This case returns following our remand in Texas Workers’ Compensation Commission Appeal No. 980894, decided June 17, 1998. No hearing was held on remand. The hearing officer forwarded our decision to Dr. HR and asked that he recalculate the appellant’s (claimant) impairment rating (IR) in accordance with the instructions in the remand decision. After receiving an amended Report of Medical Evaluation (TWCC-69) and an accompanying letter from Dr. HR and a response from the claimant to Dr. HR’s amended report, the hearing officer determined that the claimant’s IR is 14%, in accordance with Dr. HR’s amended TWCC-69. The hearing officer also determined that the claimant is not entitled to supplemental income benefits (SIBS) for the first quarter because he does not meet the threshold requirement of having an IR of at least 15%. In his appeal, the claimant argues that “the Great Weight of Evidence is contrary to the hearing officer’s decision.” In addition, the claimant essentially asks that we reconsider our determination that the upper extremity chapter of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) require rounding when range of motion (ROM) testing of the shoulder is performed. The respondent (carrier) urges affirmance.
DECISION
Affirmed.
A factual recitation is contained in our remand decision and will not be repeated herein, except as necessary to put this decision in context. The claimant sustained a compensable injury on _____, when in the course and scope of his employment as a route driver for a wholesale supply company, an ice cream machine that he was moving fell on him, hitting his shoulders and back. We remanded this case because the designated doctor assigned fractional ratings for abduction and external rotation in assessing the claimant’s IR for loss of ROM in his left shoulder and in assigning the claimant’s cervical right rotation ROM impairment. In Section 3.1g of Chapter 3 of the AMA Guides, which concerns shoulder IRs, specific instructions are given to evaluators that when they perform ROM testing of the shoulder, they are to measure the maximum angle and “[r]ound the figures to the nearest 10.” Initially, Dr. HR did not round his figures to the nearest 10 but assigned fractional ratings, namely a 1.5% rating for abduction and .5% for external rotation. Thus, we remanded the case for the hearing officer to ask Dr. HR to recalculate the claimant’s left upper extremity abduction and external rotation ratings based upon the rounding instructions contained in Section 3.1g of the AMA Guides. In addition, Dr. HR was asked to assign a whole number rating for the cervical right rotation rating. In Appeal No. 980894, supra, we noted that in Sections 3.3c, 3.3d, and 3.3e of the AMA Guides, which concern impairment for loss of ROM in the three spinal regions, the evaluator is not instructed to round. Rather, the ROM charts for the spine speak in terms of lost and retained motion at a given angle and assign an IR based thereon. Therefore, we determined that the spine ROM charts did not provide for rounding up, which would result in the assignment of a lower IR. Instead, we stated that when a designated doctor determines that a claimant has ROM impairment in the spine, resulting from the compensable injury, the designated doctor is not permitted to assign the IR that corresponds to a given angle, unless the patient is able to obtain that degree measurement in ROM testing because the patient has lost a larger degree of motion than that which corresponds to that rating. That is, under Table 53, unless the patient reaches 80 when his cervical right rotation ROM is measured, he has cervical motion loss and a zero IR cannot properly be assigned because it would not accurately reflect that impairment. However, by giving rounding instructions in instances where the patient’s measured angle does not correspond to a discrete point on the shoulder ROM charts, Section 3.1g of the AMA Guides appears to contemplate and require that a lower IR be assigned in cases where the evaluator rounds up to the nearest 10.
In his response to the hearing officer’s letter, Dr. HR rounded the claimant’s left shoulder 146 measured abduction angle to 150 and assigned a 1% rating for that element, as opposed to the 1.5 % rating he had previously assigned. In addition, Dr. HR rounded the claimant’s left shoulder 65 measured external rotation angle to 70 and assigned a zero percent rating, as opposed to the .5% rating he initially assigned. In addition, Dr. HR changed the claimant’s cervical right rotation rating from .5% to 1%. Taking into consideration those changes, Dr. HR certified an amended rating of 14%.
