This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On December 4, 1995, a hearing was held in_______, Texas, with ____________presiding. He determined that the first assignment of impairment rating (IR) under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 103.5(e)) did not become final because it was invalid and also because respondent (claimant) did not receive notice of it until 1995, after which the IR was timely contested. Maximum medical improvement (MMI) was found to have been reached statutorily on December 17, 1993, for claimant’s _________, injury. An IR of 13%, as found by claimant’s treating doctor, was found to be accurate. Appellant (carrier) asserts that the hearing officer erred in finding that the first assignment of IR (zero percent) did not become final. Claimant replies that the decision should be affirmed. Neither claimant nor carrier appealed the decision to use the IR of the treating doctor, rather than appoint a designated doctor, when the initial IR did not become final.
DECISION
We affirm.
Claimant injured his back in ___________while carrying water for Texas Instruments Inc. (employer). After seeing at least one other doctor, claimant saw Dr. H (Dr. H) twice. Someone prepared a Report of Medical Evaluation (TWCC-69), typed in Dr. H’s name, checked “yes” as to MMI, and entered a date of 7-27-92, and an IR of zero on this form. There is no signature anywhere on the form that could be considered to raise an issue of certification of MMI and IR by Dr. H.
Carrier cites Texas Workers’ Compensation Commission Appeal No. 94671, decided July 18, 1994, as providing that any flaw in the TWCC-69 should be considered when a complaining party has disputed the IR within the 90 days provided by Rule 130.5(e); lack of a signature of the doctor providing the report was argued to be a “flaw.” Texas Workers’ Compensation Commission Appeal No. 92165, decided June 5, 1992, stated that the absence of a doctor’s signature rendered the form insufficient to show certification of MMI. Texas Workers’ Compensation Commission Appeal No. 93691, decided September 15, 1993, specifically held that Rule 130.5(e) requires a certification of MMI and assignment of an IR before the 90-day period begins to run. More recently, Texas Workers’ Compensation Commission Appeal No. 941619, decided January 20, 1995, looked to see whether a TWCC-69 appeared on its face to be valid in determining whether the 90-day period for dispute applied. (Generally, without being exhaustive, the TWCC-69 will not appear valid on its face if no doctor has certified by signing or if the date of MMI appears to be conditional.) Texas Workers’ Compensation Commission Appeal No. 950180, decided March 21, 1995, then discussed MMI as a significant milestone in the administration of the 1989 Act and found that an agreement between carrier and claimant did not use a date of MMI certified by any doctor and therefore was not valid. While carrier cites Appeal No. 94671, supra, that opinion cites Texas Workers’ Compensation Commission Appeal No. 931170, decided February 3, 1994, which considered the use of a version of the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association other than that called for by the 1989 Act; that opinion did use the word “flaw” in regard to that version of the Guides but did not so describe either an unsigned TWCC-69 or a conditional certification of MMI.
The determination of the date a party received a copy of the initial IR and whether a timely dispute resulted is a question of fact for the hearing officer to decide. See Appeal No 94671, supra.
The evidence sufficiently supports the hearing officer’s findings of fact that the first IR was not valid because not signed, so it could not become final. The evidence also sufficiently supports the determination that claimant timely disputed the first IR after receiving written notice of it.
Finding that the decision and order of the hearing officer are sufficiently supported by the evidence, we affirm. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
Joe Sebesta – Appeals Judge
CONCUR:
Gary L. Kilgore – Appeals Judge
Alan C. Ernst – Appeals Judge