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At a Glance:
Title:
APD 162150
Date:
December 6, 2016

APD 162150

December 6, 2016

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 September 14, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the first certification of maximum medical improvement (MMI) and impairment rating (IR) assigned by (Dr. R) on January 14, 2016, became final under Section 408.123 and 28 TEX. ADMIN. CODE § 130.12 (Rule 130.12); and (2) the respondent (claimant) reached MMI on January 4, 2016, with a 17% IR. The appellant (carrier) appeals the hearing officer’s determination of finality and IR. The carrier contends that an exception to finality was established preventing Dr. R’s certification from becoming final and the correct IR is 12% as certified by the designated doctor. The claimant responded, urging affirmance of both the finality and IR determinations.

DECISION

Reversed and rendered.

The parties stipulated that the Texas Department of Insurance, Division of Workers’ Compensation (Division)-selected designated doctor to determine MMI and IR is (Dr. F) and that the claimant reached statutory MMI on January 4, 2016. It was undisputed that the claimant sustained a compensable injury on (date of injury). The claimant testified that he injured his left shoulder and neck when helping to move a large pipe.

FINALITY

Section 408.123(e) provides that except as otherwise provided by this section, an employee’s first valid certification of MMI and the first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means and that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c). Rule 130.12(c) provides, in part, that a certification of MMI and/or IR assigned as described in subsection (a) must be on a [DWC-69]. The certification on the [DWC-69] is valid if: (1) there is an MMI date that is not prospective; (2) there is an impairment determination of either no impairment or a percentage [IR] assigned; and (3) there is the signature of the certifying doctor who is authorized by the [Division] under Rule 130.1(a) to make the assigned impairment determination. Section 408.123(f) provides in pertinent part that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described in Subsection (e) if: (1) compelling medical evidence exists of: (A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the [IR] (B) [a] clearly mistaken diagnosis or a previously undiagnosed medical condition; or (C) improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid.

The hearing officer’s finding that the carrier did not dispute Dr. R’s certification of MMI and assignment of IR within 90 days after the date the certification and assignment were provided is supported by sufficient evidence. At issue was whether Dr. R made a significant error in applying the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. R, a doctor selected by the treating doctor to act in his place, examined the claimant on January 14, 2016. Dr. R certified that the claimant reached MMI on the statutory date of January 4, 2016, and assigned a 17% IR using the AMA Guides. Dr. R assessed 13% impairment for the cervical spine using Table 75, page 3/113. Dr. R assessed 10% impairment under Section IV, part D for a single-level spinal fusion with or without decompression with residual signs or symptoms and added 3% impairment for multiple levels operated on with residual pain and rigidity. Dr. R then combined the 13% impairment for the cervical spine with 5% impairment assessed for loss of range of motion (ROM) of the left shoulder for a total of 17% IR.

The carrier argues that Dr. R misapplied the AMA Guides because he used the ROM Model to assess impairment for the cervical spine rather than the Injury Model. The AMA Guides on page 3/100 state that the Injury Model “relies especially on evidence of neurologic deficits and uncommon, adverse structural changes, such as fractures, dislocations, and loss of motion segment integrity. Under this model, Diagnosis-Related Estimates (DRE) are differentiated according to clinical findings that are verifiable using standard medical procedures.”

In Appeals Panel Decision (APD) 030288-s, decided March 18, 2003, the Appeals Panel held that although there are instances when the ROM Model may be used, such as if none of the categories of the DRE Model are applicable, the use of the DRE Model is not optional and is to be used unless there is a specific explanation why it cannot be used. In that case, the Appeals Panel referenced the AMA Guides on page 3/94 that states “[t]he evaluator assessing the spine should use the [DRE Model], if the patient’s condition is one of those listed in Table 70 ([page]108).” The Appeals Panel also referenced page 3/112 that states the “[ROM] Model should be used only if the [DRE] Model is not applicable, or if more clinical data on the spine are needed to categorize the individual’s spine impairment.” The Appeals Panel held that unless there is a specific explanation why the DRE Model cannot be used, a comment that the evaluator merely prefers to use the model that he or she feels is most appropriate is insufficient justification for not using the DRE Model.

In APD 042543, decided December 2, 2004, the Appeals Panel stated that simply because the claimant had spinal surgery was not sufficient justification for using the ROM Model rather than the DRE Model. In that case, the designated doctor stated, “there was no DRE category that specifically addresses spinal surgery post injury. However, the ROM Model specifically rates spinal surgery.” The Appeals Panel stated that “[i]t is clear from his response, that the designated doctor did not use the DRE Model to assess impairment not because of any factor specific to the claimant’s condition and treatment but simply because he had spinal surgery.” Spinal surgery in and of itself is not an appropriate reason to use the ROM Model to assess an impairment.

