This appeal is considered in accordance with 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.). On August 9, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding. The issue determined at the contested case hearing was the correct impairment rating to be assigned to the claimant, (the appellant) who had injured his back on (date of injury), in the course and scope of his employment with (employer). The parties had agreed at the benefit review conference that claimant had reached maximum medical improvement (MMI) on April 16, 1993.
The hearing officer determined, based upon the report of the designated doctor, that claimant had a 10% whole body impairment rating and that the great weight of other medical evidence was not to the contrary.
The claimant has appealed, arguing that the designated doctor only saw the claimant for about 15 minutes and did not conduct a thorough examination. The claimant also argues that the designated doctor did not offer a rationale in his report for the conclusion that MMI was reached with a 10% impairment, and that by contrast the treating doctor’s reports provide detailed reasoning for his own rating. The claimant asks that the decision of the hearing officer be set aside and that we render a decision that claimant has not reached MMI, or, alternatively, that we find claimant has a 15% impairment rating. No response was filed.
DECISION
We affirm the hearing officer’s decision.
This was a very short hearing. Each side presented documentary evidence. Claimant also testified briefly about the facts of his current back injury. He stated that prior to his injury, he had sustained another back injury, which required surgery, but was able to work after that. Claimant said he had not been released to work from his current injury, and that his treating doctor, (Dr. D), had recommended back surgery. He stated he had not yet decided to have such surgery due to his concern with other matters.
The claimant stated that he was examined by a doctor for the carrier, (Dr. T), for only about five minutes. He stated that the designated doctor, (Dr. S), examined him for 15 to 20 minutes.
The record was held open because claimant’s attorney stated that he had not yet received answers to written questions propounded to Dr. D which he understood had been mailed. However, these answers were not submitted and the record was closed August 13, 1993.
The benefit review conference report contained a written agreement, signed by claimant as well as a representative for the carrier, which set MMI as of April 16, 1993.
The medical records in evidence are, briefly, as follows:
-Dr. D stated that MMI was reached February 9, 1993, with a 25% impairment. Dr. D’s TWCC-69 Report of Medical Evaluation does not itemize the elements of impairment leading to the 25% total, so the source of the rating cannot be determined. This report noted that Dr. D recommended a laminectomy at L4-5 and L5-S1.
-Dr. T determined on March 4, 1993, that claimant had reached MMI and had a 10% whole body impairment due to specific disorders of the spine. Dr. T indicated that he measured range of motion with an inclinometer, but that claimant did not fit the validity criteria. Dr. T recommended many limitations on claimant’s abilities in any future employment.
-Dr. S, the designated doctor, issued a TWCC-69 stating that MMI was reached April 16, 1993, with a 10% impairment, due to “surgically treated disc legion with residual symptoms” from the specific spinal disorders table of the “Guides for the Evaluation of Permanent Impairment,” third edition, second printing, published by the American Medical Association (AMA Guides).
The report of a Texas Workers’ Compensation Commission (Commission)- appointed designated doctor is given presumptive weight. Section 408.122(b), 408.125(e). The amount of evidence needed to overcome the presumption, a “great weight,” is more than a preponderance, the latter being only greater than 50%. See Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. Medical evidence, not lay testimony, is the evidence required to overcome the designated doctor’s report. Texas Workers’ Compensation Commission Appeal No. 92164, decided June 5, 1992.
“Impairment” is defined in the 1989 Act as “any anatomical or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent.” Section 401.011(23). Further, impairment must be based upon “objective clinical or laboratory finding” and, where assigned by a doctor chosen by the claimant, must be confirmable by a designated doctor. Section 408.122(a).
Simply detailing the amount of time taken during an examination does not, in and of itself, meet the burden of overcoming the designated doctor’s report. Dr. S’s report indicates the basis for his computations; Dr. D’s does not. We cannot agree with claimant that the hearing officer erred by determining the impairment rating in accordance with the designated doctor’s opinion.
Regarding claimant’s plea that a 15% rating be assigned, we note that no doctor in this case has assigned a 15% rating. The Commission is required to adopt an existing impairment rating in cases where the designated doctor’s report is overcome by the great weight of other medical evidence, and may not simply decide its own percentage. Section 408.125(e).
It is too late for claimant, in the appeal, to raise a dispute over MMI. This was not in dispute during the hearing, because it was an issue disposed of by agreement between the parties prior to the hearing.We note that claimant was represented by counsel at the benefit review conference where the agreement was signed. Section 410.030(b) provides that an agreement is binding on the claimant, if represented by an attorney, to the same extent as on the insurance carrier, unless affirmatively set aside for reasons detailed in that statute.
The determination of the hearing officer is not against the great weight and preponderance of the evidence, and we affirm her decision.
Susan M. Kelley – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Gary L. Kilgore – Appeals Judge