Following a contested case hearing (CCH) held on August 10, 1998, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), the hearing officer, resolved the disputed issues by concluding that the respondent’s (claimant) impairment rating (IR) is 37% (based on the twice amended report of the designated doctor) and that claimant is entitled to supplemental income benefits (SIBS) for the first compensable quarter. The appellant (carrier) has appealed these conclusions and several factual findings, contending they are against the great weight of the evidence. The carrier further contends that because claimant waived any right to dispute the designated doctor’s initial 10% IR and because no substantial change in her condition was shown, her IR is 10% and she is thus not entitled to SIBS. Claimant has responded, asserting that the challenged findings and conclusions are sufficiently supported by the evidence and pointing out that following the designated doctor’s initial IR of 10%, which followed a lumbar laminectomy, she underwent lumbar spine fusion surgery after which the designated doctor revised her IR to 14% and that she subsequntly underwent additional lumbar spine fusion surgery after which the designated doctor revised her IR to 37%.
DECISION
Affirmed.
Not appealed are findings (related to the IR issue) that on __________, claimant sustained a compensable injury; that Dr. RH (who performed the first lumbar spine surgery in January 1993) certified that claimant reached maximum medical improvement (MMI) on April 1, 1993, with an IR of eight percent which claimant disputed on April 8, 1993; that Dr. MB was appointed as the designated doctor; that Dr. MB certified that claimant reached MMI on June 22,1993, with an IR of 10%; that claimant disputed Dr. MB’s initial certification on September 13, 1993; that Dr. MB revised his opinion and in a report of January 23, 1997, certified that claimant reached MMI on June 20, 1994 (statutory MMI), with an IR of 14%; in July 1996, claimant underwent lumbar spine fusion surgery; that claimant’s treating doctor, Dr. M, disputed the 14% IR on claimant’s behalf in February 1997; that in a report dated April 2, 1998, Dr. MB certified that claimant reached MMI on June 20, 1994, with an IR of 37%; and that the carrier disputed this certification on the basis that there was no clear misdiagnosis and no justification to revive the IR four years after statutory MMI.
The carrier does appeal findings that claimant reached MMI on June 20, 1994; that the most recent opinion of the designated doctor is entitled to presumptive weight; that (subsequent to claimant’s lumbar fusion surgery in July 1996) claimant was reassessed by Dr. MB due to a change of condition; that (subsequent to claimant’s lumbar fusion surgery in July 1997) claimant was again reassessed by Dr. MB due to a change of condition on March 26, 1998; that Dr. MB amended his certification to 37% for proper reasons within a reasonable period of time; that claimant has been under constant treatment and evaluation since the date of her injury and continues to suffer the effects of her injury as the various treatments attempted have proven unsuccessful; that Dr. MB’s certification of 37% is clearly the most accurate depiction of claimant’s total permanent impairment resulting from her compensable injury and, as such, is adopted; that claimant’s IR is 37% as per the amended report of the designated doctor; and that the great weight of the other medical evidence is not contrary to the most recent opinion of the designated doctor that claimant’s IR is 37%. In closing argument below, the carrier made clear that it was not challenging the accuracy or substance of Dr. MB’s report assigning the 37% IR in terms of the calculations or compliance with the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides), but rather was contending that there was no proper basis for Dr. MB’s revision of the IR to 37% given the length of time that had passed since statutory MMI was reached and that claimant had somehow waived her right to dispute Dr. MB’s earlier IR determinations. Concerning the carrier’s challenge to the finding that claimant reached statutory MMI on June 20, 1994, we observe that the MMI date was not a disputed issue, that Dr. MB was appointed to determine the IR, and that at no time during the CCH below did the carrier take issue with the date of statutory MMI being June 20, 1994.
Also not appealed (related to the SIBS issue) are findings that at no time has claimant elected to commute any portion of her impairment income benefits and that her preinjury average weekly wage is $202.98. In closing argument, the carrier’s representative stated that the only argument the carrier had concerning the SIBS issue was that claimant is not entitled to SIBS because her IR is either 14% or 10% and thus that she failed to meet the statutory requirement of having an IR of at least 15%. Notwithstanding this argument below, the carrier has appealed findings that claimant was unemployed as a direct result of her impairment and that during the relevant filing period, claimant had no ability to work. The carrier has also challenged, presumably because of the appeal of the 37%, a finding that the filing period for the first quarter began on May 7, 1996, and ended on August 5, 1996.
