Following a contested case hearing held September 6, 1995, with the record closing on December 11th, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, ________, resolved the sole disputed issue, respondent’s (claimant) correct impairment rating (IR), by concluding that claimant’s IR cannot be properly determined until a new designated doctor is appointed to examine claimant. The appellant challenges that conclusion as well as factual findings that on October 24, 1994, claimant observed the designated doctor and his technician erasing some of the range of motion (ROM) numbers that had been written after the examination, that the designated doctor explained that the Texas Workers’ Compensation Commission (Commission) Guidelines provided for such corrections if the physician opined that the recorded measurements were not in correlation with the physical examination, that the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) do not provide for such corrections, and that the designated doctor did not properly evaluate claimant. Claimant did not file a response.
DECISION
Affirmed.
The parties stipulated that on or about _____________, claimant sustained a compensable injury in the course and scope of her employment. According to the history in medical records, claimant was carrying a tray and approaching the table she was serving in the restaurant where she was employed when she twisted to avoid a child and heard her back “pop.” The Initial Medical Report (TWCC-61) dated __________, from claimant’s treating doctor, Dr. G (Dr. G), stated a diagnosis of lumbar spine sprain. The parties also stipulated that claimant reached maximum medical improvement (MMI) on July 24, 1994, and that Dr. A (Dr. A) is the Commission’s designated doctor.
In evidence was a report dated October 13, 1993, from Dr. G stating that the claimant was then “fairly stable” and without significant pain except for early morning pain, that Cybex range of motion (ROM) measurements showed an 11% IR for ROM and that she had an eight percent IR under Table 53 II C of the AMA Guides. Also in evidence was a Report of Medical Evaluation (TWCC-69) signed by Dr. G on February 7, 1994, stating that claimant’s estimated date for reaching MMI was “3-30-94” and that her IR was 16% consisting of 11% for ROM and five percent for a herniated nucleus pulposus (HNP) at L4-5.
In his TWCC-69 dated April 4, 1994, Dr. L (Dr. L) certified that claimant reached MMI on March 3, 1994, with an IR of nine percent consisting of one percent for abnormal lumbar extension, one-half of one percent each for right and left lateral flexion and seven percent for unoperated lumbar spine disc derangement, referencing Table 49 II C of the AMA Guides. In his narrative report of March 3, 1994, to the carrier, Dr. L recited that claimant, then 29 years of age, stated that she has had low back pain since her accident. Dr. L’s diagnosis included “originally moderate, now considerably subsided, post- traumatic” muscular and ligamentous lumbar spine strain and myositis myofascitis; “questionable clinical evidence, at this time, of a [HNP] or a nerve root compression neuropathy of the lumbar spine”; and radiological evidence of a Grade I, minimal, central HNP at L4-L5. Dr. L’s narrative report also mentioned calculation errors in the two impairment ratings assigned by Dr. G involving the failure to combine the spinal disorder ratings and the ROM ratings using the Combined Values Chart in the AMA Guides.
In his TWCC-69 dated October 24, 1994, Dr. A certified that claimant reached MMI on July 21, 1994, with an IR of 13%. His accompanying narrative report indicated that following her injury claimant was treated conservatively by Dr. G (Dr. G), and it referenced Dr. G’s records. The report also referenced the diagnostic tests reviewed including CT, x-rays, and a lumbar spine MRI of June 11, 1993, which stated the impression as “[s]uspected spondylolysis of L5” and a Grade I disc protrusion at L4-5 “representing minimal contained central disc herniation.” Dr. A reported normal neurologic findings of claimant’s lower extremities. Dr. A’s 13% IR consisted of “8%” for lumbar ROM and “5%” for the specific spinal disorder under Table 49 IIB of the AMA Guides. With respect to claimant’s ROM, the report referred to an attached work sheet from the AMA Guides.
Claimant stated that during her examination by Dr. A, he looked at “the paperwork,” the x-rays and her doctor’s records, asked her some questions, and had her stand in front of him with her back to him and raise her arms up but that he did not have her do any bending forward, rearward or to the sides. She said that Dr. A had his medical assistant perform the ROM measurements and that the assistant used “some kind of round machine” and had her bend forward, backward, and to the sides. She further testified that when the assistant left the room she looked at the paper upon which her measurements were recorded and saw the figure “12%” at the bottom. Claimant further testified that after her examination by Dr. A on October 24, 1994, she returned to his office shortly later to retrieve x-rays she had left behind and, when admitted to his office, saw Dr. A “scratching out something on the papers.” She said that Dr. A was changing numbers on the worksheet, that he appeared “startled” when she entered, and that when she next saw the form the “12%” had been changed to “8%.”
Claimant argued to the hearing officer that the ROM worksheet accompanying Dr. A’s report clearly showed some remarking of certain measurement numbers including the right and left lateral flexion measurements, changes of “2%” to “0%” for both right and left lateral flexion, and a change at the bottom of the worksheet of “12%” to “8%.”
The hearing officer wrote Dr. A on September 18, 1995, advising him of what claimant had observed upon her return to his office and asking if the numbers had been changed and for clarification. The hearing officer also asked for clarification concerning the five percent rating for the specific spinal disorder given that the MRI of June 11, 1993, revealed both a disc protrusion and spondylolysis. On October 16, 1995, Dr. A responded, stating with respect to the ROM measurements that he had examined claimant and that “[i]f it is the physician’s opinion that the measurements that are recorded by the technician are not in correlation with his physical examination of the patient it is not in violation of TWCC guidelines to make a corrections [sic] to these numbers.” Concerning the five percent rating for the spinal disorder, Dr. A stated that since “spondylolysis was `suspected,’ and the disc protrusion at L4/5 represented a minimal disc herniation, 5% whole person impairment appeared appropriate.”
The hearing officer found that on October 24, 1994, claimant observed the designated doctor and the technician erasing some of the ROM numbers that had been written after the examination, that Dr. A explained that “the TWCC Guidelines” provide for such corrections if the physician opines that the measurements that were recorded were not in correlation with the physical examination, that the AMA Guides do not provide for such corrections, and that Dr. A did not properly evaluate claimant. Based on these findings, the hearing officer concluded that claimant’s IR cannot be properly determined until a new designated doctor is appointed to examine her.
The carrier’s appeal asserts that Dr. A “did not usurp any portion of the Guides … [and] acted within the framework of its provisions.” The carrier further states the following: “Although the Hearing Officer may be correct to state that the Guides do not provide for corrections by the designated doctor of previously computed measurements, neither do the Guides prohibit such corrections. There was nothing improper in [Dr. A’s] evaluation and his interpretation of the Guides is entitled to presumptive weight.”
We are satisfied that the challenged factual findings are sufficiently supported by the evidence and that they sufficiently support the challenged legal conclusion. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Nor do we find error as a matter of law. This is not a case of a designated doctor’s report being disregarded on the mere basis of lay testimony concerning the inadequacy of the examination. Indeed, Dr. A’s response to the hearing officer acknowledges that ROM measurement numbers were changed to conform to what Dr. A felt he had observed. While we would not disagree with the carrier’s point that a designated doctor’s opinion will prevail where that doctor “reasonably and accurately applied the Guides according to his professional judgment,” claimant’s testimony that Dr. A did not have her do any bending during his examination was not refuted nor did she testify to Dr. A’s having used any measuring device. Further, Dr. A essentially acknowledged that changes were made to certain of the technician’s recorded measurements which, claimant testified, were made using “some type of round machine.” The AMA Guides do provide for the use of inclinometers in obtaining ROM measurements. Dr. A did not indicate that he himself had performed his own ROM measurements nor did he indicate why he reduced only the ratings for lateral flexion. The carrier has correctly observed that the Appeals Panel has indicated that resort to a second designated doctor should only occur in certain limited circumstances. Under the particular circumstances of this case, however, we regard the appointment of another designated doctor as appropriate. Compare Texas Workers’ Compensation Commission Appeal No. 960034, decided February 5, 1996.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Robert W. Potts – Appeals Judge
Judy L. Stephens – Appeals Judge