Overrated and Underrated IRs and the 90-Day Rule

The 90-day rule of finality for impairment ratings forces parties to deal with impairment ratings that should be challenged in a prompt fashion. The Division has said that the rule encourages doctors to calculate impairment ratings correctly at the time of certification, rather than permitting them to adjust ratings at a later time. The 90-day rule contains several exceptions to finality, which the legislature adopted in 2003. Those are the only exceptions to finality in the rule.

Carriers and claimants continue to confuse the 90-day rule exceptions with the situation where the certification in dispute excluded consideration of a diagnosis or condition that was later determined to be compensable (underrating) or included consideration of a diagnosis or condition that was later determined not to be compensable (overrating). The Appeals Panel has explained the relationship between the 90-day exceptions and inaccurately rated impairment ratings in a 2013 decision.

In Appeals Panel Decision No. 132594-s, the Hearing Officer concluded that an underrated certification could not become final because it fell into an exception to the finality rule. The Appeals Panel disagreed.

Section 408.123(e) (the 90-day rule) states 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. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means; that the notice must contain a copy of a valid Report of Medical Evaluation (DWC-69), as described in Rule 130.12(c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute a certification of MMI or an IR assignment, or both.

Section 408.123(f) sets out three exceptions to the 90-day rule of finality. The exceptions apply where there has been: (A) a significant error by the certifying doctor in applying the appropriate American Medical Association guidelines or in calculating the [IR]; (B) 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.

In this case the Hearing Officer based her finality determination on her determination that the compensable injury extended to a right shoulder rotator cuff sprain/strain and right elbow sprain/strain, conditions that were not rated by the doctor whose impairment rating allegedly become final. The Appeals Panel held that this was error.

The Appeals Panel recognized that impairment ratings can under-include compensable diagnoses or over-include non-compensable diagnoses. Where the issue is only the validity of those ratings, and not finality under the 90-day rule, the exclusion of a compensable diagnosis or inclusion of a non-compensable diagnosis renders the rating invalid.

But the 90-day rule of finality addresses different considerations. The policy of the agency is to encourage prompt challenges to the validity of impairment ratings and discourage stale challenges. In discussing this policy, the Appeals Panel noted, “that the preamble to Rule 130.12, states that ‘[a] party that wishes to dispute the certification or any of the ratings should not wait until after the extent-of-injury dispute is resolved as this resolution may occur after the 90-day period expires and the certification may have already become final.’ See 29 Texas Register 2330, March 5, 2004.”

Next, the Appeals Panel considered whether such overrating or underrating constituted an exception per se to the 90-day rule. The panel held that it did not.

While a subsequent resolution of the extent of the compensable injury may be an element of one of the three exceptions contained in Section 408.123(f), we hold that such resolution in and of itself is not an exception to finality. Under the facts of this case the hearing officer’s resolution of the extent-of-injury dispute in favor of the claimant alone would not allow the claimant to now dispute the first MMI/IR certification because the 90-day period to do so has expired.

In APD 132117, decided November 4, 2013, the hearing officer determined that the first assigned IR did not become final because there was compelling medical evidence of a significant error by the certifying doctor in calculating the claimant’s IR because the certifying doctor included a condition that was not determined to be a part of the compensable injury. The Appeals Panel noted that “[t]here is no provision in either Section 408.123 or Rule 130.12 that states that the mere inclusion of a condition in an assignment of IR constitutes an exception for finality.” The Appeals Panel declined to read that interpretation in those provisions and declined to follow any prior cases that may have read such an interpretation.

The case on appeal addresses the opposite situation; that is, whether or not the exclusion of a condition subsequently determined to be compensable constitutes an exception under Section 408.123(f)(1)(A). The Hearing Officer found that a certifying doctor’s failure to rate the entire compensable injury constituted an exception under Section 408.123(f)(1)(A). However, there is no provision in either Section 408.123 or Rule 130.12 that provides that the exclusion of a condition in an assignment of IR constitutes an exception to finality. As in APD 132117, supra, we decline to read any such interpretation in those provisions, and we decline to follow any prior cases that may have read such an interpretation.

The decision of the Appeals Panel is designated as an “s” opinion, indicating that the appeals panel considers it to have announced a significant point of workers’ compensation law.

The Appeals Panel did not render a final decision in the case, however. This is because the claimant in the case had contended at the CCH that there was improper or inadequate treatment of the claimant’s injury before the date of the disputed MMI/IR certification, and therefore argued that the exception contained in Section 408.123(f)(1)(C) applied. The Hearing Officer failed to make any findings of fact or conclusions of law regarding this exception, which was litigated at the CCH. Therefore, the Appeals Panel remanded the issue of finality to the Hearing Officer to make findings of fact and conclusions of law as whether that exception to finality applies to the case.