This appeal arises under the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On November 26, 1997, a contested case hearing (CCH) was held. With respect to the only issue before her, the hearing officer determined that respondent (claimant) had a 23% impairment rating (IR) as Aassigned by the designated doctor. (Actually, the designated doctor had assessed an 11% IR after factoring out 11% range of motion (ROM) due to claimant’s Anatural body habitus.)
Appellant (carrier) appealed, contending that the designated doctor had assessed an 11% IR after invalidating ROM due to the claimant’s Anatural body habitus. Carrier requests that we reverse the hearing officer’s decision and render a decision that claimant has an 11% IR. Claimant responds, contending that the designated doctor impermissibly Aapportioned his 22% IR due to a preexisting condition, the natural body habitus. Claimant urges affirmance.
DECISION
Reversed and remanded.
The parties stipulated that claimant sustained a compensable (back) injury on __________, and reached maximum medical improvement (MMI) on February 28, 1997. The medical evidence recites how the claimant injured his back attempting to prevent a sheet of plywood from falling off a scaffold. Claimant was diagnosed with having lumbar facet syndrome, thoracic sprain/strain and cervical myofascitis (or cerviocranial syndrome, depending on the report) according to Dr. A, D.C., claimant’s treating doctor. Claimant underwent a course of conservative treatment.
Dr. A, in a Report of Medical Evaluation (TWCC-69) and narrative, both dated February 28, 1997, certified MMI and assessed a 15% IR based on a five percent lumbar impairment from Table 49, Section II B of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides), two percent thoracic impairment from Section II B of Table 49 and four percent cervical impairment from Section II B of Table 49. Dr. A also assessed a four percent impairment for Amotion deficiency (loss of ROM). It is interesting to note that Dr. A, in essence, apportioned the ROM when he stated:
Clinical assessment of this pt. indicates a better [ROM] than is indicated by the computerized testing apparatus. Therefore, I have discounted the impairment relating to the loss of [ROM] by 16% of that assigned by the computer. As a result the [IR] due to loss of [ROM] is 4%.
Carrier contested the 15% IR and Dr. B, D.C., was appointed as the designated doctor.
Dr. B, in a TWCC-69 and narrative, both dated July 21, 1997, assessed an 11% IR. Dr. B stated that he had followed the AMA Guides and explained his assessment thusly:
According to Table 49, category IIB, the patient is assigned with 4% for the cervical area, 2% for the thoracic area, and 5% for the lumbar area. As for the ROM study, it cannot be reliable. I think that the patient’s natural body habitus may contribute significantly to his restriction in mobility. I believe that this was noted by [Dr. A] as well. Examination and medical records did not show any evidence of motor or sensory loss. Thus, no impairment can be given. The patient [sic] impairment whole person is reduced to 11%.
The Texas Workers’ Compensation Commission (Commission), by letter dated August 11, 1997, asked for clarification regarding why claimant’s ROM study was not Areliable. Dr. B replied by letter of August 27, 1997:
[T]he ROM study was excluded and considered unreliable. This was due to the patient’s natural body habitus. The natural body habitus include obesity, body’s elasticity, structural anatomy, and prior deficit from previous injury. For example, an obese person may have less ROM than a thin person; a person with natural body tightness will have reduced ROM comparing to the norm. It is in my opinion that [claimant’s] body habitus affect the outcome of the ROM study. In addition, one must remember (from the Guide, page 2) that an impairment means Aan aleration of an individual=s health status that is assessed by medical means. [Claimant’s] ROM may not have been altered since he may have limited ROM in the first place. His treating doctor also concurs to this view. Due to this reason, the ROM of [claimant] is unreliable in predicting deficits from the injury he sustained. If the ROM is counted, this patient has 22% impairment. Most physicians would agree that this patient does not have 22% impairment. [Emphasis in the original.]
The hearing officer, in the Statement of the Evidence, citing Texas Workers’ Compensation Commission Appeal No. 94618, decided June 22, 1994, held that Dr. B Ashould not have apportioned Claimant’s ROM impairment between the compensable injury and a pre-existing condition, recalculated Dr. B’s ROM measurements of the cervical ROM, coming up with a mathematically correct 10% impairment (rather than Dr. B’s nine percent) cervical ROM and using the Combined Values table, finding a 23% whole body IR.
