AP Decision Highlights the Value of Alternate Impairment Ratings
The Appeals Panel has issued a decision that remands a case to a Benefit Contested Case Hearing Officer to select an impairment rating from one of two remaining alternative certifications. The appeals panel posted its decision in Appeals Panel Decision No. 151515 on October 15, 2015.
The Division appointed a designated doctor to examine the claimant on the issues of MMI and IR. The DD provided alternate certifications, each based on a single date of MMI. The DD explained that the date of MMI that he had selected was based on the presence of lumbar disc syndrome and radiculopathy – two conditions that the Hearing Officer concluded were not a part of the compensable injury. Accordingly, the Appeals Panel rendered a decision that the hearing officer’s adoption of the DD’s opinion on MMI (that the claimant was not at MMI) could not be accepted. In other words, the Appeals Panel wrote that the DD’s narrative report showed that he had considered more than a lumbar strain when he certified that the claimant had not reached MMI.
Therefore the Appeals Panel reversed the Hearing Officer’s Decision and Order. This left the question of whether the appeals panel should render a decision that adopted another certification, or remand the case to the Hearing Officer to do so. The Appeals Panel decided to remand.
There are three other MMI/IR certifications in evidence. The first two are from (Dr. E), a post-designated doctor required medical examination (RME) doctor. Dr. E examined the claimant on October 10, 2014, and submitted alternate MMI/IR certifications dated October 27, 2014. In the first certification.
Dr. E certified that the claimant reached MMI on January 30, 2014, with a zero percent IR. Dr. E explained in his attached narrative report that this certification is based on lumbalgia, a condition which was neither stipulated to nor litigated by the parties as being part of the compensable injury. Accordingly, this certification cannot be adopted. Dr. E certified in his alternate certification that the claimant reached MMI on October 10, 2014, with a zero percent IR, and explained in his attached narrative report that this certification is based on a lumbar sprain/strain.
The third MMI/IR certification is from (Dr. O), a subsequent post-designated doctor RME doctor. Dr. O examined the claimant on March 2, 2015, and certified that the claimant reached MMI on September 19, 2014, with a zero percent IR based on a lumbar sprain/strain.
Dr. E’s alternate certification that the claimant reached MMI on October 10, 2014, with a zero percent IR and Dr. O’s certification that the claimant reached MMI on September 19, 2014, with a zero percent IR are both potentially adoptable in this case. As such, we do not consider it appropriate to render a decision on the issues of MMI and IR. Therefore, we remand the issues of MMI and IR to the hearing officer to make a determination on the claimant’s MMI and IR consistent with this decision.
The remand precluded the claimant from obtaining and offering into evidence another certification of MMI and IR. It limited the Hearing Officer’s options on remand to the adoption of either of two alternate certifications – both of which were acceptable to the carrier.
The lesson from this case is that alternate certifications of MMI and IR, that are based upon the extent of injury finding that is ultimately adopted by the Division, are invaluable in obtaining a favorable decision from a Hearing Officer in the dispute resolution process. Do not hesitate to ask the doctor you have retained to examine the claimant for alternate certifications based upon different potential extent of injury outcomes.
FOLIO
