On April 29, 1993, a contested case hearing was held in (city), Texas, with (hearing officer) presiding as the hearing officer. The hearing was held under the provisions of the Texas Workers’ Compensation Act, TEX. REV. CIV. STAT. ANN. art. 8308-1.01 et seq. (Vernon Supp. 1993) (1989 Act). The carrier contended that the claimant reached MMI under Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 130.5(e) (Rule 130.5(e)), because he had failed to dispute his treating doctor’s certification of MMI within 90 days. The hearing officer determined that the treating doctor’s certification of MMI was invalid; that the claimant was not properly certified as reaching MMI until October 1992; that the claimant timely disputed the certification of MMI; and that the claimant was entitled to invoke the designated doctor provisions of the 1989 Act. The carrier disputes the hearing officer’s findings of fact, conclusions of law, and decision. The carrier requests that the hearing officer’s decision be reversed and a new decision be rendered that the claimant reached MMI on April 23, 1992.
DECISION
The decision of the hearing officer, as modified herein, is affirmed.
This case involves the application of Rule 130.5(e) which provides that “the first impairment rating assigned to an employee is considered final if the rating is not disputed within 90 days after the rating is assigned.” The carrier contends that the claimant failed
to comply with this rule. The issue at the hearing was “has the claimant reached maximum medical improvement as certified by his treating physician, (Dr. F), on April 23, 1992.”
The parties stipulated that the claimant was injured in the course and scope of his employment with (employer) on (date of injury). No description of the injury was given at the hearing, but reports in evidence indicate a left knee injury. The claimant testified that he is 63 years of age, speaks and writes Spanish but does not speak or write English, and has a second grade education obtained in Mexico. The claimant said that he does not understand the meaning of MMI or impairment rating. He lives with his wife, who does not speak English, and two sons, one who is graduating from high school and speaks and writes English and one who speaks, but does not write, English. A relative who speaks and writes English filled out the claimant’s claim for compensation. The claimant said that he did not obtain legal representation until his workers’ compensation checks stopped. He wasn’t sure when his checks stopped. The claimant testified that he did not know that he had 90 days to “appeal” the “decision” that his treating doctor gave him. The claimant testified that he received in the mail reports from the carrier, including a Report of Medical Evaluation (TWCC-69) from his treating doctor, Dr. F, but testified that he was unable to read the reports and could not recall when he received the reports. He testified that he did not ask his son who can read English to read Dr. F’s report to him. The claimant said that he talked to someone at the Texas Workers’ Compensation Commission on two occasions, once regarding a letter he received concerning Social Security benefits and once when his workers’ compensation checks stopped. The claimant testified that no one advised him that he could “challenge” what Dr. F said about his injury and that he did not know that he could do so. When shown a copy of Dr. F’s TWCC-69, the claimant testified that “I don’t know what it says” and that he did not understand it at all. The claimant further testified that he did not have any reason to believe that his temporary income benefits (TIBS) would stop based on the report of Dr. F.
Dr. F’s undated TWCC-69 was in evidence. It is a preprinted form written in English. Dr. F wrote on the report “see report attached.” In block 14 of the TWCC-69 the doctor is asked “[h]as employee reached maximum medical improvement?” Dr. F did not check the “no” box or the “yes” box in response to the question. However, following the preprinted line which reads “[y]es, give date and what, if any is the whole body impairment rating” Dr. F wrote “04-23-92” and then “6%.” In a letter to the carrier dated April 23, 1992, Dr. F indicated that the claimant had had surgery on January 14, 1992. He stated in the letter that the claimant had returned to see him, that the claimant was making a little progress, that the claimant’s pain was responding better to “Clinoril,” that the claimant had good range of motion, that the claimant had some moderately severe arthritic changes, and that he was not optimistic that the claimant would return to his regular work. Dr. F further stated that the impairment of the knee is 15 percent of the lower extremity and six percent of the whole body impairment. Dr. F does not mention MMI in his April 23, 1992 letter. Apparently, the April 23, 1992 letter to the carrier is the report identified in the TWCC-69.
