This appeal arises under the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). A contested case hearing was convened by (hearing officer) , hearing officer, in (city), Texas, on March 25, 1993, continued to April 29th, and concluded on June 15, 1993, to consider the sole disputed issue, namely, what is appellant’s (claimant) correct impairment rating. The parties stipulated that on (date of injury), the claimant suffered a compensable injury to his forearms while working for (Employer), that claimant’s treating doctor assigned him an 18% impairment rating on August 27, 1992, that the designated doctor selected by the Texas Workers’ Compensation Commission (Commission) certified that claimant reached maximum medical improvement (MMI) on August 6, 1992, and assigned him a 24% whole person impairment rating. After making multiple factual findings, the hearing officer concluded that the evidence was so lacking that a well-reasoned decision could not be rendered, and that the disputed issue should be “returned to the Dispute Resolution team” for “proper development of the impairment rating issue.” The claimant’s request for review challenges the correctness of three of the hearing officer’s factual findings to the effect that the designated doctor failed to assign an impairment rating for the particular injuries involved, and that the parties failed to adequately develop their cases so that a decision could be made by the hearing officer. Claimant asks the Appeals Panel to reverse and render a decision that his impairment rating is the 26% later determined by the designated doctor. The respondent (carrier) asserts that the parties stipulated that claimant’s undisputed compensable injuries of (date of injury), were limited to his forearms, that the designated doctor nevertheless included claimant’s shoulders in his 24% impairment rating, that the designated doctor failed to address the matter of contribution–pursuant to Article 8308-4.30 (1989 Act)–of a subsequent cervical spine injury of (date of injury), which is the subject of a separate claim under the 1989 Act, and that the hearing officer correctly remanded the case because the designated doctor failed to exclude the shoulders and rate claimant’s forearms only. The carrier asks the Appeals Panel to affirm or, in the alternative, to render a decision that claimant’s impairment rating is 14% which, carrier asserts, represents claimant’s whole body impairment rating based on the designated doctor’s impairment ratings for claimant’s wrists and elbows and which excludes the ratings reached for claimant’s shoulders which were not a part of his compensable injuries involved in this claim. Neither party appears to contend that the designated doctor’s 24% rating is contrary to the great weight of the other medical evidence and the problem with adopting that rating as claimant’s correct rating centers on the report’s inclusion of ratings for claimant’s shoulders.
DECISION
The decision of the hearing officer is reversed and the case is remanded to the hearing officer for further consideration of the evidence and for factual findings and conclusions of law, as appropriate, which decide the disputed issue.
According to his Notice of Injury or Occupational Disease and Claim for Compensation, which claimant signed on July 10, 1991, he described his injury thusly: “My job [shipping clerk] required constant pulling, pushing, twisting, and turning with my hands, wrists, and arms. This constant, traumatic repetitive activity resulted in injury to my hands, wrists, and arms.” Claimant stated his date of injury for this apparent repetitive trauma injury as (date of injury), and, apparently, there was no dispute by the carrier respecting the existence and scope of such injury nor of the timeliness of claimant’s notice of the injury to his Employer. On a diagram of the human body contained on the back of his “Employee Report of Injury” (Employer’s form), signed on June 20, 1991, claimant drew lines from his wrists to his elbows and on the front of the form described the body parts involved in his injury as “left wrist, the right arm.” He testified that he completed this form after the accident and that its contents were truthful. Neither of these forms mentioned claimant’s shoulders having been injured on (date of injury), nor did he so testify. At the first session of the hearing, claimant stipulated with the carrier that he “suffered a compensable injury to his forearms while working for Employer” and the record was clear that the parties had reference to claimant’s arms from the elbows down to his wrists and not to his shoulders.
In addition to his (date of injury), injuries and his claim for same, claimant testified that on (date of injury), while inside Employer’s truck pushing on a heavy box, it slipped and struck him on the right side of the neck below his ear. Claimant said he filed a second and separate workers’ compensation claim for his neck injury on a claim form dated October 16, 1991. This form was ostensibly received into evidence as Claimant’s Exhibit 11 and was identified in the hearing officer’s Decision as “TWCC-41, Employee’s Notice of Injury dated 10-16-91 (for second injury.)” This exhibit did not accompany the record to the Appeals Panel and we were, thus, left with an incomplete record for review. Because we are remanding the case for further consideration by the hearing officer, an opportunity will be afforded the hearing officer to remedy this problem.
Claimant introduced a Report of Medical Evaluation (TWCC-69) signed by (Dr. M), the designated doctor, which referred to the date of injury as “5-31-91” and stated that claimant reached MMI on “8-6-92” with a whole body impairment rating of 24% for his “chronic cervical strain.” Dr. M’s TWCC-69 was accompanied by a narrative report of August 6, 1992, which stated that claimant was referred by the Commission for an independent medical evaluation “regarding his neck and upper extremity injuries. (Emphasis supplied.)” This report contained detailed range of motion (ROM) measurement findings for claimant’s shoulders, elbows, and wrists, and concluded that claimant suffered from a chronic cervical strain, and that he had reached MMI with a 24% impairment rating therefor.
