On May 9, 1995, a contested case hearing (CCH) was held. The hearing was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issue at the CCH was the impairment rating (IR) of the appellant (claimant). The claimant appeals the hearing officer’s decision that he has a 14% IR as reported by the designated doctor chosen by the Texas Workers’ Compensation Commission (Commission). The respondent (carrier) responds that the claimant’s appeal was not timely filed and that the evidence supports the hearing officer’s decision.
DECISION
Reversed and remanded.
The hearing officer’s decision was originally mailed to the claimant at an incorrect address and had to be remailed on June 26, 1995. The claimant states that he received the decision on June 30, 1995. He mailed his appeal to the Commission on July 12, 1995, which was within 15 days of his receipt of the decision, and the Commission received the appeal on July 17, 1995, which was within 20 days of receipt of the decision. Thus, under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 143.3(c) (Rule 143.3(c)), the claimant’s appeal is presumed to be timely filed. See Texas Workers’ Compensation Commission Appeal No. 94517, decided June 14, 1994.
It is undisputed that the claimant suffered injury to both knees when he fell at work on ___________. The parties agreed at the benefit review conference (BRC) that the claimant reached maximum medical improvement (MMI) on July 15, 1994, as was reported by his treating doctor, (Dr. A), an orthopedic surgeon. On July 6, 1993, Dr. A performed surgery on the claimant’s knees. In July 1994, Dr. A reported that the claimant had a 34% IR. Impairment was assigned for abnormal range of motion (ROM) of the left and right knees, medial and lateral menisci tears of the left and right knees, and arthritis and chondromalacia of the left and right knees. Attached to Dr. A’s report is an MRI study of the left knee done by (Dr. BE) on November 2, 1992. Dr. BE concluded that the study showed pre-patellar subcutaneous soft tissue edema and a small sclerotic metaphyseal bone island of the medial femoral condyle. Dr. BE stated in the report “[n]o tear is seen,” in the portion of his report which discusses the medial and lateral menisci. No other report of an MRI study or x-ray of either the left or right knee was in evidence. The Commission appointed (Dr. B), D.O., as the designated doctor. He reported on September 28, 1994, that the claimant had a 20% IR. Impairment was assigned for abnormal ROM of the left and right knees, chondromalacia of the left and right knees, and a tear of the medial meniscus of the left knee.
After the BRC was held in December 1994, the benefit review officer (BRO) asked Dr. B to respond to a letter from Dr. A regarding the IR assigned by Dr. B. In his letter of October 11, 1994, Dr. A stated that he disagreed with the IR assigned by Dr. B, that Dr. B had failed to assign impairment for medial and lateral menisci tears of both knees, that Dr. B did not assign enough impairment for the medial meniscus tear of the left knee, and that Dr. B did not assign enough impairment for chondromalacia. Dr. B responded on December 22, 1994, that he did not have Dr. A’s operative photographs or the operative report for the right knee, that the operative report for the left knee only referenced a tear of the medial meniscus, that a rating for chondromalacia includes arthritis, and that he is trained in orthopedics. He said he would reevaluate the claimant’s IR if he were provided with the operative reports. The claimant testified that he took the reports to Dr. B.
On March 8, 1995, Dr. B reported that the left knee operative report had been altered to include a postoperative diagnosis of a lateral meniscus tear, and that the operative findings only indicated, with regard to menisci tears, a small tear of the medial meniscus. It is apparent that the operative report for the left knee that was in evidence does not contain the alteration referred to by Dr. B. We note that the left knee operative report in evidence does mention a medial meniscus tear, but does not mention a lateral meniscus tear. Dr. B further stated that while the diagnosis in the operative report for the right knee mentioned medial and lateral menisci tears, the operative findings and procedure sections of the report only identified a medial meniscus tear, when discussing menisci. We note that the operative report for the right knee which was in evidence does contain a postoperative diagnosis which includes, among other things, “tear of the medial and lateral meniscus,” and that while the operative findings of that report refer to a medial meniscus tear, the procedure section states, in part, that “[t]here were small free margin tears of the lateral meniscus and a posterior horn tear of the medial meniscus,” and that “[t]he angle basket biting forcep was used to debride the free margin tear of the lateral meniscus and the posterior horn tear of the medical meniscus.” Dr. B assigned impairment for abnormal ROM of the left and right knees, medial meniscus tear of the left and right knees, and chondromalacia of the left and right knees. Thus, in his amended report, Dr. B added impairment for a tear of the medial meniscus of the right knee which was not in his original report. However, Dr. B noted that in his original report he had not correctly combined the various percentages of impairment found and in his amended report he assigned a 14% IR. In finding only one meniscus tear in each knee, the medial meniscus, Dr. B appears to rely solely on Dr. A’s operative reports.
In a letter dated April 12, 1995, which was not admitted into evidence due to the claimant’s failure to timely exchange it, Dr. A stated that he did not alter the operative report on the left knee but simply corrected it to show the tear of the lateral meniscus. He further stated that his operative report of the right knee clearly stated a tear of the lateral meniscus. The claimant does not assert error in the exclusion of Dr. A’s letter from evidence. We observe that we need not resort to this letter to conclude that Dr. A did change his operative report on the left knee to show a tear of the lateral meniscus because that is reflected in Dr. B’s amended report of March 8, 1995. We also need not resort to the excluded letter to conclude that Dr. A did diagnose a tear of the lateral meniscus of the right knee and that such was mentioned in the procedure section of his operative report of the right knee because all of that is shown in his operative report of the right knee. We also note that tears of both the lateral and medial menisci of both knees are reflected in Dr. A’s IR report and in his letter of October 11, 1994.
