This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held in _____, Texas, on December 13, 1995, _______ presiding. The hearing officer held that claimant’s lumbar condition is the result of his compensable injury of ________, and that the claimant reached maximum medical improvement (MMI) on May 21, 1994, with a 21% impairment rating (IR) as determined by the designated doctor selected by the Texas Workers’ Compensation Commission (Commission). The carrier on appeal contends that the great weight of the evidence is contrary to the determinations of causation and IR, citing to medical evidence in the record. The carrier also contends that the claimant was impermissibly represented by a non-attorney employee of claimant’s treating doctor. The appeals file does not contain a response by the claimant.
DECISION
Reversed and remanded.
It was not disputed that the claimant was injured on ________, while in the course and scope of his employment; the parties stipulated that on that date “claimant sustained, at the very least, a compensable injury to his cervical area and his head.” The claimant, a surveyor, said his injury occurred when an embankment collapsed, causing him to fall and hit his head on some rocks. He was immediately taken to a hospital emergency room, was paralyzed from the neck down for approximately 30 hours, and was released on ________.
It was claimant’s contention that his lower back problems were a result of this incident and that he complained of low back pain but was primarily treated for head problems including headaches and blackouts. Records from his initial hospitalization show that he complained of neck and back pain, as well as weakness in his arms and legs and generalized numbness; lumbar spine x-rays were performed and found to be normal. A physical therapy evaluation found pain in the lower back upon exerting the lower extremities. A follow-up report by Dr. S (Dr. S) on ______ said claimant had residual weakness of the arms and legs and was felt to have a central cord injury for which a cervical collar was prescribed. An August 26, 1993, neuropsychological evaluation by Dr. H, Ph.D. (Dr. H), noted that after the incident the claimant suffered immediate neck and back pain, had been later referred for physical therapy, and that he complained of (among other things) constant low back pain.
On May 31, 1994, Dr. S found claimant to be at MMI and assigned an IR of zero percent. He noted that Dr. H had found that claimant “has not had evidence of a traumatic brain injury, nor are his abnormalities compatible with any traditional psychological diagnosis” and that “the causes of his multiple neuromusculoskeletal and systemic symptoms remain obscure,” noting that testing had shown no objective abnormalities. He concluded by stating that he was not saying that claimant was “normal,” and that he continued to have multiple symptoms following his injury, but that he could not assign an impairment solely on the basis of symptoms. In a May 31st patient note, he said that the claimant’s range of motion measurements at a functional capacity evaluation “were inconsistent in variability and also not at all consistent with what I have observed [claimant] to do when performing range of motion in the office.” Because of that, he said, “I could not use these numbers to set impairment.”
Also, in July 1994 Dr. M (Dr. M), who had treated the claimant for headaches and associated problems, stated that claimant had reached MMI and that “I do not find any physical disability other than the fact that he gets headache [sic] frequently which has to be managed with medications etc.”
Thereafter, the Commission selected Dr. R (Dr. R) as designated doctor. A pain questionnaire completed by claimant at the August 3, 1994, visit gives a chief complaint of “Headache & blackouts, lower back/no feeling in right arm & fingers & right toes & neck.” In his report Dr. R also noted complaints of low back pain with numbness of the right toes and foot since ________. Dr. R also wrote, “He states until about 3 months ago he had numbness of the mid to low back. The numbness is gone now, but he has a deep, dull ache. The pain radiates into the right groin described as sharp pain which is worse with any sudden movement . . . He denies any back problem or injury prior to the accident on ______.” Dr. R gave his diagnoses as cervical sprain, post-traumatic headaches, and conversion reaction with possible malingering. He found MMI as of May 31, 1994, with a four percent IR due to the specific impairment of claimant’s cervical spine; the lumbar spine was not mentioned.
In addition, in November 1994 claimant changed treating doctors, to Dr. H (Dr. Hi). Dr. Hi ordered numerous diagnostic tests, including a lumbar CT scan and a lumbar discogram which Dr. Hi read as showing abnormalities at two levels. Dr. Hi also referred the claimant for further testing of the cervical spine and epidural steroid injections. At the hearing the claimant said Dr. Hi has recommended surgery.
