Delivery by Verifiable Means: Appeals Panel Issues 2 Recent 90-day Finality Cases
The AP has recently issued a pair of 90-day finality cases of note: APD 220994, filed August 25, 2022, and APD 221349, filed September 30, 2022. Both emphasize the importance of delivery of the first MMI/IR on the file to Claimant by verifiable means.
In APD 220994, Dr. G provided the first MMI/IR on the file, and it was deemed valid by the ALJ. Carrier delivered that to Claimant by USPS certified mail. Claimant failed to dispute it within 90 days.
Despite a signed certified mail green card and other evidence of delivery by verifiable means, the ALJ concluded there was no 90-day finality on the following basis:
“[t]he ALJ finds that a layman could examine the signature on the green card and that of [the] [c]laimant’s on his DWC Form-045 and see that the signatures are not the same. The ALJ examined the documents and finds that the [c]laimant did not sign the green card. The ALJ finds that the notice with Dr. G’s report was not delivered to [the] [c]laimant, rather it was delivered to some unknown person.”
The AP reversed this decision, and rendered a new decision that Dr. G’s MMI/IR had become final. The AP cited the preamble to the 90-day rule, DWC Rule 130.12, and concluded: “The preamble…states that a party may not prevent verifiable delivery and specifically provides that a party who refuses to take personal delivery of certified mail has still been given verifiable written notice.”
In APD 221349, the ALJ found that the March 31, 2020, certification by Dr. G was the first valid certification of MMI and assigned IR for the purposes of 90-day finality, and the AP agreed. The ALJ further found that Dr. G’s certification was delivered to the claimant by verifiable means on August 24, 2021, and that Claimant failed to dispute it within 90 days from that date.
The AP noted that the ALJ relied on evidence from a Dispute Resolution Information System (DRIS) note that indicated the claimant contacted DWC to dispute Dr. G’s certification on August 24, 2021. The ALJ thus relied on DRIS notes to find that Dr. G’s certification was delivered to the claimant by verifiable means.
Citing a prior AP decision on point (APD 152374, decided February 3, 2016), the AP held that the DRIS note dated August 24, 2021, was insufficient to establish that Dr. G’s report was delivered to the claimant specifically by verifiable means. In other words, although the DRIS note may reflect that Claimant was in possession of Dr. G’s report on August 24, 2021, that same note did not specifically indicate that report had been delivered to Claimant by verifiable means.
The AP reversed and remanded, as other evidence in the record might establish delivery to Claimant by verifiable means.
Both decisions highlight the obvious point that the first valid MMI/IR on a file must be delivered to Claimant by USPS certified mail, USPS delivery confirmation, FedEx, UPS, or some other service by which delivery can be verified.
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