Appeals Panel Renders Decision in 90-Day Rule Case
The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer that rejected the finality of a certification of MMI and IR, and rendered a decision that the certification became final under the 90-day rule. The case turned on the question of what proof is required to show delivery of the certification by verifiable means.
In Appeals Panel Decision Number 161491, decided September 23, 2016, the carrier argued, and the Hearing Officer determined, that the designated doctor’s certification of a September 5, 2014, date of MMI and 51% IR had not been provided to the carrier by verifiable means. The claimant appealed. The Appeals Panel reversed the Hearing Officer’s determination, writing:
In APD 080301-s, decided April 16, 2008, the Hearing Officer believed that the carrier had the first valid MMI/IR certification by the date of its PLN-3. The carrier’s PLN-3 referenced the first valid MMI/IR certification and stated that a copy of that certification was attached. The Appeals Panel held that a carrier’s reference to the first MMI/IR certification in a PLN-3 and its sending a copy of the MMI/IR certification to the Texas Department of Insurance, Division of Workers’ Compensation (Division) established acknowledged receipt of the first MMI/IR certification.
In the case on appeal the Hearing Officer clearly believed that the carrier received Dr. S’s MMI/IR certification certifying that the claimant reached MMI on September 5, 2014. However, the Hearing Officer found that because the PLN-3 did not contain the IR, even though it acknowledged the number of weeks the claimant would receive IIBs which is based on the IR, the carrier’s PLN-3 did not constitute the carrier’s acknowledgement of receipt of Dr. S’s MMI/IR certification. Although the carrier’s PLN- 3 does not list the IR number itself, it does state that based on Dr. S’s certification the claimant would receive 153 weeks of IIBs, which is the correct number of weeks of IIBs based on a 51% IR. The PLN-3 also states that a copy of Dr. S’s DWC-69 was included with the PLN-3. The Hearing Officer’s finding that Dr. S’s September 5, 2014, date of MMI and 51% IR was not provided to the carrier by verifiable means is so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, we reverse the Hearing Officer’s finding that Dr. S’s September 5, 2014, date of MMI and 51% assigned IR was not provided to the carrier by verifiable means, and we render a new determination that Dr. S’s October 31, 2014, MMI/IR certification was provided to the carrier by verifiable means, based on the carrier’s acknowledged receipt on November 14, 2014.
The Hearing Officer’s decision and order failed to include findings of fact and conclusions of law that addressed the carrier’s alternative argument that an exception to finality applied to the case. Accordingly, the Appeals Panel also remanded the case to the Hearing Officer in order to make those determinations.
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