This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on November 6, 1998. With respect to the issues before her, the hearing officer determined that respondent’s (claimant) compensable injury does not extend to include the thoracic area; that the appellant (carrier) did not waive the right to contest compensability of the claimed thoracic injury; that the great weight of the other medical evidence is contrary to the report of the designated doctor selected by the Texas Workers’ Compensation Commission (Commission) and therefore his report is not entitled to presumptive weight; and that the claimant reached maximum medical improvement (MMI) on December 1, 1997, with an impairment rating (IR) of 22% in accordance with the report of his treating doctor. In its appeal, the carrier argues that the hearing officer erred in finding that the designated doctor’s report is contrary to the great weight of the other medical evidence. It asks that we reverse the hearing officer’s MMI and IR determinations and render a decision in accordance with the designated doctor’s report. In her response, the claimant urges affirmance. The claimant did not appeal the extent-of-injury or carrier waiver determinations; thus, they have become final pursuant to Section 410.169.
DECISION
Reversed and rendered.
Because of the limited nature of the issues before us on appeal, our factual recitation will be abbreviated. The parties stipulated that the claimant sustained a compensable injury to her low back on ______. The claimant testified that as she was leaning over to throw a napkin in the trash at work, her chair rolled out from under her and she fell to the floor, landing on her back.
Dr. O is the claimant’s treating doctor. Dr. O has diagnosed lumbar degenerative disc disease and bilateral sacroilitis. On June 25, 1997, Dr. P examined the claimant at the request of the carrier. In a Report of Medical Evaluation (TWCC-69) dated June 30, 1997, Dr. P certified that the claimant reached MMI on the date of his examination, June 25, 1997, with an IR of 12%, which was comprised of five percent for a specific disorder of the lumbar spine and seven percent for loss of lumbar range of motion (ROM). In his narrative report, Dr. P diagnosed mild degenerative disc disease and noted that she “has sustained a 12.0% permanent physical impairment and loss of physical function to the lumbar spine as a consequence of the degenerative changes present about the lumbar spine and then the superimposed traumatic event that she describes having allowed the onset of her current symptoms pattern.” The claimant disputed Dr. P’s certification and the Commission selected Dr. F as the designated doctor. On August 28, 1997, Dr. F examined the claimant. In a TWCC-69 of September 5, 1997, Dr. F certified that the claimant reached MMI on November 21, 1996, with an IR of zero percent. Dr. F explained his certification, as follows:
In my opinion, the claimant sustained at most, if any, an unverifiable, nonspecific soft tissue injury which probably inexorably resolved within 90 days. In my professional opinion, the claimant reached [MMI] by at least 11-21-96 with 0% impairment referable to the event at issue. On the basis of degenerative changes of the low back, I do assess a 7% impairment whole person in accordance with Table 49 II C, Page 73 . . . but, I submit that this impairment would be the same whether the claimant had the event of 08-21-96 or not. This impairment is not due to that event at issue as explained. My pathophysiologic analysis is in accordance with the concepts set forth on Page 9 of the Guides to the Evaluation of Permanent Impairment, Third Edition, Second Printing, February 1989, American Medical Association.
In a TWCC-69 dated December 1, 1997, Dr. O certified that the claimant reached MMI on that date, with an IR of 22%. Dr. O’s 22% IR is comprised of seven percent for a specific disorder of the lumbar spine and 16% for loss of lumbar ROM. On June 12, 1998, a Commission benefit review officer (BRO) sent a letter to Dr. F seeking clarification of his IR. On June 16, 1998, Dr. F responded to the BRO’s letter stating that “[m]y prior assessment of [MMI] and 0% impairment is once again proffered as being appropriate, credible, well reasoned, and unaffected by the contrary opinion of [Dr. O] . . . .” Dr. F noted that he had invalidated the claimant’s ROM “based upon my observations and opinion that the claimant was voluntarily restricting movements.” With respect to the disparity between his rating and that of Dr. O, Dr. F stated:
It is frequent that I differ with [Dr. O] since I find his [IR’s] excessive and without credibility. His custom and pattern of excessivity regarding IR’s is well documented in the peer reviews accomplished by me regarding that medical care provision.
The hearing officer determined that the great weight of the other medical evidence is contrary to the designated doctor’s rating and that it is, therefore, not entitled to presumptive weight under Sections 408.122(c) and 408.125(e). The hearing officer identified the great weight of the other medical evidence as the diagnostic testing which confirmed the existence of degenerative disc disease in the claimant’s lumbar spine and the reports of Dr. P and Dr. O “that connect the date of injury incident to the onset of symptoms in the lumbar area.” The difference between the reports of Drs. O and P and the report of Dr. F is attributable to a medical difference of opinion as to whether the claimant’s compensable injury caused permanent impairment. Drs. O and P concluded that it did while Dr. F opined that it did not. In Texas Workers’ Compensation Commission Appeal No. 960528, decided April 24, 1996, the Appeals Panel reversed a hearing officer’s determination that the claimant’s IR was five percent and rendered a new decision that his IR was zero percent as certified by the designated doctor. In that case, the designated doctor measured ROM impairment of five percent; however, he declined to assign the rating, explaining that he “[felt] that he most probably sustained cervical strain at the time of his injury, from which . . . he has fully recovered.” In reversing and rendering, Appeal No. 960528 noted that the designated doctor “found no impairment whatsoever to have resulted from the compensable injury. He, therefore, properly assigned a zero percent IR.” Dr. F likewise determined that the claimant sustained a sprain/strain injury, that her injury resolved in 90 days, and that it did not result in impairment. Although Dr. F determined that the degenerative condition in the claimant’s lumbar spine warranted a seven percent rating under Table 49, he further determined that that impairment was not caused by the compensable injury. As Appeal No. 960528 noted, Dr. F was free to make that determination based upon the exercise of his professional judgment. We have previously recognized that a difference in medical opinions does not rise to the level of the great weight of the other medical evidence contrary to the report of the designated doctor. Thus, the hearing officer incorrectly determined that Dr. F’s assessment of a zero rating was contrary to the great weight of the other medical evidence and improperly relied on the difference in the ratings of Drs. O and P as a basis for disregarding Dr. F’s report. Texas Workers’ Compensation Commission Appeal No. 950727, decided June 22, 1995.
We find no error in Dr. F’s having invalidated ROM based upon observation. We have recognized on many occasions that otherwise valid ROM measurements can be invalidated by the designated doctor where, based on his clinical judgement, he determines that the restricted motion is the product of volitional conduct on the part of the claimant. See Texas Workers’ Compensation Commission Appeal No. 980027, decided February 23, 1998, and cases cited therein. In addition, to the extent that Dr. F did not assign a rating for ROM based upon his belief that those deficits were not the result of the compensable injury, his decision in that regard is consistent with our decision in Appeal No. 960528, supra, where the designated doctor was not required to assign a rating for measured deficits because he determined that the compensable injury, a sprain/strain which had resolved, did not cause the impairment.
The hearing officer’s determinations that the claimant reached MMI on December 1, 1997, and that her IR is 22% are reversed and a new decision rendered that the claimant reached MMI on November 21, 1996, with an IR of zero percent, as certified by the designated doctor.
Elaine M. Chaney – Appeals Judge
CONCUR:
Philip F. O’Neill – Appeals Judge
Christopher L. Rhodes – Appeals Judge