AP Reverses HO’s Determination that Claimant Reached MMI
The appeals panel has concluded that a hearing officer applied an incorrect standard when he determined that the claimant reached MMI, even though further surgery was contemplated. The panel concluded that the hearing officer should not have based his MMI determination on his belief that there is “no guarantee that the claimant will actually undergo the surgery” rather than on the statutory definition of MMI. Accordingly, the appeals panel reversed the hearing officer’s decision regarding MMI and IR and remanded the case with specific instructions.
The appeals panel posted its decision in Appeals Panel Decision No. 150575 on June 9, 2015. There, the panel wrote that the crux of the MMI dispute was whether the claimant reached MMI given that the claimant’s preauthorization request for additional right shoulder surgery for the compensable injury had been approved and scheduled for after the date of the CCH. The claimant argued that she was not at MMI given the pending surgery for her compensable injury and that therefore there was a reasonable anticipation of further material recovery from or lasting improvement to her compensable injury.
In discussing the preauthorization for surgery and the claimant’s testimony, the hearing officer stated that:
The problem with [the November 11, 2014, preauthorization letter] and the claimant’s testimony is that they are no guarantee that the claimant will actually undergo the surgery. This [h]earing [o]fficer is cognizant of the fact that surgeries are often preauthorized and scheduled, but then cancelled at the last minute because of a last minute extent-of-injury dispute or because the claimant opts not to have the surgery. In light of this fact, the preauthorization letter and the claimant’s testimony are not persuasive on the issue of MMI.
The hearing officer included a footnote in his decision that the claimant did not request that the record be held open, pending performance of the surgery and receipt of the operative report. The hearing officer found that the preponderance of the other medical evidence is not contrary to the designated doctor’s opinion on MMI and IR and adopted Dr. F’s MMI/IR certification.
After discussing the definition of MMI found in Section 401.011 (30), the appeals panel determined that the hearing officer should take certain steps on remand, following which he was to make determinations on MMI and IR that were supported by the evidence and that took into account the statutory definition of MMI.
Specifically, on remand, the hearing officer was directed to take the following actions:
1. (1) Determine whether the designated doctor is still qualified and available to be the designated doctor. If the designated doctor is no longer qualified or available to serve as the designated doctor, then another designated doctor is to be appointed pursuant to Rule 127.5(c) to determine MMI and the IR;
2. (2) Give the parties the opportunity to stipulate as to the date of statutory MMI. If the parties cannot agree as to the date of statutory MMI, the hearing officer is to determine the date of statutory MMI based on the evidence in the case. The hearing officer is to inform the designated doctor of the date of statutory MMI;
3. (3) Ensure that the designated doctor has all the pertinent medical records, including any preauthorization letters and operative reports that were not available or provided to the designated doctor previously;
4. (4) Request that the designated doctor rate the entire compensable injury in accordance with Rule 130.1(c)(3). The certification of MMI and IR shall be based on the claimant’s condition as of the MMI date, which can be no later than date of statutory MMI, considering the claimant’s medical record and the certifying examination; and
5. (5) Provide the parties with a copy of the hearing officer’s letter to the designated doctor and the designated doctor’s response and allow the parties the opportunity to respond.
The appeals panel did not preclude the hearing officer from adopting the pre surgical date of MMI. It merely required that he consider the statutory definition of MMI, rather than focus on the occurrence (or nonoccurence) of surgery. A carrier that fears that a claimant will never complete a surgical recommendation and will try to stay off work on the theory that she is not at MMI because surgery has been recommended should address that issue with the treating doctor (where appropriate), the designated doctor (through a properly analysis letter), and any post-designated doctor RMEs who have examined the claimant. Any adoptable certification should be by a doctor who is focused on the date of MMI and not specifically upon the claimant’s decision whether (or not) to have surgery.
FOLIO
