- Appeal No. 191874-s—Implications of finality for extent of injury
A decade and a half ago, the Appeals Panel issued a decision on the finality of an impairment rating at the end of the first quarter of supplemental income benefits. In that case, my client was an employee of the Alamo Endowment who had sustained a serious injury falling down some stairs. She had developed a continuously rolling tremor in the upper extremities. The parties held a CCH, which lasted five hours, and took extended expert testimony. The hearing officer observed the claimant throughout the hearing as her arms continuously shook for all five hours. The most prominent testimony was by a telephonic peer review physician who, at that time, was “stacking them deep and selling them cheap” to issue peer review reports stating that the compensable injury was minor, limited, and no longer required medical or income benefits. He testified that the claimant was consciously fabricating her symptoms. The hearing officer found this accusation of fakery not credible, but could not find a compelling account of precisely what in the injury had caused the condition. At that time, the theory that the carrier had waived this diagnosis by not objecting to the impairment rating prior to it becoming final at the end of the first quarter of SIBS was a novel theory, and the hearing officer rejected it. The Appeals Panel reversed and rendered, finding that the compensable injury included the extent of the injury in the final impairment rating as a matter of law (Appeal No. 040150-s).
This doctrine eventually came before the Court of Appeals in Austin.
The Appeals Panel has revived this doctrine in Appeal No 191874-s. There, the AP determined that the finality of the impairment rating under the 90 day provision necessarily entailed the inclusion of the disputed extent of injury. In that case, Dr. B was a referral doctor who assigned MMI/IR on behalf of the treating doctor. He considered various diagnoses, among them a right hip labral tear and right hamstring tear, that became the subject of dispute. No one disputed the IR in a timely manner. Therefore, the AP determined that, if the MMI/IR certification is final, the diagnoses it included must be finally incorporated into the compensable injury as well.
The Appeals Panel provided cautionary language regarding the offensive use of this doctrine by insurance carriers:
Our holding should not be construed as limiting claimants from expanding on what is included in the compensable injury. We acknowledge that injuries can evolve over time and that claimants may claim that additional injuries or conditions are compensable even after an IR becomes final. See APD 040150-s, decided March 8, 2004.
The Appeals Panel did not lay out any particular authority or analysis for this latter warning and acknowledgment. However, there is at least theoretical support for this concept of limiting it to a defensive use by claimants (including conditions rated) as opposed to offensive use (excluding conditions not rated).
For one thing, there can be a myriad of reasons a diagnosis is left out of an impairment rating calculation. It may not be diagnosed yet. It may not be reasonably assumed to be permanent, which is a criterion for inclusion in the rating. It may not be objectively verifiable by physical examination or laboratory findings. It may not be ratable under the Guidelines. All of these concepts are recognized within the statute.
Further, the statute itself distinguishes between an extent of injury dispute and a dispute over MMI/IR. As noted above, the statute takes great pains to warn the parties that an extent of injury dispute will not suffice, on its own, to defeat a claim of finality. It is a necessary corollary that extent of injury issues can be resolved favorably to the claimant following a certification becoming final, and the finality issue would not stand in the way of the claimant receiving medical benefits—or even, in the right case, income benefits.
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