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 July 24, 1998. With regard to the issue at the CCH, she (the hearing officer) determined that the appellant’s (claimant) impairment rating (IR) is 11%, as certified by the Texas Workers’ Compensation Commission (Commission)-selected designated doctor, Dr. Y, in his initial report. The claimant appeals, seeks a reversal of the decision and order, and argues her IR is 18%, as certified in Dr. Y’s amended report. The respondent (carrier) does not respond.
Initially, we note the record reflects that the CCH was on July 24, 1998, and the decision and order reflect a July 26, 1998, CCH date. We reform the decision and order to reflect the July 24, 1998, CCH date.
DECISION
We affirm, as reformed.
The parties stipulated that the claimant sustained a compensable injury on __________, and reached maximum medical improvement (MMI) on May 30, 1994, as certified by Dr. Y on May 30, 1995. The date of MMI was 104 weeks from the date on which income benefits begin to accrue. Section 401.011(30). There is no dispute that on May 13, 1994, the claimant’s treating doctor, Dr. H, performed an L5-S1 360-degree fusion with hardware; on June 1, 1995, Dr. H noted her “situation is suggestive of hardware difficulties, so we will inject the hardware to assess this hypothesis”; on October 6, 1995, Dr. H performed surgery to remove the hardware; on April 30, 1997, Dr. H performed an L4-5 anterior-posterior fusion; and on January 19, 1998, after evaluating her again and reviewing the October 6, 1995, and April 30, 1997, surgical reports, Dr. Y amended his report and assessed an 18% IR. The claimant testified that she moved out of state in July 1994 and did not receive treatment from Dr. H from that time until June 1, 1995.
Dr. Y noted in his May 30, 1995, impairment evaluation report that “since the [claimant’s] surgery her back pain has diminished.” Dr. Y’s original IR included 10% impairment for Disorder IIF from Table 49 of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association entitled “Multiple operative levels, with or without residual symptomatology.” Dr. Y’s amended IR included 15% impairment for Disorder IVD from Table 49, entitled “Multiple operations (“failed back surgery”) with residual symptoms.”
The 1989 Act and the Commission’s rules are silent as to whether a designated doctor may amend his certification of IR after his initial evaluation report and, if he may amend, the circumstances under which such an amendment may occur. We have held that “[a] designated doctor may, with proper reason, and in a reasonable amount of time, amend his original report of MMI and IR . . . same should take place after surgery when compelling circumstances will affect the ultimate IR resulting from an injury.” (Emphasis in original.) Texas Workers’ Compensation Commission Appeal No. 960960, decided July 3, 1996.
The determination as to whether to afford presumptive weight to a designated doctor’s amended certification which was based on an employee’s surgery which occurred subsequent to the designated doctor’s initial impairment evaluation is, in some cases, based on an analysis of whether the surgery was “under active consideration” at the time of the initial evaluation. See Texas Workers’ Compensation Commission Appeal No. 962654, decided February 6, 1997; and Texas Workers’ Compensation Commission Appeal No. 971385, decided August 25, 1997.
If the surgery was under active consideration, then it is appropriate to afford presumptive weight to the amended report. Id. If the surgery was not under active consideration, it is inappropriate to afford presumptive weight to the amended report. See Texas Workers’ Compensation Commission Appeal No. 962107, decided December 2, 1996. Compare Texas Workers’ Compensation Commission Appeal No. 941168, decided October 14, 1994, where the surgery which was performed after the designated doctor’s initial impairment evaluation was not under active consideration at the time of the evaluation but was under consideration by the treating doctor since the date of the compensable injury and we affirmed the hearing officer’s decision to afford presumptive weight to the amended report. We have also approved of affording presumptive weight to a designated doctor’s amended report in cases where the employee had surgery prior to the designated doctor’s initial impairment evaluation, was under active consideration for additional surgery at the time of the designated doctor’s initial impairment evaluation and eventually had additional surgery. See Texas Workers’ Compensation Commission Appeal No. 962475, decided January 9, 1997. Compare Texas Workers’ Compensation Commission Appeal No. 982302, decided November 9, 1998, a case involving additional surgery after the designated doctor’s initial impairment evaluation which follows Appeal No. 962475, supra, despite the absence of an indication that additional surgery was being considered at the time of the designated doctor’s initial impairment evaluation. Appeal No. 982302, supra, turns on the notion that the employee therein experienced a substantial change of condition, warranting a decision to afford presumptive weight to the designated doctor’s report.