On April 19, 1995, a Commission benefit review officer (BRO) wrote to inquire whether Dr. R had tested claimant’s cervical range of motion, and why he had not given any rating for neurological impairment. Dr. R responded that because he felt the claimant was malingering, cervical range of motion examination would be unreliable. He said he would be willing to perform this examination although “it can easily be very inaccurate if the patient does not put in the proper effort.” He also said that claimant’s sensory examination when compared to myelogram results also suggested malingering and no true neurological involvement.
On June 11th the hearing officer wrote to tell Dr. R to reexamine the claimant for cervical range of motion; she also asked the doctor to be more specific as to why he believed the claimant was malingering. On July 12th Dr. R wrote the hearing officer to state that he had examined the claimant and had assigned a new IR of 21% based upon the specific disorder of the cervical spine (four percent), cervical range of motion (15%), and right upper extremity impairment (three percent). His cervical range of motion worksheet, attached to his amended TWCC-69 (Report of Medical Evaluation) indicates by checking “no” that measurements for cervical extension and right lateral flexion are not within 10% or 5 degrees; at the bottom of the sheet is handwritten, “inconsistent – 15% if valid.” At the carrier’s request the hearing officer once again wrote Dr. R to ask whether the 21% IR was based upon valid range of motion testing (referring to the notation at the bottom of the cervical range of motion worksheet). In response, Dr. R wrote:
[Claimant] underwent lumbar range of motion testing on 9-14-95. This lumbar range of motion testing was invalid as the patient’s straight leg raising exceeded the sum of sacral flexion and extension by more than 10%. The AMA Guides [Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association] make it very clear when a lumbar range of motion testing examination is invalid. With cervical range of motion, we are really are [sic] at the mercy of how far the patient flexes and extends his neck. There is no way to objectively document whether or not this patient is giving his best effort. Hence, the 15% [IR] stating the patient would have a cervical range of motion loss of 15% if indeed he gave it his best effort and could not flex, extend, rotate, or bend laterally any more than he did. Overall, I would say that the patient’s cervical range of motion was valid.
WHETHER THE CLAIMANT’S LUMBAR CONDITION
IS A RESULT OF THE COMPENSABLE INJURY
In its appeal the carrier argues that since Dr. R found no “disability” as a result of the lumbar injury, the hearing officer’s determination of this issue is contrary to the designated doctor’s opinion and is against the great weight and preponderance of the evidence. With regard to an extent of injury issue, a designated doctor’s opinion is not entitled to presumptive weight or any other special deference. Texas Workers’ Compensation Commission Appeal No. 93734, decided September 30, 1993. The hearing officer’s statement of the evidence made clear that the claimant’s testimony was credible with regard to the mechanism of his injury, and that he had met his burden to establish that he injured his lumbar spine when he fell on ________. In a case such as the instant one, the testimony of a claimant, if believed, can establish the existence of an injury. Texas Workers’ Compensation Commission Appeal No. 92083, decided April 16, 1992. In addition, the hearing officer could have determined that the claimant’s testimony was buttressed by early medical reports showing that the claimant had complained of low back pain and had undergone x-rays; she could also have found credible claimant’s contention that medical attention was initially focused on problems surrounding a head injury. The hearing officer is the sole judge of the relevance and materiality of the evidence and of its weight and credibility, Section 410.165(a). As an appellate body, we will not substitute our judgment for that of the trier of fact where his or her decision is supported by the evidence and is not so against the great weight of the evidence as to be manifestly wrong or unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
WHETHER THE CLAIMANT’S IR IS 21%
AS FOUND BY THE DESIGNATED DOCTOR
The carrier bases this argument on the claimant’s medical records and the invalid testing results of the designated doctor. The carrier points out that numerous medical providers, including Dr. H, Dr. S, Dr. M, and Dr. R, make reference to claimant’s “poor effort,” “malingering,” and inconsistencies between symptoms and objective test results. While we have held that a doctor can invalidate range of motion results based upon clinical observations, Texas Workers’ Compensation Commission Appeal No. 960034, decided February 5, 1996, such should only be done after a claimant has been given an unbiased, objective opportunity to demonstrate any deficiencies. Thus, we believe that the hearing officer correctly instructed Dr. R to perform range of motion testing on the claimant, despite the doctor’s initial sentiments that the claimant was “malingering.”
