Appeals Panel Finds IR Certification Did Not Become Final
The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer and rendered a decision that a designated doctor’s certification of MMI and 17 percent IR did not become final under the 90-day rule. The case, Appeals Panel Decision Number 160629, decided May 31, 2016, holds that the claimant failed to prove delivery of the first certification to the carrier by verifiable means.
Section 408.123(e) provides that except as otherwise provided by Section 408.123, an employee’s first valid certification of MMI and first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means; that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both.
Rule 130.12(b)(1) provides, in part, that the first certification of MMI or assigned IR may be disputed by requesting and setting a benefit review conference (BRC) under Rule 141.1 or by requesting the appointment of a DD, if one has not been appointed.
In support of her decision that the designated doctor’s certification and assignment of MMI/IR became final by operation of law, the Hearing Officer found as a matter of fact that the certification and assignment were provided to the carrier by verifiable means on or before July 10, 2015. The Hearing Officer wrote that “(Dr. J)] [the carrier’s choice of physician who conducted a post-DD required medical examination (RME)] noted in his report that the Division received a [RME Notice or Request for Order Form (DWC-22)] on July 10, 2015; therefore the request for a post-DD RME exam establishes a reasonable expectation that [the] [C]arrier] received the DD report before this date.”
The Appeals Panel disagreed with the Hearing Officer’s reasoning.
The carrier’s request for a post-DD RME may suggest that the carrier had actual knowledge of Dr. W’s certification and assignment but no evidence was presented that reasonably confirms delivery or that written notification was provided to the carrier by verifiable means. Although the Hearing Officer cites Appeals Panel Decision (APD) 041985-s, decided September 28, 2004, in support of her determination that the filing of the DWC-22 supported her finding that Dr. W’s certification and assignment were provided to the carrier by verifiable means on or before July 10, 2015, she misinterprets our decision in that case. In APD 041985-s, we noted that although there was some evidence that a DWC-69 was mailed to the claimant, “no evidence was presented to indicate that the written notification was provided/delivered to [the] claimant by verifiable means. There was no signature card, or other verifiable evidence indicating when the notification was provided/delivered to [the] claimant.” We noted further that although the Hearing Officer determined that the claimant had actual knowledge of the certification, “[the] case does not turn on whether the Hearing Officer believes [the] that claimant received a [DWC-69]. . . . The issue is whether the 90-day rule’s clock was triggered. We conclude that it was not because [the] carrier has not shown that there was provision/delivery of written notice through verifiable means.” Similarly, in this case, there was no showing that provision/delivery of written notice was made through verifiable means.
The Hearing Officer further cites APD 080301-s, decided April 26, 2008, in support of her decision; however, that case is also distinguishable. In APD 080301-s, we held that the carrier received the first certification of MMI/IR by verifiable means because the carrier acknowledged receipt in its Notification of MMI/First Impairment Income Benefit Payment (PLN-3) notifying the claimant that it was disputing such certification and stating that a copy of the doctor’s report was attached to the PLN-3. There was no such acknowledgment by the carrier in this case.
The decision is equally applicable to a case where the carrier is arguing that the first assigned certification has become final. The lesson is that proof of delivery by verifiable means (or a concession of receipt by the claimant) is necessary to prove finality. Unfortunately for the carrier in this case, the Hearing Officer also found, as a factual matter, that the great weight and preponderance of other medical evidence did not outweigh the opinion of the designated doctor. So, although the 17 percent IR was not adopted on the basis of finality, it was adopted because of the presumptive weight accorded the designated doctor’s opinion.
FOLIO
