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 March 28, 2005. The hearing officer resolved the disputed issues by deciding that the compensable injury extends to include bowel and bladder dysfunction (urinary incontinence and sensory deficiency) and erectile dysfunction; and that the respondent (claimant) did not waive his right to the extent of his injury for bowel, bladder, and sexual dysfunction. The appellant (carrier) appealed, arguing that the claimant failed to provide evidence that the extent of injury conditions in dispute are related to his compensable injury by means of a reasonable degree of medical probability. The carrier additionally argues that the waiver determination was in error, relying on Texas Workers’ Compensation Commission Appeal No. 040150-s, decided March 8, 2004, and a theory of equitable waiver. The claimant responded, urging affirmance of the disputed determinations.

DECISION

Affirmed.

The parties stipulated that the claimant sustained a compensable injury on ___________, which included “at least his lumbar spine, cervical spine, and left rotator cuff…” and that the claimant reached maximum medical improvement (MMI) on July 20, 2002, per the designated doctor, with a 21% impairment rating (IR). The evidence reflects that the 21% IR includes impairment assessed for the cervical spine, lumbar spine, and left shoulder.

WAIVER

The carrier contends that it was error for the hearing officer to have found that the claimant did not waive his right to the extent of his injury for bowel, bladder, and sexual dysfunction because the compensable injury, as defined by the IR, did not include these conditions and they were known as far back as 2000, “according to the claimant and the hearing officer.” The carrier argues that the hearing officer misapplied both Appeal No. 040150-s and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.102(g) (Rule 130.102(g)).

In Appeal No. 040150-s, the Appeals Panel held that pursuant to Rule 130.102(g) a carrier waived the right to dispute the extent of injury where: (1) the carrier contends that the compensable injury does not extend to a condition or body part; (2) an IR that includes impairment for that condition or body part; and (3) the IR has not been challenged before the first supplemental income benefits (SIBs) quarter has expired. The hearing officer correctly noted that the holding in Appeal No. 040150-s was expressly limited and specifically stated that the holding should not be construed as limiting claimants from expanding on what is included in the compensable injury. The carrier represents in its appeal that Appeal No. 040150-s is currently pending before a district court and one of the arguments being made, “and has been well received by the District Court Judge,” is that the Appeals Panel is treating the parties differently with respect to the application of Rule 130.102(g). We disagree. Rule 130.102(g) provides that if there is no pending dispute regarding the date of MMI or the IR prior to the expiration of the first quarter [of supplemental income benefits (SIBs)], the date of the MMI and the IR shall be final and binding. The fact that the date of MMI and IR become final under these circumstances applies equally to the claimant and the carrier. A determination that the compensable injury extends to various other conditions not included in the IR will not allow the claimant to then challenge the date of MMI and/or the IR if there was no pending dispute regarding MMI and/or IR prior to the expiration of the first quarter of SIBs. However, once the first quarter of SIBs has expired and there has been no challenge of the MMI date and/or the IR, the claimant is not precluded from alleging that the compensable injury extends to include other conditions not included in the IR. As acknowledged in Appeal No. 040150-s, injuries can evolve over time and claimants may claim that additional injuries or conditions are compensable even after the expiration of the first quarter of SIBs. To hold otherwise would deprive claimants of rights specifically afforded to them under the 1989 Act. As stated in Maryland Casualty Co. v. Sosa, 425 S.W.2d 871 (Tex. Civ. App.-San Antonio 1968, writ ref'd n.r.e. per curiam, 432 S.W.2d 515):

The law is well settled that where an employee sustains a specific compensable injury, he is not limited to compensation allowed for that specific injury if such injury, or proper or necessary treatment therefore, causes other injuries which render the employee incapable of work.

The carrier also argues that “equitable waiver” should be applied in this case, citing Texas Workers’ Compensation Commission Appeal No. 001701, decided September 1, 2000. The carrier’s reliance on this case to support their argument is misplaced. The carrier acknowledges that the cited case noted that a carrier may waive the right to dispute extent of injury if it does not activate this dispute prior to a proceeding when IR is an issue and the designated doctor has included a disputed region as part of his IR. The carrier argues that “according to the claimant and the hearing officer,” the claimant’s sexual dysfunction, bowel and bladder problems were known as early as October of 2000. The claimant testified that his physicians told him that surgery to his back and neck may resolve these problems, and after surgery, told him that time may resolve these problems. The claimant testified that time has not resolved these problems. The various other cases cited by the carrier discuss when parties may waive the right to dispute the IR are not applicable to the instant case.

Rule 130.1(c)(1) provides that an IR is the percentage of permanent impairment of the whole body resulting from the current compensable injury. By definition if impairment is assessed for a body part or condition it is considered to be part of the compensable injury and if there is a dispute as to whether a specific body part or condition is part of the compensable injury, it should be raised prior to the certification of MMI and IR becoming final and binding.

