This appeal is brought pursuant to the Texas Workers’ Compensation Act of 1989, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 22, 1993, in (city), Texas, (hearing officer) presiding as hearing officer. The sole issue at the CCH was the correct impairment rating (IR). The hearing officer found, in accordance with the determination of the Texas Workers’ Compensation Commission (Commission) designated doctor, that the appellant (claimant) had an IR of five percent. The claimant appeals this finding and submits that the correct IR is 18% as found by her treating physician. The respondent (carrier) argues that the statutory presumption of validity of the designated doctor’s determination has not been overcome by the great weight of the medical evidence to the contrary.
DECISION
We affirm the hearing officer’s decision.
The fact that the claimant suffered an injury to her back on (date of injury), during the course and scope of her employment as a home health aide is not disputed. Magnetic resonance imaging (MRI) of the claimant’s lower back on January 17, 1992, revealed disc bulging at L3-L4, but with no definite disc herniation. An electromyogram (EMG) report of January 28, 1992, was normal for the bilateral lower extremities. A bone scan on June 17, 1992, was “normal.” A second MRI on September 8, 1992, and a third one on January 14, 1993 showed no significant abnormalities of the lumbar spine with the exception of the previously described minimal bulging at L3-L4. A second bone scan on August 13, 1992, was negative for bone and joint pathology. The claimant’s treating physician, (Dr. I), on February 27, 1992, examined the claimant and found “mechanical low back pain which is probably related to her [claimant’s] obesity and the work she does. . . .” He provided conservative treatment over the summer of 1992, to include primarily physical therapy, work hardening and a back brace, and on November 17, 1992, in a Report of Medical Evaluation (TWCC-69) released claimant to regular duties. He found MMI on November 17, 1992, with an 18% IR, five percent of which he attributed to lower back pain and 13% to his range of motion assessment. On March 25, 1993, (Dr. T), whom the Commission chose as the designated doctor, evaluated the claimant and found MMI to have occurred on March 25, 1993, with a five percent IR.
Claimant premises her disagreement with the finding of the hearing officer and designated doctor as to the five percent IR, primarily on her assertion that Dr. T did not perform a complete range of motion study and that he did not review Dr. I’s range of motion studies prior to issuing his findings.[1] Dr. I also asserts that Dr. T’s lower IR is the result of his failure to find a loss of range of motion and failure to consider his report.
Dr. T, in a report attached to his Report of Medical Evaluation (TWCC-69), states under the sub-heading “PHYSICAL EXAMINATION”:
Range of motion of the lumbar spine is full and symmetric with pain at the extremes of all range of motion, most commonly extension, in accordance with the AMA Guides.
In a follow-up letter to the Commission, Dr. T states that the claimant brought to his office her medical records from Dr. I. Dr. T reviewed those records and concluded that “there is no objective evidence to warrant a change in the [IR] of 5% that was rendered on 3/25/93.”
We have repeatedly emphasized the unique position of the designated doctor under the 1989 Act. See Texas Workers’ Compensation Commission Appeal No. 92555, decided December 2, 1992; Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. Section 408.125(e) accords the Commission selected designated doctor’s report regarding an impairment rating “presumptive weight.” In Appeal No. 92412, we went on to point out that to outweigh the report of the designated doctor requires more than a mere balancing of the medical evidence or a preponderance of medical evidence; rather, such other medical evidence must be determined to be the “great weight” of the medical evidence contrary to the report. We have also held that a claimant’s lay testimony does not constitute medical evidence that can be considered in determining whether the “great weight” rebuts the “presumptive weight” of the designated doctor’s report. See Texas Workers’ Compensation Commission Appeal No. 93072, decided March 12, 1992. In the instant case, Dr. T, in giving a five percent impairment rating, clearly states that he considered range of motion and “all medical records regarding this patient.” Although at the time of the actual physical examination he performed on the claimant he had not reviewed Dr. I’s reports, he confirmed that he later reviewed the reports and found in them “no objective evidence to warrant a change” in the claimant’s impairment rating. The hearing officer reviewed this medical evidence and considered the testimony of the claimant. We are satisfied here of the correctness of the hearing officer’s having accorded presumptive weight to the designated doctor’s report upon determining that the great weight of the other medical evidence was not to the contrary. The 1989 Act provides that the hearing officer, as the fact finder, is the sole judge not only of the relevance and materiality of the evidence but also of its weight and credibility. Section 410.165(a). Dr. I and Dr. T disagree on the conclusions to be drawn from the range of motion tests. Under these circumstances, the statutory presumption afforded the designated doctor prevails. We find the evidence sufficient to support the hearing officer’s decision to assess a five percent impairment rating and that the great weight of the other medical evidence did not overcome the “presumptive weight” of the designated doctor.
The challenged findings and conclusions are not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Company, 751 S.W.2d 629 (Tex. 1986).
The decision of the hearing officer is affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Joe Sebesta – Appeals Judge
- Claimant also argues that it would have been preferable if Dr. T were a specialist and if he referred her to physical therapy. Although the carrier’s attorney represents in his response to the claimant’s request for review that Dr. T is an orthopedic specialist, there is no evidence in the record to support this conclusion. Nonetheless, there is no requirement that a designated doctor be a specialist or that the designated doctor should refer testing and evaluation to a specialist rather than conducting it himself. See Texas Workers’ Compensation Commission Appeal No. 93062, decided March 1, 1993. ↑