State News : Texas

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In Diaz v. American Zurich Ins. Co., No. 05-16-01530-CV, 2018 WL 1081452 (Tex. App.—Dallas Feb. 28, 2018), the Dallas Court of Appeals held that the first certification of MMI and IR became final as to the claimant because she did not timely request a BRC and she could not rely upon the BRC request filed by the carrier to stop the 90-day clock from running. 
The designated doctor found that the claimant’s injury included stenosis and disc protrusions (the “Disputed Conditions”) and that the claimant was not at MMI for the Disputed Conditions. The carrier filed a BRC request to dispute the designated doctor’s determination of extent, MMI, and IR. The carrier also requested a post-DD RME. The RME doctor determined the compensable injury did not include the Disputed Conditions, and that the claimant was at MMI with a 0% IR for the carrier accepted injury.
The claimant never requested a BRC to dispute the first certification of MMI and IR by the RME doctor. The court found that the first certification became final under the 90 day rule. The court rejected the claimant’s argument that she was not required to file a separate BRC request on the same issues raised in the carrier’s request. The court held that Rule 141.1 requires a “disputing party” to file a request for a BRC “in the form and manner required,” and the rule does not provide that a “disputing party” may rely on a request for a BRC filed by another party.
The court also rejected the claimant’s argument that there was an exception to the ninety-day rule in the form of a clearly mistaken diagnosis because the RME doctor determined that her injury did not include the additional claimed conditions. The court held that the claimant was diagnosed with the disputed conditions prior to the RME exam and that the RME doctor had considered those conditions. Therefore, any error by the RME doctor in determining the compensable injury did not include the disputed conditions is not one of mistaken diagnosis. 

James Loughlin, Stone Loughlin & Swanson, LLP.