EXTENT OF INJURY

Conflicting evidence was presented at the CCH on the disputed issue of extent of injury.  The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a).  As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established.  Although there is conflicting evidence in this case, we conclude that the hearing officer’s determinations on the appealed issues are supported by sufficient evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

The true corporate name of the insurance carrier is TRANSCONTINENTAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
Appeals Judge

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 August 21, 2003. The hearing officer determined that: (1) because the appellant (self-insured) did not timely dispute the order of November 21, 2002, approving a change in treating doctor to Dr. S, that order became final; and (2) because the self-insured did not timely dispute the order of April 29, 2003, approving a change in treating doctor to Dr. O, that order became final. The carrier appeals essentially on sufficiency of the evidence grounds. The respondent (claimant) did not file a response.

DECISION

Affirmed.

The hearing officer did not err in making the complained-of determinations. Section 408.022 sets out the criteria for selecting and changing a treating doctor. Additionally, Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 126.9(g) (Rule 126.9(g)) governs the procedure for disputing an order approving a change in treating doctor. The issues presented involved questions of fact for the hearing officer to resolve. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). The hearing officer could determine that the self-insured received copies of the orders approving a change in treating doctors on the dates specified in the decision. Rule 102.5(d). In view of the applicable law and the evidence presented, we cannot conclude that the hearing officer's determinations 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 (Tex. 1986).

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

CITY SECRETARY

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Edward Vilano
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Michael B. McShane

Appeals Panel

Manager/Judge

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 25, 2003. With regard to the three disputed issues the hearing officer determined that the appellant (claimant) has not had disability (as defined in Section 401.011(16)) from April 28, 2003, to the date of the CCH, and that the claimant failed to establish that he is entitled to change treating doctors but that the respondent (carrier) waived its right to dispute the Texas Workers' Compensation Commission (Commission) order approving the change of treating doctors. The carrier waiver issue has not been appealed and has become final. Section 410.169.

The claimant appeals the hearing officer determinations on the issues of disability and entitlement to change treating doctors on the basis that those determinations are not supported by sufficient evidence. The carrier responds, urging affirmance.

DECISION

Affirmed.

The parties stipulated that the claimant sustained a compensable low back injury on ______________. The claimant began treating with Dr. B the initial treating doctor. Dr. B took the claimant off work from January 10 through January 26, 2003, (disability between January 10 through April 27, 2003, is not in dispute) and ordered an MRI. The MRI was performed on January 22, 2003. The radiologist who performed the MRI, Dr. B who testified that he reviewed the MRI, and the subsequent treating doctor, all seem to agree that the MRI was essentially normal. Two other doctors, including an orthopedic specialist, opined that the MRI showed a herniated disc at L5-S1. The hearing officer commented “one could easily wonder whether these. . . doctors are looking at the same test.” Dr. B released the claimant to return to work with a lifting restriction on January 27, 2003, and the claimant in fact returned to work. Dr. B subsequently released the claimant to work at full duty on March 5, 2003. On April 8, 2003, the claimant’s employment was terminated, either because he was sleeping on the job or because he injured his back carrying a ladder and was resting to relieve his back pain. The claimant subsequently changed treating doctors and the new treating doctor took the claimant off work on April 28, 2003. The hearing officer determined that the claimant did not have disability from April 28, 2003, through the date of the CCH. As the hearing officer noted, there was conflicting evidence why the claimant was not working after his employment was terminated on April 8, 2003.

The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the trier of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. The hearing officer’s decision on the disability issue is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Regarding the change of treating doctor, attached to the claimant’s Employee's Request to Change Treating Doctors (TWCC-53) was an unsigned letter purporting to be from Dr. B, releasing the claimant to the care of the subsequent treating doctor. Dr. B testified that he did not write that letter; that it had an incorrect letterhead, and that no one else in his office had written that letter. The hearing officer commented (determined) that “the Commission relied heavily on this letter” and “without this letter the Commission would have denied the claimant’s request” to change treating doctors. The hearing officer’s determinations on this issue are supported by the evidence. However, since the hearing officer’s determination that the carrier waived its right to dispute the Commission’s order approving the change of treating doctors the Commission’s order approving the change remains in effect.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is ROYAL INSURANCE COMPANY OF AMERICA and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS STREET, SUITE 750

AUSTIN, TEXAS 78701.

Thomas A. Knapp
Appeals Judge

CONCUR:

Chris Cowan
Appeals Judge

Margaret L. Turner
Appeals Judge

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 February 11, 2003. The hearing officer decided the appellant’s (claimant) initial choice of treating doctor is Dr. R, and that the claimant had disability from January 7 through August 24, 2002, due to the compensable injury of ____________. The claimant appealed the hearing officer’s disability determination, arguing that the claimant’s disability extends to the date of the CCH. The respondent (carrier) responded, urging affirmance. The hearing officer’s initial doctor determination has not been appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed.

The issue of disability involves a question of fact for the hearing officer to resolve. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence, including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). The hearing officer determined “[a]fter August 24, 2002, and continuing through the date of this hearing, any inability of Claimant to obtain and retain employment at wages equivalent to her pre-injury wage is not due to the injury of ____________.” Nothing in our review of the record demonstrated that the challenged determination is so against the great weight of the evidence as to be clearly wrong or manifestly unjust. Accordingly, no sound basis exists for us to disturb that determination on appeal. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

CITY SECRETARY

(ADDRESS)

(CITY) TEXAS (ZIP CODE).

