDICAL EVIDENCE AGAINST
THE DESIGNATED DOCTOR’S REPORT
The impairment upon which a rating for workers’ compensation purposes is based is defined in Art. 1.03(24) as “any anatomical or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent.” (emphasis added). Medical evidence was not offered to demonstrate that any of these conditions will be life long. We therefore cannot agree that the designated doctor’s opinion is outweighed simply by the diagnosis of the existence of any of these conditions at any point in time. (Further, the vertigo is linked to claimant’s neck condition and the hearing officer has accepted the designated doctor’s report that the neck is not part of the compensable injury.)
The claimant offered no medical evidence to demonstrate that his EMG test showed any radiculopathy condition resulting in “impairment.” The hearing officer may have considered that even claimant’s treating doctor, Dr. P, did not assess any impairment related to any nerve damage. We would respectfully emphasize again that the fact that one has a condition or some findings on a test such as an EMG does not automatically mean that “impairment” has resulted. The determination concerning existence of permanent impairment is one to be made with the exercise of medical judgment. Conflicts in medical opinions are for the hearing officer to weigh.
For these reasons, we affirm the hearing officer’s decision.
Susan M. Kelley – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Philip F. O’Neill – Appeals Judge