Dispute of Impairment Rating: 90 Day Rule

After an injury, you may be going along fine, getting weekly workers compensation temporary income benefits to replace your lost wages, when suddenly those benefits stop. You have received a certification of maximum medical improvement and impairment rating (MMI/IR) from a doctor. The doctor says there is nothing more he can do and signs paperwork indicating your benefits should be cut off. What next?

Within 90 days, you must file a dispute with the Texas Department of Insurance, Division of Workers Compensation. If you fail to file a proper dispute within 90 days, you may lose your right to any further income benefits other than those authorized by the MMI/IR already given. As the Appeals Panel Decision Manual explains:

An IE has only 90 days to dispute a first valid certification of MMI and/or first valid assignment of IR pertaining to the IE after it is provided to the IE by verifiable means. An IC has only 90 days to dispute a first valid MMI certification and/or first valid IR assignment pertaining to the IE after it is delivered to the IC by verifiable means. If neither the IE nor the IC disputes the first valid certified MMI date and/or first valid assigned IR pertaining to the IE within their respective 90-day period, that first valid certified MMI date and/or first valid assigned IR is final. Section 408.123(e).

The important words and phrases are, "first", "valid", "provided to", "delivered by verifiable means", "90 days" (90-day period), and "dispute". All of these are requirements that must be considered to decide whether a certified MMI date and assigned IR have become final under Sections 408.123 and 130.12. In addition, even if all of these requirements were met, there are possible exceptions to finality under Section 408.123(f).

If the certification of MMI/IR is from your own treating doctor, then you must request that the state assign a designated doctor to examine you and review your case. A designated doctor is a qualified doctor chosen from a list of physicians who have passed a test on the methods and rules of workers compensation medical evaluations. When you file a form DWC-32, a doctor is chosen at random from that list to evaluate you, review your medical records, and issue a report in your case.

That report has presumptive weight, meaning that a judge will go with that report unless the majority of the credible evidence is against it. It is presumed correct unless proven otherwise.

The insurance company has to pay benefits based on that doctor's report unless and until it is overturned by a judge or by agreement.

If the doctor giving you the MMI/IR was a referral doctor, you must determine if that doctor was actually authorized to do the evaluation. If the doctor was at the same medical clinic as your treating doctor, but was not given authorization by your treating doctor, the 90 day rule may not apply. Please know this can be a perilous route to go because if no dispute is filed then a judge may disagree with you about whether the doctor was authorized.

If the doctor giving you the MMI/IR was a designated doctor, then you must request a benefit review conference to dispute the MMI/IR.

If the doctor giving you the MMI/IR was an insurance company required medical examination doctor, because the designated doctor has said you are not at MMI, you must request a benefit review conference.

Comments

[Sissy]

The doctor that did my total knee replacement I was at statutory MMI so he gave me an IR of 20% the Workman's comp insurance Carrier disputed it and sent me to their designated doctor he gave me 35% IR. Now the insurance Carrier is disputing that IR and just got approved for a BRC. My question is are they going to keep sending me to different doctors until they get the IR rating they want which is probably 0%

[Maria]

I fell off a stepladder at work and injured my knee resulting in à fractured tibula ten days later I was terminated from my job with no explanation as to why I was terminated the ins carrier denied my claim and I took me over a year just to get medical attention when I finally got an MRI there was so much damage to my knee I had to get a total knee replacement. My question is can I sue the employer for wrongful termination?