Gary L. Kilgore
Appeals Judge

CONCUR:

Edward Vilano
Appeals Judge

Roy L. Warren
Appeals Judge

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 April 9, 2002. The hearing officer determined that the appellant (claimant) is not entitled to change treating doctors to Dr. R, pursuant to Section 408.022; that the respondent (carrier) did not waive the right to dispute the order regarding a change of treating doctor, because the carrier did file its dispute within 10 days after receiving the order; that the claimant had disability beginning September 24, 2001, and continuing through January 28, 2002; that the employer did not tender a bona fide offer of employment (BFOE) to the claimant which would entitle the carrier to adjust post-injury earnings; and that the claimant’s treating doctor is Dr. T. The claimant appealed the determinations pertaining to her entitlement to change treating doctors and that the treating doctor is Dr. T, arguing that the hearing officer improperly applied Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9(c)(2) (Rule 126.9(c)(2)). The claimant takes the position that the first doctor she saw was recommended by the employer, that she did not “receive treatment from the doctor for a period of more than 60 days,” and that Dr. R was her “initial choice of treating doctor,” not a change of treating doctor. In its response, the carrier urges affirmance of the hearing officer’s determinations on the appealed issues.

DECISION

Affirmed.

The determinations pertaining to the carrier waiver, disability, and BFOE issues were not appealed and have become final. Section 410.169.

Whether a particular doctor is the employee's initial choice of treating doctor is a factual matter for the hearing officer to determine. Texas Workers' Compensation Commission Appeal No. 94061, decided February 25, 1994. The 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 Co. of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). We will substitute our judgment for that of the hearing officer only when the determination is 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. We conclude that the determination that Dr. T was the claimant’s treating doctor is not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust.

Section 408.022 deals with the selection of a doctor and circumstances under which a treating doctor may be changed. Section 408.022(d) provides that a "change of doctor may not be made to secure a new impairment rating or medical report." The hearing officer specifically found that the reason for the claimant's request to change treating doctors was “to get a new medical report that would put her on off work status.” The evidence could give rise to different inferences and the claimant's appeal details the evidence from her point of view. The hearing officer, however, is the sole judge of the weight and credibility that is to be given to the evidence. Section 410.165(a). We have reviewed the complained-of determination and conclude that the issue involved a fact question for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude 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, supra.

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is PACIFIC EMPLOYERS INSURANCE COMPANY and the name and address of its registered agent for service of process is

MARCUS CHARLES MERRITT

6600 CAMPUS CIRCLE DRIVE EAST, SUITE 200

IRVING, TEXAS 75063.

Michael B. McShane
Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

Philip F. O'Neill
Appeals Judge

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 January 30, 2001, in (city 1). The hearing officer determined that: (1) venue is proper in (city 2) Field Office; (2) the Texas Workers’ Compensation Commission (Commission) abused its discretion in approving appellant’s (claimant) request to change treating doctors from Dr. W to Dr. C; (3) the claimant did not sustain disability from September 29, 2000, and continuing through the present date of the hearing on January 30, 2001, or for any other time period, due to the compensable injury claimant sustained while working for employer on August 24, 2000; and (4) the respondent (carrier) timely disputed the order approving the change of treating doctor, pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9(g) (Rule 126.9(g)).

The claimant has appealed all of these determinations, raising both factual sufficiency and legal arguments. The carrier responds, agreeing that the statement of venue was incorrect and urging affirmance on the other appealed issues.

DECISION

Reformed in part, affirmed in part, reversed and rendered in part.

The claimant was employed by (employer) as a carpenter. The claimant sustained a compensable right arm injury on __________, when a bench fell on his right arm. The claimant sought medical treatment at (clinic) that same day. The claimant treated at the clinic from __________, through October 9, 2000, and was returned to light-duty work on August 25, 2000. The claimant’s primary care giver during this period was Ms. O, a physician’s assistant to Dr. W. Upon returning to work on August 25, 2000, the employer gave the claimant a supervisory position to accommodate his restrictions. The claimant was referred to Dr. M, who prescribed a regimen of physical therapy. The claimant was terminated for cause by the employer on September 29, 2000.

The claimant attended a follow-up examination with Ms. O on October 9, 2000, at which time the claimant requested that she take him completely off work so that he could collect workers’ compensation benefits. The claimant was informed that he was not completely disabled, and was released to light-duty work with specific restrictions. On October 18, 2000, the claimant completed an Employee’s Request to Change Treating Doctors (TWCC-53) from Dr. W to Dr. C. The claimant stated that his reason was that he was not receiving the appropriate medical treatment, wanted to get well to return to work, and lacked confidence in Dr. W. The Commission approved the claimant’s request on October 27, 2000. The carrier received the approved TWCC-53 on November 7, 2000, and disputed it by completing a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) dated November 8, 2000, and completing a Request For a Benefit Review Conference (TWCC-45) dated November 16, 2000.

Dr. C examined the claimant on November 6, 2000, at which time he took the claimant off work and recommended the claimant undergo a regimen of a home program treatment using exercises and cryotherapy. Dr. C opined that reattachment of the biceps tendon may be needed, and the claimant was referred to Dr. S for an orthopedic evaluation and treatment.

