This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on November 20, 1995. There was one disputed issue, and the hearing officer determined that the respondent (carrier) is entitled to 76% contribution from prior compensable injuries. The appellant (claimant) appealed stating that he does not think that his weekly benefits should be reduced by 76% and that it is not fair to reduce his benefits by 76%. The carrier responded urging that the decision of the hearing officer is supported by sufficient evidence and requesting that the decision of the hearing officer be affirmed.
DECISION
We reverse and remand.
We first address the requests for review filed by the claimant. The claimant filed an undated appeal that was mailed on January 3, 1996, that was received by the Texas Workers’ Compensation Commission (Commission) on January 5, 1996, and that is a timely appeal. The claimant also filed an appeal dated January 29, 1996, with a letter from Dr. D (Dr. D), the claimant’s treating doctor, attached. This appeal was not timely filed and neither the appeal nor the letter will be considered in deciding this case.
The claimant was called as a witness by the carrier and was cross-examined by the ombudsman. The claimant testified that he started working in the oil field when he was 16 years old, that to the best of his knowledge he first injured his low back in ________ after working in the oil field for about five years, that the injury was covered by workers’ compensation, and that he had surgery on his back. He stated that in about ____ and ____ he again injured his low back while working and each time had surgery on his low back. The claimant said that prior to his injury on ________, he had totally recovered from the prior three surgeries, that for 18 months he was able to keep up with the crew that he worked with, that at times he worked 60 or 70 hours a week, and that he did heavy lifting and had no lifting restrictions. He testified that his current injury is to the low back, that he has not had surgery for that injury, and that Dr. D has told him not to lift more than 18 pounds and that it would be best not to go back to the same type of work. He said that Dr. D discussed surgery with him but told him that he did not think that surgery would help because of the three prior surgeries. The claimant stated that he has a herniated disc, that he has good days and bad days, that he cannot lift anything heavy, that he has problems climbing, and that he cannot sit or stand for long periods of time.
In 1985 Dr. D, the claimant’s treating doctor for his current injury, performed a laminectomy at L4-5 and L5-S1 on the right side with excision of disc material at those levels. The claimant had some neurogenic bladder problems that were relieved by that surgery. The claimant returned to work after the surgery and again injured his back in a lifting incident in about _________. He was treated conservatively and was able to return to full-duty work. After the _________, injury the claimant was treated conservatively. In a Report of Medical Evaluation (TWCC-69) dated May 18, 1995, Dr. D reported that the claimant reached MMI on May 18, 1995, with a 26% impairment rating (IR). In a narrative attached to the TWCC-69, Dr. D diagnosed disc herniations at L4-5 and L5-S1; RSD, right lower extremity; status postlumbar laminectomy times three; neurogenic bladder; and chronic pain syndrome. Dr. D explained that he used 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 (AMA Guides) and combined seven percent for a specific disorder of the spine under Table 49 of the AMA Guides, 18% for loss of lumbar spine range of motion (ROM), and two percent for the leg resulting from lumbarsacral radiculopathy to arrive at the 26% IR.
In a TWCC-69 dated July 19, 1995, Dr. B (Dr. B), the Commission-selected designated doctor, reported that the claimant’s IR is 17%. In the narrative attached to the TWCC-69, Dr. B reported that the claimant has diffuse multilevel lumbar spondylosis; prior laminectomies at L4-5 and L5-S1; and that he now has two new, small-to-medium-sized herniated discs at these two levels. Dr. B assigned a 13% impairment for specific disorders under Table 49 of the AMA Guides, invalidated the ROM tests for lumbar flexion and extension, assigned one percent right lateral flexion and one percent for left lateral flexion, and assigned two percent for impairment of the lower extremity for motor loss and sensory loss. Dr. B wrote:
One issue with this gentleman is clearly the fact that he has had three previous lumbar surgeries and he is again symptomatic at these same levels. Thus there is clearly a contribution issue involved if one looks at the above ascertained diagnostic related impairment. If one goes with the 13 percent whole person impairment which is derived from his prior compensable injuries and that number is divided by the 17 percent recently derived [IR], one comes up with the fact that 76% of this gentleman’s [IR] today is due to prior compensable injuries and surgeries.