Although Dr. HR amended his rating, he stated that he did not believe it was appropriate to do so. Specifically, Dr. HR stated, in relevant part:
The issue of rounding versus interpolation is a common disagreement. Given the general sense that an impairment rating is an attempt to objectify as accurately as possible the deficits which an injured worker has, objectivity and specificity are considered important. For this reason, many if not most physicians working within the Workers’ Compensation system utilize an interpolation method to better define the degree of impairment for any range of motion, whether this be spine or extremity.
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As is easily seen, if a patient has several ranges of motion within one functional unit which are clearly at a midpoint between extremes, than interpolation provides a more valuable assessment of the entirety of that person’s deficit. If for instance, the patient has cervical right and left rotation measurements of 70 degrees each, would one provide an impairment rating of zero percent, 0.5 percent, or 1 percent impairment for each of these? Without question, the most mathematically accurate assessment here would be 0.5 percent impairment for each . . . .
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Although I do not want to “add fuel to this fire,” in order to clarify my position, I must state that I believe interpolation is still the most accurate method for the reasons described above in mathematically assessing impairment ratings. I would be happy to change this approach, if mandates were made within the TWCC [Texas Workers’ Compensation Commission] system, such as with a “guide to the Guides”, which has been requested by me and many physicians around the state.
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As we all know, these are difficult decisions and there are very few right and wrong answers, yet many opinions. All of us in the medical field who deal with such complicated cases on a regular basis would greatly appreciate further guidance from the TWCC system regarding ways of approaching these difficult assessments.
Initially, we note that we do not necessarily take issue with Dr. HR’s assertion that the method of interpolation he describes could arguably provide a more complete assessment of an injured worker’s impairment. However, in the face of explicit instructions to round, Section 3.1g, by its plain language, does not provide for interpolation. That is, given the rounding requirement, there is no authority for interpolation in the shoulder ROM section and Dr. HR does not point to any language in the AMA Guides authorizing the evaluator to interpolate. Section 408.124(b) mandates use of the AMA Guides for determining the existence and degree of the injured worker’s impairment. As such, we are required to follow the AMA Guides and to insist that they be followed by a designated doctor in determining an IR. We are without the authority to give unambiguous language in the AMA Guides a meaning other than its plain meaning. Dr. HR recommends that the Texas Workers’ Compensation Commission (Commission) provide more formal system-wide guidance on the issue of rounding versus interpolation, as well as, other troublesome issues. We agree that a formal policy statement from the Commission addressing this and other issues would be preferable to ad hoc resolution of these issues in the dispute resolution process. Indeed, in creating a Medical Advisory Committee in Section 413.005, it appears that the legislature contemplated that medical professionals would advise the Medical Review Division of the Commission in developing medical policies. Policies for interpreting the AMA Guides seem to logically fall within the types of medical policies where input from the Medical Advisory Committee and formal action by the Commission would be beneficial. However, in the absence of Commission guidance, where, as in this case, an issue is squarely presented, we are required to decide the question, no matter how preferable it might have been for the issue to be resolved in another forum.
In his appeal, the claimant argues that in the same way that it is inappropriate to assign a zero percent IR under Table 53 of the AMA Guides for cervical right rotation unless the claimant’s measured angle of motion is 80, it is inappropriate to assign a zero percent IR for external rotation under Figure 46, unless the claimant’s measured angle of motion is 70. As we stated above, the difference in the language used in Section 3.1g and Sections 3.3c, 3.3d, and 3.3e appears to dictate the difference in results.
For the reasons stated above, we affirm the hearing officer’s determination that the claimant’s IR is 14% as certified by Dr. HR following the remand. Given our affirmance of the determination that the claimant’s IR is 14%, we likewise affirm the determination that the claimant is not entitled to SIBS for the first quarter because he does not satisfy the threshold requirement of having an IR of at least 15%.
The hearing officer’s decision and order are affirmed.
Elaine M. Chaney – Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Christopher L. Rhodes – Appeals Judge