The report of the designated doctor has presumptive weight, and the Commission shall base its determinations as to an employee’s IR on that report “unless the great weight of the other medical evidence is to the contrary.” Section 408.122(c) and Section 408.125(e). The hearing officer affords presumptive weight to Dr. Y’s original report and the 11% IR, and makes findings of fact that the great weight of the other medical evidence is not contrary thereto and that “[n]one of Claimant’s subsequent surgeries after her initial surgery were under active consideration at the time of [Dr. Y’s] initial evaluation on May 30, 1995.” The claimant argued at the CCH and argues on appeal that Dr. Y’s January 9, 1998, report deserves presumptive weight because Dr. H was considering additional surgery on June 1, 1995. She does not argue that Dr. H was considering additional surgery prior to Dr. Y’s May 30, 1995, evaluation; Dr. H’s reports from prior to June 1, 1995, are not in the record. She maintains that had she seen Dr. H two days earlier and prior to Dr. Y’s May 30, 1995, impairment evaluation, Dr. H would have recommended additional surgery at that time and additional surgery would have been under active consideration at the time of Dr. Y’s evaluation.
Evidently, the hearing officer rejected the speculative argument that the October 6, 1995, surgery may have been under active consideration if her June 1, 1995, visit with Dr. H had occurred prior to Dr. Y’s initial impairment evaluation. We reject it also. The record supports the finding of fact that additional surgery was not under active consideration at the time of Dr. Y’s May 30, 1995, impairment evaluation. Dr. Y noted that the claimant’s pain had diminished subsequent to her May 13, 1994, surgery. Therefore, it was appropriate for the hearing officer to afford presumptive weight to his initial impairment evaluation report. Appeal No. 962475, supra. Although the hearing officer does not address the point in her decision and order, the carrier argued at the CCH that the claimant’s October 6, 1995, and April 30, 1997, surgeries were not performed within a reasonable amount of time after the May 30, 1994, statutory MMI date and after Dr. Y’s initial impairment evaluation. See Appeal No. 971385, supra. We note that the October 6, 1995, surgery was more than one year and four months after the date of MMI, and more than four months after Dr. Y’s initial impairment evaluation; and the April 30, 1997, surgery was two years and 11 months after the date of MMI, and one year and 11 months after Dr. Y’s initial impairment evaluation. Under these circumstances, we consider the surgeries to be an unreasonable amount of time after the date of MMI and Dr. Y’s initial impairment evaluation to support a decision to afford presumptive weight to Dr. Y’s amended report.
The presumption afforded the designated doctor’s report and certification of IR is not rebutted “absent a substantial basis to do so.” Texas Workers’ Compensation Commission Appeal No. 950561, decided May 22, 1995, citing Texas Workers’ Compensation Commission Appeal No. 93039, decided March 1, 1993. A mere difference of medical opinion is not enough to overcome the presumption afforded the designated doctor’s report. Texas Workers’ Compensation Commission Appeal No. 960034, decided February 5, 1996. Whether the party challenging a designated doctor’s report has produced the great weight of other medical evidence contrary to the report and whether the presumption afforded to the report is rebutted is a question of fact for the hearing officer. Appeal No. 950561, supra.
The contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. Section 410.165(a). It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). We reverse the hearing officer’s factual determinations when they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Texas Workers’ Compensation Commission Appeal No. 950456, decided May 9, 1995.
Despite Dr. H’s recommendation of additional surgery soon after Dr. Y’s original impairment evaluation, the additional surgeries and Dr. Y’s amended IR assessment, the determinations in the case under review are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Therefore, we affirm. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex. 1951).
Christopher L. Rhodes – Appeals Judge
CONCUR IN RESULT:
Robert W. Potts – Appeals Judge
Philip F. O’Neill – Appeals Judge