Appeals Panel Finds that Inconsistent Impairment Rating Became Final
The appeals panel has reversed the decision and order of a benefit contested case hearing officer and rendered a decision that an injured worker’s 2 percent impairment rating became final. The appeals panel did so even though the date of MMI associated with that impairment rating was before a date on which the Division had previously concluded that the claimant had not reached MMI.
In Appeals Panel Decision No. 162510, decided February 10, 2017, the appeals panel noted that the case had gone to a CCH in November 2015 over the issues of extent of injury, MMI and IR. The hearing officer reached a decision regarding extent of injury and, based on that decision, concluded that the claimant had not reached MMI as of November 18, 2015. That decision was appealed to the appeals panel, but the appeals panel declined to reverse the decision and the hearing officer’s decision and order became final.
Subsequently, the Division appointed Dr. A to serve as a designated doctor on the issues of MMI and IR. Dr. A examined the claimant for these purposes on March 23, 2016, and in a Report of Medical Evaluation dated April 1, 2016, Dr. A certified that the claimant reached MMI on May 22, 2015, with a two percent IR. This date of MMI was a date that fell prior to November 18, 2015 – the date by which the Division had previously ruled that the claimant was not at MMI.
The claimant ultimately challenged Dr. A’s certification of MMI and 2 percent impairment rating. The carrier contended that Dr. A’s certification had become final under the 90-day rule. The appeals panel held that the first rating had, indeed, become final.
In the case on appeal it must be determined whether the certified date of MMI of May 22, 2015, can be adopted given the prior decision holding the claimant had not reached MMI as of November 18, 2015. . . .
The hearing officer noted in the Discussion that the prior January 19, 2016, decision held the claimant had not reached MMI as of November 18, 2015, and that decision became final pursuant to Section 410.204(c) and Rule 143.5(b).
The hearing officer noted that Dr. A based his two percent IR on the claimant’s condition prior to November 18, 2015, which is a date that would be legally precluded from being the date of MMI because of the previous hearing officer’s determination that the claimant had not reached MMI as of November 18, 2015. The hearing officer also stated that if the April 1, 2016, MMI/IR certification were determined to become final, the MMI date of May 22, 2015, would conflict with a hearing officer’s prior determination that the claimant had not reached MMI as of November 18, 2015, and that the Division would be precluded from adopting the April 1, 2016, certification as a matter of law pursuant to Appeals Panel Decision (APD) 131674, decided September 11, 2013, APD 140982, decided July 10, 2014, and APD 131655, decided September 3, 2013.
However, there was no issue of finality in the APDs cited by the hearing officer. The issues in those decisions were limited to a determination of MMI and IR without consideration of finality under Section 408.123 and Rule 130.12. We find APD 100636- s to be more applicable to the issues and facts in this case.
In APD 100636-s, supra, decided September 16, 2010, the parties stipulated that the claimant’s statutory date of MMI was June 5, 2007. (Dr. L) examined the claimant on June 20, 2007, and certified that the claimant reached MMI on June 20, 2007, with a five percent IR. It was undisputed that Dr. L’s MMI/IR certification was the first certification of MMI and IR, and that the claimant did not dispute that certification within 90 days after receipt of written notice by verifiable means. The hearing officer determined that because the parties stipulated that the statutory date of MMI was June 5, 2007, Dr. L’s MMI date of June 20, 2007, is after the statutory date of MMI and prospective, and found that his June 20, 2007, date of MMI was invalid as it included an MMI date after the statutory date of MMI. The Appeals Panel stated that Dr. L’s DWC- 69 was a valid certification because it reflected a date of MMI that was not prospective, it contained an IR of five percent, and it was signed by the certifying doctor authorized by the Division. The Appeals Panel held that, given that Dr. L’s first MMI/IR certification was the first valid certification and that the claimant did not timely dispute that certification, it became final pursuant to Section 408.123 and Rule 130.12. The fact that the certified date of MMI was after the statutory date of MMI had no bearing upon whether or not the certification became final.
Given that Dr. A’s April 1, 2016, MMI/IR certification is the first valid certification and that the claimant did not dispute that certification within 90 days after receipt of written notice of the certification by verifiable means, Dr. A’s April 1, 2016, MMI/IR certification became final pursuant to Section 408.123 and Rule 130.12. The evidence was insufficient to establish any of the exceptions to finality found in Section 408.123(f). Accordingly, we reverse the hearing officer’s determination that the certification of MMI and assigned IR from Dr. A on April 1, 2016, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the certification of MMI and assigned IR from Dr. A on April 1, 2016, did become final under Section 408.123 and Rule 130.12.
The appeals reversed the hearing officer’s determination that the certification of MMI and assigned IR from Dr. A on April 1, 2016, did not become final under Section 408.123 and Rule 130.12, and rendered a new decision that the certification of MMI and assigned IR from Dr. A on April 1, 2016, did become final under Section 408.123 and Rule 130.12. Based on that ruling, the appeals panel also reversed the hearing officer’s decision that the appointment of a subsequent designated doctor on the issues of MMI and IR was proper and rendered a decision that the subsequent DD’s appointment was not properly ordered.
FOLIO