Claimant testified that she was injured on __________ when she fell from a stool at work onto her buttocks; that she was sent to a clinic for treatment; that six days after the injury, her manager sent her home until she was given a “clean bill of health” by a doctor; and that she has not since worked. She said that after initial treatment at the clinic, she was treated by Dr. JBX; that Dr. JBX referred her to Dr. RH; and that Dr. RH performed a lumbar laminectomy and discectomy at the L5-S1 level in January 1993. Dr. RH’s January 15, 1993, record states that a myelogram showed a central disc protrusion at L5-S1 with post-myelogram CT scan indicating nerve root involvement. Dr. RH’s operative report of January 13, 1993, reflects the diagnosis as “ruptured lumbar disc” and that he performed a microscopic right L5-S1 laminectomy and discectomy. Claimant stated that she continued to have symptoms and that when she complained to Dr. RH in March 1993, he told her “it was all in [her] head” and to “see a gynecologist” despite the fact that she had already had a hysterectomy. Dr. RH’s Report of Medical Evaluation (TWCC-69) dated “5/13/93” stated that claimant reached MMI on “4-1-93” with an IR of “8%.” In evidence is claimant’s attorney’s letter of April 8, 1993, to the Texas Workers’ Compensation Commission (Commission) advising that claimant disputed Dr. RH’s IR and requesting a designated doctor, and Commission correspondence stating that claimant was to be examined by Dr. MB on June 22, 1993, for percentage of impairment only.
Dr. MB’s TWCC-69 dated “6/22/93” states that claimant reached MMI on that date with an IR of 10% and refers to Table 49 II-E of the AMA Guides. In his accompanying narrative report, Dr. MB states that claimant complained of continuing back pain which, on “the bad days,” is a sharp, stabbing pain that extends to her toes, and that her range of motion (ROM) testing was invalidated by the straight leg raise (SLR) test. In evidence is claimant’s letter to the Commission dated September 13, 1993, stating that she disagrees with Dr. MB’s MMI date and IR, that she has not received a copy of Dr. MB’s TWCC-69, and that a Request for Benefit Review Conference (TWCC-45) would be mailed separately. In evidence is claimant’s TWCC-45 dated June 24, 1994, which states that she disputed the IRs and the MMI date of Dr. RH and Dr. MB.
Claimant’s Employee’s Request to Change Treating Doctors (TWCC-53) dated September 18, 1993, requested a change in treating doctors from Dr. RH to Dr. O because she still had pain in her low back and legs, did not feel confident in Dr. RH’s diagnosis, and wanted to see a neurosurgeon. The Commission approved this request on October 3, 1993. Claimant stated that she was then treated by Dr. O; that Dr. O felt she should have lumbar spine fusion surgery (to be performed by Dr. T) but that he was unsuccessful in obtaining Commission approval for such surgery. In evidence is the Commission’s Findings and Decision, dated May 16, 1994, stating that due to the third opinion doctor’s nonconcurrence with the need for the spinal surgery proposed by Dr. O, the Commission found no basis to order payment for the disputed spinal surgery. According to this document, the carrier’s second opinion doctor, Dr. W, did not concur with the proposed surgery, the Commission ordered claimant to attend a required medical examination on April 29, 1994, by Dr. P, and that Dr. P, too, nonconcurred. Dr. W’s report is dated January 20, 1994, and Dr. P’s report is dated April 29, 1994. Also in evidence is a Commission letter dated August 8, 1994, setting a benefit review conference (BRC) for September 8, 1994, and a CCH for November 3, 1994.
