This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 13, 1998. The single issue at the CCH was whether the Texas Workers’ Compensation Commission (Commission) abused its discretion in approving an alternate doctor. The hearing officer found that the Commission abused its discretion in approving an alternate doctor. The appellant (claimant) appeals, urging that the hearing officer erred in finding that the claimant was receiving medically appropriate treatment from her treating doctor or at his direction, that the treatment was appropriate to reach maximum medical improvement (MMI) at the time of the request to change doctors, that there was no conflict that existed between claimant and the treating doctor to the extent the doctor-patient relationship was jeopardized or impaired at the time of the request, and that the hearing officer erred in concluded the Commission abused its discretion. The respondent (carrier) urges that the decision is fully supported by the evidence, that the hearing officer correctly applied the law, and that the decision should be affirmed.
DECISION
Affirmed.
The evidence in this case is set out in detail in the Decision and Order of the hearing officer, is adopted for purposes of this review, and will only be briefly summarized here. The claimant sustained an injury to her knees on _____. She initially saw Dr. G, on February 4, 1997, and was diagnosed with bilateral infrapatellar tendinitis with probable prepatellar bursitis. Dr. G referred the claimant to an orthopedic surgeon, Dr. O, who became claimant’s treating doctor. Dr. O initially treated the claimant conservatively and subsequently recommended surgery, which was ultimately concurred in by a second opinion doctor.
Claimant obtained counsel on September 11, 1997, and, pursuant to counsel’s recommendation, the same day requested a change of treating doctors to a chiropractor, Dr. B. This request was denied by the Commission, the denial of which was upheld pursuant to agreement at a subsequent CCH in December 1997. The claimant acknowledged that at that CCH she stated she was happy with Dr. O at the time she requested the change and following the knee surgery (bilateral knee arthroscopic surgery) Dr O performed on November 11, 1997.
Dr. O released the claimant to her home and reexamined the claimant on November 21, 1997, indicating in his report that she was doing fine and could resume physical therapy, requested a physical therapy program, and took the claimant off work. He examined the claimant on February 2, 1998, and indicated that claimant did not exhibit bilateral knee effusions and had adequate patellar tracking with no other abnormalities seen. He recommended continued bilateral knee exercises and referred the claimant to Dr. G for a work hardening and therapy program with anticipation of return to work.
Dr. G examined the claimant and opined that she was not in distress, that she was walking normally without antalgic gait, and that physical examination of the knees, including musculoskeletal, neurologic, and vascular systems, was essentially normal. He opined that she was cleared to resume normal duties and issued a report indicating that claimant reached MMI on February 2, 1998, with a zero percent impairment rating (IR). A Commission-appointed designated doctor subsequently issued a report certifying MMI as of March 14, 1998, with an 11% IR.
The claimant saw by Dr. G twice in April 1998 and Dr. G reported that claimant’s knees showed no gross deformity; that he was able to fully palpate all bony structures and soft tissue without any evidence of discomfort when the claimant was distracted; that the claimant had full range of motion, equal and normal motor strength when squatting and standing; and that the claimant had no pain, instability, or discomfort in the knees when distracted. He noted the claimant wanted knee braces as mentioned by the designated doctor. He felt he had nothing further to offer the claimant at that time. On April 20, 1998, claimant again requested a change of doctors from Dr. O to Dr. B, stating she had treated with Dr. O, that her knee continued to hurt, that she did not respond to his treatment, and that she needed a doctor who would listen to her concerns and help her lessen the pain of her injury. The request was approved and the carrier requested a benefit review conference where the recommendation was that the Commission abused its discretion in approving the change and the case was set for the current CCH.
The claimant returned to Dr. G on April 27, 1998, and was reexamined. Dr. G stated that the musculoskeletal and neurologic examination of the claimant’s knees was essentially normal. He gave the claimant a prescription for bilateral knee braces and stated the claimant could work, but should avoid prolonged kneeling or repetitive squatting. Claimant stated she did not agree with Dr. G, as he had certified a zero percent IR and had released her to work. Claimant has seen a doctor she was referred to by Dr. B. She stated an MRI had been done and, although it was reported as normal by the hospital, that the doctor did not agree.
