AP Reverses HO’s Determination under the 90-day Rule
The appeals panel has reversed a hearing officer’s determination that the first certification of MMI and assigned IR from a designated doctor, did not become final under Section 408.123 and Rule 130.12. The panel holds that the hearing officer applied an incorrect standard to determine whether an exception to the 90-day rule applied. The hearing officer had concluded that the “prior improper or inadequate treatment of the injury” exception applied and that the certification had not become final.
The appeals panel posted its decision in Appeals Panel Decision No. 150613 on June 9, 2015. The Division appointed a designated doctor who examined the claimant and certified on March 1, 2013, that the claimant reached MMI on December 14, 2012. The doctor assigned a four percent IR based on loss of range of motion of the right ankle.
In her discussion, the hearing officer stated:
Although two surgeries were performed, given that [the] [c]laimant was no better off as a result, and was sent to pain management with a diagnosis of possible [complex regional pain syndrome], the treatment appears to have been inadequate. To have [the] [c]laimant’s condition improve so dramatically following a surgery performed by a second doctor is compelling evidence that the treatment was, at the very least, inadequate.
The carrier contended that this was an application of the wrong standard. The appeals panel agreed:
Just because there is subsequent surgery or treatment which proves beneficial to the claimant does not automatically amount to inadequate treatment. Appeals Panel Decision (APD) 052666-s, decided February 1, 2006. Further, just because a surgery did not result in the best, or hoped for, outcome does not mean that it is automatically, in and of itself, inadequate or improper. APD 050378, decided April 19, 2005. The hearing officer decided that the claimant received improper or inadequate treatment because the claimant’s condition improved dramatically following a surgery performed by a second doctor. Because the hearing officer used the wrong standard to determine finality we reverse the hearing officer’s determination that the first certification of MMI and assigned IR from Dr. T on March 1, 2013, did not become final under Section 408.123 and Rule 130.12 and remand this issue to the hearing officer for further action consistent with this decision.
Accordingly, the “inadequate treatment” exception to the 90-day rule means more than the fact that subsequent treatment resulted in an improvement of the claimant’s condition.
FOLIO