The claimant was next seen by Dr. P, the carrier-selected doctor, for a required medical examination (RME) on December 21, 2000. Dr. P certified that the claimant was not at maximum medical improvement (MMI), and no impairment rating could be assigned. Dr. P opined that the claimant could return to light-duty work with the restriction that he not lift more than 10 pounds with his right arm for more than 4 hours per day. At the time of the CCH, no doctor had released the claimant back to regular duty.

VENUE

First, addressing the hearing officer’s determination that venue was proper in city 2 Field Office, the parties stipulated on the record that venue was proper in the city 1 [sic] Field Office, and it appears that the hearing officer made a typographical error in his Conclusions of Law No. 2. We reform that determination to conform to the stipulation of the parties that venue was proper in the city 1 Field Office.

ABUSE OF DISCRETION

Section 408.022 and Rule 126.9 control the requirements for a change of treating doctor. Section 408.022 provides, in pertinent part:

(c)The commission shall prescribe criteria to be used by the commission in granting the employee authority to select an alternate doctor. The criteria may include:

(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 maximum medical improvement; and

(4)whether a conflict exists between the employee and the doctor to the extent that the doctor-patient relationship is jeopardized or impaired.

(d)A change of doctor may not be made to secure a new impairment rating or medical report.

The hearing officer found as fact that the claimant requested a change of treating doctors from Dr. W to Dr. C because Dr. W had released the claimant to return to light-duty work, which the claimant accepted until he was terminated, and the claimant subsequently wanted a new medical report taking him completely off work. Under these facts, the Appeals Panel has affirmed hearing officers’ determinations that the Commission abused its discretion in approving the change. See Texas Workers’ Compensation Commission Appeal No. 000413, decided April 10, 2000. Additionally, where the claimant’s own testimony at least partially impeached the rationale stated in his TWCC-53, the hearing officer could properly consider such in determining the abuse-of-discretion issue. See Texas Workers’ Compensation Commission Appeal No. 982207, decided November 2, 1998. In the present case, the claimant testified that on October 9, 2000, he did in fact request Dr. W’s physician’s assistant to take him totally off work so that he could receive workers’ compensation benefits. While the claimant denied that was the reason he filed his TWCC-53 on October 18, 2000, Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as the weight and credibility that is to be given the evidence. 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). The trier of fact may believe all, part, or none of the testimony of any witness. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ).

The claimant, for the first time on appeal, asserts that Dr. W was not his treating doctor and a TWCC-53 was not needed pursuant to Rule 126.9(c). The claimant, having not raised this issue at the benefit review conference or CCH, has waived it.

We find the evidence of record sufficient to support the hearing officer’s determination and affirm on this issue.

DISABILITY

The hearing officer determined that the claimant "did not sustain disability from September 29, 2000, and continuing through the date of the hearing on January 30, 2001, or for any other period, due to the compensable injury the claimant sustained while working for the employer on __________." The hearing officer based this determination on his finding that the claimant’s inability to obtain and retain employment at wages equivalent to his preinjury wage was due to his termination for cause, and not due to the compensable injury.

Disability means the “inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” Section 401.011(16). The determination as to an employee’s disability is a question of fact for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 92147, decided May 29, 1992. When an employee sustains a compensable injury, receives a light-duty release, returns to the employer at light duty, and then is terminated by the employer, we must consider whether the termination was for cause. Texas Workers’ Compensation Commission Appeal No. 91027, decided October 24, 1991. If the termination was for cause, the employee must establish disability after the termination by credible evidence. Id. Disability, by definition, depends upon there being a compensable injury. Appeal No. 92147, supra.

The fact that a claimant is released for light duty is evidence that the effects of the injury continue and disability therefore exists; even a claimant terminated for cause may establish disability thereafter. Appeal No. 91027, supra. The 1989 Act does not impose on an injured employee the requirement to engage in employment while still suffering from the lingering effects of his injury unless such employment is readily available and fully compatible with his physical condition and generally within the parameters of his training, experience, and qualifications. Texas Workers’ Compensation Commission Appeal No. 91045, decided November 21, 1991. We direct attention to Texas Workers’ Compensation Commission Appeal No. 980003, decided February 11, 1998, for an informative discussion of the case law pertaining to a determination of disability after termination from employment. All of the medical reports submitted into evidence indicate that the claimant was released to light-duty work with restrictions from the date of the injury. There is no evidence that the claimant had been released to return to work without restrictions as of the date of the CCH. Dr. W released the claimant to light-duty work with restrictions as to the right arm; Dr. C had taken the claimant entirely off work as of November 6, 2000; Dr. P, the carrier-selected RME doctor, examined the claimant on December 21, 2000, and determined that he had not reached MMI, and that he could return to light-duty work with the restriction that he not lift more than 10 pounds with his right arm for more than 4 hours per day.

We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard of review to the record of this case, we find that the overwhelming weight of the evidence supports a determination that the claimant had disability from September 29, 2000, through the date of the hearing.

Because the evidence supports a determination that the claimant had disability from September 29, 2000, to the date of the hearing, we reverse the disability determination and render a new decision that the claimant had disability from September 29, 2000, through the date of the hearing.

