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APD 93330
June 1, 1993

APD 93330

June 1, 1993

This appeal arises under the Texas Workers' Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). A contested case hearing was held in (city), Texas, on March 24, 1993, with (hearing officer) presiding, to determine whether the appellant (claimant) had reached maximum medical improvement (MMI), and, if so, her proper impairment rating. The hearing officer found that prior to April 30, 1992, claimant and her attorney received from the carrier a Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) form stating that carrier was in receipt of a Report of Medical Evaluation (TWCC-69) reflecting claimant reached MMI on October 21, 1991, with a three percent impairment rating, and that impairment income benefits (IIBS) were thus being initiated, and further found that claimant did not dispute such MMI date, impairment rating, or the validity of the TWCC-69 until September 24, 1992. The hearing officer concluded that the MMI and three percent impairment rating, determined by claimant's treating doctor, became final since claimant failed to timely dispute same pursuant to Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)). Claimant's request for review asserts error contending, in essence, that her September 24, 1992, letter to the Texas Workers' Compensation Commission (Commission) was a timely dispute because she had not previously received a copy of the TWCC-69, that the documents she did receive including the TWCC-21 did not constitute a proper certification of the MMI date and impairment rating in accordance with the Commission's rules, and that the 90-day dispute period in Rule 130.5(e) applied to a dispute of the "accuracy of the certification of impairment," and not to the "validity" thereof, the latter being disputable at any time. Accordingly, claimant urges that presumptive weight be given to the report of the designated doctor that MMI has not been reached. Respondent (carrier) argues that claimant's 90-day dispute period began to run after she became "aware" of the MMI date and impairment rating and therefore her September 24th dispute was untimely.


Finding that the decision is supported by sufficient evidence, we affirm.

At the outset of the hearing, the parties agreed that the two disputed issues unresolved at the Benefit Review Conference (BRC) were whether or not MMI has been reached from a compensable injury sustained by claimant on or about (date of injury), and, if so, her correct impairment rating. According to the BRC report in evidence, claimant's position at the BRC was that MMI had not been reached according to the November 6, 1992, report of the designated doctor, and thus the assignment of an impairment rating was premature. The carrier's position was that claimant did not timely dispute the treating doctor's October 21, 1991, MMI date and three percent impairment rating which therefore became final. In her response to the BRC Report claimant took issue at some length with the Benefit Review Officer's recommendation that she had not timely disputed the MMI and impairment rating. After agreeing to the hearing officer's framing of the disputed issues at the hearing, the parties proceeded to adduce evidence and present argument regarding the timeliness of claimant's dispute of the treating doctor's MMI date and impairment rating without objection or apparent disagreement concerning the scope of the disputed issues. In his Decision and Order the hearing officer stated that "[t]he underlying issue is whether a TWCC-69 (Report of Medical Evaluation, a TWCC form) from the treating doctor became final or whether the Claimant is entitled to dispute that TWCC-69." In her request for review claimant asserts, obviously referring to the timely dispute matter, that "[t]his issue was raised sua sponte by the Hearing Officer." However, in view of the above recitation, to the extent such assertion by claimant was meant to assert error, it is without merit. The hearing officer quite correctly discerned the real issue within the stated issues.

According to the medical records of (Dr. N), the treating doctor, claimant tripped and fell at work on (date of injury), landing on her left knee, bumping her right arm and elbow, and jerking her neck. After emergency room treatment, she commenced treatment with Dr. N on August 28, 1991, complaining mainly of knee pain and of pain and discomfort in her right neck and shoulder. She was prescribed medication and therapy for her shoulder. On October 16, 1991, Dr. N's records indicated claimant still had pain in her shoulder but that the shoulder was improved. He noted claimant's desire to try light duty and released her for such effective October 21st. Dr. N's record of November 5, 1991, stated that an MRI showed a little fluid accumulation but no rotator cuff tear and reflected a medication change. Dr. N's record of claimant's January 14, 1992, indicated that while claimant was still having right shoulder discomfort, she was tolerating her light duty, that therapy was helping her shoulder, and that Dr. N was going to refer her for a cortisone injection. On January 23, 1992, claimant was discharged from her physical therapy regimen (two to three times per week since September 10, 1991) since her goals were attained. The February 25, 1992, record indicated that the injection was of benefit and two more were scheduled, that Dr. N told claimant to increase her workload, and that Dr. N planned to see her once more "at which time we are going to reach [MMI]." This particular entry, while seemingly in conflict with Dr. N's subsequent TWCC-69 concerning the MMI date, was not mentioned by either party.

Dr. N's report of April 13, 1992, stated that while claimant was having intermittent discomfort she could tolerate her work. After noting that she was to return in two months and may require further treatment, Dr. N stated that "[t]oday her disability rating was filled out and according to the new AMA Guidelines, Third Edition, of (sic) 3% for the shoulder." Each of Dr. N's reports of claimant's visits showed that copies were sent to claimant's attorney, and claimant's attorney stated at the hearing that she received Dr. N's April 13th report on April 24, 1992.

The carrier's adjuster, (Mr. Z), testified that on April 23, 1992, the carrier received a TWCC-69 from Dr. N stating that claimant reached MMI on October 21, 1991, with a three percent impairment rating for her right shoulder and that on April 24th he prepared a TWCC-21 form to initiate the payment of IIBS for nine weeks. Mr. Z testified that while he could not recall this particular transaction, he customarily attached a copy of the TWCC-69 to the TWCC-21 and sent copies to both claimant and attorney, and that to the best of his knowledge he sent both forms to claimant and her attorney. The TWCC-21 form reflected on its face, "payment mailed or delivered to: claimant and attorney," and that copies of the form were mailed to claimant and claimant's representative. Claimant's attorney stated she received the TWCC-21 on April 30th but did not receive the TWCC-69 until September 29th and the hearing officer made no factual finding respecting when the TWCC-69 was received by claimant or her attorney. A second TWCC-21, dated June 22, 1992, reflected that IIBS were terminated having been paid out for the nine-week period April 23 through June 24, 1992. On August 8, 1992, claimant's attorney wrote the carrier regarding payment of attorney's fees and the carrier responded by letter of August 24th sending a copy of the TWCC-21 showing that the last IIBS check was issued on June 19th. According to Mr. Z, the carrier first became aware that claimant disputed Dr. N's MMI date and impairment rating when it received a copy of claimant's attorney's letter of September 24, 1992, to the Commission stating that carrier "has begun the payment of IIBS" based on a three percent impairment rating, that no TWCC-69 has been completed or filed, and that even if the Commission should find the assessment valid, claimant believes "the assessment is invalid as there has been no TWCC-69 filed." This letter went on to ask the Commission to "designate a doctor to resolve this dispute" and the Commission apparently did so.

Claimant introduced Dr. N's records of claimant's follow-up visits on May 26 and June 30, 1992, indicating she was being seen for shoulder pain and reflecting various medication changes. Claimant also introduced a TWCC-69 from the designated doctor, (Dr. S), dated November 16, 1992, which opined that claimant had not reached MMI until the cervical myelogram and post-myelogram CT scan studies which Dr. S desired were accomplished and interpreted. Claimant testified that while she received various documents from the carrier, she did not know what they were. Though the record was poorly developed at this point in identifying the documents shown to the claimant, she apparently recognized the TWCC-21 form but did not recognize a TWCC-69.

The hearing officer found that Dr. N filed regular reports with claimant's attorney concerning his treatment of claimant; that in his April 13th report also furnished to the attorney Dr. N stated he had filled out a disability rating according to the AMA Guidelines and that the rating was three percent; that prior to April 30th, 1992, claimant and her attorney received a TWCC-21 from the carrier stating that carrier was in receipt of a TWCC-69 indicating an MMI date of October 21, 1991, with a three percent impairment rating, and that carrier was initiating the payment of IIBS to claimant; and that claimant and her attorney did not dispute the MMI date, the three percent impairment rating, or the validity of Dr. N's TWCC-69 until September 24, 1992. Based on these findings, the hearing officer concluded that claimant reached MMI on October 21, 1991, with a three percent impairment rating, and that the MMI date and impairment rating became final because of claimant's failure to timely dispute them pursuant to Rule 130.5.

What claimant's appeal seems to involve is her contention that notwithstanding claimant's receipt on April 24th of Dr. N's April 13th record advising of his three percent rating, and her receipt on April 30th of the carrier's April 24th TWCC-21 which referenced its receipt of Dr. N's TWCC-69 and its initiation of IIBS, and her apparent receipt of another TWCC-21, dated June 22, 1992, advising that IIBS were paid out as of June 19th, her 90-day period to dispute the three percent impairment rating nevertheless did not begin to run until she received the TWCC-69 form on September 29th, and, that an alleged failure of the TWCC-69 to meet the certification requirements of Rule 130.1 can be raised at any time. We disagree.