Section 408.022(c) sets forth criteria that may be considered in approving a change to an alternate doctor including: “(1) whether treatment by the current doctor is medically inappropriate; (2) the professional reputation of the doctor; (3) whether the employee is receiving appropriate medical care to reach [MMI]; and (4) whether a conflict exists between the employee and the doctor to the extent that the doctor-patient relationship is jeopardized or impaired.” A change of doctor may not be made to secure a new IR or medical report. From the evidence before him, the hearing officer found that none of the criteria set out in Section 408.022(c) was established and concluded that the Commission abused it’s discretion in approving a change to Dr. B. Specifically, the hearing officer found that, at the time of the request, the claimant was receiving medically appropriate treatment from Dr. O or, at his direction, from Dr. G; that the treatment was toward reaching MMI; and that there was no conflict that existed between claimant and Dr. O. It is apparent that the hearing officer did not find the evidence to support a valid reason for a change of doctor and that the Commission exceeded its discretionary authority in approving the change. The carrier cites Texas Workers’ Compensation Commission Appeal No. 970568, decided May 13, 1997, where the Appeals Panel indicates that a hearing officer applies an abuse of discretion standard in reviewing approvals and disapprovals of requests to change doctor and that such a decision should be based upon the reasons given at the time of the request. While the reasons given at the time of the request are the basis for judging abuse of discretion, this does not mean that the hearing officer is hampered or prevented from taking and considering evidence concerning whether the statutory and regulatory provisions have been followed and whether there is a factual basis for the reasons given. In Appeal 970568 in reversing a hearing officer’s determination that the Commission abused its discretion in approving a change of doctor where one of the reasons given was a conflict that would jeopardize a meaningful doctor/patient relationship, the Appeals Panel found of significance an unappealed finding of fact, supported by the evidence, that the claimant’s request was based on such conflict.
The Appeals Panel upheld the hearing officer’s determination that the Commission exceeded its discretionary authority in approving a change of doctor in Texas Workers’ Compensation Commission Appeal No. 972480, decided January 16, 1998, where the hearing officer’s decision made clear that he did not believe, based on the evidence before him, that a valid reason for change was shown; rather, it was based on not wanting to return to work. In the case under review, the hearing officer sets forth in his Statement of Evidence the fact that claimant did not agree with Dr. G because of his IR and that he had released her to work with restrictions. Similarly, in Texas Workers’ Compensation Commission Appeal No. 961187, decided July 31, 1996, where the Commission had approved a change of doctor, the Appeals Panel upheld the hearing officer’s determination that the claimant was not entitled to a subsequent change of doctor as it was, at least, partially based on an improper reason-to obtain a new medical report because of a release to work. The Appeals Panel stated that although one of the reasons listed for the requested change was that the claimant did not feel she was getting the care she needed, it was for the hearing officer to determine, from the evidence before him, the reason or reasons for the request to change doctor. The Appeals Panel did not find the hearing officer abused his discretion and affirmed.
It is clear that the hearing officer considered the statutory and regulatory provisions regarding a request of change of doctor and determined from the evidence before him that claimant was receiving appropriate treatment, that it was directed toward reaching MMI, and that there was no conflict between claimant and her treating doctor, Dr. O. From the evidence, he inferentially did not find a valid reason for a change of doctor and thus properly concluded that the Commission abused its discretion in approving the change to Dr. B. Under the circumstances presented, we do not find that it has been shown the hearing officer abused his discretion in determining the Commission exceeded its discretionary authority in approving the change of doctor and we further conclude that his determination is supported by the evidence.
Accordingly, the decision and order are affirmed.
Stark O. Sanders, Jr. – Chief Appeals Judge
CONCUR:
Alan C. Ernst – Appeals Judge
Christopher L. Rhodes – Appeals Judge