Claimant further testified that Dr. O retired and Dr. M became her treating doctor; that Dr. M also felt she needed fusion surgery and referred her to Dr. WB and Dr. JB and that Dr. WB and Dr. JB performed lumbar spine fusion surgery in July 1996. In evidence is claimant’s letter of January 17, 1995, to the Commission’s Medical Review Division stating that Dr. O filed his spinal surgery recommendation in October 1994, that the carrier selected Dr. K as its second opinion doctor, that she was examined by Dr. K on November 3, 1994, that Dr. K has not yet filed a report, and that she is in extreme discomfort and would like to get on with the proposed surgery. A December 8, 1995, letter from Dr. SM states that claimant was scheduled for a second opinion evaluation on December 5, 1995, but she had no current studies, including plain films, and that he chose not to see her as no opinion would be possible. Dr. M’s March 5, 1996, report states that claimant has been treated extensively with physical therapy (PT), injections, and medications without relief; that his impression is “herniated nucleus pulposus, L3,4,”; and that he agrees with the plan to proceed with a laminotomy and discectomy and arthodesis at that level. The Commission’s March 20, 1996, letter notified the parties that the carrier’s second opinion doctor concurred with the proposed spinal surgery and that the carrier is liable for the costs. The operative report of Dr. WB, dated July 22, 1996, states that claimant has “severe intractable pain” and “is a multi-operated back”; that the diagnosis is herniated nucleus pulposus, L3-4, L4-5 and L5-S1 left with degenerative joint disease; and that he performed decompressive hemilaminectomy , L3-4 left, L4-5 right, discectomy, L3-4, L4-5, and L5-S1 left, and osteophytectomy at all levels. Dr. JB’s operative report of the same date states the diagnosis as multiple level lumbar disc disease, mechanical instability of the lumbar spine, and intractable back pain, and reflects that he performed bone graft fusion at L3-4 and L4-5 and inserted a bone stimulator.
In evidence is claimant’s TWCC-45 dated August 12, 1996, stating “change of condition,” that claimant has had surgery since she was assessed at MMI and given an IR, and requesting that the operative report be forwarded to the designated doctor. Also in evidence is the Commission’s letter of October 22, 1996, to Dr. M stating that a BRC was held on October 21, 1996, that additional medical records including the July 22, 1996, operative reports were produced, and that to resolve “the issue of whether [claimant] has reached [MMI],” the parties requested that the benefit review officer (BRO) contact Dr. MB and determine whether the additional medical information has any effect on his previous MMI determination. The letter further states that the “statutory date of [MMI] was 6-20-94.”
Claimant stated that in January 1997 Dr. MB amended his report revising the MMI date to June 20, 1994, and the IR to 14%; that she continued to have problems and underwent further fusion surgery in July 1997, leaving her fused from L-3 through S1; and that following that operation, Dr. MB revised her IR to 37% in April 1998.
Dr. MB’s TWCC-69 dated “1-23-97” reflects that he saw claimant on “1-16-97,” and certified that she reached MMI on “06/20/1994” with an IR of 14%. In his accompanying narrative report, Dr. MB recited some of the history, including claimant’s surgery by Dr. RH at the L5-S1 level, claimant’s continued pain complaints, Dr. O’s concern in November 1993 that she had an L4-5 disc protrusion, findings of the December 1993 MRI, her change from Dr. O to Dr. M, a February 1996 MRI revealing a herniated disc at L3-4, degenerative protrusion at L4-5, and possible recurrent disc herniation at L5-S1; and the July 22, 1996, fusion surgery. Dr. MB’s diagnosis was degenerative disc disease with lumbar spine disc herniations, status post laminectomy, discectomy, and spinal fusion at multiple levels, and clinical evidence of sacroiliac joint dysfunction. Dr. MB further stated that claimant has had improvement from her most recent surgery; that it is appropriate to change the MMI date to the statutory date, June 20, 1994; and that a new IR needs to be assigned because the MMI date has changed and because claimant has had a second surgical procedure. Dr. MB then assigned “10% for the surgically treated disc lesion,” two percent for the two additional levels, and two percent for the second operation for a total IR of 14%.
Dr. JB reported on January 21, 1997, that claimant was having some back pain, spasm, and catching, and that her mobility is limited.
Dr. M wrote on February 13, 1997, that while he agreed with Dr. MB’s 14%, Dr. MB failed to assign impairment for claimant’s sensory deficit and that since the L4-S1 nerve root is involved in her sensory deficit, he would give her about a five percent rating for sensory loss in the left lower extremity which, combined with the 14%, yields an IR of 18%. Dr. M wrote on March 31, 1997, that he again reviewed Dr. MB’s 14% IR and felt that based on the SLR measurement he obtained, claimant should have an additional seven percent for abnormal ROM for a total IR of 24%.
Dr. JB reported on April 1, 1997, that claimant is having bouts of sharp, catching pain, that she is not achieving her PT goals, that bending films taken that day show motion at the L4-5 level, and that the chances of that fusion becoming solid are small and there is the possibility of another procedure. Dr. JB reported on May 6, 1997, that claimant has continued substantial impairment and pain and has a failed fusion. Dr. WB wrote on May 9, 1997, that Dr. RH’s 1993 discectomy did not relieve claimant’s pain, that her pain has persisted since the July 1996 surgery performed by him and Dr. JB, that a CT scan shows a broken fusion at L3-4 and L4-5 with disc bulging, that her ROM is limited, that she has a sensory deficit on the anterior foreleg of the left foot and muscle weakness, that he thinks the two-level pseudoarthrosis is the cause of her pain, and that further fusion surgery should be done with some intervertebral disc space cages. The operative reports of Dr. WB and Dr. JB, dated July 9, 1997, stated the diagnosis as two- level pseudoarthrosis and intractable pain and reflect that claimant underwent decompressive hemilaminectomy at L3-4 and L4-5 with neurolysis of the L3-4 and 5 nerve roots and fusion with cages.
In evidence is claimant’s TWCC-45 dated “8-12-97” which states “change of condition” as the apparent reason for the request, and which further states that claimant has recently undergone an additional spinal surgery and that she requests that information regarding her condition be provided to the designated doctor to determine whether this affects his assessment of impairment.
Also in evidence is claimant’s letter of January 8, 1998, to the Commission’s BRO stating that a BRC had recently been held, that the issue to be resolved was change of condition due to recent spinal surgery, that the BRO wanted to wait for additional medical reports which more accurately reflected claimant’s condition, and that reports from Dr. JB, Dr. WB, and Dr. M were enclosed for forwarding to Dr. MB along with the operative reports. The BRO’s January 21, 1998, letter to Dr. MB forwarded additional medical reports and asked where they changed Dr. MB’s prior IR.
Dr. MB’s report of March 26, 1998, indicates that he reexamined claimant. Dr. MB wrote that she was “seen for repeat [IR]”; that since his revised IR of 14%, claimant has had further surgery with nerve damage in the low back and lower extremities; that since the July 9, 1997, repeat fusion surgery, she has continued to have problems with loss of function in her right leg; that electrodiagnostic studies found severe denervation of the L4 and L5 nerve roots on the right, an active denervation and radiculopathy at L4 on the left, and bilaterally at S1; that claimant has a paralyzed right lower extremity with right drop foot; that she has back pain extending into the right lower extremity and decreased sensation in both lower extremities; and that a repeat MRI reveals possible arachnoidities and severe nerve root impingement at the L4-5 nerve roots on the right. Dr. MB’s assessment is severe degenerative joint disease of the lumbar spine, status post multiple surgical procedures with resultant nerve root damage to the right L4 and right L5 nerve roots with some irritation of the left L4 nerve root and bilateral S1 radiculopathy. Dr. MB assigned claimant a 15% rating under Table 49 for the specific spinal disorder, 22% impairment for the paralysis of the right lower extremity, and four percent for the left lower extremity, for a total IR of 37%. No impairment was assigned for abnormal ROM.
Dr. M wrote on April 22, 1998, that claimant has severe arachnoiditis, a recurrent disc at L3-4 and possibly L5-S1, and almost no function of her right lower extremity and that he agrees with Dr. MB’s 37% IR.
In evidence is the carrier’s TWCC-45, dated April 28, 1998. This document states that the carrier is disputing Dr. MB’s 37% IR, that “the original statutory MMI of 6-21-94 [sic] with 14% impairment expired 4-10-95”; that “there is no evidence of a clear misdiagnosis, therefore no justification to revive the impairment 4 years after statutory MMI date.”