Claimant's request for review also asserts "[t]here is no provision in the Act or Rules which requires a party to object to the validity of a certification within a specific time period." Claimant cites our decision in Texas Workers' Compensation Commission Appeal No. 92670, decided February 1, 1993, where we stated that "90 days is a sufficient time frame for raising questions about the accuracy of a certification of impairment." (Emphasis supplied by claimant). Claimant continues that "[t]hese words in no way suggest that the 90 day deadline applies to disputing the validity of certification," cites dictionary definitions of "accuracy" and "validity," and concludes that "[a]s there is no time limit, the dispute of the validity of [Dr. N's] attempted certification is proper." Claimant refers to the hearing officer's "inferential conclusion that the certification by [Dr. N] was valid," and argues that Dr. N's April 13, 1992, record stating the three percent impairment rating did not mention MMI, was an inadequate and invalid certification of MMI and impairment rating due to its noncompliance with Rule 130.1, and thus did not "trigger" the Rule 130.5(e) 90-day dispute period. Claimant further asserts that Dr. N's TWCC-69 was not sent with Dr. N's April 13th report, that it was not received by claimant until September 29, 1992, and that when finally received it did not meet the requirements of Rule 130.1, apparently referring to an inadequate narrative history of claimant's medical condition in item 13 of the form. However, as the hearing officer noted and as the evidence showed, Dr. N's reports of claimant's periodic visits were sent to claimant's attorney and their receipt was not denied. The issue before the hearing officer was not whether Dr. N's April 13th record, his TWCC-69, or the April 24th TWCC-21 constituted a "certification" under Rule 130.1 but whether claimant's dispute of the first impairment rating assigned to her was timely under Rule 130.5(e) and we agree with the hearing officer's resolution of that issue.

In Texas Workers' Compensation Commission Appeal No. 93200, decided April 14, 1993, we summarized certain prior holdings involving Rule 130.5(e) as follows:

We have held that the requirements of Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 130.5(e) (TWCC Rule 130.5(e)) which provide for the finality of the first assigned impairment ratings, if not disputed within 90 days, applies with equal force to the designation of MMI that accompanies the impairment rating. Texas Workers' Compensation Commission Appeal No. 92693, decided February 8, 1993; Texas Workers' Compensation Commission Appeal No. 92670, decided February 1, 1993. We have also noted that the 90 day period runs from the time that the party desiring to dispute the matter is notified of or has knowledge of the rating since a party could hardly dispute something unknown to him. See Texas Workers' Compensation Commission Appeal No. 93046, decided March 5, 1993; Texas Workers' Compensation Commission Appeal No. 93111, decided March 29, 1993. Appeal No. 92693, supra. We have also stated that TWCC Rule 130.5(e) applies to both carriers and claimants.

See also, Texas Workers' Compensation Commission Appeal No. 93089, decided March 18, 1993, and Texas Workers' Compensation Commission Appeal No. 93167, decided April 19, 1993.In Appeal No. 92670, supra, we also stated:

This rule (Rule 130.5(e)) affords a method by which the parties may rely that an assessment of impairment and MMI may safely be used to pay applicable benefits, by providing the time limit in which such assessment will be open to dispute. On the other hand, the rule also allows a liberal time frame within which the parties may ask for resolution of a dispute through the designated doctor provisions of the Act. This rule applies with equal force to the carrier and the claimant.

We are satisfied, under the circumstances of this case, that claimant was notified of or had knowledge of the fact that she had been assigned a three percent impairment rating by Dr. N by the end of April 1992 at which time she had received not only Dr. N's April 13th report referencing the three percent rating, but also the carrier's TWCC-21 referencing receipt of the TWCC-69 and its commencement of IIBS for the three percent impairment rating. Accordingly, claimant's dispute of her rating by her letter of September 24th was untimely and the rating became final under Rule 130.5(e).

The hearing officer is the sole judge of the weight and credibility of the evidence (Article 8308-6.34(e)); and where there is sufficient evidence to support the hearing officer's determinations, as there is in this case, we do not disturb the decision. We are satisfied, after a careful review of the record, that the evidence sufficiently supports the hearing officers' findings and conclusions and that they are not so against the great weight and preponderance of the evidence as to be manifestly unjust. In re Kings' Estate, 150 Tex. 662, 244 S.W.2d 660; Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

The decision of the hearing officer is affirmed.

Philip F. O'Neill
Appeals Judge


Joe Sebesta
Appeals Judge

Thomas A. Knapp
Appeals Judge