GQ Corner

Q: I filed a DWC-32 to request a designated doctor examination on the issues of MMI and impairment rating. I properly noted in Box 37 that the carrier has “accepted” as compensable only a lumbar strain. However, the designated doctor addressed and rated the additional diagnoses of a cervical sprain/strain and thoracic sprain/strain. Do I have to comply with this report and pay indemnity benefits pursuant to it?

A: Yes, we recommend that you do. The Division recently issued an advisory effectively allowing the designated doctor to assess what he or she believes to be the nature and extent of the injury (even when not directly appointed to address this issue) and to address and rate it for purposes of evaluating MMI and impairment rating. Even when the designated doctor addresses and rates conditions the carrier has not “accepted” as compensable, the carrier retains an obligation to comply with the assessment of the designated doctor with regard to MMI and impairment rating unless and until it is overturned by formal agreement or adjudication. The proper remedies are: (1) file a DWC-45 to dispute the certification of the designated doctor within 90 days of receiving notice by verifiable means; (2) ensure that you have a PLN-11 on file disputing the compensability of the additional diagnoses or conditions; and (3) request a post-designated doctor required medical examination on MMI and impairment rating. If you are successful in overturning the findings of the designated doctor by administrative decision, you may seek reimbursement from the Subsequent Injury Fund for all overpayments issued pursuant to the overturned findings.

Q: I have a claimant that sustained a compensable injury on 01/01/14. The treating doctor certified MMI as of 02/01/14 (the date of his exam) and determined that she had no permanent impairment as a result of the compensable injury. I sent a PLN-3 (with attached DWC-69 and narrative report) but the claimant did not dispute this first certification within 90 days.

Just recently, the claimant filed a DWC-32 to request a designated doctor examination on the issues of MMI and impairment rating. Can I stop the designated doctor examination from occurring since it appears that we already have a final certification?

A: Yes. If you can prove that the claimant received delivery of written notice of the first certification by verifiable means, you definitely have a viable 90-day defense. Under these circumstances, you should object to the appointment of the designated doctor and request a stay of the examination and an expedited CCH under Rule 127.1(f) to litigate the issue of whether the Division properly appointed the designated doctor given the facts. If you do so within three days of the appointment, the Division must stay the examination and set an expedited CCH as requested.