The only issue at the CCH was the claimant’s IR. The hearing officer found that “[Dr. B’s] certification of whole body impairment has not been overcome by the great weight of contrary medical evidence,” and he concluded that the claimant has a 14% IR. Section 408.125(e) provides that, 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 IR on that report unless the great weight of the other medical evidence is to the contrary, and that, if the great weight of the other medical evidence contradicts the IR contained in the report of the designated doctor chosen by the Commission, the Commission shall adopt the IR of one of the other doctors. Section 408.124(b) provides that the Commission shall use the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (the Guides), for determining the existence and degree of an employee’s impairment. Drs. A and B both indicated in their respective reports that they used the appropriate version of the Guides in assessing the claimant’s impairment. In Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992, we observed that it is not just equally balancing evidence or a preponderance of the evidence that can outweigh the report of the designated doctor, and that no other doctor’s report, including that of a treating doctor, is accorded presumptive weight.
There are several differences in the IRs assigned by Dr. A, the treating doctor, and B, the designated doctor. Dr. A gave more impairment for abnormal ROM than did Dr. B. Dr. A gave more impairment for arthritis/chondromalacia than did Dr. B. Dr. A gave impairment for torn lateral and medial menisci of both knees, whereas Dr. B gave impairment for torn medial menisci of both knees, but not for torn lateral menisci. The claimant asserts on appeal, as he did at the hearing, that the 14% IR assigned by Dr. B is invalid because it does not include impairment for torn lateral menisci. Dr. B’s reason for not including impairment for the lateral meniscus of each knee is that he does not believe that Dr. A’s operative reports show that tears to the lateral menisci were found during the arthroscopic surgeries. Dr. A, who performed the knee surgeries, is adamant that the claimant has lateral menisci tears. We note that in regard to impairment of the lower extremity for a torn meniscus and/or meniscectomy, Table 36 of Chapter 3 of the Guides provides for impairment of 0-10% for one meniscus and impairment of 0-25% for both menisci (combined with impairment for loss of motion).
Section 401.011(24) defines IR as the percentage of impairment of the whole body resulting from a compensable injury. While there was no discrete issue at the CCH on extent of injury, Drs. A and B cannot seem to agree on whether or not the claimant has lateral menisci tears. We have previously held that the designated doctor does not have presumptive weight with regard to questions of the extent of the injury. Texas Workers’ Compensation Commission Appeal No. 93290, decided June 1, 1993. While we have not set out at length all that has been said and insinuated in letters and reports that have gone back and forth between Drs. A and B, we note that such have become increasingly discordant. Dr. B has mentioned “altered” reports in his reports, and Dr. A has suggested that Dr. B has ignored medical facts and documentation and is “retaliating” against the claimant. Our review of the record leads us to believe that no useful purpose would be accomplished in asking Dr. B to further review Dr. A’s records and reports or to have Dr. A provide further information to Dr. B. We emphasize that in order for the designated doctor to properly perform his or her role, he or she must be provided at the outset of their appointment complete and accurate medical reports, records, and test results.
We have held that “the appointment of a second designated doctor is very limited and is restricted to situations where the original designated doctor cannot or refuses to comply with the 1989 Act.” Texas Workers’ Compensation Commission Appeal No. 950352, decided April 19, 1995. Here, the doctor who performed the knee surgeries reported in his IR report that the claimant has a lateral meniscus tear of both knees. The designated doctor disagrees with that assessment based on what he sees in the operative reports. However, at least as to the right knee, the original operative report included a postoperative diagnosis of a tear of the lateral meniscus and the procedure section of that report noted tears of the lateral meniscus which were debrided. Thus, at least as to the right knee, it appears that Dr. B did not rate the entire compensable injury because he has not indicated that he considered a lateral meniscus tear of the right knee in assigning the IR. We have held that the designated doctor is required to evaluate the entirety of the claimant’s compensable injury and to assign an IR for the entire compensable injury. Texas Workers’ Compensation Commission Appeal No. 94435, decided may 27, 1994.
In our opinion, this is one of those rare situations where appointment of a second designated doctor is appropriate. See Texas Workers’ Compensation Commission Appeal No. 94966, decided September 6, 1994; compare Texas Workers’ Compensation Commission Appeal No. 94970, decided September 7, 1994, Chief Judge Sanders dissenting. Dr. B did not rate the entire compensable injury, at least as to the right knee (and maybe the left knee as well), and due to the apparent animosity that has arisen in this case between the doctors and Dr. B’s reluctance to rate the entire injury, we do not believe that further input from Dr. B would be particularly helpful in resolving the IR issue. Had Dr. B been provided with all relevant reports and records to begin with, and a complete explanation of any changes to operative reports, this unfortunate situation may well not have arisen. While the claimant testified that all reports and records were given to Dr. B at the time of his examination, this is not borne out by the IR reports of Dr. B, especially with regard to the operative report of the right knee and the “altered” or “corrected” operative report of the left knee.
We reverse the hearing officer’s decision and order that the claimant has a 14% IR, and we remand the case back to the hearing officer for appointment of another designated doctor (preferably a doctor trained in orthopedics), and for further consideration and development of the evidence on the issue of the claimant’s IR. Dr. A should be asked to provide the new designated doctor with all medical reports, records, tests, and studies, and with an explanation of any discrepancies in his operative reports.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission’s division of hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Robert W. Potts – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Susan M. Kelley – Appeals Judge