[Cross-references: Date of MMI (I06); Impairment Rating (I07).]

Only an IC, IE, IE's attorney, or IE's representative defined under 28 Texas Administrative Code (TAC) Section 150.3(a) may dispute a first valid assigned IR. 28 TAC Section 130.12(b)(1). Under 28 TAC Section 130.12(b)(1), where a designated doctor (DD) has not been appointed to address MMI and IR, a party could dispute a first valid IR assignment by either filing a request for a BRC (DWC-45) or a request for the appointment of a DD (DWC-32) before the 90-day period to file a dispute expires. APD 180848-s. If a DD has been appointed to address MMI and IR, the party must request a BRC pursuant to 28 TAC Section 141.1 to dispute the first valid assignment of IR.

Texas Labor Code (TLC) Section 408.125(a) provides that if an IR is disputed, the commissioner shall direct the IE to be examined by a DD. The Appeals Panel (AP) has stated that under the provisions of TLC Section 408.125, no determination can be made about the IE’s IR because there is no report from a DD. See APD 020385, APD 142008, APD 132423, and APD 180848-s, in which the issues of MMI and IR were in dispute, and a DD had not been appointed to opine on the issues of MMI and IR.

The DD was appointed to address extent of the compensable injury, but there had not been a DD appointed to address MMI and IR. The ALJ’s MMI and IR determinations that the IE reached MMI on May 4, 2016, with a 5% IR were reversed and remanded for a DD to be appointed on the issues of MMI and IR. APD 172128.

Dispute.

On January 14, 2004, the IE received written notice of her first certification of MMI and IR assigned by a DD. On April 2, 2004, and within 90 days after written notice was delivered by verifiable means, the IE requested a BRC to dispute the first valid certified MMI date and/or first valid assigned IR. The AP found that the IE's request for a BRC was a timely dispute of the first valid certified MMI date and/or first valid assigned IR under 28 TAC Section 130.12(b)(1). APD 042163-s.

The treating doctor certified a first valid MMI date and assigned a first valid IR for the IE and it was delivered by verifiable means to the IC on November 12, 2003. On December 3, 2003, the IC filed a DWC-32 requesting that a DD be appointed. The IC completed Sections I and II of the form, and checked the block, "To dispute an assigned date of [MMI] and [IR][;]" however, the IC did not complete Section III of the form. The AP affirmed the ALJ's decision that the IC filed a DWC-32 with the Division on December 3, 2003, sufficient to dispute the first valid certified MMI date and first valid assigned IR pursuant to 28 TAC Section 130.12(b)(1). APD 043023-s.

Not a Dispute.

The DD examined the IE on January 6, 2004, and issued the IE's first valid certified MMI date and first valid assigned IR. On January 16, 2004, the IC received the first valid certified MMI date and first valid assigned IR. On January 26, 2004, the IC filed a TWCC-22 (now DWC-22) Required Medical Examination Notice or Request for Order to have the IE examined by a doctor of its choice, and the request was approved. On April 28, 2004, after the 90-day period expired, the IC filed a request for a BRC to challenge the DD's certification of MMI and assigned IR. The ALJ correctly decided that the IC failed to timely dispute the IE's first valid certified MMI date and first valid assigned IR. A dispute can only be made by requesting a BRC or, if a DD has not been appointed, by requesting that one be appointed. APD 041903-s.

Dispute of Multiple Certifications from the Designated Doctor.

Under 28 TAC Section 130.12(a)(4), a DD may provide multiple IRs if there is a dispute over extent of injury. This rule subsection also provides that the rating the DD applies to the compensable injury once an extent-of-injury dispute has been resolved may become final if not disputed.

28 TAC Section 130.12(c) provides that the certification on the Report of Medical Evaluation (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 DWC under 28 TAC Section 130.1(a) to make the assigned impairment determination.

The DD was asked to address the issues of MMI, IR, and extent of injury in an examination. Accordingly, he provided multiple certifications. The DD provided a certification of MMI with an IR of 0% for the accepted injury. He also provided alternate certifications that the claimant had not reached MMI when considering the disputed extent-of-injury conditions. Among the issues in the case was whether the DD’s certification of MMI and IR assignment of 0% became final under TLC Section 408.123 and 28 TAC Section 130.12. After the DD examination, the parties resolved the extent-of-injury dispute by agreeing that the compensable injury included several extent-of-injury conditions in dispute. Based on the resolution of the extent-of-injury dispute, the ALJ found that, under 28 TAC Section 130.12(a)(4), the certification finding the IE to be at MMI with a 0% IR was not subject to finality and did not become final. The AP reversed the ALJ’s decision, reasoning that the DD’s alternate certifications finding the IE not to be at MMI did not contain multiple IRs or ratings as stated in 28 TAC Section 130.12(a)(4). Further, the AP noted that the alternate certifications did not contain the requirements for a valid certification as stated in 28 TAC Section 130.12(c). Since the certification of MMI and assigned IR of 0% was the first valid certification of MMI and IR on the claim, it was subject to finality, and the IE was required to dispute the certification within 90 days of it being provided to him by verifiable means. The case was remanded back to the ALJ to consider whether there was compelling medical evidence of any exceptions to finality found in TLC Section 408.123(f). APD 190180.