AP Concludes that Incomplete DD Request Will Prevent Finality

The appeals panel has reversed the decision and order of an administrative law judge that found that an incomplete DD request (DWC-32) was not sufficient to stop the 90-day clock from expiring and has rendered a decision that the impairment rating certification did not become final.

The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 180848-s, decided May 21, 2018.

A doctor who saw the claimant on referral from the treating doctor certified that the claimant reached MMI on July 24, 2017 (the date of the evaluation) with a 13 percent impairment rating. Within 90 days of receipt of the certification, the claimant filed a DWC-45 (request for BRC) and a DWC-32 (request for appointment of DD). The DWC-32 was incomplete and missing the city, state & zip code, the date of injury), and a Notice of Representation (DWC-150).

The appeals panel concluded that an incomplete DWC-32 was effective to prevent the first certification from becoming final.

In APD 043023-s, decided January 6, 2005, the carrier filed a DWC-32 requesting the appointment of a designated doctor to “dispute an assigned date of [MMI] and [IR];” however, the DWC-32 was returned to the carrier by the Division as incomplete because it did not complete Section III of the form. In that case, the Appeals Panel affirmed the ALJ’s determination that the filing of the DWC-32 requesting a designated doctor was sufficient to dispute the first valid certification of MMI and IR pursuant to Rule 130.12(b)(1). In this case, as in APD 043023-s, the claimant filed a DWC-32 requesting the appointment of a designated doctor to address MMI and IR on November 3, 2017, which was timely and sufficient to dispute the first certification of MMI and IR.

Notably, the appeals panel alternatively concluded that the DWC-45 was sufficient to prevent the certification of a doctor other than a DD from becoming final. This is so even though Rule 130.12(b)(1) provides, in part, that a party may dispute a first certification of MMI and IR “by requesting the appointment of a designated doctor, if one has not been appointed.”

The appeals panel decision has been designated as an “s” decision, which indicates that the appeals panel considers its holding to be “significant.” The significance of the decision is two-fold. First, the appeals panel has now held that where a party is attempting to dispute the certification of a doctor other than a DD, filing either a DWC-45 or a DWC-32 will be sufficient. Second, the appeals panel has specifically concluded that an incomplete DWC-32 is sufficient to dispute the certification of MMI and IR by a doctor.