In Significant Decision, AP Concludes DD’s Multiple IR Certification was not Final
The appeals panel has reversed a contested case hearing decision and order issued by an Administrative Law Judge who had determined that a designated doctor’s certification of MMI and IR, which contained multiple impairment ratings, did not become final. The appeals panel also concluded that the ALJ did not abuse his discretion in denying the carrier’s request for continuance to complete a post-DD RME that had been scheduled three days after the CCH was conducted.
The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 201244-s, decided October 22, 2020. The “s” indicates the appeals panel considers the decision to be a significant ruling.
Denial of Post-DD RME
On appeal, the carrier contended that the ALJ abused his discretion by denying its request for a continuance, so the claimant could attend a post-designated doctor required medical examination scheduled three days after the CCH date.
The Appeals Panel utilizes the abuse-of-discretion standard to review the rulings on continuances. The Appeals Panel stated that they will not disturb an ALJ’s ruling on a continuance absent an abuse of discretion. To determine whether there has been an abuse of discretion, the Appeals Panel looked to see whether the ALJ acted without reference to any guiding rules or principles. In the record, it stated that a designated doctor examination occurred on May 2, 2019, and the carrier’s RME was requested on January 20, 2020.
The Appeals Panel found that the ALJ did not abuse his discretion in denying the carrier’s request for continuance to allow a post-designated doctor RME as the ALJ had based his determination on the fact that a large amount of time had elapsed between the May 2, 2019 examination and the January 20, 2020 request.
The important lesson from this ruling is that carriers should not wait too long to request a post-DD RME following the issuance of an impairment rating with which they disagree. They may not be in a position to insist upon completion of that exam if there is significant delay between the original certification and the scheduled date of the RME.
Finality of First Certification
The carrier also contended an abuse of discretion had occurred by the ALJ making a finding of fact that the record did not show any extent of injury dispute related to the extent of injury conditions determined by the doctor to be causally related to the compensable injury. The issues in the case were finality of Dr. T’s various certifications of MMI/IR from May 2, 2019, MMI, and IR. Based on the facts of the case, the Appeals Panel found that the ALJ did not abuse his discretion by making the complained-of finding of fact.
The Appeals Panel looked to Section 408.123 and Rule 130.12 to address the issue of finality. They noted that the evidence established that the designated doctor examined the claimant on at least four occasions. The issue that was before the ALJ was noted to be whether the first certification of MMI and assigned IR from Dr. T on May 2, 2019 became final.
The Court noted that because Dr. T had been appointed by the Division to address EOI, MMI, and IR for that particular examination that the designated doctor properly issued alternate certifications. Furthermore, they noted that the ALJ found that the carrier had not disputed that certification within 90 days of the date that written notice was delivered to the carrier by verifiable means.
The Appeals Panel noted that Rule 130.12(a)(4) did not identify which of the designated doctor certifications was subject to finality because the evidence did not show an extent of injury dispute between the parties. The ALJ found that the record did not show extent of injury dispute relating to the extent of injury conditions determined by the designated doctor to be causally related to the compensable injury.
While Dr. T was appointed to opine on EOI, the record did not show that either party had ever raised that issue to be resolved through the Division’s dispute resolution process. However, the Appeals Panel looked to the preamble of Rule 130.12 that stated, “ if a final decision regarding the extent of the injured employee’s injuries is not consistent with the injuries of one of the assigned impairment ratings, the designated doctor’s MMI/IR certification with multiple impairments cannot become final.”
The parties stipulated that the compensable injury was left wrist sprain/strain, right wrist sprain/strain, right elbow sprain/strain, and right shoulder sprain/strain. Neither party raised an extent of injury issue to be disputed through the Division’s dispute resolution process. The certifications provided by the designated doctor for the carrier’s accepted conditions all included conditions that were not actually accepted by the carrier, so the Appeals Panel reversed the ALJ’s determination and rendered a new decision that none of the certification from May 2, 2019 could become final.
In conclusion, the Appeals Panel reversed the ALJ’s determination that the first certification of MMI/IR from Dr. T on May 2, 2019 became final, the claimant’s MMI date of February 26, 2019, and the claimant’s impairment rating being 51%. They remanded the issues to the ALJ for further action consistent with their decision.
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