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Citing procedural difficulty in hearings involving simultaneous issues of MMI/IR and extent of injury (EOI), Deputy Commissioner of Hearings Kerry Sullivan has implemented a limited and voluntary pilot project assessing a two-step (“bifurcated”) approach to resolve these disputes.  If the parties agree during the BRC that: (1) the EOI determination will likely lead to an agreement on MMI/IR, or (2) the EOI dispute has so many variables that deciding it first will lead to a better outcome and a more efficient hearing, they will sign an “Election” to bifurcate the hearing, and the EOI issue will be tried first, followed by a hearing on the MMI/IR issue (if necessary).  After the EOI hearing, the Hearing Officer will issue an Interlocutory Order including findings of fact on the EOI issue, after which the parties will have a reasonable period of time to reach an agreement.  If no agreement is reached, a second hearing will be held on the issues of MMI and IR based on the Hearing Officer’s EOI determination.  The Hearing Officer will then issue a Decision and Order incorporating the earlier interlocutory EOI findings, also making determinations on MMI and IR.

Sullivan cites that potential benefits of this approach include: (1) more agreements; (2) establishing correct medical benefits sooner based on the interlocutory order; (3) more control by parties over developing their evidence on MMI and IR; and (4) better, more accurate decisions, as the Hearing Officer will have a better range of adoptable options matching the EOI determination from which to choose.  

The Division anticipates that most cases in the pilot project will be ready for the CCH on EOI after only one BRC.  This is because in cases included in the pilot project, the parties will not be asked at the BRC to obtain alternate certifications or RME reports prior to the resolution of the EOI issue, as this evidence can be more efficiently obtained after that determination. 

The determination of whether the bifurcated approach will be used will be made at the BRC, only at the request of the parties, and will not be imposed over the objection of any party.  At this time, the pilot project is limited to proceedings conducted in the Division’s Weslaco field office. The Division plans to closely track the success of the project and make adjustments to improve it and correct any problems prior to expanding the program. Sullivan invites feedback, ideas, and suggestions by email: