[Cross-references: Date of MMI (I06); IR (I07); Dispute of DD MMI Date (I11)]
An IE has only 90 days to dispute a first valid certification of MMI and/or first valid assignment of IR pertaining to the IE after it is provided to the IE by verifiable means. An IC has only 90 days to dispute a first valid MMI certification and/or first valid IR assignment pertaining to the IE after it is delivered to the IC by verifiable means. If neither the IE nor the IC disputes the first valid certified MMI date and/or first valid assigned IR pertaining to the IE within their respective 90-day period, that first valid certified MMI date and/or first valid assigned IR is final. Section 408.123(e).
The important words and phrases are, "first", "valid", "provided to", "delivered by verifiable means", "90 days" (90-day period), and "dispute". All of these are requirements that must be considered to decide whether a certified MMI date and assigned IR have become final under Sections 408.123 and 130.12. In addition, even if all of these requirements were met, there are possible exceptions to finality under Section 408.123(f).
90-Day Period.
The 90-day time period for a party begins after written notice of the first valid certification of MMI and/or first valid assignment of IR is delivered to that party by verifiable means. Sections 408.123(e) and 130.12(b). The 90-day period for the IC starts the day after its notice is delivered by verifiable means. The 90-day period for the IE starts the day after the IE's notice is delivered by verifiable means. The 90-day periods will be the same for the IC and IE only if they each happen to have their notice delivered by verifiable means on the same day.
Delivery by Verifiable Means.
Written notice of the IE's first valid certified MMI date and/or first valid assigned IR must be provided to the IE and IC by verifiable means. Section 408.123(e). The 90-day period begins for the IC on the day after notice is delivered to it by verifiable means. The 90-day period begins for the IE on the day after notice is delivered to the IE by verifiable means. APD 041985-s. Written notice has been provided by verifiable means when it is delivered in a manner that reasonably confirms delivery to a party. This may include a statement of personal delivery, acknowledged receipt by the IE or IC, confirmed delivery by facsimile or email, or by some other confirmed delivery to the home or business address. APD 042749. When the written notice was provided or delivered to the IC or IE is a question of fact for the ALJ to resolve. APD 042163-s. When a certification of MMI and assignment of IR is mailed to the IE’s correct address by certified mail, return receipt requested, but signed for by someone else other than the IE, the certification of MMI/IR has been delivered to the IE. APD 070655. The preamble to Rule 130.12 discusses how written notice is verifiable and goes on to state at 29 Tex. Reg. 2331, March 5, 2004: …a party may not prevent verifiable delivery. For example, a party who refuses to take personal delivery or certified mail has still been given verifiable written notice. APD 070913. The benefit review conference (BRC) exchange of the first valid certification of MMI and assignment of IR by a party constitutes acknowledged receipt by that party and sufficient evidence to establish delivery by verifiable means. APD 161916.
Written Notice Delivered by Verifiable Means.
The IE testified that he received a letter from the IC in October 2005, but he did not recall the date of receipt. In evidence were the adjuster's notes dated October 13, 2005, that indicated the DD's DWC-69 certification of MMI/IR was mailed to the IE via certified mail. Also, in evidence were a copy of an United States Postal Service certified mail return receipt request form or "green card" with the IE's name, address, signature, and a date-stamp of October 21, 2005, and a track and confirm document, which correlated with the green card receipt number that showed the certified mail was delivered on October 21, 2005. The ALJ found that the DD's MMI/IR certification did not become final because certification was not delivered to the IE by verifiable means. The AP reversed the ALJ's determination that the DD's certification of MMI/IR did not become final because under the facts of this case, the DD's certification of MMI/IR was delivered to the IE by verifiable means as evidenced by the adjuster's notes dated October 13, 2005, the green card, and the track and confirm document, which showed delivery on October 21, 2005. APD 070533-s. See also APD 171530.
The IC mailed the first certification of MMI and assignment of IR to the IE at his address by certified mail, return receipt requested, on July 15, 2005. In evidence was a copy of a USPS certified mail return receipt request form or “green card” showing an individual, who the parties agreed was the IE’s grandmother, signed for the correspondence on July 25, 2005. It was undisputed that the IE was overseas at the time, and the IE contended he never received the certification or report. The ALJ determined that the first certification of MMI and IR assigned by Dr. E did not become final under Rule 130.12. The AP reversed the ALJ’s determination, noting a long line of cases holding that when a certification of MMI and assignment of IR is mailed to the IE’s correct address by certified mail, return receipt requested, but signed for by someone else other than the IE, the certification of MMI/IR has been delivered to the IE. APD 070655.
