Appeals Panel Rejects Carrier’s Argument Under the 90-day Rule
The appeals panel has concluded that a carrier failed to meet its burden of proof in a 90-day finality case. In Appeals Panel Decision Number 152374, decided February 3, 2016, the appeals panel reversed a portion of the hearing officer’s decision that found that an impairment rating had become final under that rule. In doing so, the appeals panel addressed the quality of evidence that would suffice to prove that an employee had received notice of a certification of MMI/IR by verifiable means.
In Appeals Panel Decision (APD) 041985-s, decided September 28, 2004, the Appeals Panel noted that the preamble to Rule 130.12 stated that written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party and that this may include acknowledged receipt by the injured employee or insurance carrier, a statement of personal delivery, confirmed delivery by e-mail, confirmed delivery by facsimile transmission or some other confirmed delivery to the home or business address. See also APD 121814, decided December 10, 2012.
Dr. H performed an examination of the claimant on July 2, 2014. The doctor’s DWC-69 and accompanying narrative are dated July 3, 2014. In her decision, the hearing officer notes that “. . . there is no verifiable means attesting to when the [c]laimant received a copy of [Dr. H’s] certification.” In support of her finding that Dr. H’s certification was provided to the claimant by verifiable means on August 8, 2014, the hearing officer relies on Dispute Resolution Information System (DRIS) note No. 31 of that date which states, in part:
“[Injured Employee (IE)] stated his attorney and workers’ compensation doctor is disputing the RME report and sending him to another doctor for an evaluation. Reviewed DRIS notes and TXCOMP. Informed IE that there is no DWC-45 on file at this time. [Provided IE a DWC-45 for attorney to complete]. . . .”
While a review of the record reveals conflicting evidence concerning the date the claimant may have received a copy of Dr. H’s certification, the hearing officer relied upon DRIS note No. 31 to find that the claimant was provided written notice of Dr. H’s certification by verifiable means on August 8, 2014. We disagree. The DRIS note, which indicates only that the claimant’s attorney and doctor are disputing Dr. H’s report, does not constitute reasonable confirmation of delivery of written notice to the claimant on that date. Therefore, we reverse the hearing officer’s finality determination and remand the issue of finality to the hearing officer to make findings of fact and conclusions of law consistent with the evidence in this case.
This case contains language that will help a party assert the 90-day rule, but also has language that will help defeat the 90-day rule. First, the case holds that “written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party and this may include acknowledged receipt by the injured employee.” However, written notice that indicates only that the claimant’s attorney or his doctor received a certification of MMI/IR will not constitute reasonable confirmation of delivery of written notice to the claimant on that date.
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