Appeals Panel Reverses 90-Day Case; Clarifies IR Calculation Methodology
The appeals panel has reversed the decision and order of an administrative law judge who found that a designated doctor’s 20 percent impairment rating had not become final because the doctor made a significant error in calculating impairment rating. The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 211091-S, decided September 10, 2021, concludes the impairment rating had been calculated correctly and, therefore, the rating became final. The appeals panel reversed the decision of the ALJ and rendered a decision that the claimant had a 20 percent impairment rating.
The case involves the proper way to calculate permanent impairment for knee and hip injuries sustained by the employee in a compensable accident. The ALJ determined that: (1) the compensable injury extended to a right hip sprain and right knee sprain; (2) the compensable injury did not extend to aggravation of right knee osteoarthritis; (3) the first certification of maximum medical improvement and assigned impairment rating from the designated doctor (Dr. H) did not become final under the 90-day rule; (4) the date of MMI is November 23, 2018; and (5) claimant’s IR is 0%. The appeals panel affirmed the ALJ’s determination on extent of injury.
Focusing on the calculation and finality issues, the appeals panel observed that under § 408.123(e) an employee’s first valid certification of MMI and first valid assignment of an IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the employee and the carrier by verifiable means. The evidence was undisputed that the carrier failed to dispute the first rating within 90 days.
The carrier argued, however, that the first rating did not become final because of a statutory exception to finality. Section 408.123(f) provides in part:
(f) An employee’s first certification of [MMI] or assignment of an [IR] may be disputed after the period described by Subsection (e) if:
(1) compelling medical evidence exists of:
(A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the [IR];
(B) a clearly mistaken diagnosis or a previously undiagnosed medical condition; or
(C) improper or inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid.
The carrier argued that the designated doctor had made a significant error in calculating the impairment rating.
The designated doctor’s 20% IR was comprised of range of motion measurements for the claimant’s right hip and right knee. The doctor noted that in the claimant’s right hip, the flexion measurement resulted in a 4% impairment and the external rotation measurement resulted in a 2% impairment. She then combined these for a 6% IR for the hip. The doctor noted that for the claimant’s right knee, the flexion measurement resulted in an 8% impairment and the flexion contracture measurement also resulted in an 8% IR. The doctor combined the 8% knee measurements for a total 15% IR for the right knee, instead of adding them for a total of 16%. She then combined the 6% IR for the right hip with the 15% IR for the right knee for a total 20% IR.
The ALJ found that the designated doctor miscalculated the IR by combining instead of adding the ROM measurements for the right knee. The appeals panel disagreed.
[I]n Section 3.2, The Lower Extremity, on page 3/75 of the AMA Guides, it states, “[i]f the patient has several impairments of the same lower extremity part, such as the leg, or impairments of different parts, such as the ankle and toe, the whole person estimates for the impairments are combined [emphasis in original] (Combined Values Chart, p. 322).” Accordingly, Dr. H correctly combined the impairments from the right knee. The ALJ’s finding that there was compelling medical evidence of a significant error in applying the appropriate AMA Guides or in calculating the IR was legal error. Therefore, we reverse the ALJ’s determination that the first certification of MMI and IR from Dr. H on January 3, 2020, did not become final under Section 408.123 and Rule 130.12, and we render a new decision that the first certification of MMI and IR from Dr. H on January 3, 2020, did become final under Section 408.123 and Rule 130.12.
The appeals panel wrote that, to the extent that prior appeals panel decisions (such as Appeals Panel Decision No. 110741 and Appeals Panel Decision No. 111353) could be read as allowing impairments in the same lower extremity part to be added rather than combined, those decisions were overruled.
Although the carrier’s position in this particular claim was rejected, resulting in a final IR of 20 percent being applied to the claim, the rule announced by the appeals panel is the more conservative rule. The appeals panel wrote that the several sub-impairments should be combined rather than added together. Combining impairments frequently produces a lower whole body impairment rating than adding impairments.
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