Appeals Panel: Evidence that Claimant is Not at MMI Must be Based Upon Only the Compensable Injury

The Appeals Panel has reversed the decision of a Hearing Officer who concluded that a claimant had not reached MMI and rendered a decision that the claimant had, in fact, reached MMI with a 5 percent impairment rating. The Appeals Panel’s rationale for rejecting the certification that the claimant was not at MMI provides an important claims handling lesson – that certifications of MMI, even certifications of “not at MMI” must be based on the compensable injury and not on other, unrelated injuries or conditions. The decision in Appeals Panel Decision Number 160057 was rendered March 10, 2016.

The Hearing Officer resolved the disputed issues in question by deciding that: (1) the compensable injury of (date of injury), does not extend to disc bulges at L4-5 and L5- S1; (2) the respondent (claimant) has not yet reached maximum medical improvement (MMI) and therefore no impairment rating (IR) is assigned; and (3) the claimant had disability beginning on January 24, 2015, and continuing through the date of the CCH.

The carrier challenged the determination that the claimant was not at MMI. The carrier argued that the evidence upon which the Hearing Officer concluded that the claimant was not at MMI actually dealt with treatment that the claimant was recommended to receive in connection with a condition that was not a part of the compensable injury. The Appeals Panel agreed with the carrier.

Although Dr. K noted in his narrative report that his first DWC-69 is based on a lumbar sprain/strain, Dr. K makes clear that he believes the claimant had not reached MMI for either a lumbar sprain/strain or the SI joint on the left and disc bulges at L4-5 and L5-S1 because he would benefit from injections to the SI joint on the left, as well as an injection at L4-5. However, the parties neither stipulated to nor actually litigated an SI joint condition, and the hearing officer’s determination that the compensable injury does not extend to disc bulges at L4-5 and L5-S1 has not been appealed and has become final. There was no evidence establishing that the recommended injections are treatment for the lumbar sprain/strain. Although Dr. K stated that his first MMI/IR certification that the claimant has not reached MMI is based on a lumbar sprain/strain, Dr. K opines that the claimant has not reached MMI based on recommended injections for conditions that have not been determined to be part of the compensable injury. Dr. K’s second MMI/IR certification that the claimant has not reached MMI considers conditions that have not been determined to be part of the compensable injury. Accordingly, we reverse the hearing officer’s determinations that the claimant has not yet reached MMI and therefore no IR is assigned.

The record contained one remaining valid certification of MMI. Accordingly, the Appeals Panel rendered a new decision that the claimant reached MMI on January 23, 2015, with a five percent IR (the date and percentage of the remaining certification).