AP Rejects IR that was Reduced Because of Claimant’s Noncompliance
The Appeals Panel has reversed the decision of an ALJ that had adopted a 9% impairment rating assigned by a post-DD RME and has remanded the case to the ALJ for further proceedings. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 172725, decided January 3, 2018.
In this MMI and impairment rating dispute, the ALJ rejected the certification of MMI and IR assigned by the DD because it was unclear whether that doctor had rated the entire compensable injury. The ALJ resolved the disputed issues by deciding that the claimant reached MMI on November 18, 2016, with an IR of 9% as certified by the post-DD RME. The claimant challenged this decision by filing a request for review with the Appeals Panel.
On appeal, the Appeals Panel agreed that the DD’s certification could not be adopted. However, it also concluded that the certification assigned by the post-DD RME was unadoptable because that calculation followed an impermissible methodology. Specifically, the doctor had reduced an 18% IR to 9% because of the claimant’s non-compliance with his prescribed treatment.
Dr. B, the RME doctor, examined the claimant and certified on May 9, 2017, that the claimant reached MMI on November 18, 2016, with an 18% IR derived from abnormal motion of the right thumb, index and middle fingers. Dr. B noted in his narrative report that over half of the claimant’s impairment can be attributed to his noncompliant behavior. Thereafter, on June 12, 2017, Dr. B submitted an addendum together with an amended DWC-69 in which he “factors the non-compliance of the claimant into the final impairment. . . .” Dr. B assigned an IR of 9%, reduced from the 18% originally derived from the claimant’s ROM testing. The ALJ states that Dr. B rated the compensable injury and provided a reasonable explanation for the date of MMI that he selected, and notes that Dr. B indicated he “supplied a DWC-69 which factors the non-compliance of the claimant into a final impairment, or 9% whole person.” The ALJ incorrectly adopted Dr. B’s amended certification that the claimant reached MMI on November 18, 2016, with an IR reduced from 18% to 9%.
The methodology used by Dr. B in adjusting the numerical impairment assigned based upon a failure of the claimant to comply with prescribed treatment for the compensable injury is not provided for in the law or the AMA Guides. Accordingly, Dr. B improperly factored the claimant’s non-compliance into the 18% IR determined from ROM testing by reducing the IR to 9%. Dr. B’s assignment of a 9% IR is not based upon the claimant’s condition as of the MMI date as required by Rule 130.1(c)(3) but rather is based upon what Dr. B believes the claimant’s condition would have been had he completed his prescribed treatment. For such reason, the ALJ erred in adopting the 9% IR assigned by Dr. B. We accordingly reverse the ALJ’s determination that the claimant reached MMI on November 18, 2016, with a 9% IR.
Because there was not an adoptable IR in the record, the Appeals Panel remanded the case to the ALJ for further proceedings.
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