The AP reversed the ALJ's determination that the first certification of MMI/IR did not become final under Section 408.123 and rendered a decision that the first certification of MMI/IR became final pursuant to Sections 408.123 and 130.12. The PLN-3 and DWC-69 were mailed to the IE's correct address by certified mail, return receipt requested; delivery of the certified mail was attempted per the notation of the date on the envelope; and the "green card" indicated that the PLN-3 and DWC-69 were included. The AP held that the IE was given verifiable written notice of the first certification of MMI/IR and it was undisputed that the IE did not dispute the certification within 90 days. APD 070913.
The TD issued the first valid certification of MMI/IR on March 12, 2007. In a fax dated March 21, 2007, the IC sent the Division a PLN-3 stating that a "copy of the DWC-69 by the [TD] is included in this fax." The PLN-3, dated March 21, 2007, and addressed to the IE, stated that the IC was disputing the TD's IR "(copy attached)" and that the IC made a reasonable assessment of an impairment. The ALJ determined the IC did not receive the certification through verifiable means. On appeal the AP determined that the IC's referencing the TD's report in the PLN-3 and sending a copy of the TD's DWC-69 to the Division established acknowledged receipt of the first certification of MMI/IR. The AP reversed the ALJ's determination and rendered a decision that the IC received the first certification of MMI/IR through verifiable means based on the IC's acknowledged receipt on March 21, 2007, of the first valid certification of MMI/IR. APD 080301-s.
The ALJ found that the first certification of MMI and IR did not become final under Sections 408.123 and 130.12 because the evidence was insufficient to show acknowledged receipt by the IE on a date certain to begin the 90-day period nor was the evidence sufficient to show that the IC had verifiable proof that the report was delivered to the IE. The AP reversed and rendered a new decision that the first certification of MMI and IR did become final. The evidence established that the first certification of MMI and assigned IR dated May 30, 2007 was delivered by verifiable means solely to the IE's attorney, but the evidence also established that the IE exchanged it with the IC at a BRC held June 20, 2007, attended by the IE and his attorney. One of the requested BRC issues was "Entitlement to IIBs based on DD report of 05/30/07 with 5% IR." The requested issue regarding IIBs was not indicative of a dispute of the first certification of MMI/IR, but rather a request for payment of IIBs based on the assessed 5% IR. Although the IE testified that he did not know what documents (nor the date that his attorney received them) were exchanged by his attorney at the BRC, the evidence established that the IE had a copy of the first certification of MMI and IR by the June 20, 2007, BRC. Distinguishing APD 080921-s, under the facts of this case, the AP held that the exchange of the first valid certification constitutes acknowledged receipt by the IE. There was no evidence that the IE disputed the first valid certification of MMI and IR within 90 days of delivery of written notice through verifiable means. APD 081248-s. See also APD 152167.
Written Notice Not Delivered by Verifiable Means.
Other than the IE's testimony, no evidence was presented at the CCH to indicate that the notification was delivered to the IE by verifiable means. In this circumstance, the ALJ was free to believe the IE's testimony to establish the date notice was first delivered to the IE by verifiable means. APD 041241-s.
The IC provided evidence at the CCH that the Notification Regarding [MMI] and/or [IR] of the IE's certification, along with the DWC-69 Report of Medical Evaluation, was sent to the IE by certified mail with return receipt requested; however, the certified mail was returned to the IC because the IE never picked it up. The IE testified at the CCH that he had not received any notice regarding the certified mail. There was no evidence as to what date the notifications of the certified mail were delivered to the IE, nor was there any indication of the date the certified mail was returned to the IC. The ALJ found that the IE had received written notice by verifiable means to trigger the 90-day period under Sections 408.123 and 130.12. The AP reversed, stating that the IC had failed to present evidence of a date certain that would be sufficient to begin the 90-day period under Sections 408.123 and 130.12. APD 050031-s. See also APD 152535.
The ALJ found that the first certification of MMI and IR became final under Section 408.123 because it was not disputed within 90 days after the certification was provided to the IE's attorney. The AP reversed and rendered a new decision that the first certification did not become final. The evidence established that the first certification of MMI and assigned IR was delivered by verifiable means solely to the IE's attorney, but there was no evidence of delivery of the written notification of the first certification of MMI and assigned IR to the IE as required by Section 102.4(b). APD 080921-s.
The assistant to the adjuster for the IC testified at the CCH that she mailed the Notification of MMI/First IIBs Payment (PLN-3) and DWC-69 via the USPS with delivery confirmation, and that she had confirmed the delivery of the PLN-3 and DWC-69 to the IE at his address on March 28, 2009, through the USPS website. The ALJ found that the first certification of MMI and assigned IR became final under Section 408.123, noting in her Decision and Order that the evidence established the notice was sent to the IE by verifiable means. The AP reversed, stating there was no documentary evidence that the certification of MMI and assigned IR was delivered to the IE by verifiable means on March 28, 2009. The AP noted there was no date or address listed on the copy of the USPS delivery confirmation number to confirm delivery of the certification of MMI and assigned IR to the IE. The AP further noted that although there was testimony from the adjuster’s assistant regarding the date of delivery, there was no evidence of the date of delivery by verifiable means. APD 101033.
