Appeals Panel Holds that BRC Exchange Proved Delivery by Verifiable Means

The appeals panel has reversed a hearing officer’s determination and rendered a decision that the first valid certification of MMI and assignment of a 10% IR was delivered to a claimant by written verifiable means. The appeals panel’s decision in Appeals Panel Decision Number 152167 was rendered on January 3, 2016.

The hearing officer found that the first certification of MMI on March 7, 2014, and assignment of 10% IR was not delivered to the claimant by written verifiable means until after the claimant’s attorney had filed a Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (DWC-45) to dispute that MMI certification and IR on March 27, 2015. The hearing officer stated in his discussion that the claimant is a laborer and is not an educated man and he found the claimant credible when he testified that the first time he ever received a copy of Dr. G’s certification of MMI and assigned IR was at the CCH.

However, the carrier offered evidence of a letter dated October 6, 2014, from the self-insured addressed to the claimant and claimant’s attorney referencing the self-insured’s exchange of information which includes Dr. G’s DWC-69 and narrative report. The carrier also offered evidence of a letter dated December 10, 2014, from the claimant’s attorney addressed to the carrier’s attorney referencing the claimant’s exchange of information which includes Dr. G’s report. The appeals panel determined that this documentary evidence proved, as a matter of law, that the claimant received the first certification, in spite of the claimant’s contention to the contrary.

This case is similar to Appeals Panel Decision 081248-s, decided October 3, 2008, in which the evidence established that the first valid certification of MMI and IR was exchanged by the claimant to the self-insured at a BRC. The Appeals Panel held that the claimant was in the possession of the first valid certification at the time of the exchange at the BRC which constituted acknowledged receipt by the claimant.

In this case, the first certification of MMI and assigned IR from Dr. G on September 10, 2014, was exchanged by the self-insured to the claimant on October 6, 2014, and by the claimant to the self-insured on December 10, 2014. The exchange of information constitutes acknowledged receipt of the first certification of MMI and IR by the claimant. We note the expiration of 90 days from October 6, 2014, is January 1, 2015, and from December 10, 2014, it is March 10, 2015. The claimant disputed the first valid certification of MMI and IR on March 27, 2015, as evidenced by the DRIS notes and determined by the hearing officer. The claimant’s filing of a DWC-45 on March 27, 2015, was not timely considering either October 6, 2014, or December 10, 2014, because it was filed after the expiration of the 90-day period to dispute first valid certification. Because the claimant did not timely dispute the first valid certification of MMI and IR within 90-days after the claimant’s receipt of Dr. G’s certification of MMI and IR, Dr. G’s certification of MMI and IR became final under Section 408.123 and Rule 130.12.

The hearing officer’s determination that the first valid certification of MMI on March 7, 2014, and assignment of a 10% IR was not delivered to the claimant by written verifiable means until after the claimant’s attorney had filed a DWC-45 to dispute that certification March 27, 2015, was ruled legally incorrect. The parties did not litigate any exceptions under Section 408.123(f). Accordingly, the appeals panel reversed the hearing officer’s determination that the first certification of MMI and assigned IR did not become final under Section 408.123 and Rule 130.12, and rendered a new decision that the first certification of MMI and assigned IR from Dr. G became final under Section 408.123 and Rule 130.12.