AP Reverses ALJ who Sent Six Letters of Clarification to Two Designated Doctors

The appeals panel has reversed a contested case hearing decision and order issued by an Administrative Law Judge who sent six letters to two different designated doctors that contained comments and instructions that were leading in nature and substituted the ALJ’s medical judgment for the expert medical judgment of the designated doctor. The appeals panel held that the ALJ’s appointment of a second designated doctor as well as an improper letter of clarification constituted an abuse of discretion.

The panel reversed the ALJ’s decision which adopted the second designated doctor’s 39 percent impairment rating (rendered following the fourth letter of clarification directed to that doctor), and rendered a decision that the claimant reached MMI with a 9 percent impairment rating, as certified by the first designated doctor as well as by the second designated doctor in his first MMI/IR certification.

The rebuke of the ALJ is rare. It was clearly written in response to the ALJ’s persistent efforts to press both designated doctors into issuing an impairment rating that was more favorable to the claimant. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 200017, decided March 6, 2020.

The claimant sustained a compensable injury resulting in third degree burns to his bilateral feet. He was examined by designated doctor number 1 who determined that the claimant was not at MMI because he needed physical therapy as he continued to heal and that his rate of recovery was slowed by his age and diabetes. Seven months later the same designated doctor examined the claimant a second time and certified that the claimant had reached MMI with a 9% IR. The doctor explained in his narrative report that the claimant reached MMI on August 29, 2017, because he had completed physical therapy on that date and was independent with a home exercise program. He further noted that the claimant was still having issues with drainage from the wound, but this was due to his uncontrolled diabetes and not a result of his work-related injury.

The claimant disputed the designated doctor’s certification and requested a CCH. As a part of that proceeding, the ALJ send the designated doctor two of what would ultimately be six letters of clarification. The designated doctor responded to both letters, explaining his impairment rating calculation in the first letter and modifying his certification in response to the second letter by assigning a 9% impairment to each foot for a total of 17% IR.

Next, the ALJ issued a Presiding Officer’s Directive to Order Designated Doctor Exam in order to appoint a new designated doctor for the purposes of evaluating MMI and IR. Designated doctor number 2 was subsequently appointed. Following an examination, this doctor explained that he agreed with the first designated doctor’s first certification of MMI and IR. The ALJ issued four separate letters of clarification that clearly attempted to persuade the doctor to extend the date of MMI and increase the claimant’s impairment rating. The doctor got the message, ultimately extending the date of MMI and certifying that the claimant’s impairment rating was 39 percent. The carrier appealed.

The appeals panel noted that the decision to appoint a second designated doctor is reviewed under an abuse of discretion standard. It noted that, normally the appointment of a second designated doctor is appropriate only in those cases where the first designated doctor is unable or unwilling to comply with the required AMA Guides or requests from the Division for clarification, or if he or she otherwise compromises the impartiality demanded of the designated doctor. In addition, if a designated doctor cannot or refuses to comply with the requirements of the 1989 Act, a second designated doctor may be appointed.

The appeals panel concluded that the ALJ abused her discretion in two ways: first by appointing a second designated doctor without cause; and second by sending a series of letters of clarification to both doctors, at least one of which was improper.

Pursuant to Rule 127.20(c), the Division, at its discretion, may request clarification from the designated doctor on issues the Division deems appropriate. According to Rule 127.20(b)(3), requests for clarification must include questions for the designated doctor to answer that are neither inflammatory nor leading. As detailed above, the ALJ in LOC 4 directed Dr. A to provide an alternate IR consisting of medical opinions that were contrary to his own. She instructed Dr. A to place the claimant specifically in Class 2 of Table 2, use Table 67, and award impairment for ROM deficits based specifically on another doctor’s measurements despite the previous objections of the designated doctor. The ALJ’s instructions were leading in nature and substituted the ALJ’s medical judgment for the expert medical judgment of the designated doctor. Under the facts of this case, we hold that this constituted an abuse of discretion.

The appeals panel reviewed the certifications that were in evidence and concluded that the only valid certification was the 9 percent rating issued by both doctors following their respective first examinations of the claimant. The appeals panel reversed the ALJ’s decision and order and rendered a decision that adopted that impairment rating.