The IE testified that she received the DWC-69 and narrative in October 2012. The ALJ found that because the IE acknowledged that she received the certification in October 2012, the IE received written notification of the certification by October 31, 2012. The AP noted that the IC did not have verifiable proof that the first certification of MMI and IR was delivered, and the IE did not know or testify to the specific date of receipt. Therefore, the AP held that the IE’s testimony did not constitute an acknowledged receipt by the IE on a date certain sufficient to begin the 90-day period of Section 408.123(d) and Rule 130.12. APD 141822.
IC presented a copy of the e-mail that indicates the certification was sent to the IE; however there was no evidence of delivery to the IE. Simply verifying a correct e-mail address does not establish that the certification was delivered. Similarly, simply mailing the certification to the correct mailing address without evidence of delivery or sending the certification by fax to a correct fax number without verification of delivery does not establish delivery by verifiable means. APD 172534.
The ALJ determined that the DD’s MMI certification and IR assignment were provided to the IC by verifiable means on or before July 10, 2015, based on a note in the RME doctor’s report that the Division received a RME Notice or Request for Order Form (DWC-22) on that date. The ALJ wrote that the request for a post-DD RME exam established a reasonable expectation that the IC received the DD report before this date. The AP disagreed and held that the IC’s request for a post-DD RME may suggest that the IC had actual knowledge of the DD’s certification and assignment but no evidence was presented that reasonably confirms delivery or that written notification was provided to the IC by verifiable means. As there was no showing that provision/delivery of written notice was made through verifiable means, the AP reversed the ALJ’s decision that the first certification of MMI and IR assigned by the DD became final under Section 408.123 and Rule 130.12 and it rendered a new decision that the first certification of MMI and IR assigned by the DD did not become final under Section 408.123 and Rule 130.12. APD 160629.
Disputing the First Valid Certified MMI Date and/or First Valid Assigned IR.
Only an IC, an IE, an IE's attorney, or an IE's representative as defined under Section 150.3(a) may dispute a first valid certified MMI date and/or first valid assigned IR. Section 130.12(b)(1). To dispute an IE's first valid certified MMI date and/or first valid assigned IR, the disputing party must request a BRC by filing a DWC-45 pursuant to Section 141.1 or Section 130.12(b)(1), or as an alternative, if a DD has not yet been appointed to address MMI and IR, request the appointment of a DD to dispute certified MMI date and assigned IR by filing a DWC-32. If a DD has not yet been appointed to address MMI and IR, a party could dispute a first valid certification of MMI and IR by either filing a DWC-45 or a DWC-32 prior to the expiration of the 90-day period to file a dispute. APD 180848-s.
If, within their respective 90-day periods, either the IC or IE properly disputes the first valid certified MMI date and/or first valid assigned IR, it cannot become final. Section 408.123(e).
The first valid certified MMI date and/or first valid assigned IR must be timely disputed even if the compensability of an injury is also in dispute. If an IC has failed to dispute the first valid certified MMI date and/or first valid assigned IR but has disputed the compensability of an injury and the injury is later determined not compensable, the IC will be relieved of the obligation to pay benefits. The 90-day dispute provision of Sections 408.123(e) and 130.12 will not make a first valid certified MMI date and/or first valid assigned IR final where an injury has been found not compensable. APD 043105-s.
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 Section 130.12(b)(1). APD 042163-s.
The TD 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 an appointment of a DD. 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 Section 130.12(b)(1), and that the first valid certified MMI date and first valid assigned IR did not become final. APD 043023-s.
The IE filed a DWC-45 to dispute the first certification of MMI and IR within the prescribed 90-day period. The completed DWC-45 was approved by the Division, and a BRC was scheduled. On September 27, 2011, the IE filed a motion entitled “Request to Cancel BRC.” The motion recited 28 TEX. ADMIN. CODE § 141.2(b) (Rule 141.2(b)) on requesting a cancellation or rescheduling within 10 days of receipt of the notice of the BRC setting, and requested the BRC be cancelled. The AP noted that under the facts of this case, the evidence established that the IE, within the 90-day period, filed a DWC-45 in a manner prescribed by the Division and the DWC-45 was approved. A BRC was scheduled on the finality issue. There is no evidence that the IE withdrew his finality dispute, and his motion to cancel the BRC was nothing more than a request to reschedule the BRC to a later date. There is no evidence that the parties agreed to withdraw the finality issue from dispute as provided in Rule 130.12(b)(3). The AP reversed the ALJ’s decision that the first certification of MMI and IR became final under Section 408.123 and rendered a new decision that the first certification did not become final. APD 120857-s.
