AP Holds that DD may not Rely on a Report he did not Review
The Appeals Panel has reversed an ALJ’s Decision and Order that adopted a designated doctor’s certification of MMI and IR because the DD’s opinion was revised in response to a letter of clarification from the ALJ that described a medical report the doctor had not actually received and reviewed. The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 182809, was filed February 7, 2019.
The Decision states that Dr. M, the designated doctor, examined the claimant on May 18, 2018, and initially certified that the claimant reached MMI on March 26, 2018, with a one percent IR. In his narrative report, Dr. M noted that the claimant had surgery, post-surgery treatment, and injections which all concluded on March 26, 2018, per the medical records received.
After the CCH, the ALJ sent a letter of clarification to Dr. M and noted that a medical record from another doctor (Dr. R) stated the claimant completed two sessions of physical therapy and had four more sessions. Additionally, the ALJ referenced an April 24, 2018, medical record from a third doctor (Dr. E) that indicated that the claimant had been working towards completion of his physical therapy. The LOC offered no indication that any additional medical records were sent to the DD for his consideration.
In response to the LOC, the DD amended the claimant’s MMI date to May 7, 2018, because “this is when the [claimant] indicates he completed all approved physical therapy.” The DD’s response to the LOC states that the last treatment note he received was a March 26, 2018, note from Dr. R. The DD’s narrative report did not list the April 24, 2018, medical record from Dr. E as a record he received or reviewed.
The ALJ determined that the claimant reached MMI on May 7, 2018, with a one percent IR as certified by the DD in his response to the LOC. The claimant contended on appeal that the DD’s new certification, which amended the MMI date to May 7, 2018, was neither based on information he provided to Dr. M nor based on his medical record. The Appeals Panel agreed.
Rules 130.1(b)(4)(A) and 130.1(c)(3) specifically require that the certifying doctor, including the designated doctor, review the medical records before certifying an MMI date and assigning an IR. In Appeals Panel Decision (APD) 062068, decided December 4, 2006, the Appeals Panel held that the 1989 Act and the Division rules require that the designated doctor conduct an examination of the claimant and review the claimant’s medical records. See also APD 130187, decided March 18, 2013, in which the designated doctor did not have the post-operative physical therapy medical records prior to making his first MMI/IR certification; therefore, his certification of MMI and IR could not be adopted. Rule 127.10(a)(1) provides, in part, that the treating doctor and insurance carrier shall provide to the designated doctor copies of all the injured employee’s medical records in their possession relating to the medical condition to be evaluated by the designated doctor. The evidence established that Dr. M did not have all of the claimant’s medical records for his examination before making a determination on MMI and IR, the issues he was appointed to determine. See APD 132258, decided November 20, 2013, and APD 182362, decided December 27, 2018.
Dr. M was asked a question by the ALJ based, in part, on a medical record he did not receive for review. Accordingly, we reverse the ALJ’s determination that the claimant reached MMI on May 7, 2018, and the claimant’s IR is one percent.
The only other certification in evidence could not be adopted because the certifying doctor’s IR was based on quad muscle weakness measurements under Table 39, which were inconsistent with other medical evidence indicating the claimant did not have a quad strength deficit. Accordingly, the Appeals Panel reversed the ALJ’s Decision and Order and remanded the case for further proceedings consistent with the Decision.
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