Significant Error in Calculating the IR Prevented Certification from becoming Final

The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer and rendered a decision that the first certification of MMI and assignment of an impairment rating did not become final under the 90-day rule. Section 408.123(f) provides, in part, that an employee’s first certification of MMI or assignment of an IR may be disputed after the period described in 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.

In Appeals Panel Decision No. 161067, decided July 15, 2016, the Appeals Panel concluded that the certification under consideration contained compelling evidence of a significant error in the certifying doctor’s calculation of the impairment rating. Accordingly, the Appeals Panel reversed the Hearing Officer’s decision that found the certification to be final.

The claimant testified that he was working on a belt loader when he lost his footing and fell hitting his right shoulder. The Hearing Officer admitted into evidence a decision and order from a prior CCH that determined the compensable injury extends to a right shoulder SLAP lesion with labral tear, partial rotator cuff tear, and impingement syndrome. Additionally, the Hearing Officer admitted into evidence the operative report from a right shoulder surgery performed on July 9, 2015.

The Hearing Officer determined that: (1) the first valid certification of maximum medical improvement (MMI) and assigned impairment by (Dr. E) the carrier’s post-designated doctor required medical examiner, became final under Section 408.123 and Rule 130.12; (2) the claimant reached MMI on May 27, 2015; and (3) the claimant’s impairment rating (IR) is 6%. The Hearing Officer found that the preponderance of the evidence did not establish that an exception to finality of the certification of MMI and assigned IR of Dr. E provided under Section 408.123 and Rule 130.12 applies in this case and the impairment evaluation of Dr. E was conducted in accordance with the appropriate edition of The Guides to the Evaluation of Permanent Impairment. The carrier appealed.

The Appeals Panel concluded that the first certification did not become final because the certifying doctor made the following significant error in calculating the impairment rating.

Dr. E examined the claimant on September 25, 2015, and certified that the claimant reached MMI on May 27, 2015, with a 6% IR. Dr. E stated in his narrative report that he is addressing the claimed compensable injury of a right shoulder contusion and was not considering the SLAP lesion for which the claimant received surgery. Dr. E stated he did not use the ROM (ROM) measurements he obtained from his examination because the claimant is post-surgery. Dr. E stated he averaged the active ROM measurements taken in the month of May from the health care providers that examined the claimant during that time period. In his narrative report, Dr. E gave the following ROM figures for the right shoulder: flexion 133 degrees, abduction 112 degrees, external rotation 63 degrees, and internal rotation 68 degrees. However, in the worksheet attached to Dr. E’s certification of MMI and IR, Dr. E reported that the ROM measurement for flexion of the right shoulder was 113 degrees. Further, the worksheet reflects that Dr. E assigned 4% UE (UE) impairment for loss of ROM of the right shoulder for abduction of 112 degrees. The AMA Guides provide, in part, on page 3/43 that you measure abduction and record the goniometer readings and round the figures to the nearest 10 degrees. Using Figure 41, match the measured abduction angle to its corresponding impairment. Figure 41 provides that abduction of both 110 degrees and 120 degrees results in 3% impairment. Dr. E incorrectly assigned 4% impairment for loss of ROM for abduction of the right shoulder.

Using Dr. E’s measurements contained in the worksheet for the claimant’s loss of ROM of the right shoulder for flexion, abduction, internal rotation, and external rotation would result in 9% UE impairment rather than 10% UE impairment assigned by Dr. E. The 9% UE impairment when converted to whole person using Table 3 on page 3/20 of the AMA Guides would result in 5% whole person impairment rather than 6% whole person impairment as assigned by Dr. E.

As previously noted the worksheet and the narrative give different numbers for the ROM measurement of the flexion of the right shoulder. In the worksheet Dr. E assigned 5% UE impairment for flexion of the right shoulder based on rounding the 113 degrees stated measurement of flexion to 110 degrees. The narrative noted the flexion measurement “average” for the right shoulder was 133 degrees which when rounded to either 130 degrees or 140 degrees would result in 3% UE impairment.

Accordingly, the Appeals Panel held that there was compelling medical evidence of a significant error by the carrier’s post-DD RME in calculating the claimant’s IR. Therefore, the Appeals Panel reversed the Hearing Officer’s determination that the first MMI/IR certification from Dr. E became final under Section 408.123 and Rule 130.12, and rendered a new decision that the first MMI/IR certification from Dr. E did not become final under Section 408.123 and Rule 130.12.