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). On June 23, 1993, a contested case hearing (CCH) was held in (city), Texas, with (hearing officer) presiding. The only issue at the CCH was: What is claimant’s correct whole body impairment rating? The hearing officer determined that the appellant, claimant herein, has a four percent whole body impairment as “certified” by the designated doctor.
Claimant contends that the hearing officer is in error, and that the designated doctor’s rating was contrary to the great weight of other medical evidence, and requests that we reverse the hearing officer’s decision and render a decision in his favor. Respondent, carrier herein, responds that the decision is supported by the evidence and requests that we affirm the decision.
DECISION
The decision of the hearing officer is affirmed.
That claimant injured his right elbow when his arm “popped” as he pulled a release lever on a tank truck on (date of injury), while in the course and scope of employment, is not disputed. Claimant initially consulted a company doctor who referred him to an orthopedic specialist, (Dr. W). Dr. W initially treated claimant’s arm conservatively with medication and physical therapy. During a therapeutic session, claimant’s arm again “popped.” Dr. W did an MRI and in July 1992, performed arthoscopic surgery which resulted in a diagnosis of a fractured radial head. Claimant testified that he can no longer drive a truck on a regular basis, and that he has a long term injury and four percent impairment is inadequate, as well as being incorrectly computed. Claimant saw (Dr. C) at carrier’s request and eventually the Texas Workers’ Compensation Commission (Commission) appointed (Dr. T), as the designated doctor.
Dr. W, the treating doctor, has completed several reports and operative notes on claimant’s arm documenting his initial conservative treatment and subsequent operative care. In an undated Report of Medical Evaluation (TWCC-69), Dr. W certifies claimant reached MMI on “10-23-92” (not an issue at this hearing) with 20% whole body impairment rating. On the TWCC-69 Dr. W notes “Additional 10% with respect to the chondral damage within the elbow joint makes the total – 20% of the whole body.” In a narrative report dated February 2, 1993, Dr. W states he has reviewed Dr. C’s report and concurs to the extent of his “10-23-92 letter” which outlines claimant’s problems and range of motion. In that letter Dr. W states “I would expect some of this to resolve with time as the swelling in the elbow joint decreases and as he recovers some of his range of motion.” In Dr. W’s February 2, 1993 narrative, he concedes he is deviating from the AMA Guidelines by stating:
Also I do not think that the AMA Guidelines to Permanent Impairment are sufficient, when there is articular surface damage, since, for instance, the AMA guidelines allow for arthritic damage to the lower extremity – in particular the hip, but does not allow for any disability if a similar type of damage occurs to an upper extremity joint. My evaluation of partial permanent disability would add another 3% for a loss of pronation, making a total impairment to the elbow on the basis of loss of range of motion – 16, which would be 10% to the whole body. I would then add another 10% to the whole person with respect to the chondral damage noted for a total loss of 20%. (Emphasis added).
Dr. C, carrier’s examining doctor, in an undated (or misdated, but apparently rendered in latter 1992 or early 1993) TWCC-69 and narrative certifies MMI and assesses an eight percent whole body impairment rating. Dr. C shows his computations on how he reached eight percent and states in his narrative that claimant “has definite disability to the right elbow. I do not believe that this patient is able to do ordinary work that he was doing as a truck driver with much pulling, pushing and tugging.”
By letter dated February 22, 1993, Dr. T was appointed by the Commission as the designated doctor for “Percentage of impairment only.” In a TWCC-69 and accompanying narrative, dated March 4, 1993, Dr. T assesses a four percent whole body impairment rating. Dr. T’s narrative recounts claimant’s history, physical examination, radiographic studies, diagnostic impression and assessment. In the physical exam portion Dr. T states the active range of motion was measured by a goniometer. Dr. T’s assessment is that claimant will have significant difficulties with his previous occupation and details how he arrived at a four percent whole person impairment “using the AMA Guides.”
The hearing officer accepted Dr. T’s rating and found that the designated doctor’s impairment rating “has not been overcome by the great weight of contrary medical evidence.” The claimant contests this decision by submitting articles, statements, medical records and a number of documents. Claimant reasserts that Dr. T “did not use a goniometer for his evaluation.” Claimant argues that the degenerative nature of his injury requires a greater than four percent impairment and that the 20% rating of Dr. W was correct.
We note, as carrier points out, that our review is limited to the record developed at the CCH and any argument in the written request for review. Article 8308-6.42(a). Consequently, we may not consider additional evidence which would have been available at the CCH with the exercise of due diligence, or if the additional documentation is cumulative. See Texas Workers’ Compensation Commission Appeal No. 93518, decided August 6, 1993 and Texas Workers’ Compensation Commission Appeal No. 92444, decided October 5, 1992.
The hearing officer is the sole judge of the weight to be given to the evidence. Article 8308-6.34(e). Texas Workers’ Compensation Commission Appeal No. 93512, decided August 4, 1993 and Burelsmith v. Liberty Mutual Insurance Co., 568 S.W.2d 695 (Tex. App.-Amarillo 1978, no writ). As the carrier pointed out, at the CCH and on appeal, Dr. W clearly did not use the second printing, dated February 1989 of the Guides to the Evaluation of Permanent Impairment, third edition, published by the American Medical Association (AMA Guides) required by Article 8308-4.24. In his report Dr. W stated he did not think the AMA Guides “are sufficient” and he then added at least an extra 10% impairment to what he would otherwise have found using range of motion measurements. The hearing officer could, and apparently did, discount Dr. W’s rating on this ground.
Claimant testified he did not believe Dr. T used a goniometer while Dr. T in his report clearly stated he did. In instances of conflicting testimony the hearing officer, as the trier of fact and sole judge of the weight to be given the evidence resolves any conflicts or inconsistencies in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ).
The hearing officer accorded presumptive weight to the designated doctor’s (Dr. T) report and determined that the great weight of other medical evidence was not to the contrary. Article 8308-4.26(g). We do not find sufficient basis to disturb the hearing officer’s finding and conclusion in this regard. We have repeatedly held that the certification of an impairment rating of a designated doctor occupies a “unique position” under the 1989 Act and that not a mere balancing of the evidence will suffice to discard a designated doctor’s assessment. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992; Texas Workers’ Compensation Commission Appeal No. 92366, decided September 10, 1992. Where there is sufficient evidence to support his decision, as here, and the determinations are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust, there is no sound basis to disturb his decision. Texas Workers’ Compensation Commission Appeal No. 92232, decided July 20, 1992. While we can understand the claimant’s concern with the circumstance that he cannot go back to his previous employment and that he has a long term injury, nonetheless, the hearing officer correctly accorded presumptive weight to the designated doctor’s report and that presumptive weight has not been overcome by the great weight of other medical evidence to the contrary. We view Dr. C’s assessment merely as balancing evidence insufficient to overcome the designated doctor’s report. The medical evidence was sufficient to support the hearing officer’s determinations.
The decision of the hearing officer is affirmed.
Thomas A. Knapp – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge