This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act) (formerly V.A.C.S., Article 8308-1.01 et seq.). A contested case hearing (CCH) was opened on June 2, 1993, in (city), Texas, with the record closing on June 7, 1993. (hearing officer) presided as hearing officer. The two issues at the hearing were: first, when did the appellant (claimant herein) reach maximum medical improvement (MMI), and second, what was the claimant’s correct impairment rating. The hearing officer held that the great weight of the other medical evidence was against the impairment rating of the designated doctor and found that the claimant reached MMI on August 13, 1992, with a 12% impairment based upon the amended opinion of the doctor selected by the respondent (airport herein), a statutorily self-insured governmental entity.
The claimant appeals arguing several points of error in her request for review. First, the claimant contends that several determinations of the hearing officer are so against the great weight and preponderance of the evidence as to be manifestly unjust. Second, the claimant argues that the hearing officer’s reliance upon the airport-selected doctor in determining the claimant’s impairment rating arbitrarily denied the claimant the right to have an impairment assessed by a doctor in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment, third edition, second printing, February 1989 (AMA Guides). Third, the claimant maintains that the opinions as to impairment and MMI of a number of doctors are invalid. The carrier files no response to the claimant’s request for review.
DECISION
Finding that the hearing officer erred in his determinations both as to MMI and impairment rating, we render a new decision that the claimant reached MMI on December 17, 1992, with a 26% impairment rating as determined by the designated doctor.
The facts of the case, although somewhat complex, are essentially undisputed. On (date of injury), the claimant injured her back when she slipped on some ice while working for the airport. She was initially seen by one or more of the airport’s company doctors, but began treating with (Dr. S), M.D., in (date). Dr. S treated the claimant with medication and physical therapy, ordering testing including an MRI and an EMG. In May 1991 the claimant tried to return to work, but after a few days was placed off work again by Dr. S due to pain. In June 1991 the claimant was sent by Dr. S to (Dr. LP), a neurosurgeon, for possible surgery, which the claimant declined. Later in June 1991 the claimant was seen by (Dr. E), M.D., who was one of the airport’s company doctors. Dr. E certified on a Report of Medical Evaluation (TWCC-69) that the claimant reached MMI on June 20, 1991, with no impairment. The claimant testified at the hearing that she never received a copy of Dr. E’s TWCC-69. The copy of Dr. E’s TWCC-69 admitted into evidence was unsigned.
Sometime in the “spring” of 1991 the claimant testified that she returned to work for the airport and worked for almost a year in a great deal of pain. Medical records indicate that Dr. S continued to treat the claimant during this period. Dr. S took the claimant off work again in May 1992 and the claimant testified that she has been unable to work since that time due to her injury. The claimant also testified that she continued at the time of the CCH to be treated by Dr. S, that she saw Dr. S the day before the hearing, and that Dr. S has not rated her impairment because she does not believe the claimant has attained MMI.
The airport requested, through a request for a medical examination order, that the claimant see (Dr. W), M.D. On a TWCC-69, Dr. W certified that the claimant reached MMI on the date of his examination, August 13, 1992, and rated the claimant’s impairment at seven percent. In his narrative report of the same date Dr. W characterizes the claimant’s injury as an “aggravation.”
The Texas Workers’ Compensation Commission (Commission) appointed (Dr. K), an orthopedic surgeon, as the designated doctor. Dr. K examined the claimant on December 17, 1992, and certified on a TWCC-69 that the claimant reached MMI on December 17, 1992, with a 26% impairment. The airport contacted Dr. W and provided him with a copy of Dr. K’s report to critique as indicated in Dr. W’s January 16, 1993, letter to “SS, Claims Adjuster” (Ms. S) in which he stated:
There is no way to know for sure, but it is my impression that the retrograde spondylolisthesis that he quoted is due to degenerative changes that the patient has had for a number of years and were not actually caused by the fall although they may have been aggravated by it. I did not measure and include loss of range of motion, as I believe her loss of range of motion was present due to the degenerative changes before the fall.
My suggestion is, if you go ahead and get seven more opinions then you will have ten opinions and probably all will differ.
Ms. S also contacted Dr. K, the designated doctor, as shown by his letter to her of March 1, 1993, which states in relevant part:
In response to your letter of 2/18/93, the following is offered:
I have reviewed [Dr. W’s] letter of 1/26/93 and have reviewed my records on [claimant] from 12/17/92. As [Dr. W] states in his letter, he did not include restricted range of motion in his impairment calculation. He felt restricted motion was probably due to degenerative changes before the fall.
