Finality and Unadoptable Certifications—Exception to Section 408.123(e) Applied

The Appeals Panel has reversed a decision involving an exception to the 90 day rule regarding finality of MMI/IR certification. This decision, No. 200548, was published on May 26, 2020.

This appeal stemmed from a dispute of MMI and impairment rating that was decided at a Contested Case Hearing on February 25, 2020. The Administrative Law Judge (ALJ) resolved the disputed issues by deciding that the first certification of MMI and impairment rating became final under Section 408.123 and 28 TEX. ADMIN. CODE §130.12 (Rule 130.12). The carrier appealed these determinations. Prior to the CCH, the parties stipulated that the claimant sustained a compensable injury in the form of dislocated left middle and left index fingers, rupture flexor left tendons, tear of the extensor hood, and complex regional pain syndrome (CRPS) in the upper left limb. Additionally, the parties stipulated that the statutory MMI date was May 19, 2019.

To address finality, the Appeals Panel considered Section 408.123 (e), which provides that except as otherwise provided by Section 408.123, 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. Also considering Rule 130.12 (b), it provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means — including IRs related to extent-of-injury disputes. Lastly, when considering finality, the Appeals Panel looked to Section 408.123 (f), which 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 Appeals Panel found that the ALJ’s determination that the carrier failed to establish their dispute of the first certification of MMI/IR within 90 days and the determination that the evidence failed to establish an exception to the 90 day finality rule was supported by sufficient evidence. However, the Appeals Panel then looked to the first certification of MMI/IR from Dr. B on May 10, 2019. After examining his narrative report, it was clear that Dr. B erred in assigning a 4% impairment for DIP flexion of the claimant’s left index finger rather than 26% or 31% impairment, and 4% impairment for DIP flexion of the claimant’s left middle finger rather than 26% or 31% impairment. The Appeals Panel held that these errors were compelling medical evidence to prove a significant error by Dr. B when he calculated his 23% IR. Furthermore, they found that the exception in Section 408.123 (f)(1)(A) did apply, and since the exception found in Section 408.123 (f)(1)(A) applied, the ALJ’s determination that the first MMI/IR certification had become final was reversed.

Accordingly, the Appeals Panel then considered the numerous other certifications that had been issued throughout the life of the case. With errors ranging from the certification incorrectly stating that the claimant had not reached MMI when the parties had already stipulated that the statutory MMI date was May 19, 2019 to the certification failing to rate all of the compensable conditions, the Appeals Panel found that none of the existing certifications were able to be adopted.

The ALJ had previously determined that the claimant reached MMI on March 27, 2019, and the claimant’s IR was 23%. Reversing the ALJ’s determination that Dr. B’s May 10, 2019 certification had become final under Section 408.123 and Rule 130.12, the Appeals Panel rendered a new decision that Dr. B’s May 10, 2019 certification did not become final under Section 408.123 and Rule 130.12, and even if it could be considered,  the certification would not be adoptable. Finding that no certification was able to be adopted, they remanded the issues of MMI and IR to the ALJ for further action consistent with their decision.