Also introduced by claimant was a TWCC-69 from (Dr. P), claimant’s treating doctor, which referred to the date of injury as “5-31-91” and stated that claimant reached MMI on August 27, 1992, with an 18% whole body impairment rating for his ROM to the cervical spine (seven percent) and to the lumbar spine (11%). The report of the designated doctor was the earliest assignment of an impairment rating offered into evidence and, of course, the designated doctor mechanism provided for in Articles 9308-5.25 and 8308-4.26 is to finally resolve disputes over the attainment of MMI and impairment ratings. The carrier introduced a Request For Setting A Benefit Review Conference (BRC) (TWCC-45), signed by a carrier representative and dated November 17, 1992, which stated that the Commission “erroneously designated [Dr. M] to resolve MMI and PPD dispute, but no dispute was involved.” The carrier further stated it was disputing Dr. M’s 24% rating. At the BRC held on February 8, 1993, the claimant asserted that Dr. M’s 24% rating was correct. The carrier maintained that Dr. M’s rating was incorrect in that it was not based upon objective findings, and further asserted that the Commission erroneously selected a designated doctor when carrier had only requested a BRC. According to the recommendations of the Benefit Review Officer in the BRC Report, the carrier’s adjuster had requested the Commission to designate a doctor at that time. The parties appeared aware of the potential problem of a designated doctor being the first to assign an impairment rating rather than being called upon to resolve the disputed rating of another doctor. However, the parties appeared not to want to raise that potential problem as a disputed issue and proceeded to present their respective cases on the theory that the designated doctor’s report should be adopted, in toto for claimant, and less the shoulders impairment for the carrier.
Claimant also introduced an April 2, 1992, report from Dr. P which purported to rebut the report of (Dr. L), dated February 12, 1992. Dr. P stated that in summary he disagreed with Dr. L’s assessment that claimant was able to return to work, and that although claimant “does have many bizarre complaints that may be on a functional basis, . . . the EMG reveals that he does have a mild C8 and T1 radiculopathy.” Dr. L’s February 12, 1992, report stated his diagnostic impression as that of a “somatization disorder, without objective signs of pathology in the musculoskeletal system.” Dr. L recommended claimant undergo a psychiatric evaluation and counselling, said claimant has not worked since commencing treatment with Dr. P on July 7, 1991, and, in an addendum of June 12, 1992, further stated that claimant had not reached MMI in view of the recommendation for psychiatric evaluation.
Dr. L’s February 12, 1992, report reflected that the x-rays of claimant’s hands, elbows, forearms, cervical spine, lumbosacral spine, sacrum, and coccyx, obtained by Dr. P on July 8, 1991, were all within normal limits, and that lumbosacral spine x-rays taken in Dr. L’s office were normal. An MRI report of January 8, 1992, reflected that claimant’s cervical spine was normal.
Claimant also introduced a second TWCC-69 from Dr. P, signed on April 22, 1993, which stated that claimant reached MMI on August 27, 1992, with a 10% whole body impairment rating consisting of “right/left shoulder – 13%” and “right/left elbows – 8%.” According to this form, those shoulder and elbow values yielded a 20% whole body impairment rating which Dr. P then simply divided in half to get the 10% rating stating: “It is only fair to assign half of the total impairment due to the upper extremities of the first injury and half to the first injury, thus the patient does have a permanent impairment of 10% of the body as a whole due to the injuries sustained on May 31, 1992.”
With the evidence in this posture, claimant argued that Dr. M’s report should be given presumptive weight and his 24% impairment rating adopted. See Article 8308-4.26(g). The carrier contended that Dr. M’s rating was not correct since the stipulated injury was to claimant’s forearms while Dr. M’s rating was for a cervical strain; that the cervical strain injury was the subject matter of claimant’s separate, subsequently filed claim; that no doctor had yet assigned claimant an impairment rating limited to his forearm injuries; that claimant’s medical histories of the two injuries provided to the several doctors had been commingled; and that the apparent solution would be the selection of another designated doctor to clarify the matter. The hearing officer reconvened the hearing on April 29, 1993, to state that a prehearing conference had been conducted during which he had directed the parties to propound questions for Dr. M, that Dr. M’s responses were not received in sufficient time for the parties to address them at the hearing on April 29th, and that the hearing was continued on the carrier’s motion until June 15th.
At the hearing on June 15th, the hearing officer introduced Dr. M’s report of April 8, 1993, which determined that claimant had the following loss of ROM impairment values: right shoulder – “16%;” right elbow – “1%;” right wrist – “12%.” These values yielded a right upper extremity impairment rating of “27%” and a “16%” whole person rating using the Combined Values Chart and Table 3, respectively, in the Guides to the Evaluation of Permanent Impairment, Third Edition, second printing, published by the American Medical Association (AMA Guides), of which the hearing officer took official notice. The values for the left side were: shoulder – “11%;” elbow – “1%;” and wrist – “10%,” which yielded a left upper extremity rating of “20%” and a whole person rating of “12%.” Again, using the Combined Values Chart, the 16% and 12% whole person ratings for both upper extremities yielded a 26% whole person impairment rating. Dr. M’s report appeared to assess impairment ratings for loss of ROM only and not for underlying conditions or for neurological deficits.
