AP Affirms that Claimant’s Testimony Can Establish Delivery by Verifiable Means for the Purposes of 90-day Finality
In APD 221291, decided September 21, 2022, the Designated Doctor issued the first certification of MMI/IR in connection with the claim. The Self-Insured transmitted a copy of the report to the claimant with a documented tracking history, but one that did not demonstrably link the tracked package to the underlying DD report. However, the claimant ultimately verified receipt of the report from the certifying doctor as of a particular date. Specifically, she testified at CCH that she received the DD’s certification from the DD directly on November 18, 2018.
In his Decision and Order the ALJ determined that the first certification of MMI/IR did not become final based on insufficient evidence proving delivery of written notice by verifiable means.
The AP reversed and remanded, finding that the evidence was sufficient (through claimant’s own testimony) to find that Claimant did receive the DD’s certification by verifiable means on November 18, 2018. The AP highlighted their prior references to the preamble to the 90-day rule (Rule 130.12) in APD 041985-s and APD 042163-s.
In those cases, the AP noted that the preamble provides that the 90-day period “begins when that party receives verifiable written notice of the MMI/IR certification.” The preamble goes on to state that “[w]ritten notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party. This may include acknowledged receipt by the injured employee or insurance carrier, a statement of personal delivery, confirmed delivery by e-mail, confirmed delivery by facsimile, or some other confirmed delivery to the home or business address. The goal of this requirement is not to regulate how a system participant makes delivery of a report or other information to another system participant, but to ensure that the system participant filing the report or providing the information has verifiable proof that it was delivered”. 29 Tex. Reg. 2331, March 5, 2004.
Practice Pointer: it is critical that the first MMI/IR on the file be forwarded to claimant via PLN-3 by verifiable means, such as USPS certified mail, USPS delivery confirmation, or other carrier for which delivery can be confirmed. Further, that proof of delivery must demonstrably link the tracked package to the underlying MMI/IR report.
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