Court Rules that First IR Certification Became Final, No Exception Applies

The Dallas Court of Appeals has concluded that a post-DD RME doctor’s certification of MMI and zero percent impairment rating became final under the 90-day rule. The Court ruled that an email from claimant’s counsel did not constitute a dispute within the meaning of the rule and that there was no evidence of a previously undiagnosed condition that would prevent finality.

In American Zurich Ins. Co. v. Diaz, No. 05-16-01530-CV (March 1, 2018), the claimant was sent for a DD’s examination on the issues of MMI, IR and extent of injury. The DD commented on extent, and opined that the claimant had not yet reached MMI. The carrier requested a post-DD RME on the same issues. That doctor disagreed with the DD on the extent of injury issue and certified that the claimant reached MMI with a zero percent impairment rating.

The carrier delivered a copy of the post-DD RME’s certification to the claimant, along with a PLN-3, by verifiable means. The carrier also requested a BRC to dispute the DD’s determination on extent of injury as well as his refusal to certify MMI and to assign an IR. As a part of that process, the carrier emailed claimant’s counsel and sought to informally resolve the carrier’s dispute by asking him if his client would agree with the post-DD RME doctor’s opinions on extent, MMI and IR. The attorney responded that his client did “not agree with the carrier.”

In a subsequent contested case hearing, an ALJ determined that the claimant had not disputed the post-DD RME’s certification of MMI and IR and that this certification had become final under the 90-day rule. The ALJ concluded that the injury extended to the conditions found compensable by the DD, which was in opposition to the opinion on extent that was offered by the post-DD RME doctor.

After failing to reverse the ALJ at the appeals panel the claimant filed suit for judicial review. Both parties filed motions for summary judgment on the 90-day issue. The trial court granted claimant’s motion and denied the carrier’s motion for summary judgment. The carrier appealed this judgment to the court of appeals.

On appeal, the carrier argued that the first certification had become final because the claimant failed to dispute it in the manner required by the Act and Division rules. Claimant argued that his dispute was adequate to interrupt the 90-day deadline and that, in any event, he had established that an exception to finality applied. He argued that there was compelling medical evidence of a clearly mistaken diagnosis before the date of certification because Dr. Holladay incorrectly determined the injury did not extend to the disputed conditions that the DD determined to be compensable. The court of appeals rejected both arguments.

Regarding the adequacy of the claimant’s dispute, the court of appeals wrote:

The email from Diaz’s counsel was not in the form and manner required by the Division, and did not identify and describe any dispute about Dr. Holladay’s certification of MMI and assignment of IR. See In re Liberty Ins. Corp., 321 S.W.3d 630, 633 n.5 (Tex. App.—Houston [14th Dist.] 2010, orig. proceeding [mand. denied]) (“The request for a benefit review conference must be made on a specified form and must identify and described the disputed issues.”). The email also failed to provide details and supporting documentation of efforts made by Diaz to resolve any dispute over Dr. Holladay’s certification of MMI and assignment of IR, and did not contain a signature by Diaz or her counsel attesting that reasonable efforts had been made to resolve the disputed issues prior to requesting a BRC and that any pertinent information in Diaz’s possession had been provided to American Zurich. See 28 TEX. ADMIN. CODE § 141.1(d); see also 28 TEX. ADMIN. CODE § 141.4(a), (c) (Tex. Dep’t of Ins., Div. of Workers’ Comp., Sending and Exchanging Pertinent Information) (setting out information in possession of party requesting BRC that must be sent to opposing party before request for BRC is sent to Division). Finally, the email did not request the Division set a BRC on any dispute about Dr. Holladay’s findings, and was not sent by Diaz or her counsel to the Division. Accordingly, Diaz’s counsel’s email did not constitute a complete DWC-45 under rule 141.1.

In disagreeing with the claimant that the “mistaken diagnosis” exception applied, the court wrote:

Diaz was diagnosed with stenosis and disc protrusions prior to Dr. Holladay’s certification of MMI and assignment of IR. Dr. Holladay considered those conditions in certifying Diaz reached MMI on August 29, 2014, and assigning an IR of zero percent. Any error by Dr. Holladay in determining Diaz’s compensable injury did not extend to stenosis and disc protrusion, –14– Diaz reached MMI on August 29, 2014, or Diaz had an IR of zero percent was not one of mistaken diagnosis. See [Mendoza v. Indem. Ins. Co. of N. Am.; No. 07-14-00244-CV, 2015 WL 9474161 (Tex. App.—Amarillo Dec. 22, 2015, pet. denied) (mem. op.);], at *4; Division Appeal No. 171530, 2017 WL 4368865, at *3.

The court of appeals reversed the judgment of the trial court and rendered judgment that the claimant reached MMI with a zero percent impairment rating under the 90-day rule.