In Texas Workers’ Compensation Commission Appeal No. 962475, decided January 9, 1997, the parties stipulated that the employee, who was injured on __________, in a slip-and-fall accident at work, reached MMI on November 22, 1993, and the hearing officer determined that the employee’s IR was 20% as certified by the designated doctor in a second report. The employee was diagnosed with thoracic outlet syndrome and cervical problems, underwent surgery on July 22, 1993, and was assigned an eight percent IR by the designated doctor in a May 5, 1994, report. However, the employee continued to have pain and numbness and underwent further surgery on November 9, 1995, which significantly improved her condition; the designated doctor reexamined the employee and, in a March 25, 1996, report assigned an IR of 20%. The carrier in that case contended that the designated doctor’s first IR should be adopted by the Commission, emphasizing that statutory MMI was reached in November 1993, that the designated doctor’s first IR followed statutory MMI, and that the designated doctor’s second IR came more than two years after statutory MMI. In affirming the hearing officer’s decision, the Appeals Panel stated that while as a normal rule an IR will readily follow the reaching of MMI, we do not conclude from reading the 1989 Act that an indelible IR can always be made upon the date MMI is reached or that such IR is the only one that must be adopted; that we have held that a doctor, including a designated doctor, can amend or change an initial MMI date or IR for proper reasons and within a reasonable period of time; and that subsequent surgery or the need for further surgery can be a valid basis for amending an original report. We further quoted from our decision in Texas Workers’ Compensation Commission Appeal No. 94492, decided June 8, 1994, to the effect that we cannot conclude that a properly revised IR should be sacrificed solely for the expediency of finality. We further noted in that decision that Section 410.307 provides that if a case is appealed to the courts, the evidence of the extent of impairment is not limited to that presented to the Commission if the court determines that there is a substantial change of condition and we stated that it did not seem reasonable to conclude that a substantial change of condition, such as that occasioned by required surgery subsequent to an initial IR determination following statutory MMI, must be ignored by the Commission thus forcing the parties into court.
In affirming in Appeal No. 962475, supra, we noted that the diagnosis and treatment of the injury in that case was very difficult and somewhat convoluted, and that while we recognized the case was quite protracted and a lengthy period of time had passed between the first IR and the second surgery and second IR, we could not say it was unreasonable as matter of law. We observed that the diagnosis and treatment was exceedingly difficult, that the employee was under constant treatment and evaluation and continued to suffer the effects of the injury, that various treatments were attempted and proved unsuccessful or insufficient until the second surgery, and that it was after that surgery that the designated doctor reexamined the employee and determined her IR.
In the case we consider, the hearing officer cites and relies on our decision in Appeal No. 962475. Claimant had previously characterized that case as quite similar to her case. We agree. The evidence in claimant’s case shows that after conservative treatment for her lumbar spine injury failed to produce relief from low back and lower extremity pain, she underwent spinal surgery at the L5-S1 level after which she was assigned the 10% IR by the designated doctor; that her pain continued and she was subsequently diagnosed with disc herniations at the L3-4 and L4-5 levels; that after changing treating doctors, a protracted period of time was consumed in eventually obtaining Commission approval for the first fusion operation after it was first disapproved; that the designated doctor revised his report of the MMI date and IR following the first fusion surgery; that the first fusion surgery failed; and that a repeat fusion operation had to be performed following which the designated doctor reexamined claimant and found her to have a serious sensory deficit which he added to the Table 49 rating. We cannot conclude that under the circumstances of this case the hearing officer’s determination of claimant’s IR was error as a matter of law nor can we say that the appealed findings are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). See also Texas Workers’ Compensation Commission Appeal No. 980937, decided June 22, 1998 (Unpublished); Texas Workers’ Compensation Commission Appeal No. 980154, decided March 12, 1998 (Unpublished). Compare Texas Workers’ Compensation Commission Appeal No. 970954, decided July 7, 1997; and Texas Workers’ Compensation Commission Appeal No. 981294, decided July 17, 1998 (Unpublished). In Texas Workers’ Compensation Commission Appeal No. 960960, decided July 3, 1996, cited by the carrier, the Appeals Panel remanded because the designated doctor had not reexamined the claimant before increasing the IR and had not done a proper analysis.
As for the SIBS issue, we are satisfied that given that claimant underwent the second fusion surgery in approximately the midpoint of the filing period, that the hearing officer correctly found, based on the medical evidence, that during the filing period she had no ability to work and that her unemployment was a direct result of her impairment from the compensable injury. See Section 408.142. Texas Workers’ Compensation Commission Appeal No. 931147, decided February 3, 1994; Texas Workers’ Compensation Commission Appeal No. 960182, decided March 12, 1996; and Texas Workers’ Compensation Commission Appeal No. 962653, decided February 13, 1997.
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Alan C. Ernst – Appeals Judge