State News : Texas

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In a decision marked as “significant,” the Appeals Panel reversed a CCH determination of non-compensability of specific diagnoses, and rendered a decision that the disputed diagnoses were compensable on the basis that the claimant’s impairment rating (IR) including those conditions had become final so that the conditions included in the IR were made compensable by waiver.

At CCH, the Administrative Law Judge (ALJ) found that the Claimant’s first certification of MMI/IR had become final and that his compensable injury did not include a right hip labral tear and hamstring tear.  The Appeals Panel reversed the ALJ’s decision that the right hip labral tear and hamstring tear were not compensable, finding these conditions part of the compensable injury.  In doing so, the Appeals Panel noted that “Dr. B” (a doctor selected by the treating doctor to certify MMI/IR) indicated in his report that the conditions he considered and rated were a right hip contusion/sprain and labral tear, lumbar strain, right hamstring tear, and right shoulder strain.   The Appeals Panel noted that Dr. B’s 6% IR, which had become final pursuant to Texas Labor Code Section 408.123 and Division Rule 130.12, included a rating for the diagnoses of right hip labral tear and right hamstring tear.  Therefore, the Appeals Panel held that the compensable injury extends to a right hip labral tear and right hamstring tear.  In addition, the Appeals Panel noted that the designated doctor provided a detailed causation analysis regarding the right hip labral tear and right hamstring tear.

The Appeals Panel went on to clarify that the rationale for its holding does not act to exclude diagnoses that were not included in that impairment rating certification: “Our holding should not be construed as limiting claimants from expanding on what is included in the compensable injury.  We acknowledge that injuries can evolve over time and that claimants may claim that additional injuries or conditions are compensable even after an IR becomes final.” (Citing APD 040150-s, decided March 8, 2004.)

In other words, if a first certification of MMI and impairment that includes a disputed medical condition is not timely disputed and becomes final, the disputed condition may be deemed to be compensable.  On the other hand, a Claimant is not prohibited from expanding his injury by adding additional diagnoses that were not included in a final assessment of MMI/IR.  Appeals Panel Decision 191874-s, decided December 5, 2019.

... but the issue of MMI/IR finality has to be a certified issue for adjudication in order to be a basis for Carrier's waiver of extent of injury

In a decision filed just six days later, the Appeals Panel declined to extend a similar extent of injury “waiver” theory in a case in which the issue of finality of the Claimant’s impairment rating had not been an issue certified for adjudication in the underlying CCH.

In Appeals Panel Decision No. 191919, decided December 11, 2019, the Appeals Panel reversed a decision from an ALJ that the Claimant’s compensable injury extends to include C5-6 and C6-7 central left side disc herniation.  The ALJ made several findings of fact, among them that that the Claimant’s 15% impairment rating (IR) assigned by “Dr. C” was an IR for the conditions of herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6-7, and that there was no dispute of the MMI date or 15% IR before the expiration of the first quarter SIBs period.  In doing so, it appeared that the ALJ had determined that the 15% IR (and therefore, the disputed conditions that were included in the 15% IR)  had become final pursuant to Division Rule 130.102(h), which provides that if there is no pending dispute regarding the date of MMI or the IR prior to the expiration of the first quarter of supplemental income benefits (SIBs), the date of MMI and the IR are final and binding.  

The Appeals Panel observed that although the ALJ did not expressly add the issue in her decision and order, her extent of injury determination was premised on a determination that the 15% IR had become final pursuant to Rule 130.102(h) and that this certification considered and rated herniated disc status post anterior cervical discectomy and fusion at C5-6 and C6-7.  However, in this case there had been no finality issue before the ALJ to decide.  The BRC Report did not list an issue of finality pursuant to Rule 130.102(h), and neither party at the CCH requested the addition of an issue regarding Rule 130.102(h) finality.  The Appeals Panel further noted that the MMI/IR certification at issue was not in evidence, there were no SIBs applications in evidence, no testimony or documentary evidence regarding whether or not a dispute of the claimant’s MMI and IR occurred prior to the expiration of the first quarter of SIBs, and no stipulation or testimony regarding the date of MMI or the IR based on the claimant’s compensable injury, or as to the dates of the SIBs quarters applicable to the claimant.  In fact, neither party had even argued that the 15% IR certification had become final.  

On this basis, the Appeals Panel stuck the ALJ’s Findings of Fact related to finality, reversed the ALJ’s determination on extent of injury, and remanded the extent-of-injury issue to the ALJ with instructions to determine whether the evidence supports that the compensable injury extends to include the disputed conditions.

There was no indication as to whether the Appeals Panel in Decision Number 191919 would have found the disputed conditions compensable had the issue of finality of the claimant’s IR been certified for adjudication.  However, the decision issued just six days earlier in Decision Number 191874-s is an indication that it very well would have.  

Appeals Panel Decisions 191874-s and 191919 make way for additional avenues for Claimant attorneys to circumvent the medical causation standard set out by the Texas Supreme Court in Transcontinental Insurance Company v. Crump, 330 S. W. 3d 211(Tex. 2010); that is, that the work injury must be a “producing cause” of the injury or death, which is defined as “a substantial factor in bringing about an injury or death, and without which the injury or death would not have occurred.”  By allowing for adjudication of extent of injury via a determination of finality of an impairment rating that includes the condition or diagnosis, the Appeals Panel has paved the way for a new era of extent of injury “waiver.”  

We certainly have not seen the last of this, and urge our clients to closely scrutinize the diagnoses that are included in a Claimant’s IR. If the certified impairment rating includes any disputed (or questionable) conditions, best practice will be to dispute the certification to avoid the condition becoming compensable via MMI/IR finality under Rules 130.12 or 130.102(h), or some other avenue.

-  Copyright 2020, Erin Shanley, Stone Loughlin & Swanson, LLP