The ALJ decided, among other issues, that the first certification of MMI and assigned IR from the TD referral doctor became final under Section 408.123 and Rule 130.12. The TD referral doctor’s certification of MMI and IR was the first certification of MMI and IR, and a DD had not been appointed to address MMI and IR. Prior to the expiration of the 90-day finality period, the IE’s attorney filed a DWC-45 on the IE’s behalf, requesting a BRC to dispute MMI and IR, as well as a DWC-32, requesting a DD examination for MMI and IR. The DWC-32, though filed within the 90-day finality period, was returned to the IE’s attorney as incomplete and a subsequent DWC-32 was not filed by the IE’s attorney until after the expiration of the 90-day finality period. The ALJ found that the Division acted within its administrative regularity in denying the IE’s initial DWC-32. The ALJ stated in her discussion of the Division determination that it was necessary, at the very least, to provide correct information on the DWC-32 and that the IE failed to do so. The ALJ concluded that the DWC-32 was not timely and the first certification of MMI and IR became final. The AP cited APD 043023-s, in which the IC filed a DWC-32 requesting the appointment of a DD to “dispute an assigned date of [MMI] and [IR];” however, the DWC-32 was returned to the IC by the Division as incomplete because it did not complete Section III of the form. In that case, the AP affirmed the ALJ’s determination that the filing of the DWC-32 requesting a DD was sufficient to dispute the first valid certification of MMI and IR pursuant to Rule 130.12(b)(1). The AP pointed out that, in this case, as in APD 043023-s, the IE had filed a DWC-32 requesting the appointment of a DD to address MMI and IR, which was timely and sufficient to dispute the first certification of MMI and IR. The ALJ did not discuss or make any findings regarding the IE’s DWC-45, which was also timely filed to dispute the first certification of MMI and IR. Pursuant to Rule 130.12(b)(1), as a DD for MMI and IR had not been appointed in this case, the first certification of MMI and IR could be disputed by either filing a DWC-45 or a DWC-32 prior to the expiration of the 90-day finality period. In this case, the IE filed both the DWC-45 and DWC-32 in a timely manner, though, since a DD had not been appointed for MMI and IR, she only needed to file one form or the other in a timely manner. Since the IE had filed a timely dispute of the TD referral doctor’s certification of MMI and IR, the AP reversed the ALJ’s determination on finality and rendered a new decision that that certification did not become final under Section 408.123 and Rule 130.12. APD 180848-s.
Not a Dispute.
The Division-appointed 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 DWC-22 Required Medical Examination Notice or Request for Order to have the IE examined by its doctor of choice and the request was approved. On April 28, 2004, after the 90-day period had expired, the IC filed a Request for a BRC. 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 by requesting the appointment of a DD, if one has not been appointed. APD 041903-s.
The IC filed two DWC-45s dated October 18, 2010, and November 8, 2010, to dispute the first valid certification from the TD, however, both forms had written language requesting that a BRC not be set. The ALJ found that the IC timely filed the DWC-45s in a manner prescribed by the Division, and the ancillary language written on the DWC-45s (requesting that a BRC not be set) did not render the forms invalid for purposes of disputing the first certification of MMI/IR. The AP noted that Rule 130.12 provides that parties may only dispute the first valid certification of MMI/IR under either Rule 141.1 or by requesting the appointment of a designated doctor if one has not been appointed. It further noted that the Division’s preamble to Rule 141.1 states that only after a complete request is submitted, approved, and a BRC scheduled has a party established a dispute of the first valid certification of MMI and IR, effective the date the party filed the request, in accordance with Section 408.123(e). Therefore, the IC failed to establish a dispute of the first valid certification of MMI/IR, because its DWC-45 specifically requested that the Division not set a BRC. APD 111006-s.
The IC filed a Request for Designated Doctor DWC-32 for the issues of MMI/IR on August 31, 2011. The IE had been referred by the TD to Dr. B who examined him on September 26, 2011. Dr. B certified the IE at MMI on September 26, 2011, with a nine percent IR. In response to the IC’s DWC-32, Dr. VB was appointed as the designated doctor on the issues of MMI/IR. Dr. VB examined the IE on October 19, 2011, and certified the IE at MMI on July 19, 2011, and assessed a six percent IR. The first valid certification of MMI/IR was by Dr. B, and the ALJ found that Dr. B’s certification was received by the IC by verifiable means on October 6, 2011, and that the carrier did not file a DWC-32 or a DWC-45 after receipt of Dr. B’s certification. The ALJ found the IC’s previous filing of a DWC-32 was effective to prevent finality of the certification by Dr. B which occurred in the meantime. However, the AP held that the ALJ’s comment is an incorrect application of Rule 130.12(b)(1) and that the IC failed to timely dispute Dr. B’s first valid certification by failing to timely request a BRC. APD 121272.
First Valid Certifications of MMI And Assignments of IR.
