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 October 4, 2001. He determined that the initial certification of maximum medical improvement (MMI) and impairment rating (IR) assigned to the appellant (claimant) has become final under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)). On appeal, the claimant contends that this determination is against the great weight of the evidence. The respondent (carrier) urges affirmance.
DECISION
We reverse and remand.
This case involves the application of Rule 130.5(e), which provides:
The first certification of MMI and [IR] assigned to an employee is final if the certification of MMI and/or the [IR] is not disputed within 90 days after written notification of the MMI and IR is sent by the [Texas Workers’ Compensation] Commission to the parties, as evidenced by the date of the letter, unless based on compelling medical evidence the certification is invalid because of:
(1)a significant error on the part of the certifying doctor in applying the appropriate [Guides to the Evaluation of Permanent Impairment, third edition, second printing, dated February 1989, published by the American Medical Association] AMA Guides and/or calculating the [IR];
(2)a clear mis-diagnosis or a previously undiagnosed medical condition; or
(3)prior improper or inadequate treatment of the injury which would render the certification of MMI or [IR] invalid.
In Rodriguez v. Service Lloyds Insurance Company, 997 S.W.2d 248 (Tex. 1999), the Texas Supreme Court held that there were no exceptions to finality of a certification of MMI or IR that was not disputed within 90 days. Rule 130.5(e) was amended by the Commission after the decision in Rodriguez, with an effective date of March 13, 2000, to provide the exceptions to finality which are listed above. The amended Rule 130.5(e) applies to these proceedings.
In the present case, the claimant does not allege that an exception provided by Rule 130.5(e) prevents the initial certification from becoming final. Rather, he contends that although he did not personally dispute the initial certification within 90 days, his treating doctor, acting on his behalf, did and, therefore, the certification did not become final. The evidence reflects that the first MMI/IR certification was made by Dr. D on October 31, 2000, and that the Commission sent notice of the certification to the claimant on December 13, 2000. The claimant’s treating doctor, Dr. M, upon receiving a copy of the certification, indicated disagreement with the certification on two separate Report of Medical Evaluation (TWCC-69) forms and filed the forms, dated December 21 and December 26, 2000, with the Commission and the carrier. The hearing officer determined that Dr. M was not acting on the claimant’s behalf when he noted his disagreement with Dr. D’s certification and that the claimant did not dispute the certification until May 2001. The hearing officer concluded that the first certification of MMI and IR has become final under Rule 130.5(e).
Whether Dr. M was acting on behalf of the claimant when expressing disagreement with the certification made by Dr. D was a factual determination for the hearing officer. Texas Workers’ Compensation Commission Appeal No. 992549, decided December 22, 1999. However, in his Statement of Evidence, the hearing officer stated “[w]ithout some evidence, dated within the 90-day period, that [the treating doctor] was acting on behalf of Claimant and that either Carrier or the Commission should have known that, I cannot find a timely contest.” Based upon this statement, it appears that the hearing officer has applied an incorrect standard in resolving the issue of whether the treating doctor was acting on the claimant’s behalf in disputing the first certification of MMI and IR. We have stated that Rule 130.5(e) does not require that evidence, dated within the 90-day period, establish that the treating doctor acted on the claimant’s behalf in disputing the first certification of MMI and IR, as the hearing officer has appeared to have required in this instance. Texas Workers’ Compensation Commission Appeal No. 990046, decided February 25, 1999; Texas Workers’ Compensation Commission Appeal No. 992227, decided November 22, 1999; Texas Workers’ Compensation Commission Appeal No. 002302, decided November 16, 2000; and Texas Workers’ Compensation Commission Appeal No. 002452, decided November 29, 2000. Accordingly, we remand this case for the hearing officer to determine whether or not Dr. M was acting on the claimant’s behalf when he expressed disagreement with the first certification of MMI and IR, without requiring evidence of the treating doctor’s authority to do so within the 90-day period. If Dr. M was acting on the claimant’s behalf when he completed the bottom portion of either of the TWCC-69s, then the claimant disputed the first certification of MMI and IR.
Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Commission’s Division of Hearings, pursuant to Section 410.202, which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.
The true corporate name of the carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is
CORPORATION SERVICE COMPANY
800 BRAZOS, SUITE 750
COMMODORE 1
AUSTIN, TEXAS 78701.
Elaine M. Chaney
CONCUR:
Susan M. Kelley – Appeals Judge
CONCURRING OPINION:
I concur in the result. I write separately to note that in Texas Workers’ Compensation Commission Appeal No. 981088, decided July 8, 1998, a decision which reversed and remanded for further determinations, the Appeals Panel stated that it agreed with the carrier’s position that while the evidence supported the contention that the claimant in that case was involved in the treating doctor’s expression of disagreement, on the bottom of the Report of Medical Evaluation (TWCC-69), with another doctor’s IR, “there was no indication on that document that Dr. W was expressing claimant’s dispute as distinguished from Dr. W’s disagreement in compliance with [Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.3(b)] Rule 130.3(b).” This decision stood for the proposition that the treating doctor’s mere checking of the disagreement block on the bottom of the TWCC-69 does not act as a dispute on behalf of the claimant unless there is evidence that the doctor communicated to the carrier or the Commission within the 90-day period that the dispute is on behalf of the claimant. The obvious salutary benefit of such an evidentiary requirement is to discourage the practice of converting the treating doctor’s check off of the disagreement block on the bottom of the TWCC-69 into a dispute by the claimant by creating evidence, after the 90-day period has expired, that the treating doctor was actually conveying the claimant’s dispute of the first assigned IR. The panel in Texas Workers’ Compensation Commission Appeal No. 982646, decided December 23, 1998, followed Appeal No. 981088, supra, as did the majority of the panel in Texas Workers’ Compensation Commission Appeal No. 982956, decided January 29, 1999. And see Texas Workers’ Compensation Commission Appeal No. 981266, decided July 22, 1998. However, in Texas Workers’ Compensation Commission Appeal No. 990046, decided February 25, 1999, a panel simply declined to follow this precedent, citing an earlier decision, Appeal No. 981266, which “suggested” but did not “require” that a doctor communicate that he or she is disputing the IR on behalf of the claimant. The decision in Texas Workers’ Compensation Commission Appeal No. 990864, decided June 9, 1999, also failed to follow the precedent of Appeal No. 981088, supra, as have a number of later decisions. I can only conclude that the decision in Appeal No. 981088 is no longer of precedential value and that the practice of converting the treating doctor’s check off on the bottom of the TWCC-69 into a dispute by the claimant or with the claimant’s involvement, after the 90-day period has passed, may continue unabated.
Philip F. O’Neill – Appeals Judge