TIMELY DISPUTE OF THE ORDER APPROVING THE

CHANGE OF TREATING DOCTOR

In his appeal, the claimant disputed a number of the hearing officer’s findings of fact and conclusions of law. Among them was the hearing officer’s determination that the carrier timely disputed the order approving the change of treating doctor, pursuant to Rule 126.9(g).

We will reverse a factual determination of a hearing officer only if that determination is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain, supra; Pool, supra. Applying this standard of review to the record of this case, we find there is sufficient evidence in the record to support the hearing officer’s determination that the carrier timely disputed approval of the request to change treating doctors.

The hearing officer is affirmed on this issue.

Michael B. McShane
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Philip F. O’Neill
Appeals Judge

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 January 25, 2000. The issues at the CCH were: is Dr. HS the respondent’s (claimant) initial choice of treating doctor, did the Texas Workers’ Compensation Commission (Commission) abuse its discretion in approving Dr. P as an alternate treating doctor, and did the appellant (carrier) waive its right to contest the change of treating doctors by not contesting the change within 10 days after receiving the Commission’s order. The hearing officer determined that the Commission did not abuse its discretion in approving an alternate doctor and that the carrier waived its right to contest the change of treating doctors by not timely contesting the change. The carrier appealed. It urged that the hearing officer erred in determining that the Commission did not abuse its discretion in approving Dr. P as an alternate treating doctor and in determining that the carrier waived its right to contest the change of treating doctors. The carrier also contended that the hearing officer erred and abused her discretion in failing to acknowledge, discuss, and/or rule upon its requested relief under Section 408.024 and Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 126.9(h) (Rule 126.9(h)). The carrier requested that the Appeals Panel reverse the decision of the hearing officer and render a decision in its favor, or, in the alternative, reverse the decision of the hearing officer and remand the case to her. The claimant responded, urged that the hearing officer did not commit error, and requested that her decision be affirmed.

DECISION

We affirm in part and reverse and render in part.

The claimant sustained a compensable injury to her shoulder on __________. She testified that she had been treated by Dr. HS as her family doctor for about nine years; that she went to him, used health insurance that she has because of her husband's job, and did not tell Dr. HS that she was hurt at work. Dr. HS referred the claimant to Dr. AS. She saw Dr. AS in July 1998, and Dr. AS performed surgery on the claimant’s shoulder in October 1998. The claimant testified that after the surgery she received therapy and was referred to a pain management doctor, that the doctor gave her injections, and that the injections made things worse and she could not turn her neck. At the request of the carrier, the claimant was seen by Dr. K. In a Report of Medical Evaluation (TWCC-69) dated April 12, 1999, Dr. K reported that the claimant reached maximum medical improvement (MMI) on that day with an eight percent impairment rating (IR). With a letter dated April 27, 1999, the Commission advised the claimant of the MMI date and IR assigned by Dr. K and advised her of her rights related to disputing the report of Dr. K. The claimant said that she received a copy of the report of Dr. K; saw Dr. AS on May 6, 1999; that Dr. AS had a copy of the report of Dr. K; that the report said that it was time for her to start working again; that Dr. AS said that there was nothing else that he could do for her; that she did not recall Dr. AS saying that he agreed with the report of Dr. K; and that she wanted to go to a doctor who could give her appropriate treatment. A note in the claimant’s medical records of Dr. AS dated May 5, 1999, states that he agrees with the MMI and would have claimant measured for a disability rating for her neck and shoulder.

In an Employee’s Request to Change Treating Doctors (TWCC-53) dated May 17, 1999, the claimant requested that her treating doctor be changed from Dr. AS to Dr. P. The reason given is:

I have been treating with [Dr. AS]. I don’t feel that I’ve received appropriate medical care. I’ve tried to discuss this but I’m not getting anywhere with that. I need a doctor who understands the system, who can help me obtain appropriate care and help me get well.

The TWCC-53 was completed in handwriting. The claimant testified that she signed the TWCC-53, said that she does not write in English, and agreed that the other handwriting was done by two other persons. A letter from the law firm representing the claimant to the Commission dated May 18, 1999, states that the firm represents the claimant. On May 21, 1999, a Commission employee approved the request to change treating doctors. It appears that the carrier’s Austin representative received a copy of the approval of the request to change treating doctors on May 28, 1999. In a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) dated June 2, 1999, the carrier stated that it "disputes claimant’s request to change treating doctors" and provided its reasons. In a Request for Benefit Review Conference [BRC] (TWCC-45) dated September 24, 1999, the carrier stated that it maintained that it timely filed its dispute of the approval to change treating doctors and had been informed that a BRC would be set.

We first address the contention that the hearing officer erred in determining that the carrier did not timely contest the Commission’s approval of the claimant’s request to change treating doctors. First, the carrier argued that Rule 140.1 defines a benefit dispute as "a disputed issue arising under the [1989 Act] in a workers’ compensation claim regarding compensability or eligibility for, or the amount of, income or death benefits" and that the issue of changing treating doctors is not a benefit dispute that should be handled under the benefit dispute provisions of the 1989 Act and Commission rules. However, Rule 126.9 is entitled Choice of Treating Doctor and Liability for Payment and subsection (g) provides:

With good cause, the injured employee or carrier may dispute the order regarding a change to an alternate treating doctor within 10 days after receiving the order. That dispute will be handled through the dispute resolution process described in Chapters 140 through 143 of this title (relating to Dispute Resolution/General Provisions, [BRC], Benefit [CCH], and Review by the Appeals Panel).