There can be only one first valid certified MMI date and/or first valid assigned IR and it is the one that is made first in time. However, if the first valid certification of MMI and/or assignment of IR should be modified, overturned, or withdrawn by final decision of the Division or court or withdrawn by agreement of the parties, that first valid certified MMI date and/or first valid assigned IR is no longer valid as of the date of the modification, overturning, or withdrawal. Then, the first valid certified MMI date and/or first valid assigned IR that is made after the date of the modification, withdrawal, or overturning may become final under Sections 408.123(h) and 130.12(a)(3). If there is a prior certification of MMI and IR in evidence, a determination should be made as to which is the first valid certification of MMI and IR. APD 142338.
Valid MMI Certification and IR Assignment.
A valid certification of MMI and/or assignment of IR requires the following four elements: (1) the certification must be on a DWC-69, Report of Medical Evaluation; (2) the certification must contain an MMI date that is not prospective; (3) the certification must contain an impairment determination of either no impairment or a percentage IR assigned; and (4) the certification must contain the signature of the certifying doctor who is authorized under Section 130.1(a) to make the assigned impairment determination. Section 130.12(c); APD 050729-s. However, a certification does not require a narrative report to be valid. See APD 132383. Additionally, a certified MMI date that is after the statutory date of MMI does not cause the certification to be invalid. See APD 100636-s.
The decisions regarding the validity of a certified MMI date and assigned IR under this heading, IR Finality/90-Day Disputes (I12), are to apply only to the 90-day finality. [For validity of a certification of MMI and IR assignment generally, see cross-references: Date of MMI (I06); IR (I07); Dispute of DD MMI Date (I10); and Dispute of DD IR (I11).]
Examples of Invalid MMI Certifications and IR Assignments.
An individual on behalf of the certifying doctor signed the IE's DWC-69, Report of Medical Evaluation. The ALJ determined that the individual signing the DWC-69 was the certifying doctor's agent, and therefore found the first valid certified MMI date and first valid assigned IR valid. The ALJ went on to find that the first valid certified MMI date and first valid assigned IR became final under Section 130.12. The AP reversed, stating that a first valid certified MMI date and first valid assigned IR must either contain the certifying doctor's actual signature on the DWC-69 or have his or her signature affixed with a rubber stamp or an electronic facsimile signature. [See Section 130.1(d)(1)(A).] APD 042044-s.
It was undisputed that the DD's report dated August 12, 2004, certifying MMI on that date with a 15% IR was the first certification of MMI/IR. The evidence indicated that on August 17, 2004, the IC received by fax the DD's narrative. Subsequently, on September 13, 2004, the DD faxed a copy of the DWC-69 to the IC. The IC disputed the DD's certification on December 7, 2004, by filing a request for BRC. The focus in this case was whether the receipt of the narrative report on August 17, 2004, was sufficient to begin the 90-day clock of Sections 408.123 and 130.12. The AP affirmed the ALJ's decision that the first certification of MMI/IR assigned by the DD on August 12, 2004, did not become final. The AP stated that where the rule states that the MMI and/or IR assigned must be on a DWC-69, Report of Medical Evaluation, other means of communication of the MMI/IR, such as in this case, by means of a narrative report without a DWC-69, are insufficient to begin the 90-day dispute period of Sections 408.123 and 130.12(b). APD 050747-s.
Examples of Valid MMI Certifications and IR Assignments.
Dr. G examined the IE on April 2, 2009, and indicated on his medical report dated that same date that “[the IE] continues to have problems in her right leg. The request for her SI injection has been denied. Consequently, we will place her at MMI with evaluation of her knee and hip. . .” In evidence were records dated April 7, 2009, which contained ROM measurements for the IE’s right lower extremity, and resulted in a 10% IR. Dr. G certified in a DWC-69 dated April 7, 2009, that the IE reached MMI on April 7, 2009, with a 10% IR. The ALJ stated in her Decision and Order that “[i]f the April 2, 2009, examination was a certifying examination, then the [MMI] date of April 7, 2009, would be a prospective date.” The ALJ found that Dr. G’s assigned IR was not a valid rating, and determined, among other things, that the first valid certification of MMI and assigned IR by Dr. G did not become final under Section 408.123. The AP reversed the ALJ’s determination, noting Dr. G completed the DWC-69 on April 7, 2009, and based the IE’s IR on ROM measurements performed on April 7, 2009. The AP held that the ALJ’s finding that Dr. G’s assigned IR was not a valid rating is incorrect. The MMI date certified by Dr. G was not prospective but rather based on the April 7, 2009, date that ROM measurements were taken, the DWC-69 was signed and a percentage IR was assigned. The AP further noted that Section 130.12 does not require a narrative report for a certification to be a valid certification. APD 100483.
The ALJ determined that the first MMI/IR certification from Dr. B on December 14, 2012, did not become final because there was no narrative report attached to Dr. B’s DWC-69 to comply with Rule 130.1(d)(1)(B). However, the AP noted that Rule 130.12(c) does not require a narrative report to be a valid certification. As Dr. B’s December 14, 2012, MMI/IR certification meets the requirements of Rule 130.12(c) and is a valid certification, the AP reversed the ALJ’s determination that the first MMI/IR certification by Dr. B on December 14, 2012, did not become final. APD 132383.
The ALJ determined that the certification by Dr. L did not become final because the parties stipulated that the statutory date of MMI was June 5, 2007, Dr. L’s certification of an MMI date of June 20, 2007, is after the statutory date of MMI and prospective. The ALJ found the certification was invalid as it included an MMI date after the statutory date of MMI. The AP noted that a date of MMI becomes prospective if it is projected to occur at some time after the certification of MMI is made. The key consideration is that the date of MMI was not after the date of certification, that is, signature of the certifying doctor, on the DWC-69. Pursuant to Rule 130.12(c)(1), a certification of MMI is invalid if it is prospective, however, in this case, the date of MMI was not prospective. The DWC-69 in evidence reflects that on his DWC-69, Dr. L certified on June 20, 2007, that the claimant reached MMI on that same date. Although the MMI date certified by Dr. L is after the date of MMI stipulated by the parties, the MMI date of June 20, 2007, is not prospective because it is not projected to occur at some time after the certification of MMI was made by Dr. L on June 20, 2007. The AP reversed the ALJ’s finality determination because Dr. L’s first certification was valid. APD 100636-s.
Section 408.123(f) Exceptions to Finality After 90-Day Period.
An exception to finality after the 90-day period shall be based on "compelling medical evidence." Section 408.123(f).
Improper or Inadequate Medical Care.
Not an Exception.
On March 23, 2005, the IW received notice of the first valid MMI certification and IR assignment by verifiable means. The IC preauthorized SS on February 1, 2005. The IW initially declined SS but later had the SS on July 19, 2005. The IW disputed the first valid MMI certification and IR assignment on August 9, 2005. The IW testified at the CCH that the surgery improved his condition and relieved his symptoms. The HO determined that the first MMI certification and IR assignment did not become final under Section 130.12 because there was compelling medical evidence of improper or inadequate treatment of the IW's injury prior to the surgery. The AP reversed the HO's determination because the improper or inadequate treatment must occur prior to the date of certification. The AP also found that the IW's initial refusal of SS did not result in inadequate treatment. APD 052666-s.
The HO determined that the first certification of MMI and assigned IR from Dr. M did not become final under Section 408.123, finding there was compelling medical evidence which established improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid. The AP reversed the HO’s determination, noting there was no compelling medical evidence that any of the IW’s treatment prior to the certification of MMI and assigned IR was improper or inadequate. The AP noted that no doctor opined the IW received improper or inadequate treatment for his injury; rather, Dr. M’s narrative report stated the IW told Dr. M that he “has done well,” and that the pain in his back had decreased. The AP further noted that Dr. M noted that the certification and assignment was done when the IW “was doing fairly well” and subsequent to that certification and assignment the IW deteriorated and required care and possibly surgery. APD 110527.
The HO found that compelling medical evidence exists of improper or inadequate treatment. The HO stated that although two surgeries were performed, given that the IW was no better off as a result, and was sent to pain management with a diagnosis of possible CRPS, the treatment appears to have been inadequate. The HO believed that the fact that the IW’s condition improved so dramatically following a surgery performed by a second doctor was compelling evidence that the treatment was inadequate. However the AP noted that just because there is subsequent surgery or treatment which proves beneficial to the IW does not automatically amount to inadequate treatment and held that the HO used the wrong standard to determine finality. APD 150613.
Mistaken Diagnosis or a Previously Undiagnosed Medical Condition.
An Exception.
The first valid certification of MMI and assignment of an IR was based on a diagnosis of a lumbar strain/sprain. During the 90-day period to dispute the first certification of MMI/IR, diagnostic tests revealed a herniated disc. The HO determined that the first certification of MMI/IR became final because the IW was aware that he was misdiagnosed within the 90-day dispute period, but did not dispute the certification. The AP reversed the HO's decision and rendered a decision that the first certification of MMI/IR did not become final because there was compelling medical evidence of a clearly mistaken diagnosis and held that it was of no legal significance that the IW may have been aware of the misdiagnosis during the 90-day dispute period. The AP noted that the exceptions in Section 408.123(f)(1)(A), (B), and (C) do not provide that the exceptions only apply if knowledge of the facts giving rise to an exception occurs after the 90-day period has expired, and that the AP could not create such an exception to the exceptions. APD 061493-s.