We are bothered, however, by inconsistencies between the results of Dr. R’s second examination–which on its face show inconsistent range of motion measurements of the cervical extension and right lateral flexion–and his September 27, 1995, response which found the claimant’s cervical range of motion valid “overall,” but which did not address the internal inconsistencies on the worksheet. The carrier included as an exhibit the “General Principles of Measurement” subchapter of Chapter 3, AMA Guides, which states as follows:
Reproducibility of abnormal motion is currently the only known way to validate optimum effort. The examiner must take at least three consecutive mobility measurements, which must fall within +/- 10% or 5 degrees (whichever is greater) of each other to be considered consistent. Measurements may be repeated up to six times until consecutive measurements fall within this guideline. However, if inconsistency persists, the measurements are invalid and that portion of the examination is then disqualified.
Under the circumstances of this case, we do not believe that the seeming conflict between Dr. R’s report and his later explanation can be reconciled without recourse to further input from the doctor. We therefore reverse the hearing officer’s determination that the claimant’s IR was 21% and remand to allow the doctor to clarify why he awarded a 15% impairment for cervical range of motion while apparently finding certain results to be inconsistent or invalid. Pursuant to the above provisions of the AMA Guides, we believe Dr. R should be allowed to reexamine the claimant if he believes such is necessary. However, Dr. R should only address the question of cervical range of motion, as the carrier has limited its appeal to that portion of the IR, and the claimant has not appealed Dr. R’s failure to rate the lumbar spine.
WHETHER IT WAS ERROR FOR CLAIMANT TO BE REPRESENTED
AT THE HEARING BY AN EMPLOYEE OF DR. HI
There was no dispute that Mr. C (Mr. C), who represented the claimant at the hearing, was employed by claimant’s treating doctor, Dr. Hi (according to Dr. Hi’s letterhead, Mr. C is the doctor’s “administrator”). At the outset of the hearing, carrier objected to Mr. C’s representation, which objection was overruled by the hearing officer. The basis of carrier’s objection below and on appeal is Rule 150.3 (Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 150.3), which provides that a representative is authorized to provide services in workers’ compensation matters if he or she is either a licensed insurance adjuster or an attorney who complies with certain procedural requirements. In addition, the rule provides that a representative is authorized if:
the person who is not either an adjuster or attorney files with the Commission a written power of attorney, or written authorization from the claimant, allowing that person access to confidential records. No fee or remuneration shall be received either directly or indirectly from a claimant.
The rule further provides that a representative who fails to comply with the Act or violates a rule of the Commission may be subject to sanctions, including suspension.
The carrier alleges that Mr. C, a non-attorney, is representing claimant and being compensated for it as an employee of the claimant’s treating doctor which, it argues, is the type of remuneration prohibited in the rule.
This precise issue has been before the Appeals Panel in only one other case, Texas Workers’ Compensation Commission Appeal No. 941746 (unpublished), decided February 9, 1995. The hearing officer had held that the representative “was not an appropriate assistant under the Act as he is receiving a fee for that service.” While the claimant appealed this procedural ruling, the Appeals Panel declined to address it, noting that the claimant had prevailed on the merits of the case and was essentially requesting an advisory opinion as to future representation. And see Texas Workers’ Compensation Commission Appeal No. 951693, decided November 22, 1995, a somewhat similar case, but concerning Section 410.006 which states that a claimant “may be assisted by an individual of the claimant’s choice who does not work for an attorney or receive a fee,” unless such employee of an attorney is a relative of the claimant and does not receive a fee.
Based upon those holdings, and the plain language of Rule 150.3, we believe that when a timely objection is raised to a third party’s representation of a claimant, the hearing officer should inquire whether that individual is directly or indirectly receiving a fee from the claimant for his services. (We do not agree with the carrier that the rule’s use of the term “fee” can fairly be read to encompass compensation paid by his employer versus any amount paid by or on behalf of the claimant.) The record below does not reflect that this was done, and we hold that on remand the hearing officer should make such inquiry of Mr. C. Should the hearing officer find that Mr. C had impermissibly represented the claimant, however, we do not believe this invalidates the proceedings below although it may be subject to disciplinary action.
The decision and order of the hearing officer are reversed and remanded, pursuant to this decision. 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.
Lynda H. Nesenholtz – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Alan C. Ernst – Appeals Judge