In correspondence dated May 15, 2016, Dr. R stated in part, using the DRE Model, the claimant would be placed in Cervicothoracic DRE Category II and 5% impairment would be assigned. Dr. R further stated in his opinion the Cervicothoracic DRE Category II did not adequately reflect the claimant’s cervical related impairment after his four-level cervical fusion, considering his significantly decreased cervical motion, cervical rigidity, and pain. In evidence is a records review dated May 10, 2016, from F (Dr. C). Dr. C notes that Dr. R only used a portion of the ROM Model to assess impairment for the cervical spine. The AMA Guides provide on page 3/115 that when using the ROM Model the estimated diagnosis-related impairment percent for the primarily involved region using Table 75 should be determined. ROM measurements should be taken and any impairments due to neurologic deficits should also be determined. The AMA Guides then provide that the diagnosis-based and ROM impairment percents should be combined using the combined values chart. Dr. R’s narrative does not reflect that he took ROM measurements of the claimant’s cervical spine and he did not combine the diagnosis-based and ROM impairment percents to determine the claimant’s cervical spine impairment.

The hearing officer found that none of the exceptions to 90-day finality provided in Section 408.123(f) were shown to apply in this case. However, as noted above there was compelling medical evidence that Dr. R made a significant error in applying the AMA Guides and in calculating the IR. Accordingly, we reverse the hearing officer’s determination that the first certification of MMI and IR assigned by Dr. R on January 14, 2016, became final under Section 408.123 and Rule 130.12 and render a new determination that the first certification of MMI and IR assigned by Dr. R on January 14, 2016, did not become final.

IR

The parties stipulated that the claimant reached statutory MMI on January 4, 2016. Only two certifications of MMI/IR were in evidence. Dr. R certified that the claimant reached MMI on January 4, 2016, and assigned a 17% IR. As discussed above, Dr. R made a significant error in applying the AMA Guides and his certification cannot be adopted. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 17%

The only other certification in evidence was from the Division-appointed designated doctor, Dr. F. Dr. F certified that the claimant reached MMI January 4, 2016, with a 12% IR based on an examination that occurred on April 4, 2016. Dr. F placed the claimant in Cervicothoracic DRE Category II: Minor Impairment and assessed 5%. Dr. F noted he used the ROM findings of Dr. R’s examination of January 14, 2016, and assessed 12% upper extremity impairment. The following ROM values were used: flexion of 150°; extension 40°; abduction 140°; adduction 40°; internal rotation 60°; and external rotation 40°. Using Figure 38, page 3/42, Dr. F properly assessed 2% impairment for flexion and 1% impairment for extension. Using Figure 44, page 3/45, Dr. F properly assessed 2% impairment for internal rotation and 1% impairment for external rotation. Using Figure 41, page 3/44, Dr. F assessed 6% impairment for abduction. However, Figure 41 provides that for abduction of 140° ROM 2% impairment should be assessed. Dr. F properly assessed 0% impairment for adduction.

The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See APD 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011. Under the facts of this case, the certifying doctor’s assigned IR can be mathematically corrected based on the documented measurements for the left shoulder.

Assigning 2% impairment for loss of ROM based on 140° of abduction with the previous impairment assigned based on Figures 38, 41, and 44 results in 8% upper extremity impairment for the left shoulder rather than 12% upper extremity impairment as assigned by Dr. F. Converting 8% upper extremity impairment to whole person using Table 3, page 3/20 results in 5% whole person impairment. Combining 5% impairment for the left shoulder with 5% impairment for the cervical spine results in a whole person impairment for the compensable injury of 10% rather than 12%. Accordingly, we reverse the hearing officer’s determination that the claimant’s IR is 17% and render a new decision that the claimant’s IR is 10%.

SUMMARY

We reverse the hearing officer’s determination that the first certification of MMI and IR assigned by Dr. R on January 14, 2016, became final under Section 408.123 and Rule 130.12 and render a new decision that the first certification of MMI and IR assigned by Dr. R on January 14, 2016, did not become final.

We reverse the hearing officer’s determination that the claimant’s IR is 17% and render a new decision that the claimant’s IR is 10%.

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

RICHARD GERGASKO, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

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