This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 16, 1995. On the single issue before her, the hearing officer determined that the first certification of maximum medical improvement (MMI) and an impairment rating became final under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)) since it was not disputed within 90 days. The appellant (claimant) appeals urging that the hearing officer failed to adequately evaluate the evidence and that the claimant disputed the certification within 90 days from the time the certification was received by either the claimant or her attorney. The respondent (carrier) urges that there is sufficient evidence to support the decision of the hearing officer and asks that it be affirmed.
DECISION
Affirmed.
The claimant, who worked as a “housekeeper” for the employer, sustained a compensable injury to her back on ____________, and apparently has not worked since. On November 15, 1994, she was examined by a carrier-requested doctor, Dr. L (Dr. L), an orthopedic specialist, who listed an impression of lumbosacral strain and found the claimant to be at MMI on that date with a five percent IR. His report was sent to the carrier’s adjuster, with copies being shown as going to the Texas Workers’ Compensation Commission, the claimant’s treating doctor, and Attorney Gibson (FG). The carrier also introduced a form mailed by the carrier’s adjuster to the Texas Workers’ Compensation Commission on December 12, 1994, checking lines on the form showing a TWCC-21 and a TWCC-69 were attached and indicating a copy to the claimant. Another form, a TWCC-21 dated “12-13-94” was in evidence which shows a copy of the form was mailed to the claimant on “12-13-94” and which stated:
Reached MMI on 11/15/94 with five percent impairment. TIBs from 11/16/94 are being converted to IIBs. IIBs expire 2/28/95, 15 wks.
The first dispute of Dr. L’s certification in evidence is a letter dated July 6, 1995, but with a stamp showing hand delivery to the Commission’s Dallas Office on July 7, 1995, from FG stating that the claimant disputes the MMI and IR of Dr. L. The claimant testified that she was advised by the Commission that she was scheduled for a medical examination with Dr. L, that she was shown a Request for Medical Examination Order, and that Dr. L examined her. She denied that Dr. L mentioned that she had reached MMI or had an IR at the examination. She also denied that she ever received a report from Dr. L but stated that she did not remember if she received a copy of Dr. L’s report from the carrier’s servicing agent. She acknowledged that her treating doctor discussed the MMI and IR with her and expressed his disagreement. She stated she contacted her attorney in March concerning the papers that she “received from the doctor’s office and some through the mail.” She also indicated that she had contacted her attorney as a result of a letter from the attorney dated March 24, 1995, and because her benefit checks had stopped. The claimant further testified that at that time she knew Dr. L had given her an MMI and IR.
Over objection, FG testified that neither she nor the claimant received any MMI and IR certification from Dr. L until a copy was sent, pursuant to FG’s request, by the carrier’s adjuster on April 7, 1995, and that FG disputed for the claimant in the letter dated July 6, 1995. FG also complained about the carrier and its agents suggesting some improper activities on their part, and stated that she was not sent a copy of the Medical Examination Order. She also denied that she ever received the report from Dr. L although listed as being sent a copy.
The hearing officer found that the claimant did not dispute the MMI and IR until July 7, 1995, “which date is in excess of 90 days from the date she had written knowledge of maximum medical improvement and impairment rating” and concluded Dr. L’s assessment became final under Rule 130.5(e). Obviously, there was conflict in the evidence and some degree of inconsistency in the testimony. These were matters for the hearing officer to sort out in determining the facts of the case. Section 410.165(a)&(g); Garza v. Commercial Insurance Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). Our review of the evidence does not lead us to conclude that the hearing officer’s determinations were so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Only were we to so determine, which we do not, would there be a sound basis to disturb the decision. Texas Workers’ Compensation Commission Appeal No. 92232, decided July 20, 1992. The hearing officer may have believed the claimant recieved written knowledge earlier than April 7, 1995, or that even receiving notice as late as April 7th with no dispute filed until July 7, 1995, the dispute was not within 90 days as set forth in Rule 130.5(e). The decision is supported by sufficient evidence. Accordingly, the decision and order are affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Alan C. Ernst – Appeals Judge