Appeals Panel Reverses Hearing Officer for Misapplying the 90-day Rule
The appeals panel posted a new decision on the Division’s website on June 4, 2015. In Texas Division of Workers’ Compensation Appeals Panel Decision No. 150613 the appeals panel reversed a hearing officer’s decision that the claimant’s injuries extended to depression and pain disorder with psychological factors and that the first certification of MMI had not become final under the 90-day rule. The appeal was taken by the carrier.
Where a hearing officer found in a finding of fact that the compensable injury extended to depression and pain disorder with psychological factors, and found in a separate finding of fact that the compensable injury did not extend to depression and pain disorder with psychological factors (and where the hearing officer made similar conflicting determinations regarding depression in her conclusions of law) the appeals panel reversed the hearing officer’s determinations concerning those conditions and remanded that portion of the extent-of-injury issue to the hearing officer for further action to clarify the conflicting determinations.
In reaching the conclusion that a claimant’s IR had not become final under the 90-day rule a hearing officer stated:
Although two surgeries were performed, given that the claimant was no better off as a result, and was sent to pain management with a diagnosis of possible complex regional pain syndrome, the treatment appears to have been inadequate. To have the claimant’s condition improve so dramatically following a surgery performed by a second doctor is compelling evidence that the treatment was, at the very least, inadequate.
The appeals panel holds that just because there is subsequent surgery or treatment which proves beneficial to the claimant does not automatically amount to inadequate treatment. Citing Texas Division of Workers’ Compensation Appeals Panel Decision No. 052666-s. The appeals panel also held that just because a surgery did not result in the best, or hoped for, outcome does not mean that it is automatically, in and of itself, inadequate or improper. Citing Texas Division of Workers’ Compensation Appeals Panel Decision No. 050378.
The appeals panel concluded that the hearing officer had decided that the claimant received improper or inadequate treatment because the claimant’s condition improved dramatically following a surgery performed by a second doctor, which was the wrong standard to determine finality. Therefore, the appeals panel reversed the hearing officer’s determination that the first certification did not become final under the 90-day rule and remanded the issue for the hearing officer to apply the proper standard.
FOLIO
