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At a Glance:
Title:
APD 121740
Date:
October 29, 2012

APD 121740

October 29, 2012

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 6, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the [date of injury], compensable injury does not extend to L4-5 Grade 1 anterolisthesis, L2-3 to L4-5 stenosis, disc desiccation, disc bulge, thoracic T11-12 3 to 4-mm right disc protrusion and L5-S1 lumbar radiculopathy; (2) the appellant (claimant) reached maximum medical improvement (MMI) on November 3, 2011; (3) the claimant’s impairment rating (IR) is five percent; and (4) the first certification of MMI/IR from [Dr. O] on November 3, 2011, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12). The claimant appealed, disputing the hearing officer’s extent of injury, MMI/IR, and finality determinations. The respondent (carrier) responded, urging affirmance.

DECISION

Affirmed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a)(1). Section 410.204(a) provides, in part, that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1). Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case: (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but does not affect the outcome of the hearing. This is a case of first impression to clarify the meaning of Rule 130.12(b)(1).

EXTENT OF INJURY

The hearing officer’s determination that the [date of injury], compensable injury does not extend to L4-5 Grade 1 anterolisthesis, L2-3 to L4-5 stenosis, disc desiccation, disc bulge, thoracic T11-12 3 to 4-mm right disc protrusion and L5-S1 lumbar radiculopathy is supported by sufficient evidence and is affirmed.

MMI/IR

The hearing officer’s determination that the claimant reached MMI on November 3, 2011, with five percent IR is supported by sufficient evidence and is affirmed.

FINALITY

Rule 130.12(b)(1) provides:

Only an insurance carrier, an injured employee, or an injured employee’s attorney or employee representative under [Rule] 150.3(a) may dispute a first certification of MMI or assigned IR under [Rule] 141.1 (related to Requesting and Setting a Benefit Review Conference [BRC]) or by requesting the appointment of a designated doctor, if one has not been appointed.

It was undisputed that the claimant was examined by [Dr. P] on September 28, 2011, a designated doctor appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) for the purposes of MMI/IR. Dr. P certified that the claimant had not yet reached MMI and therefore, assigned no IR.

The evidence reflects that the claimant was subsequently examined by Dr. O, a post-designated doctor required medical examination doctor on November 3, 2011. Dr. O certified that the claimant reached MMI on November 3, 2011, with five percent IR. The evidence also reflects that Dr. O’s certification of MMI/IR was the first valid certification of MMI/IR.

The claimant appealed Finding of Fact No. 5 which states that Dr. O’s first certification of MMI/IR was provided to the claimant by verifiable means not later than November 13, 2011. This finding is supported by sufficient evidence.

As noted in the carrier’s response to the claimant’s appeal, the 91st day after November 13, 2011, is Sunday, February 12, 2012. In the Background Information section of his decision, the hearing officer stated:

Although attempts were made to request a designated doctor by filing a [Request for Designated Doctor (DWC-32)], [the] [c]laimant did not dispute within 90 days. Therefore . . . Dr. [O’s] findings became final by operation of the 90-day rule.

Both the attorneys for the claimant and the carrier center their arguments around the analysis that the claimant could have disputed Dr. O’s first valid certification of MMI/IR by filing a DWC-32 with the Division. The claimant further contends that he timely filed a DWC-32 with the Division within 90 days of the delivery of the first valid certification of MMI/IR by verifiable means, although the Division erroneously rejected it. The parties and the hearing officer focused on disputing the first valid certification of MMI/IR only by filing a DWC-32 with the 90 days.

The plain language of Rule 130.12(b)(1) provides that filing a DWC-32 will dispute a first valid certification of MMI/IR only if a designated doctor has not previously been appointed. It was undisputed in this case that a designated doctor, Dr. P, had been appointed prior to the examination by Dr. O. Therefore, under the facts of this case and pursuant to Rule 130.12(b)(1), the claimant could dispute Dr. O’s first valid certification of MMI/IR only by filing a Request for a [BRC] (DWC-45) because a designated doctor had previously been appointed. The evidence in this case reflects that no DWC-45 was filed within 90 days of the delivery of the first valid certification of MMI/IR by verifiable means.

Finding of Fact No. 6 states that the claimant did not dispute the first certification of MMI/IR within 90 days after the rating was provided to him. This finding is supported by sufficient evidence. Also, the hearing officer’s findings that the claimant did not establish any exception to finality under Section 408.123(f)(1) is supported by sufficient evidence.

Therefore, the hearing officer’s determination that the “first certification of MMI/IR from Dr. [O] on November 3, 2011, became final” under Section 408.123 and Rule 130.12 is supported by sufficient evidence and is affirmed.

The true corporate name of the insurance carrier is SAFETY NATIONAL CASUALTY CORPORATION and the name and address of its registered agent for service of process is

C T CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

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