Appeal No. 190180—Finality Despite Favorable Extent of Injury
Background facts in this case: The DD report placed the claimant at MMI 7/30/17 with a 0% IR as of 10/24/17 exam, including multiple other certifications based on extent of injury. Report was emailed to claimant 10/24/17.
No DWC-45 on MMI/IR was filed prior to 90 days. A DWC-24 on extent of injury favorable to the claimant was approved prior to the CCH.
The ALJ determined that the first certification did not become final because it did not include the extent ultimately compensable per DWC-24 and the DD report had indicated not at MMI for other conditions ultimately included.
The AP reversed and remanded, stating that the not at MMI certifications were not valid “IR’s” within the scope of Rule 130.12 and therefore the first certification without the extent of injury became final. Remanded for exceptions to finality to be considered.
In this case, Dr. A provided a certification with an IR of zero percent for the compensable injury and alternate certifications that the claimant has not reached MMI for the disputed extent-of-injury conditions. However, the alternate certifications do not contain multiple IRs or ratings as stated in Rule 130.12(a)(4). Further, the alternate certifications do not contain the requirements for a valid certification as stated in Rule 130.12(c). The evidence reflects that Dr. A’s certification that the claimant reached MMI on July 30, 2017, with a zero percent IR for the lumbar sprain/strain is the first valid certification of MMI and IR for purposes of finality pursuant to Section 408.123.
The Appeals Panel determined that the first certification of the designated doctor became final under the 90 day provision, subject to possible exceptions to finality upon remand. The analysis centered around the language of Rule 130.12(a)(4). That rule involves situations where the first certification is that assigned by the designated doctor and the report contains multiple certifications with the various extent of injury permutations. In this case, there were multiple opinions on the claimant’s MMI status within the report, and corresponding DWC-69’s. Only one actually involved an impairment rating, however. The certification for the accepted compensable injury of a lumbar sprain/strain placed the claimant at MMI as of July 30, 2017 with a 0% IR. The other opinions certified that the claimant had not reached MMI.
Rule 130.12(a)(4) provides:
(4) A designated doctor may provide multiple IRs if there is a dispute over extent of injury. Whichever rating from the designated doctor applies to the compensable injury once an extent of injury (EOI) dispute has been resolved may become final if not disputed. An EOI dispute does not constitute a dispute of the MMI/IR for purposes of finality under this subsection.
The Appeals Panel relied on the language in the first part of the rule that indicates the doctor may provide multiple “IRs.” The argument is that the rule refers to IR certifications only, and therefore excludes from consideration certifications of not at MMI.
Certainly it is true that the rule, on its face, begins by referring to multiple certifications of MMI with IR. However, the cited subsection of the rule contains more text, which suggests that there is more to the story. The interpretation the Appeals Panel applies here ignores aspects of the rule which conflict with this outcome.
To begin with, Rule 130.12 subsection (a) is referring only to which certifications may become final. Subsection (a) begins with “the certifications and assignments that may become final are,” and then goes on to list the possibilities. No one would argue that a certification of not at MMI would become final, so it is outside the scope of the rule’s consideration. The rule does not, with that language, intend to limit the effect of a not at MMI certification by the designated doctor, given an extent of injury dispute.
The language that should have applied to the case is the following sentence in Rule 130.12(a)(4):
Whichever rating from the designated doctor applies to the compensable injury once an extent of injury (EOI) dispute has been resolved may become final if not disputed.
The rule contemplates that, following a designated doctor exam, the doctor may issue a report affecting MMI and IR involving multiple scenarios as to the extent of the injury. The rule explicitly provides that “whichever” rating “applies to the compensable injury” after the extent of injury issue has been resolved will become final if not disputed. If none of the ratings applies to the compensable injury after the extent issue is resolved, then none becomes final. Therefore, under the terms of the rule, only an impairment rating that applies to the extent of the injury may become final.
To hold that only in a scenario where the claimant has been certified to be at MMI multiple times within the same report does this aspect of the rule apply would frustrate the policy and purpose of the subsection (ensuring that, following a report containing multiple possibilities of the extent of injury and MMI/IR, the MMI/IR certification tracks the extent of injury resolution). It would also promote inconsistent outcomes—a claimant who has been placed at MMI and assigned various IR’s for combinations of the injury would be treated differently than a claimant who was deemed not at MMI for every possible combination of the injury except one. As a legal matter, of course, there’s nothing inherently wrong with treating one thing different than another. The problem arises when treating things differently in ways that create inconsistent outcomes for reasons not material to the purpose of the rule.
This interpretation is consistent with the intent of the authoring agency as noted in the Texas Register. There is no comment on this provision of subsection (a), but there is a similar provision in subsection (b), and the agency judgment is that the “MMI/IR question is ‘resolved’ when there is an agreement or final decision of the injured employee’s extent of injury consistent with the injuries noted for one of the assigned IRs . . . If the final decision regarding the extent of the injured employee’s injuries is not consistent with the injuries of one of the assigned IRs, the designated doctor’s MMI/IR certification with multiple impairments cannot become final.” A further point where the Appeals Panel interpretation of this rule conflicts with other operations of the statute and rules is the section regarding the payment of benefits pursuant to the opinion of the designated doctor.
A possible objection here is that the tail end of Rule 130.12(a)(4) negates this argument, indicating that an extent of injury dispute “does not constitute a dispute of the MMI/IR for purposes of finality under this subsection.” But on its own terms, that last sentence only applies if the IR may otherwise become final within the terms of the rule and subsection. The foregoing demonstrates that one IR within a designated doctor report containing multiple opinions cannot become final if it does not match the extent of injury already resolved.
Notwithstanding, if the Commissioner believes that the Appeals Panel has correctly interpreted the rule at issue, it would seem for policy purposes highly relevant to consider amending the rule to avoid unnecessary litigation over scenarios where the only IR certified relates to an original accepted set of conditions that, following a DD opinion on extent of injury, the carrier does not quarrel with.
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