The HO determined the first certification of MMI/IR became final under Section 408.123. The first certification was issued by the TD on August 24, 2005, placing the IW at MMI on that date with a 0% IR. The IW claimed the first certification did not become final because she had a previously undiagnosed condition of CTS. There was no diagnosis of CTS until June 2006. A test performed on June 28, 2005 noted no neurophysiologic evidence of CTS; however, the interpretation of that test specifically warned of a possible false negative and suggested retesting if clinically indicated. A doctor recommended CTS release surgery on August 18, 2006, and another doctor, based on a review of medical records, found that based on failure of non-operative treatment for the CTS the requested procedures were indicated medically. The IW ultimately underwent CTS release surgery on November 13, 2006. The DD placed the IW at statutory MMI with a 7% IR. The AP reversed the HO's decision and rendered a new decision that the first certification by the TD did not become final under Section 408.123 because there was compelling medical evidence of a previously undiagnosed medical condition of CTS. The AP stated that Section 408.123(f)(1)(B) did not require that the previously undiagnosed condition be present at the time of the first certification and declined to read such a requirement into the statute. APD 080297-s.
Not an Exception.
The HO determined that the certification of MMI and IR did not become final under Section 408.123 and Rule 130.12 because at the time of the May 31, 2012 certification, there existed an undiagnosed medical condition, CTS, later determined to be part of the (Date of Injury) compensable injury. The HO stated that it was speculated that the cause of the IW’s symptoms could be CTS, though that was merely conjecture until June 7, 2012, and that mere speculation is not a diagnosis. The HO determined that since the CTS that was later determined to have been part of the compensable injury was not actually diagnosed until after the certification from Dr. F was issued, it constituted an undiagnosed medical condition under Section 408.123(f)(1)(B). However, the AP noted the initial medical records indicated that the IW was treated for left wrist pain and was using a wrist brace. Prior to the date of the first certification of MMI/IR, the IW’s treating doctor requested an EMG to confirm a diagnosis of left wrist CTS. Further, the IW was referred to Dr. K and was diagnosed with left wrist CTS prior to the expiration of the 90 days to dispute the first certification of MMI/IR. The AP reversed the HO’s determination that Dr. F’s certification of MMI and IR did not become final under Section 408.123 and Rule 130.12. APD 151590.
Significant Error in Applying the Guides or Calculating IR.
An Exception.
The DWC-69, Report of Medical Evaluation, showed the IR as being 19% but the certifying doctor's narrative report showed the correct IR calculation to be 28%. This is an exception to finality after the 90-day period. APD 050729-s.
The HO correctly determined that the TD's first valid certified MMI date and first valid assigned IR was not final because the TD used the wrong edition of the Guides in determining the IR. APD 992419.
The fact that an exception under Section 408.123(f) can be established does not make the first certification of MMI/IR invalid for purposes of initially determining whether it is a valid certification under Section 130.102(c) and subject to Section 408.123(e). In this case, there was compelling medical evidence of a significant error in applying the Guides and in calculating the IR in that the DD improperly converted to whole person impairments prior to combining the upper extremity impairments in assessing the IR. The evidence supported the HO's finding that the DD's first assigned IR did not become final under Section 408.123(e) because an exception to finality existed under Section 408.123(f)(1)(A). The RME doctor's IR did not become final under Section 408.123 because under Section 130.12(a)(3) it was not the first valid subsequent certification of MMI and/or assignment of IR or determination of no impairment received after the date a certification of MMI and/or assignment of an IR or determination of no impairment is overturned, modified, or withdrawn by agreement of the parties or by a final decision of the Division or a court. APD 061569-s.
The DD reported that the IW was not at MMI. Subsequently, a TD MMI/IR referral doctor certified the IW reached MMI on September 12, 2006, with a 12% IR. The referral doctor later amended his report to a 16% IR to include impairment for a distal clavicle resection arthroplasty he had failed to rate in his initial report. There was no appeal of the HO's determination that the IW reached MMI on September 12, 2006, so that is the IW's MMI date. The AP affirmed the HO's determination that the referral doctor's failure to rate the distal clavicle resection arthroplasty in his original report constituted compelling medical evidence of a significant error in applying the Guides in calculating the IR, and that the 12% IR did not become final because of Section 408.123(f)(1)(A). The AP reversed and remanded the HO's decision that the IW's IR was 16% because there was no IR assigned by a DD as required by Section 408.125(a). The case was remanded for the DD to assign an IR based on the IW's condition on September 12, 2006, the unappealed MMI date. APD 071283-s.
The HO determined that the DD’s certification at issue became final. The DD assigned a 15 % IR which included 10% impairment under lumbar DRE Category III: Radiculopathy for the lumbar spine. In the narrative report, the doctor’s physical examination findings indicated that patellar and Achilles reflexes are 2+ bilaterally, equal and normal. Additionally, the physical examination findings did not document measurements which would relate to atrophy. The AP stated that Guides and AP decisions specify that to receive a rating for radiculopathy the claimant must have significant signs of radiculopathy, such as loss of relevant reflexes, or measured unilateral atrophy of 2 cm or more above or below the knee, compared to measurements on the contralateral side at the same location. The atrophy or loss of relevant reflex must be spine-injury-related for radiculopathy to be rated. See APD 072220-s, decided February 5, 2008. Since the DD assessed a rating for radiculopathy but did not document significant signs of radiculopathy or note significant signs of radiculopathy in the medical records he reviewed, the AP held that there is compelling medical evidence of a significant error by the certifying doctor in calculating the claimant’s IR pursuant to Section 408.123(f)(1)(A). APD 160325.
