On November 7, 1997, a contested case hearing (CCH) was held with _________, hearing officer. The CCH was held under the provisions of the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). The issues at the CCH were: (1) who is the proper designated doctor; and (2) what is the impairment rating (IR). The hearing officer decided that (Dr. M) is the proper designated doctor and that the appellant’s (claimant) IR is 20%. The claimant requests that we reverse the hearing officer’s decision that he has a 20% IR, and that we have the designated doctor address various body parts. The respondent (carrier) responds that the hearing officer’s decision is supported by the evidence and requests affirmance. There is no appeal of the hearing officer’s decision that Dr. M is the proper designated doctor.
DECISION
Affirmed.
The claimant testified that on ________, he fell backwards while on a truck ladder opening the dome of a tanker truck; that his right leg became entrapped in the ladder; that he reached out with his right arm to grab a hose rack to keep from falling; that he ended up hanging upside down with his right leg caught in the ladder; that he felt a jerk in his right leg, hip, and back; and that he fractured his right leg. The parties stipulated that the claimant sustained a compensable injury on ________, and that he reached statutory maximum medical improvement (MMI) on October 13, 1993.
On ________, the claimant had surgery for a fracture of the right tibia and fibula with plate and screw fixation, and in November 1992 the plate and screw were removed. The claimant had four surgeries on his right ankle and foot for tarsal tunnel syndrome. The tarsal tunnel surgeries occurred in 1992, 1994, and 1996. The claimant had four arthroscopic surgeries on his right knee, including surgery for a torn meniscus. The right knee surgeries occurred in 1991, 1992, 1993, and 1994. The claimant had right shoulder surgery in 1995 for impingement syndrome. The claimant had two right elbow ulnar nerve surgeries in 1996. The claimant had right wrist carpal tunnel surgery in 1996.
In February 1993 (Dr. J), who examined the claimant at the carrier’s request, reported that the claimant reached MMI on February 8, 1993, with a 12% IR for impairment of the right lower extremity. (Dr. A), who treated the claimant, reported that an EMG done in August 1994 showed right S1 radiculopathy. A radiologist reported that an MRI of the claimant’s lumbar spine done in December 1994 showed degenerative desiccation of the L5-S1 disc with a partial posterior annual tear. The radiologist noted that the partial annular tear at L5-S1 had a contained bulge that did not impinge on the thecal sac or the spinal nerves. In June 1996 (Dr. W) reported that a repeat EMG study failed to reveal any irritability of the lower extremity muscles, which, he said, indicated that continued lumbar radiculopathy was unlikely.
It is undisputed that the Texas Workers’ Compensation Commission (Commission) initially chose (Dr. P) as the designated doctor. Dr. P examined the claimant on August 5, 1996, and reported that the claimant had reached statutory MMI with a 16% IR. Dr. P noted that a lumbar discogram did not show pain provocation at L5-S1, that the claimant’s lumbar flexion and extension range of motion (ROM) study was invalid, and that the claimant had no impairment for lateral lumbar ROM. Dr. P did not assign the claimant any impairment for lumbar spine impairment. Dr. P assigned the claimant 13% impairment for the right lower extremity and four percent impairment for the right upper extremity. However, he noted that it had only been four months since the claimant had had right elbow ulnar nerve surgery, that it was too early to assess the degree of recovery for that surgery, and that the claimant should be reevaluated at a later date for right ulnar nerve functional loss.
A radiologist reported that x-rays of the claimant’s right hip done in October 1996 showed joint space narrowing with no acute osseous injury. A physical therapist reported in October 1996 that the results of a functional capacity evaluation done in September 1996 indicated that the claimant is classified at the medium-heavy physical demand level. Dr. P wrote on November 19, 1996, that the Commission had sent the claimant back to him on November 15, 1996, for further assessment of impairment of the right upper extremity following the ulnar nerve surgery, that the claimant was belligerent and threatening to his office staff, that the claimant was asked to leave his office, and that he could not make an accurate assessment of the claimant under the threat of physical harm. He suggested that the Commission make other arrangements for assessment of the claimant’s impairment.
It is undisputed that the Commission chose Dr. M as the second designated doctor in this case. Dr. M examined the claimant on January 21, 1997, and reported on January 29, 1997, that the claimant had reached MMI with a 20% IR. Dr. M’s narrative report reflects that he performed a physical examination of the claimant and that he reviewed the claimant’s medical history, reports of diagnostic testing, and reports of operations. The claimant contends that Dr. M did not address his back, right shoulder, right elbow, right hand or hip in determining the IR. However, Dr. M’s report reflects that he did consider those areas. The report of physical examination indicates that Dr. M examined the claimant’s back, right shoulder, right elbow, right wrist, and right lower extremity. His report also shows that he reviewed reports of diagnostic testing of the claimant’s right ankle and foot, right knee, lumbar spine, right shoulder, and right hip; that he was aware of the diagnostic testing of the claimant’s right elbow; and that he was aware of the claimant’s multiple surgeries which he listed in his report. Dr. M assigned no impairment for a specific disorder of the lumbar spine, determined that the lumbar flexion and extension ROM study was invalid, and determined that the claimant had no impairment for loss of lateral lumbar ROM. He also determined that the claimant had no impairment for a specific disorder of the right shoulder. Dr. M assigned the claimant impairment for loss of ROM of the right shoulder, right elbow, and right wrist; for loss of ROM of the right ankle and right hip; and for loss of sensation and pain in the tibial nerve, ulnar nerve, and median nerve. Dr. M assigned the claimant impairment of three percent for loss of ROM of the right upper extremity, two percent for loss of ROM of the right lower extremity, 13% for sensory impairment, and four percent for a specific disorder of the right knee.
(Dr. H), who has treated the claimant since January 1996, reported on May 27, 1997, that the claimant has a 45% IR, consisting of impairment of 21% for the lumbar spine and right lower extremity, which included seven percent for a specific disorder of the lumbar spine, and 25% for the right upper extremity. Dr. H testified that Dr. M did not consider the claimant’s entire injury in assigning the claimant a 20% IR. Dr. M wrote in July 1997 that he had considered Dr. H’s report and that he felt that his own assessment of the claimant’s IR was complete and accurate and that the claimant’s IR remained at 20%.
There is no appeal of the hearing officer’s decision that Dr. M is the proper designated doctor. The claimant appeals the hearing officer’s decision that he has a 20% IR. The hearing officer found that the 20% IR assigned to the claimant by Dr. M is not contrary to the great weight of the medical evidence and she concluded that the claimant’s IR is 20%. Section 408.125(e) provides that if the designated doctor is chosen by the Commission, the report of the designated doctor shall have presumptive weight, and the Commission shall base the IR on that report unless the great weight of the other medical evidence is to the contrary. The hearing officer is the judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact the hearing officer resolves conflicts in the evidence, including conflicts in the medical evidence, and determines what facts have been established from the evidence presented. We conclude that the hearing officer’s decision that the claimant has a 20% IR as reported by Dr. M is supported by sufficient evidence and that it is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).
The hearing officer’s decision and order are affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Tommy W. Lueders – Appeals Judge