A contested case hearing was held in________, Texas, on September 15, 1999, pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), with ____________presiding as hearing officer, to determine the appellant’s (claimant) impairment rating (IR). The hearing officer concluded that claimant’s IR is 12% after finding that T, M.D. (Dr. T), the designated doctor appointed by the Texas Workers’ Compensation Commission (Commission), assigned claimant a 12% IR and that Dr. T’s IR is not contrary to the great weight of the other medical evidence. Claimant requests our review, asserting that Dr. T’s response to a Commission inquiry concerning her lumbar spine range of motion (ROM) measurements is unsatisfactory and that we should either order Dr. T to retest her ROM or reverse and render a new decision that her IR is 15% based on the report of Dr. Polatin (Dr. P). The respondent (carrier) asserts in response that the hearing officer’s determination is sufficiently supported by the evidence and should be affirmed.
DECISION
Affirmed.
The parties stipulated that claimant sustained a compensable injury on _____________, and that she reached maximum medical improvement (MMI) on October 24, 1995. No witnesses testified and the parties submitted their respective cases on the documentary evidence.
In evidence is a Report of Medical Evaluation (TWCC-69) signed by Dr. J (Dr. J) on “10/24/95,” certifying that claimant reached MMI on that date with an IR of 24%. Dr. J’s attached narrative report states that claimant slipped and fell from a ladder and had sharp pain in her lower back; that she was treated conservatively without much improvement; and that she was evaluated by Dr. S (Dr. S) and eventually underwent two surgical procedures, one on June 16 and the other on June 23, 1994. Dr. J further reported that after surgery claimant had physical therapy and rehabilitation and that she still has pain and dysfunction but has plateaued and reached MMI on October 24, 1995. Dr. J’s report reflects that claimant’s IR is 24%, consisting of 10% for specific spinal disorders under Table 49 of the Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association (AMA Guides) and 15% for abnormal lumbar spine ROM.
In his TWCC-69 dated “02/16/96,” Dr. T certified that claimant has a whole body IR of 12%. In his attached February 18, 1996, narrative report of his evaluation of claimant on February 12, 1996, Dr. T stated that claimant, then 46 years of age, slipped and fell from a ladder; had a sharp pain in her back; and, after conservative treatment without much improvement, underwent two surgical procedures. Dr. T further reported that based on the AMA Guides, claimant’s IR is 12% and consists of 10% for diagnosis-based impairment under Table 49 IIG and two percent for lateral flexion (bilateral) ROM. Referencing Tables 56 and 57 and abnormal motion of the lumbosacral spine, Dr. T stated that claimant was tested using the inclinometer system and that “the test and re-test were both invalidated because the tightest straight leg raising (SLR) measurement was not within 10 degrees of the total sacral [ROM], thus no impairment can be granted in this section.” The ROM worksheets with Dr. T’s report reflect that claimant’s lumbar spine motions were measured three times. He also said that no physical findings and no EMG studies substantiated any neurological impairment.
Dr. T wrote a Commission benefit review officer (BRO) on February 18, 1999, stating that to qualify for additional impairments related to ROM, patients must meet specific validating criteria as outlined in the AMA Guides and that “[o]n test/retest, the patient must show maximum motion arc deficiencies to be within 15% difference to be statistically valid.” Dr. T explained the compound motion involved in lumbosacral flexion and stated that “[b]ecause she has had two surgical procedures with scar tissue and a lumbar fusion, it would be very unlikely for her to validate.” (Emphasis in original.) Dr. T concluded that in his medical opinion, “a re-test is not needed.”
Dr. P’s TWCC-69 dated “4-29-97” certified that claimant’s IR is 15%. Attached documents reflect that he assigned 10% impairment for specific spinal disorders under Table 49 and five percent for ROM impairment, consisting of two percent for lumbar flexion, three percent for lumbar extension, and no impairment for lateral flexion. Dr. P’s note of “5-12-97” states that claimant has good mobility of the lumbar spine and that trunk extensor strength has improved into the adequate range. Dr. P’s note of “9-2-97” stated that claimant’s SLR in the supine is to 80 and that she ambulates normally.
Dr. P, responding to written deposition questions from claimant’s attorney on September 14, 1999, stated that the difference between the 15% IR he assigned and the 12% Dr. T assigned was in the ROM. He further stated that it appeared that Dr. T’s flexion and extension “ratings” were invalid whereas his were valid, and that his “rating” was performed almost a full year after Dr. T’s “rating” and after claimant had the benefit of rehabilitation and understood the importance of adequate effort in inclinometer testing.
Claimant contended that Dr. P’s ability to obtain valid lumbar flexion and extension results after claimant went through the PRIDE back rehabilitation program argues against Dr. T’s assumption that retesting was not needed because claimant was unlikely to validate and that Dr. T should have retested claimant when contacted by the BRO.
Section 408.125(e) provides that the report of the Commission-selected designated doctor shall have presumptive weight and that the Commission shall base the IR on that report unless the great weight of the other medical evidence is to the contrary. The Appeals Panel has stated that no other doctor’s report, including that of the treating doctor, is accorded presumptive weight (Texas Workers’ Compensation Commission Appeal No. 92366, decided September 10, 1992) and that it is not just equally balancing evidence or a preponderance of the evidence that can overcome the presumptive weight given the designated doctor’s report (Texas Workers’ Compensation Commission Appeal No. 92412, decided September 28, 1992). Also, the ultimate determination of the extent of impairment must be made on medical evidence. Texas Workers’ Compensation Commission Appeal No. 92166, decided June 8, 1992.
The Appeals Panel said in Texas Workers’ Compensation Commission Appeal No. 941299, decided November 9, 1994, that the language in the AMA Guides on the number of retests is “permissive” and that “the actual number of ROM tests undertaken is properly left to the professional judgment of the doctor provided that at least one attempt at validation after an invalid test is made.” However, we have also recognized that such retesting is a matter of medical judgment and have affirmed where the designated doctor indicated why a retest was not indicated. See, e.g., Texas Workers’ Compensation Commission Appeal No. 970264, decided March 31, 1997, and Texas Workers’ Compensation Commission Appeal No. 981384, decided August 10, 1998. See also Texas Workers’ Compensation Commission Appeal No. 950248, decided April 5, 1995, and Texas Workers’ Compensation Commission Appeal No. 951768, decided December 8, 1995, for further clarification of the requirement for ROM retesting. The facts in the case we consider are similar to those in Texas Workers’ Compensation Commission Appeal No. 950331, decided April 18, 1995, and Texas Workers’ Compensation Commission Appeal No. 94004, decided February 11, 1994, in that in those cases the designated doctors measured the injured employees’ lumbar flexion and extension three times and those measurements met the consistency requirements of the AMA Guides (page 71) but were invalidated by the SLR measurements and the Appeals Panel affirmed the IRs of the designated doctors without remanding for additional ROM testing. Dr. T’s report stated why he did not feel that retesting was medically indicated.
We are satisfied that the hearing officer did not err in according presumptive weight to the designated doctor’s report and that the hearing officer’s determination is not 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); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
The decision and order of the hearing officer are affirmed.
Philip F. O’Neill – Appeals Judge
CONCUR:
Susan M. Kelley – Appeals Judge
Alan C. Ernst – Appeals Judge