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 convened on October 2, 1995, in ___________, Texas, with __________ presiding as hearing officer. Hearing Officer ___________ determined that there was good cause for the attorney representing the appellant (claimant) not to be present and granted a continuance without receiving evidence on the merits of the disputed issue of what is the claimant’s impairment rating (IR). _____________ presided as hearing officer at a contested case hearing held in ________ on December 12, 1995, and determined that the claimant’s IR is two percent as assigned by Dr. C (Dr. C), the Texas Workers’ Compensation Commission (Commission)-selected designated doctor. The claimant appealed urging that the carrier had improper contact with the designated doctor and that the great weight of the other medical evidence is contrary to the report of the designated doctor and requesting that the Appeals Panel reverse the decision of the hearing officer and render a decision that the claimant’s IR is 12% or, in the alternative, reverse and remand directing that another designated doctor be appointed. The carrier replied urging that the determinations of the hearing officer are supported by sufficient evidence and requesting that the Appeals Panel affirm the decision of the hearing officer.
DECISION
We affirm.
The claimant testified that he pulled something in his shoulder on _____; that he received shots and physical therapy but did not get any better; that he went to Dr. R (Dr. R); that he was seen by Dr. C who said that he had not reached maximum medical improvement (MMI) and should have an MRI; and that after the MRI Dr. R performed surgery. The claimant said that Dr. R told him that he, Dr. R, cut out part of the muscle and put the muscle back together; that Dr. R told him that he, the claimant, would lose strength in his right arm; and that he did lose strength in his right arm. The claimant stated that he was seen by Dr. P (Dr. P) who sent him to a physical therapist. The claimant testified that he was seen by Dr. C again; that the doctor was more distant than on the first visit; that he, the claimant, would move his arm and that Dr. C would push it further; and that to his knowledge Dr. C did not test the strength of his arm.
The claimant’s first treating doctor, Dr. RDC (Dr. RDC), in a Report of Medical Evaluation (TWCC-69) dated May 20, 1994, certified that the claimant reached MMI on May 20, 1994, with a zero percent IR. On June 2, 1994, the claimant requested that Dr. R become his treating doctor, and the Commission approved the request on June 7, 1994. Dr. C was appointed as the designated doctor on August 27, 1994. Dr. C saw the claimant on September 29, 1994, and reported that the claimant had not reached MMI and recommended that MRIs be performed. An MRI of the right shoulder completed on October 20, 1994, was negative for a rotator cuff tear but showed evidence of rotator cuff tendinitis. Dr. R performed a right shoulder acromioplasty and debridement on November 22, 1994. Dr. P examined the claimant at the request of the carrier and reported that the claimant reached MMI on January 20, 1995, with a 12% IR. Dr. P attached to the TWCC-69 he completed a report from Mr. W (Mr. W) that included range of motion (ROM) measurements for both shoulders with a comment that loss of ROM for the left shoulder results in a five percent impairment to the left upper extremity and that loss of ROM for the right shoulder results in a 25% impairment to the right upper extremity, that comparison of the involved and uninvolved shoulder results in a 20% impairment to the right upper extremity, and that under Table 3 of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) a 20% impairment to an upper extremity results in a 12% whole body impairment. In his narrative, Dr. P wrote:
His right shoulder demonstrates a healed saber-cut type incision over the superior aspect. There are intense complaints of pain on manipulation over the scar or any motion occurring about the shoulder either actively or passively. When I ask him to internally and externally rotate, he grimaces and complains that that cannot be accomplished. He complains of pain about his shoulder on attempting to resist abduction. There is no marked atrophy to the supraspinatus or about the deltoid musculature.
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He has sustained a twenty (20%) percent permanent physical impairment and loss of physical function to his right upper extremity as a consequence of tendinitis about his right shoulder. The assessment of impairment relating to shoulder injury such as this patient has is dependent on the [ROM] assessment in its entirety. This patient has attempted to demonstrate to this examiner today the intensity of his professed involvement. The [ROM] assessment that was accomplished and is enclosed, I think, is excessive based on the objective changes this patient has demonstrated.
Apportionment of that is difficult, but I think the twenty percent impairment to the right upper extremity based on the tendinitis is much greater than would be anticipated from the underlying pathophysiology. I think it reflects the patient’s inability or unwillingness to cooperate with the maximum [ROM] assessment.
On February 2, 1995, Dr. R reported that the claimant had not regained full ROM of his shoulder, that the claimant still has some pain at the anterior aspect of his shoulder, and that it will take the claimant longer to rehabilitate than most people because of the size of his musculature. In a TWCC-69 dated July 24, 1995, Dr. R reported that the claimant reached MMI on May 2, 1995, with a 13% IR. In an attachment the treating doctor provides the ROM measurement for the claimant’s right shoulder, makes no comparison with ROM for the left shoulder, and states that the claimant has a three percent IR for loss of ROM. Dr. R also reports that he would add 10% impairment for loss of strength in the shoulder but the report does not contain information on which this impairment for loss of strength is based.
In a TWCC-69 dated May 9, 1995, Dr. C reported that the claimant reached MMI on May 2, 1995, with a two percent IR. In the narrative attached to the TWCC-69 Dr. C stated that the claimant noted increasing right shoulder strength but continues to complain of pain and slight weakness in the right shoulder. Dr. C also reported that “[m]otor testing to bilateral upper extremities including grip strength testing reveals no objective measurable deficit of the right upper extremity as compared to the left.” The designated doctor concluded his summary with:
For all complaints, the claimant receives a 2% whole person impairment. Please see attachments. I would recommend the referral of this claimant to The Texas Rehab. Commission [TRC] for work retraining to a more sedentary and less physically demanding work position.
We first address the claimant’s contention that the carrier improperly contacted the designated doctor. The records of the carrier indicate that Mr. F (Mr. F), the adjuster handling the claim, spoke with Ms. H (Ms. H) in Dr. C’s office on September 27, 1994; that Ms. H verified that the claimant was seen by Dr. C on September 20, 1994; and that a report would be forthcoming. In a sworn statement dated September 29, 1995, Mr. F stated:
At no time during the course of administering this claim have I communicated or had contact of any nature with [Dr. C], either verbally or in writing, regarding [claimant’s] claims or [claimant’s] examination performed by [Dr. C] in connection with this claim, or in any other matter… . I have never contacted [Dr. C].
The claimant’s contention that the carrier improperly contacted the designated doctor is without merit.
We next consider the claimant’s contention that the great weight of the other medical evidence is contrary to the report of the designated doctor that the claimant’s IR is two percent. We first address the claimant’s comments concerning his testimony. The claimant correctly points out that Texas Workers’ Compensation Commission Appeal No. 92167, decided June 11, 1992, states that a claimant’s testimony may establish that a claimant was injured in the course and scope of employment and that the claimant has disability. However, in the case before us, the issue is the claimant’s IR, not disability. A party does not need medical evidence to raise an issue, but Section 408.125(e) provides that the report of the Commission-selected designated doctor shall have presumptive weight and that the Commission shall base the claimant’s IR on that report unless the great weight of the other medical evidence is to the contrary. Texas Workers’ Compensation Commission Appeal No. 92392, decided September 21, 1992. The claimant testified that to his knowledge Dr. C did not test his strength. The report of Dr. C indicates that he did. Dr. R assigned a 10% impairment for loss of strength, but his report does not explain how this loss of strength was determined. The claimant’s testimony is not medical evidence and only raised an issue for the hearing officer to determine whether the great weight of the other medical evidence is contrary to the report of the designated doctor.
We next look to see if the great weight of the other medical evidence is contrary to the report of the designated doctor. At the hearing the claimant argued that for Dr. C to assign a two percent IR and to recommend referral to the TRC for retraining to a more sedentary and less physically demanding work position did not make sense. In Texas Workers’ Compensation Commission Appeal No. 94346, decided May 2, 1994, the Appeals Panel held that the great weight of the other medical evidence contrary to the designated doctor’s finding may include the content of the designated doctor’s report. The hearing officer could consider the two percent IR and Dr. C’s recommendation on retraining, but an IR is for “anatomic or functional abnormality or loss” (Section 401.011(23) and (24)) and not for the type of employment an injured worker should pursue. For example, the loss of a finger results in the same IR but may have a different impact on the future employment of an injured worker depending on the job of the injured worker at the time of the injury. The comment concerning retraining does not indicate that the designated doctor used anything other than anatomic or functional abnormality or loss in assigning the IR and by itself does not constitute the great weight of other medical evidence contrary to the report of the designated doctor.
The claimant also argues that his treating doctor performed surgery on him and saw him more often than did the designated doctor. In Texas Workers’ Compensation Commission Appeal No. 93825, decided October 15, 1993, we noted that even though the treating doctor will have seen the patient more times than the designated doctor, who generally will have examined the claimant only once, only the report of the designated doctor is accorded special, presumptive status. In Texas Workers’ Compensation Commission Appeal No. 93482, decided July 29, 1993, the Appeals Panel addressed the issue of the time spent with the designated doctor and held that the weight to be given medical evidence is not necessarily based on the quantity of evidence admitted or the time spent with a particular doctor.
The hearing officer is the sole judge of the relevance and materiality of the evidence and of its weight and credibility. Section 410.165. That person resolves conflicts and inconsistencies in the medical evidence and assesses the weight to be given to expert medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). After considering all of the evidence, the hearing officer determined that the report of Dr. C is entitled to presumptive weight and that the great weight of the other medical evidence is not contrary to the report of the designated doctor. Only were we to conclude, which we do not in this case, that the determinations of the hearing officer are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust would there be a sound basis to disturb those determinations. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Accordingly, we affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Gary L. Kilgore – Appeals Judge