Appeal No. 180848-s: Dispute by DWC-45 in the Absence of Prior DD, Effect of Defective DWC-32, and Unexplored Avenues
In this case, the Appeals Panel reversed and rendered a decision that the first certification of MMI/IR did not become final, contrary to the ruling of the ALJ. The relevant dates are as follows. The doctor (not a DD) issued a certification 7/24/17, received 8/10/17. The claimant filed a DWC-45 10/31/17 (no DD had been appointed) and a DWC-32 to request a DD 11/3/17. It was denied by the DWC on 11/7/17, subsequently re-filed and acted upon by the DWC.
The basis for the ALJ decision was not terribly clear from the text of the AP decision. The AP basically said that the ALJ ignored the DWC-45, which was improper by the ALJ. The rationale is that the DWC-45 is still a proper method of disputing an IR even though no DD has been appointed because that is provided for as a method of dispute regardless.
A few takeaways. One, there is a thread running through some of these decisions that are yet unexplored. One is the issue of when there is no report from the designated doctor.
The Appeals Panel has held that “[u]nder the provisions of Section 408.125, no determination can be made regarding the claimant’s IR because there is no report from a designated doctor.” See APD 020385
As previously mentioned, the Appeals Panel has held that “[u]nder the provisions of Section 408.125, no determination can be made regarding the claimant’s IR because there is no report from a designated doctor.” See APD 020385, supra. See also APD 142008, decided November 5, 2014, and APD 132423, decided December 19, 2013, in which the issues of MMI and IR were in dispute, and a designated doctor had not been appointed to opine on the issues of MMI and IR. In both APD 142008 and APD 132423, the Appeals Panel reversed the ALJ’s decision and remanded for a designated doctor to be appointed on the issues of MMI and IR.
This case also reaffirms the proposition that a defective DWC-32 is still sufficient to dispute a certification by a doctor in the absence of a DD appointed on the subject.
APD 043023-s, decided January 6, 2005, the carrier filed a DWC-32 requesting the appointment of a designated doctor to “dispute an assigned date of [MMI] and [IR];” however, the DWC-32 was returned to the carrier by the Division as incomplete because it did not complete Section III of the form. In that case, the Appeals Panel affirmed the ALJ’s determination that the filing of the DWC-32 requesting a designated doctor was sufficient to dispute the first valid certification of MMI and IR pursuant to Rule 130.12(b)(1). (incorrectly filled out 32 is sufficient for dispute within 90 days)
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