My calculations were based on specific abnormalities seen on radiographic tests and restricted motion. As [Dr. W] noted, it is impossible to determine which of the abnormalities, if any, were caused by the injury which occurred on (date of injury). Speculation therefore enters the equation, and discrete objectivity is impossible. As your letter to [Dr. W] of 1/22/93, states, “As the impairment rating is to be based on objective findings using the AMA Guidelines, I am at a lost (sic) as to this difference. . . . “
Both [Dr. W] and I used objective information, just interpreted the relative significance of the data differently. I believe each of us could argue strongly the basis of our total body impairment conclusions. The bottom-line answerto your inquiry is, however, that there is no specific single objective impairment value that is “correct.”
* * * *
In conclusion, therefore, if I were asked to give my opinion on how much of the impairment is secondary to the fall of (date of injury), (based on reasonable medical probability, I would estimate that the restricted range of motion seen on the exam in my office is probably approximately 50% related to the injury in (date), 50% of 11% impairment from reduced range of motion equals 5 1/2%); the Grade-I spondylolisthesis is given an 8% impairment, and is probably 50% related to the injury of (date), (and 50% of 8% equals 4%); with the most obvious disk herniation at L3-4 probably a direct result of the fall of (date), (therefore full 7%). The total re-calculated impairment rating, based on reasonable medical probability, in my opinion related to the accident of (date of injury), is thereofre (sic) 16 1/2%. I would like to emphasize, however, that significant speculation enters into this re-calculation, and as [Dr. W] insinuated at the end of his letter, this issue can be analyzed and re-analyzed with as many different conclusions as there are opinions.
Dr. K then certified on a TWCC-69 an impairment rating of 16 1/2%, but without a date of MMI.
The airport sent medical records concerning the claimant to (Dr. MP), M.D. Dr. P originally agreed with Dr. W’s initial seven percent impairment assessment and criticized Dr. K’s initial 26% rating. After Dr. W and Dr. K revised their ratings the airport again called upon Dr. MP for his opinion. Dr. MP then criticized both Dr. W’s and Dr. K’s impairment assessments and opined that Dr. W’s original seven percent rating was correct. Dr. MP neither examined the claimant nor issued a TWCC-69.
The airport took a deposition on written questions of the designated doctor which were answered on June 1, 1993. Question No. 7 of this deposition asks, “[d]id you perform formal inclinometry measurements of the lumbar sacral spine range of motion as prescribed by the AMA Guidelines? If so, please set forth the total number and your findings on each of the measurements and the specific area measured.” The answer to this question is “no.”
The claimant testified at the hearing that Dr. W’s original examination consisted of having her to stand and bend over, that he never touched her, and that he did not use any instruments. The claimant testified that Dr. K’s examination was much more extensive in that he took x-rays, he conducted a physical examination, and had her move in different positions. The claimant testified that during her second examination with Dr. W he spent most of the visit telling her that different doctors would reach different decisions depending on the doctor, that he asked her to bend over, and that he asked her to move her hands down her thighs. She testified that he again used no instruments.
The hearing officer took official notice of the report of the Benefit Review Conference (BRC), but marked out with a black marker rendering illegible the recommendations of the benefit review officer (BRO). The hearing officer stated that he felt that the Appeals Panel would appreciate this, because the Panel would not want to be unduly influenced by the recommendation of this BRO which he likened to a “skunk in the jury box.”[1]
The hearing officer adopted Dr. W’s second impairment rating of 12%. The hearing officer’s rationale was as follows: Dr. E’s rating was invalid in that he failed to set out any objective clinical or laboratory findings in support of his determinations. Dr. W amended his original rating of seven percent to 12%. Dr. MP’s rating was invalid because he never examined the claimant. Dr. K admitted he failed to use an inclinometer in making his range of motion measurements, invalidating his ratings. The hearing officer found that the only valid impairment rating was Dr. W’s 12% (which amended his original lower rating). The hearing officer then adopted Dr. W’s MMI date of August 14, 1993, since he adopted Dr. W’s impairment rating.
Section 401.011(30)(a) states:
“Maximum medical improvement” means the earlier of:
(a)the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated.
Section 408.122(b) provides:
If a dispute exists as to whether the employee has reached maximum medical improvement, the commission shall direct the employee to be examined by a designated doctor chosen by mutual agreement of the parties. If the parties are unable to agree on a designated doctor, the commission shall direct the employee to be examined by a designated doctor chosen by the commission. The report of the designated doctor has presumptive weight, and the commission shall base its determination of whether the employee has reached maximum medical improvement on the report unless the great weight of the other medical evidence is to the contrary.
