MMI & IR:
A claimant’s first certification of maximum medical improvement (MMI) and impairment rating (IR) may be done by the treating doctor, a treating doctor referral, the designated doctor (DD) or a post DD required medical examiner (RME). There are ninety (90) days to dispute a certification, after a party receives a copy of the DWC-69 (by verifiable means). If not disputed, it will become final, unless the claimant meets one of the statutory exceptions found under Texas Labor Code §408.123(f):
(f) An employee’s first certification of maximum medical improvement or assignment of an impairment rating may be disputed after the period described by 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 impairment rating;
(B) a clearly mistaken diagnosis or a previously undiagnosed medical condition; or
(C) inadequate treatment of the injury before the date of the certification or assignment that would render the certification or assignment invalid; or
(2) other compelling circumstances exist as prescribed by commissioner rule.
In the past a certification could be disputed by filling out a DWC-32 requesting a DD for MMI and IR. Or, in a case where the certification came from a DD, a party could fill out a DWC-45 stating that they dispute the MMI and/or IR. No hearing was necessary to stop the ninety (90) days from running. The party then had time to prepare their evidence as to what the proper MMI and IR should be.
Letters of Clarification:
In cases where a DD provided the certification, either party could file the DWC-45, and then request that the Division of Workers’ Compensation (DWC) send a letter of clarification (LOC) to the DD, requesting that he review additional evidence or respond to a question.
However, in July of 2010, the DWC decided that the parties were abusing the LOC process and started denying all LOCs. The official policy from the DWC is that LOCs will be allowed in a limited fashion. But, thus far even when the DWC directs the wording, the LOC is denied. We will have to see over the next few months, what areas the DWC will allow a LOC to be sent.
If a LOC is denied, a party may request a Benefit Contested Case Hearing (CCH). In the CCH, a Hearing Officer will decide if a party is allowed to have a LOC sent.
New Rules:
Beginning October 1, 2010, the DWC amended Rule §141. With the changes to the Rule, disputing a certification has become more complicated. To stop the ninety (90) days from running, a party must request a Benefit Review Conference (BRC) by providing a complete DWC-45 disputing the MMI and/or IR. For the form to be considered complete there must be:
1) sufficient evidence to support the party’s position; and
2) evidence of attempts to resolve the issue prior to requesting the hearing.
Under the amended Rule, the ninety (90) days will continue to run until a completed DWC-45 is filed. Benefit Review Officers (BROs) have the duty of deciding if a DWC-45 is complete or not.
Disputing a DD:
In the past, the report of the DD was given presumptive weight. A party needed the great weight of the medical evidence to overcome that presumption. However, Tex. Lab. Code §408.125(c) now states:
(c) The report of the designated doctor shall have presumptive weight, and the division shall base the impairment rating on that report unless the preponderance of the other medical evidence is to the contrary. If the preponderance of the medical evidence contradicts the impairment rating contained in the report of the designated doctor chosen by the division, the division shall adopt the impairment rating of one of the other doctors.
So even though the DD is given presumptive weight, the certification may be overcome by the preponderance of the evidence. This opens the door to dispute ratings from DDs that clearly have a bias. If the DD ignores or improperly uses the AMA Guides to provide the IR, the certification may be overcome by a report that properly applies the AMA Guides.
When assisting a claimant to dispute a DD, you should always have an alternative DWC-69. If the claimant has not reached statutory MMI (104 weeks after the accrual date of disability), the alternative DWC-69 can state that the claimant has not reached MMI.
When the claimant presents their case at a CCH, the Hearing Officer will have to decide which certification to use. If there are problems with the certification from the DD and the claimant’s certification is done properly, it greatly increases the odds in the claimant’s favor.
Removing a DD:
Finally, if the DD has a disqualifying association pursuant to Rule §181.21(a)(2), the DD can be removed from the case. Many times claimant’s legal representatives are unaware of the businesses relationships that a DD may have with an insurance carrier. If the medical provider is aware of any such relationship, they should inform the injured worker. Rule §181.21(a)(2) states:
(2) Disqualifying association–Any association that may reasonably be perceived as having potential to influence the conduct or decision of a doctor, which may include:
(A) receipt of income, compensation, or payment of any kind not related to health care provided by the doctor;
(B) shared investment or ownership interest;
(C) contracts or agreements that provide incentives, such as referral fees, payments based on volume or value, and waiver of beneficiary coinsurance and deductible amounts;
(D) contracts or agreements for space or equipment rentals, personnel services, management contracts, referral services, or warranties, or any other services related to the management of the doctor’s practice;
(E) personal or family relationships;
(F) a contract with the same workers’ compensation health care network that is responsible for the provision of medical benefits to the injured employee; or
(G) any other financial arrangement that would require disclosure under the Labor Code or applicable Division rules, the Insurance Code or applicable Department rules, or any other association with the injured employee, the employer, or insurance carrier that may give the appearance of preventing the designated doctor from rendering an unbiased opinion.
In addition to the disqualifying association, a DD may be removed for being non-responsive or not following the medical guidelines.