Following the receipt of this report from Dr. M, the parties communicated to Dr. M respecting his having included in his 26% rating impairment values for claimant’s shoulders since, as the carrier pointed out, claimant’s (date of injury), compensable injuries were stipulated to be to his forearms. The parties treated the term “forearms” to include the areas from claimant’s elbows down to and including his wrists. Dr. M responded indicating his view that claimant’s shoulders were injured at the time the elbows and wrists were injured, and he did not seem inclined to take the shoulders out of his impairment assessment. From the exchange of correspondence to and from Dr. M, however, it is not clear that he was made to understand that notwithstanding his medical assessment of claimant’s shoulders as having been injured when the wrists and elbows were injured, that in this case, as a legal matter given the parties stipulation and the evidence, claimant’s (date of injury), injuries did not include his shoulders.
Article 8308-6.34(g) provides, in part, that “[t]he hearing officer shall issue a written decision that includes: (1) findings of fact and conclusions of law; (2) a determination of whether benefits are due; and (3) an award of benefits due.” Set forth below are the three factual findings disputed by claimant as well as the two pertinent legal conclusions.
FINDINGS OF FACT
20.[Dr. M’s] response to the 05-14-93 Hearing Officer’s inquiry was contained in his 05-24-93 letter, which stated that his earlier 24% impairment rating concerned only the 06-06-91 spinal injuries. He stated that the 05-31-91 injury also involved both shoulders and indicated that his 04-08-93 report accurately reflected the measurements taken of the right and left upper extremities, as were documented in his 08-6-92 report. He did not give an impairment rating for those injuries or file a new TWCC-69.
22.The appointment of [Dr. M] by the Commission as a designated doctor to resolve the impairment rating dispute did not resolve the issue.
25.The parties in the three hearings on this matter each failed to adequately develop their respective cases so that a dispositive final decision could be rendered by the hearing officer.
CONCLUSIONS OF LAW
2.Although ample time was afforded for the development of the record, the evidence in this case is so lacking that a well-reasoned decision cannot be rendered.
3.This issue should be and is hereby returned to the Dispute Resolution team (who have access to CLAIMANT’S entire claim file) for proper development of the impairment rating issue prior to resubmission to a later dispute resolution process, if necessary.
Regarding the hearing officer’s conclusion that the parties did not develop the record, we observe that it was the Commission which selected the designated doctor at the carrier’s request to resolve whatever impairment rating dispute that may have then existed, and the designated doctor became, in effect, the Commission’s agent for that purpose. We have previously expressed some concern with unilateral communications by parties to a claim with designated doctors concerning their ratings. It is the Commission, having selected the designated doctor, who must clearly and effectively communicate its requirements and provide sufficient background to permit the designated doctor to understand any particular limits of the impairment issue he or she is called upon to determine.
In our view, the hearing officer’s Conclusions of Law No. 2 and 3 do not fulfill the statutory directives in Articles 8308-6.34(b) and (g) to fully develop the facts required for the determinations to be made, and to issue a written decision which includes conclusions of law and determines whether benefits are due. Accordingly, we remand for the hearing officer to further consider the evidence in the record, develop further evidence as appropriate, and make such additional factual findings and legal conclusions as are necessary and appropriate to decide the disputed issue, namely, claimant’s correct impairment rating. The parties did not contend, nor does it otherwise appear, that there exists a great weight of other medical evidence contrary to Dr. M’s impairment ratings for claimant’s wrists and elbows. Accordingly, using the Combined Values Chart and appropriate tables in the AMA Guides, of which the hearing officer took official notice, the designated doctor’s whole body impairment rating for the loss of ROM in claimant’s elbows and wrists can be simply computed from the percentages already furnished by the designated doctor.
For the foregoing reasons, the decision of the hearing officer is reversed and the case is remanded for the expedited development of additional evidence, as appropriate, and for such additional findings and consideration as are appropriate and not inconsistent with this opinion.
A final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not
later than 15 days after the date on which such new decision is received from the Texas Worker’s Compensation division of hearings, pursuant to Article 8308-6.41. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Philip F. O’Neill – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
CONCURRING OPINION:
This case well represents the importance of resolving, at the earliest opportunity, ambiguities, inaccuracies and failures to comply with commission directives. While this case was somewhat complicated because of the claimants two distinct injuries becoming intertwined, it is this very situation that early levels of the dispute resolution process must vigilantly monitor and assure that records, reports, and documents kept or generated by the commission, accurately reflect the necessary information regarding the specific claim. Much time and effort could have been saved in this case if appropriate action had been taken during the early stages of the claim processing.
Stark O. Sanders, Jr. – Chief Appeals Judge