Matt Lewis Law Workers Compensation Updates

1. Texas Workers’ Comp Update: April 2014 Matthew Lewis (972) 644-1111 Telephone matt@mattlewislaw.com

2. MMIAPD 130191 • MMI can’t be based on MDA/ODG alone • Basis of opinion must include physical exam findings and review of medical records • Not about average person’s recovery, but this particular patient’s recovery

3. Impairment RatingAPD 132423 • If impairment rating is in dispute, the Commissioner must appoint a designated doctor • 408.125(a) • “no determination can be made regarding the claimant’s IR because there is no report from a designated doctor”

4. Impairment RatingAPD 132865 • Diagnosis codes on DWC-69 were incorrect • AP rejected argument that wrong diagnosis codes renders DWC-69 invalid • Narrative explained the diagnoses and rated what was compensable, so no harm

5. Impairment RatingAPD 131674 • December 1, 2011 – CCH finds claimant not at MMI • Based on report of treating doctor dated July 7, 2011 • June 2013 – another CCH on MMI/IR

6. APD 131674, continued • HO found MMI reached on June 23, 2011, a date prior to the first CCH on MMI/IR • AP reversed • Overlooked fact that first CCH said that on December 1, 2011, that the claimant was not at MMI. Didn’t address that fact.

7. APD 131674, continued • Ruled instead that any new MMI decision can’t backdate prior to the report upon which the first HO relied to determine the claimant was not at MMI (July 2011) • No explanation how the AP had authority to overrule the prior CCH decision that had become final

8. APD 131674, continued • Will CCH decisions now state that the claimant has not reached MMI as of a certain date? • What if there was another IR after the July 2011 IR that was rejected by the HO in the first CCH in order to find “not at MMI.”? Would that be the swing date for MMI? • What if the preponderance of the evidence is simply contrary to the DD and the claimant is not at MMI? What then?

9. APD 131674, continued • Remand instructions included request to make findings on extent of injury • Instruction said when determining extent, the HO should consider all of the evidence, including the DWC-32 submitted by the carrier.

10. Impairment Rating / 90 Day RuleAPD 132117 • DD assigns IR, then CCH ruling that claimant is not at MMI • Later, Carrier requests DD and treating doctor performs IR days prior to DD exam • After CCH ruling, the treating doctor IR is the “first” certification

11. APD 132117, continued • Carrier’s 32 not sufficient to dispute – DD had already been appointed and it was filed prior to the treating doctor’s certification • Treating doctor’s inclusion of a non-compensable condition is not an error in use of AMA Guides

12. APD 132117, continued • Application of AMA Guides involves exam, report and explanation of how rating derived • Rating more than the compensable injury is not an exception to the 90 day rule

13. Impairment Rating / 90 Day RuleAPD 132594-S • This case addressed the exception to the 90 day rule when the impairment rating includes less than the compensable injury • At the time, prevailing on an extent of injury dispute would allow for a new IR • AP holds that rating less than the compensable injury is not an exception to the 90 day rule

14. APD 132594-S, continued • AP created this exception to the 90 day rule and has now taken it away because it was not based on law, but on policy • Section 401.011(24) defines “impairment rating” as the percentage of permanent impairment of the whole body resulting from a compensable injury.

15. APD 132594-S, continued • Any IR including more or less than the compensable injury fails to meet the statutory definition of impairment rating • If it’s not an impairment rating by definition, how can it become a final impairment rating? • Policy trumps statute

16. Impairment RatingAPD 132911 • DD’s MMI date was adopted but the IR was rejected • TD’s impairment rating was considered as if adoptable, but rejected because the narrative was lacking

17. APD 132911, continued • Remand instructions said that if the DD was no longer available, a new DD could be appointed to determine the IR for the MMI date already administratively determined. • Supports possibility of having MMI from one doctor and the IR from another

18. Impairment Rating / 90 Day RuleAPD 132541 • DD chose DRE 2, even though evidence showed radiculopathy and loss of relevant reflexes • Even though treating doctor assigned DRE 3, AP called that a difference of medical opinion and not an error in using the AMA Guides.

19. Impairment Rating / Disqualifying AssociationAPD 131335 • DD opinion was rejected due to a disqualifying association • DD and RME were both associated with Exam Works • Narratives included same address, suite number, telephone and fax numbers

20. StipulationsAPD 132926 • Parties stipulated at first CCH setting that carrier accepted liability for bilateral shoulder rotator cuff tears • At second setting, carrier refused to stipulate to the tears • AP reversed and declared that the stipulations are binding and the CCH decision must consider the tears as compensable

21. StipulationsAPD 132913 • An oral agreement of the parties that is preserved in the record is final and binding on the date made • Can be set aside if by finding of fraud, newly discovered evidence, or other good cause.

22. Extent of InjuryAPD 140002 • In prior compensability CCH, HO found that the claimant sustained a repetitive trauma injury and made findings of fact that the claimant had been diagnosed with bilateral CTS • At subsequent CCH on extent to bilateral CTS, AP affirmed HO finding of no jurisdiction due to Res Judicata. Bilateral CTS is compensable.

23. SIBSAPD 140039 • When carrier completes a DWC-52 that is sent to claimant mistakenly stating that 3 job searches are required every week rather than 5, the claimant only has to do 3 job searches each week to qualify. • Ignorance of the law IS a defense in this one instance

24. Lessons Learned From The AP • Policy is more important than law • Policy can reverse prior policy • Policy can change any day without notice or a meeting of the legislature • Stipulations are not policy and cannot change day to day • Impairment Rating policy is incomprehensible.

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