Section 408.125(e) provides:
If the designated doctor is chosen by the commission, the report of the designated doctor shall have presumptive weight, and the commission shall base the impairment rating on that report unless the great weight of the other medical evidence is to the contrary. If the great weight of the medical evidence contradicts the impairment rating contained in the report of the designated doctor chosen by the commission, the commission shall adopt the impairment rating of one of the other doctors.
In the present case, the hearing officer’s difficulty in adopting the MMI date and impairment rating of the Commission-selected designated doctor was not that his rating was contradicted by the great weight of the medical evidence. The hearing officer, in the section of his decision labeled “Discussion,” stated: “That presumption [of the correctness of the designated doctor’s opinion] would be controlling here but for his failure to use an inclinometer(s) in the lumbar range of motion testing which was a basis for his determination of `whole person’ impairment.” We do not believe that the evidence in the present case supports this result. The hearing officer seemed to implicitly recognize this since he adopted the MMI date and impairment rating of Dr. W who the record indicates did not use an inclinometer. Further, we fail to see any connection between the designated doctor’s failure to use an inclinometer, which is a means of measuring impairment, and his determination of MMI. The carrier contends that the AMA Guides require the use of an inclinometer to rate impairment, but it has not presented expert evidence to prove this as a matter of fact. Our reading of the AMA Guides, of which the hearing officer took official notice, does not indicate that we are required to hold this as a matter of law. The carrier’s failure to present expert evidence on the requirement that an inclinometer must be used to yield a valid rating distinguishes this case from our decision in Texas Workers’ Compensation Commission Appeal No. 93286, decided May 28, 1993. See Texas Workers’ Compensation Commission Appeal No. 93483, decided July 26, 1993. In the present case, the designated doctor, an orthopedic surgeon, said he followed the AMA Guides in reaching his original 26% impairment rating, and we find no reason to believe otherwise.
Nor do we believe the great weight of the medical evidence was contrary to the designated doctor’s MMI date of December 17, 1992, and 26% impairment rating. The treating doctor has provided no MMI date or rating. The rating of Dr. E is invalid because the only evidence of his opinion admitted into evidence is an unsigned TWCC-69. See Texas Workers’ Compensation Commission Appeal No. 92027, decided March 27, 1992. Dr. MP’s opinion is not based on an examination of the claimant. Dr. W, in the narrative report of his second examination, in an addendum stated, “[i]t is my opinion that this [spondylolisthesis] is an old degenerative defect that has been present for a considerable period prior to her (date of injury) fall on ice.” It is apparent from both this statement and his original narrative report as well as his letter to Ms. S cited above that Dr. W is simply factoring out those portions of the claimant’s condition that he believes are pre-existing in determining her rating, even though he also concluded she had aggravated that condition. The hearing officer recognizes in his “Discussion” that this is improper, but then inexplicably adopts Dr. W defective rating. As the hearing officer stated:
The [airport]’s contention that the percentages assigned to the different increments used in making determinations of impairment should be reduced depending on the degree of “pre-injury” impairment is misplaced. More particularly, the question of the relationship of the Claimant’s work-related injury to a pre-existing condition is considered under the Act at the time a determination is made as to whether or not the Claimant was injured in the course and scope of employment.
We agree with the hearing officer’s observation, but are confused by his failure to apply it. See Texas Workers’ Compensation Commission Appeal No. 93695, decided September 22, 1993. The designated doctor’s 16.5% rating cannot be adopted, because he also attempted to “apportion out” the effects of the pre-existing condition when apparently prodded to do so. As we have stated in Appeal No. 93695, the ultimate determination that an injury has or has not occurred through aggravation is for the trier of fact, not a doctor. These opinions cannot and do not constitute the great weight of the other medical evidence contrary to the designated doctor’s December 17, 1992, MMI date and 26% impairment rating, which we adopt.
Finally, we observe that a great deal of the confusion in this case flows from the airport’s unilateral communication with the designated doctor. We have time and time again disapproved of such conduct. See Texas Workers’ Compensation Commission Appeal No. 93613, decided August 24, 1993. This is a particular problem when a party, as here, misdirects the designated doctor as to the extent of the injury in a manner that seems to exclude aggravation of a pre-existing condition.
The decision of the hearing officer is reversed and a new decision is rendered that the claimant reached MMI on December 17, 1992, with a 26% impairment rating.
Gary L. Kilgore – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Lynda H. Nesenholtz – Appeals Judge
- The hearing officer’s excision of portions of the benefit review conference report was unwarranted and could, in an appeal where the issues are themselves in dispute, be reviewed as a failure to fully develop the record. The Appeals Panel is able to distinguish between those matters which are relevant and those that are not. ↑