Not an Exception.
The AP held that the district court judgment on extent of injury was not compelling medical evidence which established an exception to finality under Section 408.123. The AP determined that the CCH record did not reveal compelling medical evidence to establish that there was a significant error in applying the AMA Guides or in calculating the IR. The HO's determination that the first certification of MMI/IR did not become final was reversed and a decision was rendered that the first certification of MMI/IR did become final. APD 061599-s.
The HO determined that the first IR from Dr. W on January 30, 2013, did not become final under Section 408.123 and Rule 130.12 because there was a significant error by Dr. W in calculating the IR, in that he rated a hernia that was not part of the compensable injury. However, the AP disagreed that the mere fact that Dr. W included a hernia in her IR constitutes a significant error in applying the Guides. It further noted that there is no provision in either Section 408.123 or Rule 130.12 that states that the mere inclusion of a noncompensable condition in an assignment of IR constitutes an exception for finality. The AP declined to read any such interpretation in those provisions and declined to follow any prior cases that may have read such an interpretation. APD 132117.
The HO found that the certifying doctor did not rate the entire compensable injury in his November 12, 2010, certification, and therefore, the exception found in Section 408.123(f)(1)(A) of the Act applies. The hearing officer determined that the first MMI/IR certification by Dr. RR on November 12, 2010, did not become final under Section 408.123 and Rule 130.12. The AP noted that there is no provision in either Section 408.123 or Rule 130.12 that provides that the exclusion of a condition in an assignment of IR constitutes an exception to finality. The AP further determined that while a subsequent resolution of the extent of the compensable injury may be an element of one of the three exceptions contained in Section 408.123(f), we hold that such resolution in and of itself is not an exception to finality. APD 132594-s.
The HO determined that the first MMI/IR certification from Dr. S did not become final because there was compelling medical evidence of a significant error in calculating the IW’s IR in that Dr. S failed to rate a medical condition that the parties have stipulated to be included in the compensable injury. However the AP reversed the HO’s finality determination and held that under the facts of this case, Dr. S’s failure to rate a medical condition to which the parties have stipulated at the CCH to be included in the compensable injury does not, by itself, constitute compelling medical evidence of a significant error in applying the appropriate AMA Guides under Section 408.123(f)(1)(A). APD 150457-s.
The HO found that there was compelling medical evidence of a significant error on the part of Dr. H in applying the AMA Guides because he failed to include the range of motion measurements needed to calculate the IR. The AP clarified that the determination of whether there exists compelling medical evidence of a significant error by the certifying doctor in applying the AMA Guides or calculating the IR is based on the totality of the evidence, and the certifying doctor’s failure to include ROM measurements alone is not compelling medical evidence of a significant error. The AP further noted Rule 130.12(c) does not require that a narrative report be attached to the DWC-69. Given that the HO found that Dr. H’s certification of MMI and IR is a valid certification, and Rule 130.12(c) does not require that a narrative report be attached to the certification, the certifying doctor’s IR contains no errors in applying the AMA Guides or in calculating the IR and the exception under Section 408.123(f)(1)(A) does not apply. APD 140574, See also 140340.
The HO found that the DD certification at issue did not become final because there was compelling medical evidence of a significant error in applying the Guides. In assessing the IR, the DD based the rating on an impairment for atrophy from Table 37 (“Impairment from Leg Muscle Atrophy”) and for loss of range of motion (ROM) for the right knee from Table 41 (“Knee Impairments”). The HO stated in the decision that Dr. H assigned an IR for both ROM loss and atrophy in arriving at a 16% IR, and that “it is clear from the [AMA Guides] that one cannot use both methods to derive an appropriate [IR].” However, the AP cited APD 040147 in which the AP affirmed the HO’s adoption of a similar rating where the certifying doctor assessed an impairment from both Table 37, 41 and 62 (Arthritis). In that case, the HO accorded presumptive weight to the DD’s report and commented that the DD had the discretion to utilize more than one Table to arrive at the IR. The Appeals Panel affirmed the HO’s IR determination and noted that no provision in the AMA Guides specifically precludes the DD’s approach to assessing the IW’s IR and that it was a difference in medical judgment on how to rate the IW’s injury. Therefore in this case, the AP held that it was within the doctor’s medical judgment to rate the knee injury by utilizing more than one table, and that does not, by itself constitute compelling medical evidence of a significant error in applying the Guides. APD 151869.