Appeals Panel: Continued Symptoms from Original Injury is Not an Exception to the 90-Day Rule

The Appeals Panel has reversed the decision of a Hearing Officer who concluded that that a claimant’s impairment rating did not become final under the 90-day rule and has rendered a decision that the first certification of MMI and IR did become final under that rule. In Appeals Panel Decision Number 160079, decided March 10, 2016, the Appeals Panel agreed with the carrier that the claimant had failed to offer any evidence that met one of the exceptions to finality contained in Section 408.123 (the 90-day rule).

The claimant testified that, while working on an oil rig on the date of injury, he sustained a dislocation of his right shoulder resulting in a labral tear. On February 20, 2014, the claimant underwent arthroscopic repair of a right shoulder anterior labral Bankart tear secondary to dislocation. Following post-surgical treatment, the designated doctor examined the claimant on October 1, 2014, and certified that the claimant reached MMI on that date, with a four percent IR using the AMA Guides It was not disputed that the designated doctor’s certification was the first valid certification of MMI and assignment of IR or that the claimant received a copy of this certification on October 17, 2014, and did not dispute the same within 90 days of receiving it through verifiable means.

Thereafter, on December 12, 2014, the claimant returned to his surgeon with complaints of recurrent right shoulder pain. The claimant underwent a second surgical procedure on May 19, 2015, a right shoulder arthroscopy with revision of anterior labral repair. In his operative report, the surgeon stated that the “more superior portion [of the anterior labrum] had not healed and he had a recurrent tear.” On November 2, 2015, the claimant was examined by a doctor referred by the treating doctor, who certified that the claimant reached MMI on August 19, 2015, and who assigned an IR of zero percent.

At the CCH the claimant argued that he met the exceptions under Section 408.123(f)(1)(B), a clearly mistaken diagnosis or previously undiagnosed medical condition, or Section 408.123(f)(1)(C), improper or inadequate treatment of the injury before the date of the first certification and assignment. The Appeals Panel rejected this argument, holding that the claimant’s non-healed surgically repaired labral tear was not compelling medical evidence of a clearly mistaken diagnosis or a previously undiagnosed medical condition under Section 408.123(f)(1)(B).

An exception to finality requires compelling medical evidence. Review of the record reflects that the possibility that the claimant had suffered a labral tear after his right shoulder dislocation was noted in medical records as early as the date of injury, (date of injury); was confirmed by Dr. B on February 5, 2014; was treated surgically by Dr. B on February 20, 2014, and again on May 19, 2015; and is the condition rated by the designated doctor on October 1, 2014. In the absence of a timely dispute, the claimant’s first certification of MMI and assignment of IR became final because the repeat surgery performed on May 19, 2015, was treatment for a condition that was essentially a continuation of the original medical condition for which MMI had been certified and an IR assigned. The claimant’s non-healed surgically repaired labral tear does not constitute compelling medical evidence of a clearly mistaken diagnosis or a previously undiagnosed medical condition under Section 408.123(f)(1)(B).

The decision illustrates the literal process by which the Appeals Panel now reviews exceptions to finality under the 90-day rule.