In a letter dated September 29, 1995, Dr. D wrote that he agreed with the 17% IR for the claimant, but that he did not agree with the Dr. B that 70% (sic) of the claimant’s impairment is due to previous injuries. Dr. D stated that the claimant did have three laminectomies; that for at least 18 months prior to the last injury the claimant did very well with no problems with his back; that prior to the injury the claimant was able to do very heavy work including lifting up to 100 pounds; that as of May 18, 1995, when the last functional capacity test was accomplished, Dr. R recommended a lifting capacity of 18 pounds that he considers to be light work; and that the claimant is essentially 100% disabled for the type of work he was doing because of the lifting capacity. In a letter dated October 2, 1995, the benefit review officer wrote to Dr. B asking him to be more specific as to how he arrived at the 13% IR for the prior compensable injuries. In a letter dated October 10, 1995, Dr. B replied that he used Table 49 of the AMA Guides and assigned 10% for the first surgery, two percent for the second surgery, and one percent for the third surgery to arrive at the 13% IR. Dr. D also stated that the claimant did not have surgery for his current injury, that under Table 49 of the AMA Guides the claimant would receive a seven percent IR for an unoperated back injury, but because of the prior surgeries he assigned a 13% IR. Dr. D also wrote:
Inasmuch as 13 percentage points of this 17% whole person impairment relates to surgery directly related to the same anatomic site as the current compensable injury, I followed the Appeals Panel Decision No. 941514 dated January 15, 1995, and 950268 and 950390 dated May 1, 1995. I base the [IR] for the prior compensable injury on the [AMA Guides] and applied only those aspects which are objectifiable to the overall [IR]. Clearly there may have been some loss of [ROM] secondary to the prior compensable injuries and subsequent impairments, however, I have no objectification for such and I can only apply the data I could clearly objectify. The same holds true with the neurological examinations.
Therefore, I divided 17% into 13% yielding a 76% contribution aspect. I would like to offer that this is my opinion. This is the methodology I used as I understand the instructions from the Appeals Panel. I never stated in my report that there should be a 76% “reduction” in [claimant’s] benefits.
Reduction of impairment income benefits (IIBS) and supplemental income benefits (SIBS) because of documented impairment that resulted from earlier compensable injuries is addressed in Section 408.084 which provides in part as follows:
(a)At the request of the insurance carrier, the commission may order that [IIBS] and [SIBS] be reduced in a proportion equal to the proportion of documented impairment that resulted from earlier compensable injuries.
(b)The commission shall consider the cumulative impact of the compensable injuries on the employee’s overall impairment in determining a reduction under this section.
It is commendable that Dr. B referred to Appeals Panel decisions in his letter. In Texas Workers’ Compensation Commission Appeal No. 941514, decided December 21, 1994, the Appeals Panel held that a prior contributing injury may be considered even though not documented under the 1989 Act and that a prior IR rating for a prior injury was not necessary provided medical records showed “anatomic or functional abnormality or loss reasonably presumed to be permanent.” In Texas Workers’ Compensation Commission Appeal No. 950268, decided April 10, 1995, also referred to by Dr. B, the Appeals Panel wrote:
The Appeals Panel has noted that it believes that consideration of the “cumulative impact” requires not only some assessment of extent of impairment for previous injuries but also an analysis of how the injuries work together, i.e., the extent to which prior injuries “contribute” to the present impairment. Appeal No. 941074, supra [decided September 23, 1994]. A carrier should not have the amount it pays increased by the effect of an earlier work-related injury that is part of the current impairment; likewise, a carrier should not receive a windfall by obtaining credit for an earlier impairment that does not effect the current impairment for which it is liable. Texas Workers’ Compensation Commission Appeal No. 941338, decided November 22, 1994.
In Texas Workers’ Compensation Commission Appeal No. 950390, decided April 27, 1995, also referred to by Dr. B, the claimant argued that an IR was not assigned for the injury that resulted in surgery in 1984 and that his entire IR of 14% is based on the compensable injury. The Appeals Panel affirmed a decision ordering that IIBS be reduced by 93% for contribution from the prior injury. The Appeals Panel also wrote:
While we question whether a rating should be assigned for surgery (as opposed to the effect of an injury) occurring prior to the compensable injury in question and then made a part of the whole body IR, the IR itself, as stated, was not attacked on appeal. (See Section 401.011(24) which defines IR as the percentage of whole body impairment resulting from a compensable injury.) Also see Texas Workers’ Compensation Commission Appeal No. 950130, decided March 13, 1995, which quoted from Texas Workers’ Compensation Commission Appeal No. 931130, decided January 26, 1994, that “the effects of a prior compensable injury should not be discounted in the assessment of an [IR] for the current compensable injury.” [Emphasis added.]
In the case before us, the claimant did not appeal the IR; however, in his appeal he did state that he does not think that his weekly benefits should be reduced by 76% and that reducing his benefits by 76% is not fair. This is sufficient to raise the issue of the correct percent of reduction of IIBS and possible future SIBS for a documented impairment that resulted from prior compensable injuries, including whether the hearing officer properly considered the cumulative impact of the compensable injuries on the claimant’s overall impairment. The record does not reveal that the hearing officer considered “the cumulative impact of the compensable injuries on the employee’s impairment in determining a reduction” as required by Section 408.084.
We reverse the decision of the hearing officer and remand for him to determine the percentage that IIBS and possible future SIBS may be reduced because of the prior compensable injuries. Even though the Commission determines the percentage of contribution, it may be appropriate to obtain additional evidence to assist in making this determination. 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 the request for review not later than 15 days after the date on which such new decision is received from the Texas Workers’ Compensation Commission division of hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Tommy W. Lueders – Appeals Judge
CONCUR:
Lynda H. Nesenholtz – Appeals Judge
Elaine M. Chaney – Appeals Judge