Hearing Officer Erred in Calling MMI Certification a Prospective Certification

The Appeals Panel has corrected a Hearing Officer’s decision and order that invalidated an MMI/IR certification on the basis that it was prospective. The panel held that the certification was not actually prospective.

In Appeals Panel Decision Number 160636, decided May 31, 2016, the Appeals Panel reviewed an appeal in which the claimant appealed the Hearing Officer’s MMI and IR determinations. The claimant contended that the Hearing Officer erroneously ruled that the opinion from the designated doctor initially appointed by the Division to determine extent of injury, MMI, and IR, could not be adopted.

The designated doctor was initially appointed by the Division to determine the claimant’s MMI and IR. He examined the claimant for this purpose on August 13, 2013. the designated doctor certified the claimant reached MMI on that date with a 12% IR. It is undisputed that the designated doctor considered only the burns to the claimant’s left hand and right foot. The designated doctor was subsequently appointed to opine on the extent of the claimant’s injury. He examined the claimant on April 29, 2014, and opined that the compensable injury extends to the right shoulder. The designated doctor then performed an examination of the claimant’s shoulder and noted range of motion measurements. A letter of clarification was sent to the designated doctor after the December 10, 2015, CCH requesting him to consider and rate the right shoulder sprain/strain. The designated doctor responded on December 13, 2015, and amended his certification to state that the claimant reached MMI on May 8, 2014, the date of an MRI of the claimant’s right shoulder, with a 17% IR.

The Hearing Officer stated that the designated doctor’s report could not be adopted because his date of MMI was prospective to the last exam date. The Appeals Panel rejected that conclusion.

A date of MMI becomes prospective if it is projected to occur at some time after the certification of MMI is made. The Appeals Panel has stated that “[t]he key consideration is that the date of MMI was not after the date of certification, that is, signature of the certifying doctor, on the [Report of Medical Evaluation (DWC-69)].” See APD 100636-s, decided July 16, 2010; APD 100766, decided August 16, 2010.

Dr. C noted on his December 13, 2015, DWC-69 an April 29, 2014, date of examination, which as noted above was for extent of injury, and certified the claimant reached MMI on May 8, 2014. Dr. C signed the DWC-69 on December 13, 2015. Dr. C’s amended May 8, 2014, date of MMI is not after his December 13, 2015, MMI/IR certification; therefore, his December 13, 2015, MMI/IR certification does not contain a prospective date of MMI. The Hearing Officer erred in stating Dr. C’s December 13, 2015, MMI/IR certification could not be adopted because it contained a prospective date of MMI.

The Appeals Panel did conclude that the Hearing Officer was correct in disregarding the designated doctor’s certification for another reason, however. The doctor’s amendment of his first certification occurred without a new physical examination.

Rule 130.1(b)(4) provides in part that to certify MMI the certifying doctor shall “perform a complete medical examination of the injured employee for the explicit purpose of determining MMI (certifying examination).” Rule 130.1(c)(3) provides in part that an assignment of IR for the current compensable injury shall be based on the injured employee’s condition on the MMI date considering the medical record and the certifying examination. The Appeals Panel has held that an amended certification of MMI/IR done without a medical examination is a violation of Rules 130.1(b)(4)(B) and 130.1(c)(3), which require the certifying doctor to perform a complete medical examination of the injured employee for the explicit purpose of determining MMI/IR. Appeals Panel Decision (APD) 130187, decided March 18, 2013; see also APD 100152, decided April 8, 2010.

The Appeals Panel’s decision held that the designated doctor’s December 13, 2015, MMI/IR certification could not be adopted because he amended the date of MMI and IR without a physical re-examination. The Appeals Panel also clarified the Hearing Officer erred in finding that the designated doctor’s December 13, 2015, MMI/IR certification contained a prospective date of MMI.