[Cross-reference:Impairment rating (I07)]
The date of MMI is significant for several reasons. Once an IW reaches MMI, he or she is no longer entitled to TIBs. Section 408.101(a). An IW cannot be assigned an IR until he or she reaches MMI. Section 130.1(b)(2).
MMI means the earlier of:
(A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated;
(B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or
(C) the date determined as provided by Section 408.104 (relating to extension of the 104 weeks due to spinal surgery). Section 401.011(30); Section 130.1(b)(1).
An IW may be found to be at the statutory date of MMI (the expiration of 104 weeks from the date on which income benefits begin to accrue) even though he or she requires additional and/or continuing medical care and treatment. An IC may not stop paying for required medical care related to the IW's work-related injury merely because the IW has reached MMI. Section 408.021.
Certification of MMI.
The information in this section only relates to the certification process. The dispute process is contained in the section that follows.
Section 130.1(a) provides in part that only an authorized doctor may certify MMI. The following may be authorized to certify MMI if Section 130.1(a)(1)(B) is complied with:
(i) the IW's treating doctor (or a doctor to whom the treating doctor has referred the IW for evaluation of MMI and/or IR in the place of the treating doctor, in which case the treating doctor is not authorized);
(ii) a designated doctor; or
(iii) a RME doctor selected by the IC and approved by the Division to evaluate MMI and/or IR after a designated doctor has performed such an evaluation.
Doctor Authorized to Certify MMI.
The HO refused to adopt Dr. D's certification solely because Dr. D was a chiropractor. The AP reversed and remanded the case to the HO for further explanation as to why he refused to adopt Dr. D's certification. There was no allegation or evidence that Dr. D was not an authorized doctor. APD 042239.
Doctor Not Authorized to Certify MMI.
The designated doctor was no longer on the Designated Doctor List; however, a letter of clarification from the Commission (now Division) was sent to the designated doctor asking whether he should change his certified MMI date and assigned IR because the IW had surgery after the designated doctor examined the IW. The designated doctor responded that his opinion had not changed. Relying on the designated doctor's response to the letter of clarification, the HO adopted the designated doctor's certification. The HO's decision was reversed and remanded. At the time the designated doctor responded to the letter of clarification he was no longer authorized to act in that capacity because he was no longer on the Designated Doctor List as required by Section 180.21(a) (now Section 180.21(b)). Because the doctor was not authorized to act as the designated doctor at the time he responded to the letter of clarification, the case was remanded for the appointment of a second designated doctor. APD 040683.
Date Not Prospective.
The date of MMI may not be prospective or conditional; however, it may be retrospective to the date of the certifying exam. Section 130.1(b)(4)(C)(i) and (ii).
The treating doctor's report dated March 16, 1994, certified that the IW would reach MMI on March 21, 1994, with a 19% IR. The HO correctly determined that this report could not be adopted because it contained a prospective MMI date. Ausaf v. Highlands Insurance Company, 2 S.W.3d 363 (Tex. App.-Houston [1st District] 1999, pet. denied).
A certification of MMI must be based upon a complete medical examination of the IW for the explicit purpose of determining MMI. Section 130.1(b)(4)(B).
The IW's treating doctor certified that he was at MMI on January 21, 2000, with a 4% IR. The IW disputed the certification and a designated doctor was appointed. The designated doctor examined the IW, and determined that he reached MMI on March 13, 2000, with a 5% IR. The IW underwent a series of injections and physical therapy in July 2000, and testified that his condition improved by 60%. On August 9, 2000, the designated doctor was sent additional medical reports and asked if they changed his opinion regarding MMI and IR. On August 14, 2000, without physically re-examining the IW, the designated doctor responded changing his date of MMI to August 14, 2000, and maintaining the 5% IR. The HO gave the designated doctor's amended report presumptive weight and adopted it. The case was reversed and remanded back to the HO because the amended certification of MMI was done without a medical examination in violation of Section 130.1(b)(4)(B). APD 010297-s.
In order to be valid, a certification of MMI and IR must be signed by the certifying doctor. The certifying doctor may use a rubber stamp signature or an electronic facsimile signature of the certifying doctor's personal signature. Section 130.1(d)(1)(A).
The IW was examined by a referral doctor for the purpose of determining MMI and IR. The examining doctor placed the IW at MMI as of the date of the examination with a 5% IR. The report containing the certification was not signed by the certifying doctor, but instead an unidentified individual signed the report "for" the certifying doctor and initialed the signature. This same individual also signed the treating doctor's name indicating agreement with the certification. The HO determined the certification was valid and had become final because the individual that signed and initialed the document on the examining doctor's behalf was an "apparent agent" of the certifying doctor. The AP reversed and rendered a decision that the certification was not valid, and therefore could not become final. Section 130.12(c)(3) provides that in order for a certification to be valid, it must contain the signature of the authorized certifying doctor. Section 130.1(d)(1)(A) defines what constitutes a valid signature. There are no provisions that allow an "agent" to sign the certification for the certifying doctor. APD 042044-s; see also APD 171412.