Also in evidence were two “Payment of Compensation Or Notice Of Refused/Disputed Claim” forms (TWCC-21). The first TWCC-21 (Carrier Exhibit No. 3), dated May 18, 1992, indicates that the type of benefit the notice relates to are TIBS, that MMI was reached on April 23, 1992 (in the “Reason for Termination” section), that a “TWCC FORM 69 ATTACHED”, and that a copy of the TWCC-21 was mailed to the claimant on May 18, 1992. The second TWCC-21 (Carrier Exhibit No. 4), also dated May 18, 1992, indicates that the type of benefits the notice relates to are TIBS and impairment income benefits (IIBS), that payment of IIBS was “resumed” on May 14, 1992, that “TWCC FORM 69 ATTACHED,” and that a copy of the TWCC-21 was mailed to the claimant (the copy of the TWCC-21 in evidence does not show the date mailed to the claimant because of incomplete reproduction of the original).
The hearing officer made the following findings of fact and conclusions of law:
FINDINGS OF FACT
No. 3.Claimant was injured on (date of injury), while engaged in his usual duties.
No. 4.Claimant was certified as reaching MMI on April 23, 1992, with a six percent impairment rating by Dr. F, claimant’s treating physician.
No. 5.Claimant was told of his six percent impairment rating on April 23, 1992, by Dr. F but not that he was at MMI. Claimant received a form TWCC-69 within a few days thereafter. Claimant received a TWCC-21 with TWCC-69 attached no later than May 23, 1992.
No. 6.Claimant did not dispute MMI or the impairment rating within 90 days of either April 23rd or May 23rd, 1992.
No. 7.The form TWCC-69 was incomplete. Block 14 was not checked indicating claimant had reached MMI. Block 13 stated “see attached” but the attached narrative report did not supply sufficient information to meet the requirements for a valid TWCC-69.
No. 8.The forms mailed to claimant were not sufficient to inform him he had reached MMI.
No. 9.The form TWCC-69 and the form TWCC-21 provided claimant were not sufficient to inform claimant that some action might be required on his part to preserve his rights and did not afford him the opportunity to make a knowing decision on whether or not to dispute the certification of MMI.
No. 10.Claimant contacted the Commission in October of 1992 to dispute the certification of MMI and this is also the first date when the certification was sufficient to start the 90 day period under Rule 130.5(e).
CONCLUSIONS OF LAW
No. 2.Claimant did not receive a valid form TWCC-69 so MMI was not properly certified. Claimant’s dispute is timely and claimant is entitled to invoke the designated doctor provisions of the Texas Workers’ Compensation Act.
No. 3.A TWCC-69 is not sufficient notice of certification of MMI to a claimant. The 90 day clock under Rule 130.5(e) did not start until claimant contacted the Commission so claimant’s dispute is timely filed and claimant is entitled to invoke the designated doctor provisions of the Texas Workers’ Compensation Act relating to disputes of MMI.
No. 4.Dr. F’s certification of MMI was invalid.
No. 5.The issue of MMI is not ripe for adjudication.
Based on his findings and conclusions, the hearing officer decided that the claimant was not properly certified as reaching MMI until October 1992; that the claimant timely disputed the certification of MMI; and that the claimant is entitled to invoke the provisions of the 1989 Act and Rules of the Texas Workers’ Compensation Commission relating to designated doctors.
The carrier disputes Findings of Fact Nos. 7 through 10, and Conclusions of Law Nos. 2 through 5.
“MMI” means the earlier of: (A) the point after which further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated, based on reasonable medical probability; or (B) the expiration of 104 weeks from the date income benefits begin to accrue. Article 8308-1.03(32). MMI as defined in part (A) of Article 8308-1.03(32) applies to the facts of this case. “Impairment” means any anatomic or functional abnormality or loss existing after MMI that results from a compensable injury and is reasonably presumed to be permanent. Article 8308-1.03(24) (emphasis added). “Impairment rating” means the percentage of permanent impairment of the whole body resulting from a compensable injury. Article 8308-1.03(25). Article 8308-4.26(d) provides in part that “[a]fter the employee has been certified by a doctor as having reached maximum medical improvement, the certifying doctor shall evaluate the condition of the employee and assign an impairment rating . . . .” We have held that “an impairment rating cannot be assigned, and made final, absent a certification of MMI.” Texas Workers’ Compensation Commission Appeal No. 92670, decided February 1, 1993.
