AP: Proof by “Verifiable Means” can Include Claimant’s Failure to Claim his Mail

Cases that involve the 90-day rule can be tricky because of the obligation that the statute imposes to prove that the first certification be delivered to the opposing party “by verifiable means.” The appeals panel has, in the past, reversed a decision and order of an administrative law judge that found that a claimant had received notice of the first certification of MMI “at least by December 31, 2015” and remanded the case to the judge to make a specific finding of the date that the claimant first received the notice.

The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 171273, decided July 20, 2017.

The hearing officer resolved the disputed issues by deciding that: (1) the first certification of maximum medical improvement and assigned impairment rating from (Dr. S) on September 4, 2015, became final under Section 408.123 and Rule 130.12; (2) the claimant reached MMI on August 4, 2015; (3) the claimant’s IR is five percent; (4) the claimant had disability from August 5, 2015, through April 11, 2016; and (5) the claimant is not entitled to reimbursement of travel expenses from April 18 through September 21, 2016, for medical treatment at the direction of (Dr. Sm) and (Dr. B), approximately in the amount of $1,500.00. The claimant appealed, disputing the hearing officer’s determinations of finality, MMI, IR, and travel reimbursement. The claimant contended that the evidence established the first certification did not become final and the evidence precluded a determination that he reached MMI on August 4, 2015, with a five percent IR. Additionally, the claimant argued that the preponderance of the medical evidence supports his position that he is entitled to reimbursement of travel expenses from April 18 through September 21, 2016. The carrier responded, urging affirmance of the disputed finality, MMI, IR, and travel reimbursement determinations.

In her discussion of the evidence the administrative law judge noted that based upon the claimant’s testimony, the report from Dr. S was deemed received by the claimant late in 2015. The ALJ found that at least by December 31, 2015, the claimant received notification by verifiable means of the September 4, 2015, certification report by Dr. S.

The appeals panel observed that the claimant had testified that he did not remember the exact date he received the certification of MMI/IR from Dr. S but knew he got it in 2015. It wrote that the claimant never testified that he received the documents on December 31, 2015, and that there was no evidence that December 31, 2015, was the date of receipt by verifiable means. The claimant acknowledged receipt of the report but equally clearly he did not know or testify to the specific date of receipt nor does the carrier have verifiable proof that the first certification of MMI and IR was delivered on December 31, 2015.

Accordingly, the appeals panel held that the claimant’s testimony in this case did not constitute acknowledged receipt by the claimant on December 31, 2015, citing Appeals Panel Decisions 141822, decided October 10, 2014; APD 101033, decided September 22, 2010; and APD 110911, decided August 26, 2011. Those decisions hold that an ALJ must make a specific finding of the date of receipt of the first certification of MMI and that there must be sufficient evidence to establish receipt on the date found by the ALJ.

The appeals panel did not render a decision in favor of the claimant, however. Instead, it noted that the evidence reflected the existence of product and tracking information for a tracking number for documents sent to the claimant’s address from the United States Postal Service that reflected on October 2, 2015, that documents were available for pickup. The ALJ had noted in her discussion that in evidence was the tracking information confirming that the certification report was sent on September 28, 2015, but not picked up as of October 2, 2015. However, the ALJ did not comment on whether she was persuaded that the documents available for pickup included the September 4, 2015, DWC-69 from Dr. S. The appeals panel wrote:

In Texas Division of Workers’ Compensation Appeals Panel Decision No. 042163-s, decided October 21, 2004, the Appeals Panel discussed whether the deemed receipt provision of Rule 102.4 was applicable and what is meant by “verifiable means.” Texas Division of Workers’ Compensation Appeals Panel Decision No. 041985-s, decided September 28, 2004, and Texas Division of Workers’ Compensation Appeals Panel Decision No. 042163- s, both reference the preamble to Rule 130.12. 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:

Written 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.

Because a party may not prevent verifiable delivery and because a party who refuses to take personal delivery or certified mail has still been given verifiable written notice, the appeals panel wrote that the question when or if the notice was provided/delivered to the claimant presented a question of fact for the ALJ to resolve. APD 042163-s, supra. Consequently, the appeals panel reversed the ALJ’s determination that the first certification of MMI and assigned IR from Dr. S on September 4, 2015, became final pursuant to Section 408.123 and Rule 130.12 and remanded the issue of finality to the ALJ for her to make a determination regarding delivery of the first certification to the claimant by verifiable means.