The effective date of Rule 140.1 is May 24, 1991, and the effective date of Rule 126.9 is July 1, 1993. Rule 126.9, stating the dispute resolution process to be used in resolving disputes concerning change of treating doctors, is dated after the general definition rule and indicates that the process in Rules 140 through 143, rather than the process in the Administrative Procedure Act that is used for some medical disputes, should be used resolving disputes concerning approval or denial of a request to change treating doctors. The issue was properly before the hearing officer.

The carrier also contends that the filing of a TWCC-21 before the 10-day period expired was sufficient to contest the approval of the request to change treating doctors. In previous decisions, the Appeals Panel has generally required that a TWCC-45 be filed within the 10-day period to timely contest the approval or denial of a request to change treating doctors. In Texas Workers’ Compensation Commission Appeal No. 991715, decided September 22, 1999, the Appeals Panel recognized that Commission rules permit an unrepresented claimant to request a BRC in any manner and stated that it was not holding that a dispute of a Commission order regarding a change to an alternate doctor may never be made orally. In Texas Workers’ Compensation Commission Appeal No. 971957, decided November 3, 1997, the Appeals Panel wrote:

The carrier asserts that there is no 10 day or other time requirement to dispute a change of treating doctor contained in Rule 126.9(g), nor is there any requirement that it be in writing. While it is true that Rule 126.9(g) does not specifically state a writing is required, the rule does specifically provide a 10-day time frame and states that "[t]hat dispute will be handled through the dispute resolution process . . . ." Clearly, the dispute resolution process as set forth in Section 410.021 and Rule 141.1 provides that a BRC is the initial vehicle to mediate and possibly resolve disputed issues and that a request for a BRC shall be made on a form TWCC-45. Rule 102.7 mandates that a request to be considered timely must be received on or before the last permissible day of filing. That requirement was not met here. As was held in Texas Workers’ Compensation Commission Appeal No. 951264, decided September 8, 1995, a case concerning the timely filing of a request for a BRC in a supplemental income benefits [SIBs] case, the request had to be received by the Commission within 10 days and not just mailed within 10 days. See also Texas Workers’ Compensation Commission Appeal No. 962426, decided January 8, 1997.

Rule 130.108 requires that a carrier that wishes to dispute a Commission finding of entitlement to or the amount of SIBs do so by requesting a BRC as provided by Rule 141.1 within 10 days of receiving the Commission determination of entitlement. Rule 126.9 states that a claimant or a carrier may dispute an order regarding a change to an alternate doctor within 10 days after receiving the order. Rule 126.9 goes on to state that the dispute will be handled through the dispute resolution process in Chapters 140 through 143 of the Commission’s rules. It does not require the use of a specific form as does the rule concerning SIBs. If a carrier contests the compensability of a claimed injury contending that the claimant was not injured in the course and scope of employment or that the injury does not extend to a specific injury or body part, the standard practice is for the carrier to use a TWCC-21 to contest compensability. Later, a TWCC-45 may be filed. If so, the BRC, CCH, and Appeals Panel dispute resolution process will be used to resolve the dispute. The TWCC-21 was published by the Commission in February 1991, prior to Rule 126.9 being adopted, and contains:

Notice of Refused or Disputed Claim

PAYMENT REFUSED OR DISPUTED FOR THE FOLLOWING REASONS: (Art. 8308-5.21(B)(C)).

The TWCC has a space to state the reasons and then says:

MEDICAL PAYMENT DISPUTES. (Art. 8308-4.68(d)). If an Insurance Carrier disputes the amount of payment for medical services or the entitlement to payment for medical services, the carrier must report its position on Form TWCC-62 REPORT OF MEDICAL PAYMENT DISPUTE [NOTICE OF MEDICAL PAYMENT DISPUTE].

In the case before us, the carrier filed a TWCC-21 disputing the approval of the request to change treating doctors within 10 days of receiving it and later filed a request for a BRC. While filing a TWCC-45 may be the preferred way to dispute an order concerning change of treating doctors and should result in a BRC being rapidly set to start the dispute resolution process in Rules 140 through 143, that is not the only way that such a dispute may be made. The carrier timely disputed the Commission’s order approving the request to change treating doctors when it filed the TWCC-21 within 10 days of receiving the order approving the request to change treating doctors. We reverse the determination that the carrier did not timely dispute the order approving the request to change treating doctors and render a decision that the carrier timely disputed the order approving the request to change to an alternate treating doctor.