Rule 130.2 relating to certification of MMI by the treating doctor provides in pertinent part as follows:
(a)A treating doctor shall examine the employee and certify that an employee has reached maximum medical improvement and assign an impairment rating, if any, as soon as the doctor anticipates that the employee will have no further material recovery from or lasting improvement to the work-related injury or illness, based on reasonable medical probability.
(b)A treating doctor who certifies that the employee has reached maximum medical improvement shall assign an impairment rating and shall:
(1)complete the report required by Sec. 130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment); and
(2)send it, no later than seven days after the examination, to the commission, the employee, or the employee’s representative, if any, and the insurance carrier.
Rule 130.1 provides in pertinent part as follows:
(a)A doctor who is required to certify, or who determines during the course of treatment, whether an employee has reached maximum medical improvement, or has an impairment, shall complete and file a medical evaluation report as required by this rule.
(c)All reports made under this rule shall be on a form prescribed by the commission and shall contain:
* * * * *
(7)a statement that the employee has reached, or an estimate of when the employee will reach, maximum medical improvement.
Rule 130.5(e) provides that “[t]he first impairment rating assigned to an employee is considered final if the rating is not disputed within 90 days after the rating is assigned. In interpreting this rule, we have stated that: “It would be inconsistent to interpret the rule to bind a claimant or carrier to the percentage of impairment, but allow an ‘end run’ around this finality through an open-ended possibility of attack on the MMI. Such an interpretation would read the rule out of existence. Therefore, in this case, the impairment rating and MMI certification are intertwined, and either became final together, or not.” Appeal No. 92670, supra.
As we have seen, the TWCC-69 form contains two boxes, one to indicate that the employee has not reached MMI, and the other to indicate that the employee has reached MMI. Dr. F checked neither box and made no statement in his letter of April 23, 1992, that the claimant had reached MMI. In view of the plain language of Rule 130.1(c)(7) that the report shall contain “a statement that the employee has reached, or an estimate of when the employee will reach, maximum medical improvement” we conclude that the hearing officer was not compelled to infer from the fact that Dr. F wrote a date that corresponds to the date of examination and from the fact that Dr. F gave an impairment rating that Dr. F had, in fact, certified that the claimant reached MMI. Evidence contrary to such an inference was that Dr. F did not check the “yes” box on the TWCC-69, did not mention MMI in his letter of April 23, 1992, and, in fact, noted in his letter that the claimant was making progress in regard to his injury, which statement could be taken to be contrary to any intention of finding MMI. Simply put, Dr. F made no statement that the claimant reached MMI, either by checking the box on the TWCC-69 form intended for that purpose or by statement in his letter of April 23, 1992. Accordingly, we hold that Finding of Fact No. 7 (the form TWCC-69 was incomplete because Block 14 was not checked indicating claimant had reached MMI) is supported by the evidence, and that Finding of Fact No. 7 supports Conclusion of Law No. 4 (Dr. F’s “certification” of MMI was invalid). While it may have been more accurate for Conclusion of Law No. 4 to have simply stated that Dr. F did not certify that the claimant reached MMI, we interpret Conclusion of Law No. 4 to mean just that under the circumstances presented in this case.
The issue as framed at the hearing could be read to presuppose that Dr. F certified MMI, however, the parties did not stipulate that Dr. F had in fact certified MMI, and the claimant urged at the hearing that he was not aware “of [Dr. F’s] intention of giving him MMI,” and that he did not have “notice” of such. We observed in Texas Workers’ Compensation Commission Appeal No. 92164, decided June 5, 1992, that when MMI is litigated in a hearing, the hearing officer begins his consideration of the evidence with a doctor’s certification of MMI in deciding whether MMI has been reached. Our affirmance of Finding of Fact No. 7 and Conclusion of Law No. 4 disposes of the disputed issue, because Dr. F never certified that the claimant reached MMI, thus the claimant could not have reached MMI based on Dr. F’s report. Since Dr. F did not certify that the claimant reached MMI, he could not give a valid assignment of impairment rating for as we have seen, under Article 8308-4.26(d) and Rule 130.2, it is only after certification of MMI that an impairment rating is assigned. See also Appeal No. 92670, supra. Consequently, the provisions of Rule 130.5(e) never came into play in this case since without a certification of MMI, there was no valid assignment of impairment rating for Rule 130.5(e) to attach to.
Although not specifically mentioned on appeal, we note that Finding of Fact No. 4 which indicates that Dr. F “certified” MMI is in apparent conflict with Finding of Fact No. 7. However, we find that no irreconcilable conflict exists between the two findings because Finding of Fact No. 7 points out that the certification referred to in Finding of Fact No. 4 was incomplete in that Dr. F had failed to indicate on the TWCC-69 that the claimant had reached MMI, which finding supports Conclusion of Law No. 4.
Having determined that the issue at the hearing was disposed of by Finding of Fact No. 7 and Conclusion of Law No. 4, we hold that Finding of Facts Nos. 8, 9, and 10, and Conclusions of Law Nos. 2, 3, and 5 were not necessary to the disposition of the issue at the hearing and may, accordingly, be disregarded. See Texas Indemnity Insurance Company v. Staggs, 134 Tex. 318, 134 S.W.2d 1026 (1940) (unwarranted findings may be disregarded and judgment rendered on the valid findings). However, we disapprove Finding of Facts Nos. 9 and 10 to the extent that those findings imply that ignorance of Rule 130.5(e) suffices to extend the time period provided in that rule for disputing impairment rating. Texas courts have consistently held that ignorance of the workers’ compensation law is not good cause for failure to comply with the law. See, for example, Applegate v. Home Indemnity Company, 705 S.W.2d 157 (Tex. App. – Texarkana 1985, writ dism’d) (ignorance of notice and filing provisions not good cause for failing to comply with those provisions). As concerns the time period for disputing the first impairment rating, we have observed that that period does not necessarily run from the date the rating is assigned by the doctor. See Texas Workers’ Compensation Commission Appeal No. 93089, decided March 18, 1993; Texas Workers’ Compensation Commission Appeal No. 92542, decided November 30, 1992. Appeal No. 93089 involved a situation where the 90-day period ran from the time the employee received notice of the certification and rating. We also disapprove Conclusion of Law No. 3 to the extent that it implies that a claimant who receives a properly completed TWCC-69 would not have sufficient notice of certification of MMI, if indeed, MMI was certified therein.
Lastly, we observe that the hearing officer transformed Dr. F’s incomplete TWCC-69 which did not certify MMI either in April 1992 or when it was received by the claimant in May 1992, into a certification of MMI by October 1992 and found that the claimant’s dispute of that certification was timely. This cannot be done. There either was a certification of MMI or there was not. There is no amendment by Dr. F which would help out his original TWCC-69 and letter of April 23rd. We have held that the evidence and law supports the hearing officer’s conclusion that Dr. F did not make a valid certification of MMI based on his finding that neither Dr. F’s TWCC-69 nor his letter of April 23rd indicated that the claimant had reached MMI. Without a certification of MMI, there was no MMI nor valid impairment rating assigned by Dr. F for the claimant to dispute under Rule 130.5(e). Consequently, those portions of Conclusion of Law Nos. 2 and 3 and that portion of the decision which refer to the claimant having timely disputed certification of MMI are unnecessary to the decision since there was nothing to dispute under the provisions of Rule 130.5(e). Thus, those conclusions and the decision of the hearing officer are modified to reflect that timely dispute under Rule 130.5(e) was not necessary. Resort to the designated doctor provisions of the 1989 Act will depend upon whether there is a dispute over MMI. At this juncture, no doctor has opined one way or the other on whether the claimant has reached MMI so we are uncertain as to what the parties would be disputing in regard to MMI.
The decision of the hearing officer, as modified, is affirmed.
Robert W. Potts – Appeals Judge
CONCUR:
Joe Sebesta – Appeals Judge
Gary L. Kilgore – Appeals Judge