Carrier argues, and cites cases, that a doctor, based on his medical judgment and clinical experience, may Ainvalidate [ROM] testing. Carrier cites cases involving suboptimal effort, exaggerated pain response and symptom magnification. Carrier points out that impairment means a functional abnormality resulting from the compensable injury, that the impairment must Areasonably presumed to be permanent and that the designated doctor’s 11% IR is entitled to presumptive weight. Claimant’s response is that Dr. B (and Dr. A for that matter) Aimproperly apportioned out eleven percent of his assigned [IR] based on a pre-existing condition, the Claimant’s . . . natural body habitus. Habitus is defined in Dorland’s Medical Dictionary, 27th Edition, as posture or position of the body and A[p]hysique; body build and constitution.
Impairment is defined in Section 401.011(23) as any anatomical or functional abnormality or loss Athat results from a compensable injury and is reasonably presumed to be permanent. Carrier contends that the designated doctor may properly disregard ROM testing, citing cases where the Appeals Panel has approved invalidating ROM testing where it is the result of Avolitional manipulation . . . suboptimal effort, exaggerated pain response, or symptom magnification. We do not retreat from those decisions but note that all those cases involved the employee’s less than honest cooperation in the testing. That is not the case here. Neither Dr. B nor the Waddell testing indicate that claimant is giving anything other than his best honest cooperation in testing. Dr. B, and for that matter Dr. A, attribute all, or most, of the loss of ROM to claimant’s natural physique and body structure. We note that the AMA Guides do not appear to provide for consideration of a patient’s Anatural body habitus in assessing ROM. It is unclear from the reports what about the claimant’s Anatural body habitus has such a significant impact upon his ROM testing. Exactly what that debilitating physique or body structural anatomy is, is not clear from the reports. We would further note that in some areas of the AMA Guides (Chapters 12, 13 and 14 as an example), a doctor is given discretion, within a range to assign an IR; however, in ratings of the spine the AMA Guides are fairly detailed and specific as to how the impairment is to be calculated. Rather clearly, Dr. A apportioned the loss of ROM and gave a four percent impairment based solely on his medical judgment and, as such, that IR is invalid. Exactly what Dr. B is doing and why is not as clear. Dr. B measured the ROM and, based solely on those measurements, claimant had an 11% (or 12%) impairment for cervical, thoracic and lumbar ROM. Dr. B then said that rating was not reliable based on some aspect of claimant’s physical structure without specifying what exactly in the claimant’s body habitus restricted his ROM, but referring generally Abody habitus which he generally defined as Aobesity, body’s elasticity, structural anatomy, and prior deficit from previous injury. (This is no evidence claimant had any prior injury.)
Both Dr. A and Dr. B have stated that the claimant has a loss of ROM. The question is whether the claimant’s loss of ROM is from the compensable injury. Dr. B did not include ROM in his IR. The hearing officer should seek clarification from him so that a determination can be made as to whether his decision not to include ROM was made in compliance with the AMA Guides. In seeking clarification, the hearing officer should provide Dr. B with the statutory definition of impairment and ask him to state whether the acknowledged loss of ROM results from the compensable injury. In addition, if Dr. B determines that the loss of ROM is not the result of the compensable injury, he should be asked to explain why it is not. That explanation must be specific to the claimant and not simply speak in terms of Anatural body habitus.
Upon receipt of Dr. B’s clarification the parties should be allowed an opportunity to comment and present argument on the report before the hearing officer issues a new decision. The hearing officer should then consider all of the information from Dr. B and the response of the parties in determining whether Dr. B’s report is entitled to presumptive weight and determine the claimant’s IR.
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 Commission’s Division of Hearings, pursuant to Section 410.202. See Texas Workers’ Compensation Commission Appeal No. 92642, decided January 20, 1993.
Thomas A. Knapp – Appeals Judge
CONCUR:
Tommy W. Lueders – Appeals Judge
Elaine M. Chaney – Appeals Judge