This appeal is considered in accordance with the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On November 16, 1994, a contested case hearing was held. The appellant, who is the claimant herein, was injured on ___________, while employed by (employer). The sole issue was whether claimant had reached maximum medical improvement (MMI), and, if so, the date. (For reasons not indicated on the record, impairment rating (IR) was not in issue).
The hearing officer determined that the great weight of the other medical evidence was against the designated doctor’s opinion that claimant had not reached MMI, and the hearing officer found that claimant had reached MMI on October 7, 1994, a date that was certified by his treating doctor.
The claimant has appealed. He argues that the report of the designated doctor was entitled to presumptive weight, and that he has not reached MMI. The claimant further complains that the report of his own treating doctor was improperly taken into the record as a hearing officer exhibit after the record closed, and should be disallowed. The
carrier responds that the great weight of contrary medical evidence, including the reports of two other doctors, was against the designated doctor’s assertion that claimant had not reached MMI. Further, the carrier points out that the certification of his own treating doctor was properly admitted into the record as part of the hearing officer’s duty to fully develop the record.
DECISION
We affirm the decision and order of the hearing officer.
Claimant said he injured his back and rectum on ___________, as he was breaking concrete and hauling it in wheelbarrows. No specific evidence was developed about how the injury happened. Claimant’s first treating doctor was (Dr. K), who withdrew from his treatment after claimant was examined by (Dr. C) at the request of the carrier. After one attempt to change to another doctor that was not successful, claimant started treatment around June 1994 with (Dr. B), who was his treating doctor at the time of the hearing.
Claimant characterized his initial back pain at a 6-7 level on a scale of 0-10; he stated that it had gone down to, and remained at, a level 5. He said he continued to experience rectal bleeding (with no accompanying pain) but had not gone to a specialist about this, because the carrier had not approved such treatment.
Effective February 21, 1994, Dr. C certified claimant had reached MMI. Dr. C noted that claimant had been in physical therapy. He felt that the injury was a lumbosacral strain. A CT scan of the lumbar spine was judged negative.
Effective April 14, 1994, Dr. K certified MMI, referencing Dr. C’s report. It should be noted that neither Dr. C nor Dr. K cited a rectal injury as part of claimant’s compensable injury. Both Dr. C and Dr. K assessed an IR of five percent.
Because claimant disputed Dr. C’s assessment of MMI, a designated doctor, Dr. (Dr. S), was appointed. He examined claimant on June 10, 1994, and determined he had not at that point reached MMI. Dr. S noted negative x-rays and CT scan. Dr. S noted that claimant’s rectal bleeding was a hemorrhoidal problem not related to the injury. Dr. S noted a “directional preference” in claimant’s range of motion. His impressions were lumbosacral pain and noncompensable rectal hemorrhoids. Dr. S felt he needed an exercise based program of physical therapy, and stated that he felt claimant would have resolution of his symptoms within six to eight weeks, and possibly one to two weeks. On his certification, Dr. S indicated that claimant’s estimated date of MMI would be six to eight weeks.
Regarding the treating doctor, a report from Dr. B dated June 30, 1994, states that x-rays were normal, and that he was fitting claimant with a back brace. On October 5, 1994, Dr. B stated that an MRI did not show a herniated disc, only a minor bulging disc. Dr. B stated that claimant was released back to work with no restrictions, and that he would do an IR.
At the beginning of the hearing, the ombudsman said, in the opening statement, that claimant had new evidence since the benefit review conference, in that Dr. B had certified MMI on October 7, 1994, and given claimant an IR. When claimant testified, he agreed that Dr. B had found him to be at MMI at his last appointment with Dr. B, which he stated was two to three weeks before the contested case hearing. Claimant stated that Dr. B had done both a bone scan and MRI. He understood that his condition was a bulging disc and chronic strain.
Carrier’s evidence consisted only of TWCC-21s whose relevance to the issue at hand was never explained. During closing argument, when the hearing officer pointed out that Dr. B had recently certified MMI, the ombudsman pointed out that claimant had not offered this into evidence because it took place after the examination by the designated doctor. Neither the hearing officer nor the carrier sought to reopen the record to put Dr. B’s certification into evidence.
