In Texas Workers’ Compensation Commission Appeal No. 950557, decided May 24, 1995, we reversed and remanded the hearing officer’s decision in this case because a complete record of the contested case hearing (CCH) was not available for our review on appeal. A CCH on remand was held on June 21, 1995. 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 hearing was the impairment rating (IR) of the appellant (claimant). The hearing officer decided, as he had done in his original decision, that the claimant has a five percent IR as reported by the designated doctor chosen by the Texas Workers’ Compensation Commission (Commission). The claimant appeals the hearing officer’s decision. The respondent (carrier) requests affirmance.
DECISION
Affirmed.
According to medical reports, the claimant injured her lower back at work on __________, lifting a bundle of pants, she was diagnosed as having a lumbosacral sprain, an MRI scan of the lumbar spine was negative, and she underwent physical therapy. Dr. N, the claimant’s treating doctor, reported on April 28, 1994, that the claimant reached maximum medical improvement (MMI) on April 1, 1994, with a 20% IR. He assessed five percent impairment for a soft tissue injury of the lumbar spine and 15% impairment for loss of lumbar range of motion (ROM). The ROM study used by Dr. N was performed by a rehabilitation clinic on March 10, 1994. We note that under the Combined Values Chart of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (the AMA Guides), the 15% and five percent impairments combine for a 19% IR.
At the carrier’s request the claimant was examined by Dr. A who reported on May 12, 1994, that the claimant had reached MMI on January 25, 1994, with a six percent IR. Dr. A assessed five percent impairment for a soft tissue injury of the lumbar spine and one percent impairment for abnormal left lateral flexion.
The Commission selected Dr. O as the designated doctor. Dr. O reported on May 26, 1994, that the claimant has a five percent IR. The five percent impairment was for a specific disorder of the lumbar spine. Dr. O did not assign any impairment for loss of lumbar ROM. With respect to ROM impairment, Dr. O noted that the claimant had no difficulty removing her clothing, that she had no evidence of muscle spasm, that very superficial touching of the back resulted in complaints of moderate to severe back pain, and that:
On motion of the back, the patient does not make good effort, voluntary effort to get good [ROM]. The patient only shows flexion to 10-15degrees on several attempts extension, 20degrees, on several attempts; lateral bending, 10degrees to the right and 10degrees to the left on several attempts. (I don’t expect this limited [ROM] in a patient without muscle spasm and being able to walk around; to sit down, stand up and get on the examining table.)
Dr. O further noted that according to Dr. N’s reports of __________, October 20, 1993, and December 1, 1993, the claimant had full lumbar ROM, and that as of March 3, 1994, Dr. N had noted that the claimant had forward flexion to 45degrees. He also noted Dr. N’s assignment of a 20% IR in April 1994. Dr. O further noted the results of ROM testing done on three different occasions between September 1993 and February 1994 at the rehabilitation clinic, which he referred to as the “Physical Therapy Department,” and that on April 22, 1994, Dr. N again reported that the claimant had forward flexion to 45degrees. Dr. O then stated with regard to ROM:
In regards of motion, the patient did not make a good effort to obtain motion of the back and on reading her reports, on several occasions, this patient had full [ROM]. This was according to the reports from [Dr. N] and from the Physical Therapy Department.
In response to a request for clarification from the benefit review officer, Dr. O referred to the paragraph in his IR report which addressed the claimant’s ROM and stated:
From my point of view and after observing the patient and examining the patient, she was not making best maximum voluntary effort. That invalidates that section of the examination and as you can see in that paragraph, all those attempted motions was [sic] done on several occasions.
The hearing officer found that the great weight of the other medical evidence is not contrary to the designated doctor’s report and that the claimant’s correct IR is five percent as determined by the designated doctor. In her appeal, the claimant requests that we reverse the hearing officer’s decision and find that her IR is greater than five percent. In support of her request for reversal, the claimant states only that the designated doctor “invalidated the [ROM] tests simply by looking at the claimant.”
Pursuant to Section 408.125(e), when a designated doctor is chosen by the Commission to determine an IR, 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 if the great weight of the 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. We have held that the “great weight” determination amounts to more than a mere balancing or preponderance of the medical evidence. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. Here, the designated doctor determined that the claimant’s ROM measurements were invalid based on his observation of the claimant’s mobility during the physical examination and his observation of the claimant’s efforts during repeated ROM testing. He also was able to compare the claimant’s ROM efforts to prior testing results.
The hearing officer’s decision to accord presumptive weight to the report of the designated doctor under such circumstances finds support in several of our prior decisions. For example, in Texas Workers’ Compensation Commission Appeal No. 93681, decided September 20, 1993, we affirmed a hearing officer’s decision which based the IR on the report of the designated doctor where the designated doctor determined that cervical ROM measurements were “invalid due to minimal effort.” In Texas Workers’ Compensation Commission Appeal No. 94142, decided March 18, 1994, we affirmed a hearing officer’s decision which based the IR on the report of the designated doctor where the designated doctor determined that lumbar ROM was invalid due to the fact that the claimant in that case “did not do a maximal effort.” And in Texas Workers’ Compensation Commission Appeal No. 950330, decided April 17, 1993, we affirmed a hearing officer’s decision which based the IR on the report of the designated doctor where the designated doctor determined that lumbar ROM measurements were invalid because in her opinion, based on her observations of the claimant in that case, there were “only voluntary limitations of her [ROM]. . . .” We note that in an unpublished decision, Texas Workers’ Compensation Commission Appeal No. 950016, decided February 9, 1995, we upheld a hearing officer’s decision which gave presumptive weight to the IR assigned by the designated doctor were the designated doctor did not assign any impairment for loss of lumbar ROM, although the claimant in that case met the straight leg raise validity and consistency criteria, because the designated doctor stated that she did not feel that ROM impairment could be included in the IR because she observed the claimant bending more than his measured maximum lumbar flexion while getting on and off the examination table and doffing and donning his clothes. In another unpublished decision, Texas Workers’ Compensation Commission Appeal No. 950701, decided June 15, 1995, in affirming the hearing officer’s decision which based the IR on the report of the designated doctor we stated “[w]e have previously determined that a designated doctor is permitted to invalidate ROM based upon observed symptom magnification.” The above-cited cases are distinguishable from our decision in Texas Workers’ Compensation Commission Appeal No. 93286, decided May 28, 1993, where we remanded a hearing officer’s decision which based the IR on the report of the designated doctor because in that case it appeared that the designated doctor failed to do any ROM testing.
For the foregoing reasons, we affirm the hearing officer’s decision and order.
Robert W. Potts – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Tommy W. Lueders – Appeals Judge