Appeals Panel Renders Decision: Exception to Finality Does Not Apply

The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer that found an exception to the 90-day finality of a certification of MMI and IR, and rendered a decision that the certification became final under the 90-day rule. The Appeals Panel concluded that evidence of an exception to finality did not exist.

In Appeals Panel Decision Number 161503, decided September 23, 2016, the Hearing Officer determined that the claimant’s first MMI/IR certification did not become final under the 90-day rule because “the medical information is compelling enough to equate [to] a finding of an undiagnosed condition of the left ulnar entrapment.” The Appeals Panel reversed that determination and rendered a decision that the certification did become final. The Appeals Panel wrote:

The Hearing Officer determined that the first MMI/IR certification from Dr. W on August 26, 2014, did not become final under Section 408.123(f)(1)(B) and Rule 130.12 because “the medical information is compelling enough to equate [to] a finding of an undiagnosed condition of the left ulnar entrapment.” We disagree that this case presents compelling medical evidence of a previously undiagnosed medical condition. The claimant sought medical attention at several urgent care clinics between June 17, 2014, and July 8, 2014, where she was diagnosed with left wrist pain, a hand contusion and ulnar nerve radicular pain. On July 21, 2014, she came under the care of Dr. W, her treating doctor, whose records diagnose a left ulnar injury through March 20, 2015, the date of Dr. W’s last record in evidence. On March 10, 2015 and April 10, 2015, the claimant was seen by (Dr. C) who diagnosed injury of the ulnar nerve and who recommended decompression of the nerve. On June 5, 2015, the claimant underwent left ulnar nerve decompression surgery performed by (Dr. We).

We hold that under the facts of this case which reflect consistent diagnosis by the claimant’s medical providers of injury to the left ulnar nerve, including Dr. W in his DWC-69 dated August 26, 2014, ulnar nerve entrapment is not a previously undiagnosed condition and that no exception applies which would allow the claimant’s first valid certification of MMI/IR to be disputed after expiration of the period described in Section 408.123(e). Accordingly, we reverse the Hearing Officer’s decision that the first certification of MMI and assigned IR from Dr. W on August 26, 2014, did not become final under Section 408.123 and Rule 130.12 and render a new decision that the first certification of MMI and assigned IR from Dr. W on August 26, 2014, did become final under Section 408.123 and Rule 130.12.

Accordingly, the Appeals Panel also reversed the Hearing Officer’s decision that the claimant was not at MMI and rendered a new decision that the claimant reached MMI on August 26, 2014. It also reversed the Hearing Officer’s determination that an IR could not be assigned and rendered a new decision that the claimant had no permanent impairment.