There was discussion in the hearing about Dr. S’s projected MMI date. It was the position of the ombudsman that because the designated doctor had “resolved” the MMI issue, it would not be appropriate, according to a policy from the central office of the Texas Workers’ Compensation Commission (Commission), to send claimant back to the designated doctor.
On the decision issued by the hearing officer, an exhibit is listed as “Hearing Officer Exhibit No. 2”, and it is the MMI certification of Dr. B. There is no recitation or anything else indicated in the record of the hearing as to when this came into evidence. It was not entered into the record during the contested case hearing, although its existence was referred to several times by the claimant and the ombudsman.
“Maximum Medical Improvement” is defined, as pertinent to this case, as “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 401.011(30)(A). We have stated many times that the presence of pain is not, in and of itself, an indication that an employee has not reached MMI; a person who is assessed to have lasting impairment may indeed continue to experience pain as a result of an injury. See Texas Workers’ Compensation Commission Appeal No. 93007, decided February 18, 1993. The fact that a claimant may need physical therapy to alleviate and relieve symptoms of pain does not necessarily preclude MMI.
The hearing officer is the sole judge of the relevance, the materiality, weight, and credibility of the evidence presented at the hearing. Section 410.165(a). The decision should not be set aside because different inferences and conclusions may be drawn upon review, even when the record contains evidence that would lend itself to different inferences. Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). In considering all the evidence in the record, we cannot agree that the findings of the hearing officer are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. In re King’s Estate, 244 S.W.2d 662 (1951). The report of a Commission-appointed designated doctor is given presumptive weight. Sections 408.122(b), 408.125(e). The amount of evidence needed to overcome the presumption, a “great weight,” is more than a preponderance, which would be 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. 92166, decided June 8, 1992.
However, presumptive weight does not mean a “rubber stamp” adoption of the designated doctor’s report where the hearing officer weighs the evidence and determines that the great weight of other medical evidence proves that the claimant is (or is not) at MMI, or that the percentage of impairment is not accurate. See Texas Workers’ Compensation Commission Appeal No. 94053, decided February 23, 1994.
First of all, we would state that the hearing officer in this case would have been free to have claimant re-examined by Dr. S in this proceeding. It cannot be said, where a case remains active in the hearings process, that it is “resolved” simply by the designated doctor’s report on the issue under review. While it was not required that the hearing officer have claimant re-examined, it may well have led to the result here without a necessity to find a great contrary weight.
Second, while we agree that Hearing Officer Exhibit No. 2 is exactly the type of document that the trier of fact could take into the record under his own motion, most especially where it is discussed by all parties, the procedure followed in this case was not the correct one. Evidence must be admitted on the record. This was not done here, and this was error. In this case, it was cumulative of the claimant’s testimony on the fact of MMI. (To the extent that it supported the hearing officer in finding the latest possible date of MMI for the claimant, it was actually beneficial to the claimant.)
Even without considering Hearing Officer Exhibit No. 2, the evidence, including claimant’s testimony in which he conceded that his treating doctor had assessed MMI in October 1994, indicated that claimant had a strain for which three doctors, including two treating doctors, felt he had maximally recovered. Dr. B fully released claimant to work on October 5, 1994, and stated in that report that he would do an IR evaluation on claimant; such evaluation would not be appropriate unless claimant had reached MMI. Claimant testified that Dr. B had determined he was at MMI when he saw him in October 1994. The designated doctor’s report itself projected that claimant would reach MMI within two months, earlier than the four months determined by the hearing officer. Finally, there was no evidence that the injury would require surgery or was of unusual severity. There were no doctors who stated that claimant’s rectal bleeding was part of the compensable injury, and Dr. S opined it was not. We cannot say that the hearing officer’s determination that the great weight of other medical opinion was contrary to Dr. S’s report was against the great weight and preponderance of the evidence. On the matter of the date, we note that the hearing officer could have chosen Dr. C’s date of MMI in February 1994. The records properly received in evidence do indicate that Dr. B on October 5th gave claimant a full release to work and indicated that he would evaluate claimant for IR. We cannot find reversible error in the hearing officer allowing a few days after the date of this letter as the date of MMI, or to use the October 7, 1994, date indicated by the ombudsman in argument.
We would emphasize that MMI does not terminate the right to reasonable and necessary medical treatment, which could include physical therapy.
We affirm the decision and order of the hearing officer in this case.
Susan M. Kelley – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Alan C. Ernst – Appeals Judge