Appeals Panel Renders Decision for Carrier in 90-day Finality Case

The Appeals Panel has reversed a Hearing Officer’s determination that a certification of MMI and IR was not final under Section 408.123 and Rule 130.12 (the 90-day rule), and has rendered a new decision that the first certification of MMI and assigned IR from that doctor did become final under the 90-day rule. The decision was posted on the Division’s website on November 4, 2015 and is designated Appeals Panel Decision Number 151590.

The injury occurred when the claimant pulled a pair of pants from a pressing machine and felt a pop in her left wrist. The parties stipulated that the claimant sustained a compensable injury; that the first certification of MMI and IR was issued by Dr. F on May 31, 2012; and that the claimant did not dispute Dr. F’s certification within 90 days of receiving it through verifiable means. Dr. F, the designated doctor, examined the claimant on May 31, 2012, and certified that the claimant reached MMI on January 10, 2012, with a 0% IR using the 4th Edition of the AMA Guides.

At the CCH the claimant argued that she met an exception under Section 408.123(f)(1)(B), a clearly mistaken diagnosis or previously undiagnosed medical condition, specifically carpal tunnel syndrome (CTS).

The Hearing Officer determined that Dr. F’s certification of MMI and IR did not become final under Section 408.123(f)(1)(B) because: (1) there was no actual diagnosis of CTS and mere speculation of CTS is not a diagnosis; and (2) CTS was not diagnosed until after Dr. F’s certification of MMI/IR. The Appeals Panel disagreed.

In Appeals Panel Decision (APD) 142307, decided December 22, 2014, the Appeals Panel reversed the hearing officer’s determination that the first certification of MMI/IR did not become final because there was no compelling medical evidence of a clearly mistaken diagnosis or previously undiagnosed medical condition of left shoulder, which included a SLAP tear of the superior labrum and labral tear. In that case the initial medical records referenced an MRI indicating a problem in the claimant’s anterior superior labrum, an impression of a “possible SLAP tear” in the left shoulder.

In the instant case, as in APD 142307, supra, the evidence does not show compelling medical evidence of a clearly mistaken diagnosis or a previously undiagnosed medical condition, specifically CTS. The initial medical records indicate that the claimant was treated for left wrist pain and the claimant was using a wrist brace. Prior to the date of the first certification of MMI/IR, the claimant’s treating doctor requested an EMG to confirm a diagnosis of left wrist CTS. The claimant was referred to Dr. K and was diagnosed with left wrist CTS prior to the expiration of the 90 days to dispute the first certification of MMI/IR.

Furthermore, the hearing officer erroneously believes that because a diagnosis of left wrist CTS was confirmed after the first certification of MMI/IR, the exception under Section 408.123(f)(1)(B) has been met. In APD 080297-s, decided April 11, 2008, the Appeals Panel held that there is no requirement in Section 408.123(f)(1)(B) that the previously undiagnosed medical condition must have been present at the time of the first certification. It appears the hearing officer believed the claimant’s misdiagnosis or previously undiagnosed condition of CTS needed to have been made known prior to the date of the first valid certification of MMI/IR. We note that the claimant was diagnosed with left wrist CTS prior to the expiration of the 90 days to dispute the first certification.

The appeals panel will enforce the 90-day rule if you can bring yourself within the elements found in the statute. Exceptions to the rule do exist, but the appeals panel has not overly enlarged those exceptions.