Appeals Panel Recalculates Claimant’s IR on Appeal
The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer that adopted a 21 percent IR based on a designated doctor’s opinion and rendered a decision that the claimant’s IR was 20 percent, based on the Appeals Panel’s interpretation of the AMA Guides.
In Appeals Panel Decision Number 160742, decided June 17, 2016, the claimant sustained multiple, bilateral arm injuries to his upper extremities. The designated doctor certified that the claimant reached MMI with a 21 percent whole body IR. The Hearing Officer adopted this certification rather than the certification assessed by the carrier’s post-DD RME. On appeal, the carrier argued that the designated doctor’s certification contained an error and could not be adopted. The carrier argued that the Appeals Panel should reverse the Hearing Officer’s determination and render a decision that adopted the IR assigned by the post-DD RME. The Appeals Panel declined to do so.
The error in the DD’s IR was described by the Appeals Panel as follows:
Dr. P, the designated doctor, examined the claimant on August 19, 2015, and certified that the claimant reached MMI on March 9, 2015, with a 21% IR using the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) (AMA Guides). Dr. P used Figures 19, 21, 23, 26, 29, 32, and 35 on pages 32, 33, 34, 36, 38, 40, and 41 of the AMA Guides in making his assignment of IR. Dr. P assigned 22% upper extremity (UE) impairment for range of motion (ROM) deficits of the claimant’s right index, middle, ring, and little fingers, 6% UE impairment for the claimant’s right wrist, 5% UE impairment for the claimant’s right elbow, 2% UE impairment for the claimant’s left wrist, and 3% UE impairment for the claimant’s left elbow, for a combined whole person impairment (WPI) of 21%. Based on the ROM measurements contained on the worksheets in his report, Dr. P’s impairment for the claimant’s right fingers and elbow and left wrist and elbow are made in accordance with the AMA Guides.
However, Dr. P’s impairment for the claimant’s right wrist contains an error. In his attached worksheet Dr. P noted 40 degrees of flexion and assigned a 4% impairment for ROM deficits in the claimant’s right wrist. Figure 26 on page 36 of the AMA Guides provides that 40 degrees of flexion results in 3% impairment, not 4% as assigned by Dr. P. Dr. P correctly assigned 0% impairment for extension of the right wrist, 2% impairment for radial deviation of the right wrist, and 0% impairment for ulnar deviation of the right wrist based on his ROM measurements. Adding the impairments for the claimant’s right wrist as instructed by the AMA Guides results in 5% UE impairment for the right wrist, not 6% as assigned by Dr. P. Combining 22% for the claimant’s right fingers, 5% for the claimant’s right wrist, and 5% for the claimant’s right elbow result in 30% UE impairment, not 31% as assigned by Dr. P. Using Table 3 on page 20 of the AMA Guides, 30% UE impairment converts to 18% WPI for the claimant’s right UE, not 19% as assigned by Dr. P. Combining 18% WPI for the claimant’s right UE with 3% WPI for the claimant’s left UE results in 20% WPI, not 21% as assigned by Dr. P.
Rather than rejecting the designated doctor’s certification and adopting the post-DD’s certification, the Appeals Panel recalculated the IR, rendering a decision that the claimant’s whole body IR was 20 percent, an IR that had not been certified by any physician. The Appeals Panel wrote:
The Appeals Panel has previously stated that, where the certifying doctor’s report provides the component parts of the rating that are to be combined and the act of combining those numbers is a mathematical correction which does not involve medical judgment or discretion, the Appeals Panel can recalculate the correct IR from the figures provided in the certifying doctor’s report and render a new decision as to the correct IR. See Appeals Panel Decision (APD) 121194, decided September 6, 2012; APD 041413, decided July 30, 2004; APD 100111, decided March 22, 2010; and APD 101949, decided February 22, 2011.
Under the facts of this case, Dr. P’s assigned IR can be mathematically corrected based on the documented ROM measurements of the claimant’s right wrist. As explained above, the correct IR using Dr. P’s documented ROM measurements results in 20% IR, not 21% as assigned by Dr. P. The Hearing Officer found that the preponderance of the evidence is not contrary to Dr. P’s MMI/IR certification, and after a mathematical correction that finding is supported by the evidence. Accordingly, we reverse the Hearing Officer’s determination that the claimant’s IR is 21%, and we render a new decision that the claimant’s IR is 20%.
The Texas Supreme Court has previously rejected a similar argument. In Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012), the designated doctor examined the claimant and assigned a 20 percent IR based upon the Division’s 2003 Advisories. The carrier argued that the advisories were an improper method under which an IR could be calculated, and offered expert medical opinion that if the Guides were correctly applied to the report that documented the results of the designated doctor’s physical examination, the claimant’s IR would be a 10 percent IR. The Division filed an Amicus Curiae Brief with the Supreme Court in which it argued that the designated doctor’s erroneous IR could not be recalculated based on expert medical opinion testimony. Rather, the Division argued that the case should be remanded to the Division for further proceedings. The Supreme Court agreed:
First, under section 410.306(c) the trier of fact, “in its determination of the extent of impairment, shall adopt one of the impairment ratings under Subchapter G, Chapter 408.” As the Division argues, if a rating does not comport with the Guides, as section 408.124 requires, it is not adopted “under subchapter G.” To the contrary, such an impairment rating would be invalid precisely because it was not adopted in compliance with section 408.124(b). Moreover, in considering whether an impairment rating submitted to the Division is valid, a reviewing court is not making a “determination of impairment.” Instead, the court is deciding a purely legal question: whether the proffered rating was made in accordance with statutory requirements.
Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012)
An IR that contains a calculation error does not comport with the AMA Guides. If, as the Texas Supreme Court wrote in Samudio, a court could not adopt an IR that, based on expert medical testimony, applied the Guides correctly, we wonder how the Appeals Panel can adopt an IR that does not comport with the AMA Guides, and underlying which there is no expert medical testimony to support a different calculation.
FOLIO
