AP Applies 90-Day Rule; Remands Case

The Appeals Panel has reversed an ALJ’s Decision and Order that concluded that an employee’s certification of MMI and IR had not become final. The Decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 190180, was filed March 28, 2019. The decision illustrates how the Division analyzes the question of impairment rating finality.

The designated doctor examined
the claimant on October 3, 2017, and certified on October 24, 2017, that the
claimant reached MMI on July 30, 2017, with a zero percent IR, for the
compensable injury of a lumbar sprain/strain. Additionally, the DD provided
alternate certifications on October 24, 2017, certifying that the claimant had
not reached MMI which considered the compensable injury of a lumbar
sprain/strain and several disputed extent-of-injury conditions. The carrier
offered into evidence an e-mail dated October 24, 2017, to the claimant that
stated that the designated doctor’s examination report was attached. The ALJ
found that written notice of the DD’s certification was delivered to the
claimant by verifiable means on October 24, 2017.

The ALJ stated in her Decision that the claimant did not request a BRC to dispute the DD’s certification of MMI and IR within 90 days of October 24, 2017, and that he filed the dispute on June 22, 2018. The ALJ found that the claimant filed a DWC-45 disputing the DD’s certification of MMI and IR on June 22, 2018.

The DD provided a
certification of MMI and IR for the compensable injury and alternate
certifications that included extent-of-injury conditions that were in dispute.
This alternate certifications certified that the claimant had not reached MMI.
The ALJ stated in her decision that the parties resolved the extent-of-injury
dispute by agreeing that the compensable injury included several
extent-of-injury conditions in dispute. Therefore, the ALJ wrote that, under
Rule 130.12(a)(4), the certification by the DD that the claimant reached MMI on
July 30, 2017, with a zero percent IR for the lumbar sprain/strain was not
subject to finality. Accordingly, the ALJ determined that the DD’s
certification of MMI and IR on October 24, 2017, did not become final under the
90-day rule.

The Appeals Panel first considered whether the DD’s certification of MMI and IR was the first valid certification on the claim. This was a point upon which the Appeals Panel disagreed with the ALJ. The Appeals Panel wrote:

In this case, [the DD] provided a certification with an IR of zero percent for the compensable injury and alternate certifications that the claimant has not reached MMI for the disputed extent-of-injury conditions. However, the alternate certifications do not contain multiple IRs or ratings as stated in Rule 130.12(a)(4). Further, the alternate certifications do not contain the requirements for a valid certification as stated in Rule 130.12(c). The evidence reflects that [the DD’s] certification that the claimant reached MMI on July 30, 2017, with a zero percent IR for the lumbar sprain/strain is the first valid certification of MMI and IR for purposes of finality pursuant to Section 408.123.

The Appeals Panel next considered whether the carrier had delivered notice of the DD’s certification to the claimant by verifiable means and, if so, whether that certification had been disputed by the claimant within 90 days.

The ALJ found that written notice of [the DD’s] certification was delivered to the claimant by verifiable means on October 24, 2017, and that the claimant filed a DWC-45 disputing the designated doctor’s certification of MMI and IR on June 22, 2018. These findings of fact were not appealed. The claimant did not request a BRC to dispute [the DD’s] certification of MMI and IR within 90 days of October 24, 2017. Accordingly, we reverse the ALJ’s determination that the first certification of MMI and assigned IR from [the DD] on October 24, 2017, did not become final under Section 408.123 and Rule 130.12.

Finally, the Appeals Panel looked to the record to determine the state of the evidence regarding the statutory exceptions to finality. The Appeals Panel found that the ALJ had not addressed the application of the exceptions to the evidence in the case.

Section 408.123(f) provides that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described by Subsection (e) if: (1) compelling medical evidence exists of: (A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the IR; (B) a clearly mistaken diagnosis or a previously undiagnosed medical condition; or (C) improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid. The Appeals Panel has held that neither Section 408.123 nor Rule 130.12 provide that the mere inclusion or the exclusion of a condition in an assignment of IR constitutes an exception for finality, and we decline to read any such interpretation in those provisions. See Appeals Panel Decision (APD) 132117, decided November 4, 2013, and APD 132594- s, decided January 3, 2014.

At the CCH the claimant argued that he met an exception to finality found in Section 408.123(f). The ALJ failed to discuss or make any findings of fact, conclusions of law, or a decision as to whether there was compelling medical evidence to establish any of the three exceptions to finality found in Section 408.123(f). Because the ALJ failed to address any of the finality exceptions, we remand this case to the ALJ to determine if there is compelling medical evidence to establish any of the three finality exceptions found in Section 408.123(f).

Because the Appeals Panel reversed the ALJ’s Decision and remanded the case for further proceedings on the finality issue, the Appeals Panel also reversed the ALJ’s determination that the claimant had not reached MMI.

On remand the ALJ was
instructed to determine whether [the DD’s] certification of MMI and IR on
October 24, 2017, became final under Section 408.123 and Rule 130.12. Then the
ALJ was directed to determine whether there is compelling medical evidence of
any exceptions to finality found in Section 408.123(f). Finally, the ALJ was
ordered to determine the claimant’s MMI and IR.