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 May 17, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. He thereafter held telephone conference calls with the parties on May 24 and May 28, 1993. He determined that the appointment of the designated doctor was inadequate, and he did not determine an impairment rating for claimant. Appellant (claimant) asserts the respondent (carrier) should not be allowed to pay impairment benefits based on its “reasonable assessment” of the rating because the carrier has not acted reasonably. Claimant adds that he should not be ordered to see another doctor and that the impairment rating should be set at 20%. Carrier provided no response.
DECISION
We affirm.
At the hearing the issue was stated to be: whether the designated doctor’s impairment rating was correct. After this issue was stated, the claimant asked to have an additional issue added; the carrier objected; an additional issue of whether the Texas Workers’ Compensation Commission (Commission) could order claimant to be examined by a designated doctor at a location over 75 miles from the claimant’s home was considered.
Article 8308-6.42(c) of the 1989 Act states that the Appeals Panel “shall determine each issue on which review was requested.”
The Appeals Panel determines:
That the decision of the hearing officer as to payment of impairment benefits “based on Carrier’s reasonable assessment” was not error;
That the decision of the hearing officer was not in error in not providing for an impairment rating of 20%.
The parties stipulated that maximum medical improvement had been reached. Two key documents considered at the hearing were claimant’s exhibits 10 and 12. Exhibit 10 showed that a form TWCC-22 “Request for Medical Examination Order” was used by (WC), the benefit review officer, to appoint (Dr. B) “to determine the correct impairment rating;” it also contained the words “designated doctor” written in an open area of the form that does not ask for any words to be filled in. This form states, “[t]his request must comply with Art. 8308-4.16, Rule 126.5.” Exhibit 12 was a “Benefit Review Conference Agreement”, which contained, along with other matters, the statement that “[b]oth parties agree to TWCC designating doctor (B), neurosurgeon Houston, to establish the correct impairment rating.” Claimant, WC, and a carrier’s representative signed this document dated January 29, 1993.
The hearing officer found that claimant did not voluntarily sign the agreement, exhibit 12, but since the carrier did not appeal, that finding will not be reviewed. The hearing officer also found that Dr. B was not appointed a designated doctor because the examination was conducted under authority of a Medical Evaluation Order; as a result, he was not considered to be a designated doctor; and his report did not receive presumptive weight. The hearing officer added that the claimant traveled 125 miles to see Dr. B, and concluded that the Commission was without authority to order a claimant to travel further than 75 miles under a Medical Examination Order.
The claimant on appeal objects to the hearing officer’s order, which after first determining that a designated doctor was not adequately appointed, stated that the carrier should continue to pay impairment benefits based on a reasonable assessment
of the correct impairment rating. The basis for this order is found in Article 8308-4.26(f) of the 1989 Act, which reads:
(f)The insurance carrier shall pay the employee income benefits for a period based on the impairment rating or, if the insurance carrier disputes the impairment rating, based on its reasonable assessment of the correct rating.
In addition, Tex. W.C. Comm’n, 28 TEX. ADMIN CODE § 130.6 (Rule 130.6) provides that if either the employee or the carrier disputes either maximum medical improvement or the impairment rating, a designated doctor will be appointed. (See Article 8308-4.26(g) which provides for a designated doctor to evaluate a claimant in regard to determining a correct impairment rating when the rating is disputed.) The determination of the hearing officer, not asserted on appeal to be error, was that a designated doctor had not been correctly appointed, and Dr. B was not “considered a designated doctor.” Therefore a designated doctor has yet to be appointed. In the circumstances of this case and with no appeal of the determination that Dr. B was not considered to be a designated doctor, the order to continue paying impairment benefits, as stated, was not in error.
For the same reasons as are set forth above, the hearing officer did not err in not determining that the 20% impairment rating by (Dr. Ba), claimant’s treating doctor, was the correct impairment rating. Rule 130.6 and Article 8308-4.26 allow either the claimant or carrier to dispute an impairment rating issued by a treating doctor or carrier’s doctor. As long as there is a dispute, this rule and article provide that the remedy is to appoint a designated doctor. There was no issue at the hearing or on appeal in regard to whether there was a dispute as to the treating doctor’s rating. Conversely, if the hearing officer had before him the report of a designated doctor (not the report of someone who was not “considered a designated doctor”), then the hearing officer, in the right circumstances, could have found that the correct impairment rating was that of the treating doctor if he first found that “the great weight of the other medical evidence is to the contrary” of the designated doctor’s opinion. See Article 8308-4.26 of the 1989 Act.
Claimant also states in his appeal that to now be ordered to see another doctor would be a “further violation of my rights.” The decision of the hearing officer does not state that claimant is ordered to see a correctly appointed designated doctor, but the statute and rules cited above make that a distinct possibility depending on the status of the dispute. In this regard, we would point out that Rule 126.6(h), which imposes the 75 mile rule, addresses medical examinations under Article 8308-4.16 of the 1989 Act. (In addition, Rule 126.6(f) provides that a doctor who conducts an examination “solely” under that rule will not be considered a designated doctor under Article 8308-4.25 or 4.26.) Rule 126.6(h) does not address orders for designated doctors under either Article 8308-4.25 or 4.26 (see also Rule 130.6 as to designated doctors which contains no limit on distance). Also see Texas Workers’ Compensation Commission Appeal No. 91073, decided December 20, 1991, which points out that Rule 126.6(h) implements Article 8308-4.16 of the 1989 Act, and states that while the Commission imposed a rule as to 75 miles, it did not have to do so.
The decision and order are affirmed.
Joe Sebesta – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge