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 (CCH) was held in_____, Texas, on December 6, 1995, with ________presiding as hearing officer. The only issue at the CCH was the appellant’s (claimant) impairment rating (IR). The hearing officer determined that the claimant’s IR is two percent as assigned by Dr. W (Dr. W), the Texas Workers’ Compensation Commission (Commission)-selected designated doctor. The claimant requested review stating that the hearing officer erred in not granting her a continuance and that the two percent IR of Dr. W should not have been accepted. The respondent (carrier) replied urging that the hearing officer did not err in denying the claimant’s motion for a continuance and that the great weight of the other medical evidence is not contrary to the report of the designated doctor and requesting that the Appeals Panel affirm the decision of the hearing officer.
DECISION
We reform the Decision and Order of the hearing officer, and affirm the Decision and Order as reformed.
We first address the question of whether the hearing officer erred in denying the claimant’s request for a continuance. We find that he did not. The claimant had been represented by an attorney, Mr. S (Mr. S), in her workers’ compensation claim and in another cause of action that arose out of the automobile accident in which she was injured. In a letter to the Commission dated November 19, 1995, Mr. S advised that he was no longer representing the claimant in the claim. A copy was sent to the claimant, and the Commission received its copy of the letter on November 20, 1995. On November 20, 1995, Mr. S wrote to the claimant advising her that he did not think that the Commission would deviate from the designated doctor’s IR without some evidence that the doctor incorrectly evaluated her; that he, Mr. S, had spoken with Dr. G (Dr. G), her treating doctor; that Dr. G stated that she has some nerve damage that the designated doctor did not take into consideration; that Dr. G’s testimony would be necessary to prove that; that Dr. G charges $500.00 an hour to be on telephone standby; that she could spend $4,000.00 to $5,000.00 per day for Dr. G’s testimony; that she could possibly recover $6,825.00; but that she would have to pay Dr. G if she recovered or not. The claimant met with the ombudsman after Mr. S was no longer representing her on the claim and prior to the CCH. At the CCH the claimant made a motion for a continuance. In response to questions from the hearing officer, the claimant said that she received the letters from the attorney a few days after they were mailed, that both doctors were aware of the nerve conduction studies, and that she did not have any medical evidence other than the reports of Dr. G and Dr. W. The hearing officer made unnecessary comments including some about his docket, stated that he was not really focusing on his docket, stated that the motion for the continuance was not timely made, and denied the motion. The hearing officer’s comments are focal points of the claimant’s appeal. In its response to the claimant’s request for review, the carrier stated that heated exchanges on the motion for the continuance occurred, but that the hearing officer did not commit error.
The claimant moved for a continuance and had the burden of proving good cause for a continuance. Texas Workers’ Compensation Commission Appeal No. 94454, decided June 1, 1994. The test for good cause is ordinary prudence. Texas Workers’ Compensation Commission Appeal No. 951252, decided September 13, 1995. The decision of the hearing officer to grant or deny a motion for a continuance will be overturned only if the hearing officer abused his discretion in ruling on the motion. Texas Workers’ Compensation Commission Appeal No. 950840, decided July 7, 1995. While the hearing officer could have been more judicious in making his remarks, we do not find that the hearing officer abused his discretion in denying the motion for the continuance.
We next address the issue of the claimant’s IR. The claimant testified that she is still being treated by Dr. G, that she still takes medication, still receives injections and that still has problems that she did not have prior to the accident. Dr. W initially assigned a one percent IR and in a Report of Medical Evaluation (TWCC-69) dated May 2, 1995, assigned a two percent IR. In a narrative attached to the TWCC-69, Dr. W reported that the claimant continues to complain of constant headaches, constant lower back pain, and constant pain over the lateral aspect of her neck and described the treatment of Dr. G. Dr. W stated that he did not assign an impairment for a specific disorder to the lumbar or cervical spine under Table 49 of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides); that the range of motion tests for the cervical spine were invalidated and no impairment was assigned; that the straight leg tests invalidated the lumbar flexion and extension tests and no impairment was assigned for those tests; that one percent was assigned for both lumbar right and left flexion tests for a two percent impairment; and that she was neurologically intact and that there was no impairment for neurological deficit for either lower or upper extremities. In a TWCC-69 dated August 15, 1994, Dr. G assigned a 10% IR. In a one-page narrative Dr. G reported that he assigned five percent for loss of strength, pain, and discomfort from Table V on page 105 of the AMA Guides and five percent for sacroiliac joint arthropathy and that he used the combined values chart of the AMA Guides to assign the 10% IR.
There was clearly a dispute over the claimant’s IR. The 1989 Act sets forth a mechanism to help resolve conflicts concerning IR by according presumptive weight to the report of a doctor referred to as the designated doctor. Texas Workers’ Compensation Commission Appeal No. 92495, decided October 28, 1992. If the Commission selects the designated doctor as was done in this case, the Commission shall base its determination of the claimant’s IR on the report of the designated doctor unless the great weight of the other medical evidence is to the contrary. Section 408.125(e). We have held that it is not just equally balancing the evidence or a preponderance of the evidence that can overcome the presumptive weight given to the report of the designated doctor. Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992. No other doctor’s report is accorded the special presumptive status given to the report of the designated doctor. Texas Workers’ Compensation Commission Appeal No. 92366 decided September 10, 1992. The hearing officer resolves conflicts in expert evidence and assesses the weight to be given to expert evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). The claimant was concerned that her nerve damage was not evaluated, the claimant could have offered into evidence reports of health care providers, the record does not contain medical reports concerning nerve tests, but Dr. W reported that the claimant “remained neurologically intact in both her lower and upper extremities.” The hearing officer determined that the report of the designated doctor 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 his determinations. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
In Findings of Fact Nos. 1, 2, and 3 the hearing officer found that on ____________, the claimant was employed by the employer, the employer had workers’ compensation insurance with the carrier, and the claimant lived within 75 miles of the _____ field office. Stipulations of fact reveal that the date should be ____________, and we reform those findings of fact to state __________.
We find that the hearing officer did not abuse his discretion in denying the motion for a continuance and that the evidence is sufficient to support the determination of the hearing officer that the claimant’s IR is two percent. Accordingly, we affirm the Decision and Order of the hearing officer as reformed.
Tommy W. Lueders – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Gary L. Kilgore – Appeals Judge