We next address the determination that the Commission did not abuse its discretion approving the request to change treating doctors. The carrier did not contend that the hearing officer erred in considering only the information available to the Commission at the time that the request was approved.^[1] The record indicates that the Commission had information that the report of Dr. K had been sent to the claimant before she requested the change of treating doctors. The carrier argued that the Commission knew from an entry in the records of Dr. AS that she knew that he agreed with Dr. K that she had reached MMI. However, Commission rules do not require that medical records be sent to the Commission and the copy of the note of Dr. AS concerning his agreement that the claimant had reached MMI that is in the record in no way indicates that it had been received by the Commission. The record does not indicate that when the Commission approved the request to change treating doctors, it had information that Dr. AS agreed that the claimant had reached MMI and that he was going to have tests performed so that an IR could be assigned to the claimant.

The burden was on the carrier to prove that the Commission abused its discretion when it approved the claimant’s request to change treating doctors. The hearing officer is the trier of fact and is the sole judge of the relevance and materiality of the evidence and of the weight and credibility to be given to the evidence. Section 410.165(a). An appeals level body is not a fact finder, and it does not normally substitute its own judgment for that of the trier of fact even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). The hearing officer’s determination that the Commission did not abuse its discretion in approving the request to change treating doctors is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust and is affirmed. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

The carrier also contended that the hearing officer erred in not making a determination that the carrier was relieved of liability for health care provided by Dr. P. Section 408.024 provides that the Commission may relieve a carrier of liability for health care that is furnished by a health care provider selected in a manner inconsistent with the provisions of the 1989 Act for obtaining medical benefits. In the absence of a determination that the Commission abused its discretion in approving the request of the claimant to change treating doctors to Dr. P, the hearing officer was not required to render a decision or issue an order that the carrier is relieved of liability for health care provided by Dr. P.

We reverse the part of the hearing officer’s decision that the carrier did not timely dispute the Commission’s order approving the claimant’s request to change treating doctors and render a decision that it did. We affirm the part of the hearing officer’s decision that the Commission did not abuse its discretion when it approved the claimant’s request to change treating doctors.

Tommy W. Lueders
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Dorian E. Ramirez
Appeals Judge

1. See Texas Workers’ Compensation Commission Appeal No. 992447, decided December 22, 1999, for a case concerning what may be considered when fraud is involved in obtaining approval of a request to change treating doctors.

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Following a contested case hearing held on April 23, 1999, 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 Texas Workers' Compensation Commission (Commission) did not abuse its discretion in approving Dr. MK as the respondent's (claimant) alternate treating doctor and that the appellant (carrier) waived its right to dispute the Commission's order to change claimant's treating doctor by failing to dispute the order within 10 days of receiving it. The carrier has appealed these conclusions and several factual findings on the basis of insufficiency of the evidence. The carrier asserts that claimant was "doctor shopping" and should have been required to return to one of the doctors he had previously seen and that the carrier should not be penalized for the postal system's delay in delivering its dispute of the Commission's order. The file does not contain a response from claimant.

DECISION

Affirmed.

The parties stipulated that on ________, claimant sustained a compensable injury; that her treating doctor was Dr. SK; and that claimant submitted an Employee's Request to Change Treating Doctors (TWCC-53) to the Commission to change her treating doctor to Dr. MK which the Commission approved on November 9, 1998.

Claimant testified that she was injured on ________, when she stepped up on an embankment and fell to her knees while trying to protect the lap top computer she was carrying; that she was treated in an emergency room by a doctor who told her to follow up with her family doctor; that she next was seen by her family doctor, Dr. MA, who said he could not treat her and referred her to both Dr. SK, a chiropractor, and Dr. W, an orthopedic specialist; that she began receiving chiropractic treatment immediately from Dr. SK but did not get to see Dr. W until sometime in May 1998; that she was treated by both Dr. SK and Dr. W for some time and was also sent to another city for nerve block injections from Dr. R; that sometime in October 1998, Dr. SK told her he could do nothing further for her; and that she then requested Commission approval to change treating doctors to Dr. MK, a neurologist.

Claimant further stated that she was initially diagnosed and treated for abrasions and contusions of her right knee; that the knee became infected; that she was later diagnosed with reflex sympathetic dystrophy (RSD) and a subcutaneous neuroma; and that these latter conditions required treatment by a neurologist. She stated that she had been interested in commencing treatment with Dr. MK early on but that the carrier did not want her to see him. Dr. MK's records reflect that he has diagnosed right RSD, myofascial pain syndrome in primarily the lumbar region and, to a lesser extent, in the cervicothoracic region, and right knee pain.

In evidence is a TWCC-53 reflecting that on September 30, 1998, the Commission approved claimant's request to change treating doctors from Dr. W to Dr. SK. There is no disputed issue concerning that Commission order. Claimant was unable to clearly answer questions concerning why this form was executed at the time since she had been provided with treatment by Dr. SK since soon after her injury. Dr. SK wrote claimant on October 29, 1998, stating that due to the nature of her injuries, neither he nor the chiropractic clinic could be of further service; that she is released and he is no longer her primary care physician; and that she may feel free to go to another doctor of her choice.

