State News : Texas

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The DWC Appeals Panel has been busy cleaning up things ALJs have missed and/or advising them that they cannot do certain things at all.  We have it on good authority that this is an area of particular interest for the new Commissioner at DWC.

ALJ Can’t Order Payment for Alternate Certification.  In APD 182018, the ALJ heard issues in a medical fee dispute.  This was a network claim and the treating doctor referred the claimant to a non-network doctor for an MMI/IR evaluation.  At the CCH, on his own motion, the ALJ added the issue of whether the carrier had to pay for the non-network MMI/IR examination. Spoiler Alert:  the ALJ said the Carrier was liable.  The Appeals Panel said it was not the ALJ’s decision to make and reversed and rendered saying the dispute over payment for providing an MMI/IR examination is a medical fee dispute adjudicated through the MFDR process. 
If it’s Litigated, You Have to Make a Decision.  In APD 182017, the hearing was set on MMI/IR.  Apparently, however, extent of injury and the proper appointment of a second DD were also litigated at the CCH.  The crux of the matter was, apparently, whether the injury included one leg fracture or multiple leg fractures.  If there were multiple leg fractures, the DD appointed would not have been qualified.  The Appeals Panel reviewed the records and said that the parties did actually litigate the extent of injury and DD qualification issues.  As such, the ALJ’s MMI/IR determination could not be affirmed as the DD might not have been qualified.  The case was sent back to the ALJ to determine the extent of the injury, qualification of the DD and, ultimately the MMI/IR issues.
In APD 182119, the Appeals Panel reviewed extent of injury.  The BRO report showed that the self-insured “accepted” a condition but, at the CCH, it declined to stipulate to the condition as compensable.  The compensability of that condition was litigated, and the ALJ discussed it in the decision, but made no findings of fact or conclusions of law about it.  The Appeals Panel reversed and remanded for the ALJ to address the missing condition in the extent of injury decision.
 ALJ Who Misquotes Expert Cannot Rely on that Expert. In APD 182350, the Appeals Panel determined that the ALJ misstated the evidence when she asserted that one of the experts said the claimant had diabetes, by way of explaining that EMG/NCV results were consistent with polyneuropathy rather than radiculopathy.  The ALJ stated that she found that expert’s opinion most persuasive and found that the claimant did not have lumbar radiculopathy.  The Appeals Panel said that the expert did not, in fact, say that the Claimant had diabetes.  The AP held that the decision of the ALJ was based on a misstatement of the medical evidence in the case and reversed and rendered the extent of injury determination.  They also noted in a footnote, that the ALJ incorrectly referenced the date of injury in the issue statement and the discussion section of the decision.
No Permanent Impairment and 0% Impairment are Different. In APD 182195, the Appeals Panel reviewed the ALJ’s determination that Claimant reached MMI with no permanent impairment and reformed the decision.  The certification adopted by the ALJ actually assigned a 0% impairment rating, which differs from a finding that there is no permanent impairment. 
Carrier Denied RME was An Abuse of Discretion.  In APD 182111, a complex case involving multiple injuries and multiple certifications of MMI/IR, the ALJ issued a Presiding Officer Directive to a DD.  Upon receipt of the report, the Carrier asked for a continuance and the opportunity to get a post-DD RME.  The ALJ denied the request and closed the record, finding MMI/IR per that DD.  The Appeals Panel cited 408.0041(f) of the Act and Rule 126.5(c)(2) which entitles the Carrier to a post-DD RME, and found that the ALJ did abuse his discretion in not allowing the Carrier to get a post-DD RME following the DD examination ordered by the ALJ.

-  Copyright 2018,Stone Loughlin & Swanson, LLP.