Not at MMI.
The HO determined that the IW has not reached MMI, and because the IW has not reached MMI no IR may be assigned. The HO explained in the Discussion portion of the decision that “[b]ecause [the] [c]laimant has not received all medically necessary treatment for the compensable injury, she has not attained [MMI].” The AP stated that although there are medical records recommending the IW undergo surgery at L4-5, there is no medical record in evidence from a doctor stating that the IW has not reached MMI due to the proposed surgery. The DD appointed to determine MMI and IR, and therefore entitled to presumptive weight, opined that the surgery would not be beneficial for the IW at the time of his October 3, 2014, MMI/IR certification. The RME doctor also opined that the IW did not meet the criteria per the ODG for surgery at the time of his December 8, 2014, MMI/IR certification. Therefore, the AP reversed the HO’s determinations that the IW has not reached MMI, and because the IW has not reached MMI no IR may be assigned. APD 150750.
The HO held that the IW’s compensable injury consisted of a lumbar sprain/strain, the IW has not yet reached MMI, and therefore, no IR is assigned as certified by Dr. K, a referral doctor. Dr. K issued alternate reports that the IW had not reached MMI. Dr. K’s first certification is based on a lumbar sprain/strain, and the second certification is based on a lumbar sprain/strain, disc bulges at L4-5 and L5-S1, and the SI joint. In his narrative report, Dr. K stated that the IW was not at MMI regarding the lumbar strain/sprain because the IW most likely would benefit from an SI injection on the left and he could possibly benefit from a repeat L4-5 injection. The AP noted that the parties neither stipulated to nor actually litigated an SI joint condition, and the HO’s determination that the compensable injury does not extend to disc bulges at L4-5 and L5-S1 has not been appealed and has become final. There was no evidence establishing that the recommended injections are treatment for the lumbar sprain/strain. Although Dr. K stated that his first MMI/IR certification is based on a lumbar sprain/strain, Dr. K opines that the IW has not reached MMI based on recommended injections for conditions that have not been determined to be part of the compensable injury. Therefore, the HO’s determination that the IW has not reached MMI was reversed. APD 160057
Dispute of MMI.
A party must dispute the first valid MMI date certified by an authorized doctor within 90 days of written notice through verifiable means. The notice must contain a copy of a valid DWC-69. If a party fails to so dispute the certified MMI date may become final. [Cross-reference: IR finality/90 day disputes (I12)].
Extension of MMI.
An extension of MMI under Section 408.104 applies only to claims based on a compensable injury occurring on or after January 1, 1998, and only where spinal surgery has been approved or actually occurred in the 12-week period prior to the IW's statutory MMI date. Section 408.104; §126.11(a). The Division looks to the factors listed in §126.11(f) in determining approval or denial of an extension request. See §126.11 for specific requirements in requesting an extension of MMI under Section 408.104.
The IW had spinal surgery on 9/13/00, and Commission (now Division) personnel believed the IW would reach statutory MMI on 10/25/00. Commission personnel assisted the IW in timely submitting a request to extend his MMI pursuant to Section 408.104. On 11/29/00, the Commission issued an order extending the IW's MMI to 2/10/01 and notifying both parties of the right to dispute by requesting a BRC within 10 days; neither party disputed the order. The IW later discovered a mistake had been made in calculating his statutory MMI, and the correct date should have been 4/28/01. The Commission sent a letter dated 4/24/01 correcting the statutory MMI date to 4/28/01. The HO determined the IW reached statutory MMI on 4/27/01 by operation of law. The IC appealed, arguing that the 11/29/00 order established the MMI date because the IW failed to dispute the order. The AP affirmed the HO, stating it would be error to allow an erroneously extended MMI date prior to the actual statutory MMI date. APD 011840-s.
The parties stipulated at the CCH that the claimant sustained a compensable injury on (Date of Injury); that the IW's statutory MMI was 11/15/02; that the IC approved spinal surgery on 10/23/02; and that the IW had spinal surgery on 11/4/02. The HO extended the IW's MMI for six months based on medical evidence that recovery time from multilevel spinal fusions vary from six months to one year. The AP affirmed the HO's determination. APD 032328.
Dispute of Extension Approval.
A party wishing to dispute the extension of statutory MMI must file a request for a BRC under §141.1 within ten days after the date the order is received. §126.11(g). Failure to timely file a request for a BRC results in waiver of the right to dispute the extension order. §126.11(h). This is true even if the Division does not issue the extension order within 10 days as required under §126.11(b). APD 042275-s.
§126.11(i) discusses the effect of a doctor's certification of MMI dated between the date the Division extension order was issued and the extended date of MMI specified in the Division order. However, a Division extension order that is not disputed will supercede all certifications of MMI done prior to the issuance of the Division order. APD 020187-s.