Also in evidence is a TWCC-53, signed by claimant on November 2, 1998, reflecting that on November 9, 1998, the Commission approved claimant's request to change treating doctors from Dr. SK to Dr. MK. This document states as claimant's reason for requesting the change that Dr. SK recommends she change to a physician who can treat subcutaneous neuroma with very severe hypoesthetic condition, as well as pain management and medication. This document reflects at the bottom that on November 9, 1998, the Commission checked both the block for "request approved" and the block for "exception" which was followed by the statement "[Dr. SK] unable to treat any longer. See [Section] 408.022(E)(4)(c)." This document also bears the carrier's date stamp reflecting receipt by the carrier on November 19, 1998.

Also in evidence is the carrier's Request for Benefit Review Conference (TWCC-45), dated November 24, 1998, which bears the Commission's date stamp reflecting receipt by the Commission on December 2, 1998. This document requests an expedited benefit review conference (BRC), stating that it disputes "the latest change in treating doctor" approved by the Commission because it is excessive and unreasonable in that claimant has already been seen by approximately eight doctors. The Commission's letter of December 8, 1998, to the parties states that pursuant to Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 126.9(g) (Rule 126.9(g)), a BRC will not be scheduled since the dispute of the Commission's order was not received within 10 days. Also in evidence is the carrier's letter of January 8, 1999, which enclosed another TWCC-45. This letter states that the carrier disagrees with the Commission's determination that its previous TWCC-45 was not timely and requests that a BRC be set to address this issue. The letter further states that the carrier received claimant's TWCC-53 on November 19, 1998, that it filed its dispute by mail on November 20, 1998, and that it did not anticipate that the mail system between (City 1) and (City 2) would take longer than five days. The letter also states that the Commission's "general rule regarding the presumed date of receipt for mail (five days from the date it is sent) should apply in this case."

Section 408.022(b) provides, in part, that if an employee is dissatisfied with the initial choice of a doctor from the Commission's list, the employee may notify the Commission and request authority to select an alternate doctor. Section 408.022(c) provides that the Commission shall prescribe the criteria to be used in granting the employee authority to select an alternate doctor and that the criteria may include: (1) whether treatment by the current treating doctor is medically appropriate, (2) the professional reputation of the doctor, (3) whether the employee is receiving appropriate medical care to reach maximum medical improvement, and (4) whether a conflict exists between the employee and the doctor to the extent that the doctor-patient relationship is jeopardized or impaired. Section 408.022(d) provides that a change of doctor may not be made to secure a new impairment rating or medical report. Section 408.022(e) provides, in part, that a referral made by a doctor chosen by the employee is not a selection of an alternate doctor if the referral is medically reasonable and necessary and also that the selection of a doctor because the original doctor becomes unavailable or unable to provide medical care to the employee is not a selection of an alternate doctor. There were no disputed issues concerning the status of Dr. MA or Dr. W and, as noted, the parties stipulated that claimant's treating doctor was Dr. SK. Rule 126.9(e) provides that reasons for approving a change in treating doctor include but are not limited to the reasons listed in Section 408.022 and also that the selected doctor chooses not to be responsible for coordinating the injured employee's health care.

The Appeals Panel has consistently applied an abuse of discretion standard in reviewing requests to change treating doctors. Texas Workers' Compensation Commission Appeal No. 951943, decided January 2, 1996. In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles. Appeal No. 951943; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). In Texas Workers' Compensation Commission Appeal No. 941475, decided December 16, 1994, the Appeals Panel affirmed the hearing officer's determination that the Commission did not abuse its discretion in approving a change of treating doctor for the reasons that the treating doctor was unavailable and that the employee was not improving under his care. We are satisfied that the three appealed findings and the conclusion relating to the change of treating doctor issue are 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).

Concerning the waiver issue, Rule 126.9(f) provides that the Commission shall issue an order approving or denying a change of doctor request and Rule 126.9(g) provides that with good cause, the injured employee or carrier may dispute the order regarding a change to an alternate treating doctor within 10 days after receiving the order. The hearing officer found that on November 19, 1998, the carrier received a copy of the Commission order of November 9, 1998, approving claimant's TWCC-53; that on November 24, 1998, the carrier prepared a TWCC-45 to dispute that order; and that on December 2, 1998, the Commission received the carrier's TWCC-45. These findings are not appealed. The carrier does appeal the conclusion that it waived its right to dispute the Commission's order to change claimant's treating doctor by failing to dispute the order within 10 days of receiving it, arguing, as it did below, that it is unfair to penalize the carrier for postal service delay in delivering its TWCC-45 and that Rule 102.5(h), which deems receipt of a document five days after it is mailed, should be applied. We find no merit in either contention. The Appeals Panel has long observed that the postal service is the agent of the party selecting it as the vehicle of delivery and that any delay occasioned by its negligence is attributable to the sender. See Texas Workers' Compensation Commission Appeal No. 931172, decided January 18, 1994. As for the application of Rule 102.5(h), that rule applies to documents sent by the Commission, not by parties. See e.g. Texas Workers' Compensation Commission Appeal No. 941345, decided November 21, 1994. Further, Rule 102.7 provides, in part, that documents required to be filed by a specified time will be considered timely only if received by the Commission on the last permissible day of filing.

The decision and order of the hearing officer are affirmed.

Philip F. O'Neill
Appeals Judge

CONCUR:

Robert W. Potts
Appeals Judge

Alan C. Ernst
Appeals Judge